Castaneda v. Commonwealth , 7 Va. App. 574 ( 1989 )

Opinion

ON REHEARING EN BANC

COLE, J.

In Castaneda v. Commonwealth, 6 Va. App. 476, 370 S.E.2d 109 (1988), a panel of this court reversed Castaneda’s conviction of possession of cocaine with intent to distribute and dismissed his indictment. We granted the Commonwealth’s petition for a rehearing en banc¹ based upon the provisions of Code § 17-116.02(D). The issues on appeal are: (1) whether the investigative stop of the defendant’s motor vehicle violated rights guaranteed to him under the fourth amendment of the United States Constitution; and (2) whether the evidence adduced at trial was sufficient to establish beyond a reasonable doubt that he knowingly and intentionally possessed cocaine with intent to distribute. We affirm the decision of the trial court.

I.

On April 23, 1986, V. C. Jones, a special agent for the Department of State Police, and other officers were located approximately 100 yards north of Exit 6 on Interstate 95 near a toll plaza in Chesterfield County. Their purpose was to locate a specific vehicle at the request of the North Carolina Highway Patrol.

Special Agent Jones, the Commonwealth’s chief witness, is a well-trained state police officer with twelve years experience, six years of which were as a uniformed state trooper involved in narcotics investigations. He worked as a full-time investigator for the state police and was assigned to the vice and narcotics unit for more than a year. Jones had attended two Drug Enforcement Administration sponsored narcotics schools, and recently had “a three-hour block” of in-service training devoted to narcotics profile stops. He was familiar with the state police manual regarding characteristics of drug traffickers on the highways.

While watching for the appearance of the North Carolina suspect, Jones observed a car leave the toll booth at the far inside lane next to the concrete barriers dividing the northbound and southbound traffic lanes. Castaneda, who was the driver of the vehicle, and his passenger, Roberto Castro, turned around in their seats to look at the officers who were observing traffic north of the toll plaza. As they did this, the car almost hit the concrete barrier, but swerved sharply to avoid the collision.

After observing these events, Jones followed the defendant north on 1-95. As he caught up with him, Jones observed that the car had a Florida license tag with a “Z” on it, indicative of a rental vehicle. He also noticed a bumper sticker displaying the name of Diaz Rental Car, Miami, Florida. When Jones pulled up next to the defendant’s car, he saw that the sole occupants were two dark-complexioned, unshaven males carrying no luggage or clothes on hangers within the car.

Jones was aware of the fact that the Virginia Department of State Police and other state police agencies across the country had begun programs to intercept drug couriers who use public highways to transport illicit substances from one place to another. He had knowledge that law enforcement agencies had developed a “profile” of such couriers, composed of several characteristics and behaviors which experience has shown are common to drug couriers, He knew that among these characteristics is the use of a rental vehicle bearing Florida registration; that Florida rental vehicles bear the prefix “Z” on the license plate; that frequently the plates indicate registration in Dade or Broward County, Florida; that such vehicles generally contain one or two occupants, frequently Hispanic or black; that they operate the vehicles in an overly cautious manner; and that they exhibit signs of nervousness when they realize they are being observed by police authorities.

Jones further possessed knowledge concerning the Diaz Rental Car bumper sticker on the car. He testified that from his knowledge and past experience in dealing with narcotics cases, and his travel in Florida on these investigations, he was aware that this type of local rental vehicle was not supposed to be taken out of Florida. He had read rental agreements for such vehicles, and knew that if they were taken out of Florida that the renter was required to pay an extra fifty cents a mile from Florida. He testified that “it didn’t make any sense to me, why someone would want to do that.”

Based upon the erratic operation of the motor vehicle at the toll booth when in the presence of the police officers; upon his having ascertained that a number of characteristics and behaviors which experience had shown were common to drug traffickers were present, indicating that the occupants of the vehicle might be drug couriers; and upon his knowledge that the bumper sticker of Diaz Rental Car indicated a “local rental” vehicle which was not supposed to be taken out of Florida, Jones stopped Castaneda’s vehicle to investigate whether the occupants were engaging in any criminal activity. He identified himself and asked to see Castaneda’s driver’s license and registration papers. Jones testified:

[Castaneda] produced them without too much delay and before I could say anything else . . . Castaneda opens the driver’s door, gets out, goes right to the trunk of the vehicle, opens it up. There was a bag, like a travel bag, laying in the trunk. He immediately unzips it, and starts emptying it of clothing and other items. . . . and as he was doing this, I said, “Are you giving me permission to search your vehicle?” And his reply, said, “Yes, you search the car.” I asked, “Are you carrying any narcotics or contraband?” “No. Search the car,” and then I told him, “You don’t have to let me search,” and he says, “Search the car. No narcotics. I am going to New York.”

During the search of the vehicle a bag was found on the back seat. Jones called for a narcotics detection dog. The dog alerted on a package underneath the seat. Subsequent tests disclosed that the package contained 1018 grams of seventy-one percent pure cocaine, the equivalent of thirty-two ounces or two pounds. Jones also seized $560 from one part of Castaneda’s wallet, but he did not seize an additional small amount of money which was separated from the $560 by a leather divider in the wallet. Following his arrest for distribution of cocaine, Castaneda denied knowledge of the presence of the cocaine. He stated that he was going to New York to visit Castro’s family.

At the close of the Commonwealth’s evidence, defense counsel renewed his motion to suppress the evidence made at the beginning of the trial and moved to strike the evidence on the basis that the Commonwealth had not proved that Castaneda knowingly and willingly possessed cocaine with intent to distribute. Both motions were overruled.

Castaneda contends that the trial court erred in denying his motion to suppress the cocaine as a result of his seizure and detention because constitutional rights guaranteed him under the fourth amendment were violated. He argues that, absent independent individual indicia of criminal activity, the fact that an individual matches characteristics of a drug courier profile does not provide sufficient cause for an investigatory stop and that no credible evidence exists from which a suspicion of criminal activity can reasonably be inferred. We disagree.

We have had occasion recently to review the law concerning investigatory stops of motor vehicles in two cases, Taylor v. Commonwealth, 6 Va. App. 384, 369 S.E.2d 423 (1988)(en banc), and Iglesias v. Commonwealth, 7 Va. App. 93, 372 S.E.2d 170 (1988)(en banc). What was said in those cases is applicable here. The stop of a vehicle on a highway and detention of the driver constitutes a “seizure” within the meaning of the fourth amendment, even though the stop is limited and the detention brief. Lowe v. Commonwealth, 230 Va. 346, 349, 337 S.E.2d 273, 275 (1985), cert. denied, 475 U.S. 1084 (1986).

In United States v. Cortez, 449 U.S. 411 (1981), Chief Justice Burger established the two elements which must be present before a stop is permissible:

First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person.

* * * *

The second element contained in the idea that ah assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.

Id. at 418.

There is no “litmus test” for reasonable suspicion. Each instance of police conduct must be judged for reasonableness in light of the particular circumstances. Terry v. Ohio, 392 U.S. 1, 21 (1968).

Courts must apply objective standards in determining whether the requisite degree of suspicion exists, taking into account that “trained law enforcement officers may be ‘able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.’ ” United States v. Gooding, 695 F.2d 78, 82 (4th Cir. 1982). Attention must be focused on objective reasonableness rather than on the police officer’s subjective intent. As the Supreme Court explained in Terry.

The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the law can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief’ that the action taken was appropriate?

Terry, 392 U.S. at 21-22. In the case at bar, we must examine the totality of the circumstances to determine whether special agent Jones had specific, articulable facts that reasonably warranted a suspicion that Castaneda was, or was about to be, engaged in criminal activity. We are not required to determine whether the drug courier profile characteristics alone, or the events at the toll barrier alone, or the “local rental” license from Florida alone, were sufficient to engender a reasonable suspicion that the defendant was engaged in criminal activity. We need only review the whole picture to determine whether the circumstances collectively are sufficient to justify the initial stop for routine questioning. See United States v. Aguiar, 825 F.2d 39, 41 (4th Cir.), cert. denied, 108 S. Ct. 505 (1987); United States v. Alpert, 816 F.2d 958, 960-61 (4th Cir. 1987); United States v. Harrison, 667 F.2d 1158, 1161 (4th Cir.), cert. denied, 457 U.S. 1121 (1982); United States v. Corbin, 662 F.2d 1066, 1069 (4th Cir. 1981).

The rental agreement in evidence is not the usual commercial rental agreement allowing the renter to drive the vehicle wherever he desires. Jones explained that, according to his knowledge and past experience in dealing with narcotics investigations in Florida, a “local rental” car from Florida is not supposed to be taken out of the state unless a substantial extra mileage fee is paid and this provision is contained in every rental contract that he was shown in Florida. Paragraph 12 of the rental agreement introduced in evidence states:

VEHICLE SHALL NOT BE DRIVEN OUTSIDE THE STATE OF FLORIDA, OR OTHERWISE REMOVED.

(a) If vehicle is driven out the State of Florida, a charge of $.50 (fifty-cents) per mile for all miles driven during entire rental period will be in addition to the rates agreed upon by Renter at time of rental.

Officer Jones testified that it made no sense for a person to use a “local rental” vehicle and pay the usual rental charges plus fifty cents extra per mile all the way to New York, when he could rent from a national agency for much less. A fair interpretation of this agreement is that the vehicle is not authorized to be driven outside of Florida. If it is, the contract imposes a severe monetary sanction to penalize the occurrence, not to authorize it. Jones testified that based upon his knowledge concerning “local rental” car agreements, he suspected the vehicle might be stolen. We find that this was a reasonable articulable suspicion which justified him stopping the vehicle to further investigate whether it was stolen.

An insert from the Training Manual of the Department of State Police, dated April 30, 1985, on the subject of Drug Courier Profile Vehicle Stops was introduced in evidence. The manual recites the characteristics which experience has shown are common to persons transporting narcotics or other contraband substances from Florida to centers in the northeast. All of the profile characteristics enumerated by the Department of State Police as common to drug couriers were present in this case. In addition, the occupants of the vehicle were unshaven and carried no luggage or clothes inside the vehicle, distinguishing them from most long distance travelers on the highways. Further, the occupants displayed unusual nervousness in the presence of the police officers at the toll plaza.

We find that these specific and articulable facts, when taken together with rational inferences, reasonably warranted the officer in believing that the driver was engaged in criminal activity. Therefore, Jones was justified in stopping Castaneda’s vehicle in order to inquire about his identity and to obtain an explanation of the suspicious circumstances. Because the officer’s initial contact with Castaneda was constitutionally permissible, we find that the trial court did not err in denying his motion to suppress.

III.

Finally, Castaneda maintains that the Commonwealth failed to prove beyond a reasonable doubt that he knowingly and intentionally possessed cocaine with the intent to distribute it. He argues that the record is devoid of any evidence that he knew that the package in the vehicle contained cocaine or that he intended to distribute it.

We examine the evidence in accordance with the standard set forth in Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975):

Where the sufficiency of the evidence is challenged after conviction, it is our duty to consider it in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom. We should affirm the judgment unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.

Further, our review encompasses the following well-established principles. To convict a person of possession of illegal drugs “the Commonwealth must prove that the defendant was aware of the presence and character of the drugs and that he intentionally and consciously possessed them.” Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975). Possession may be actual or constructive. Peterson v. Commonwealth, 5 Va. App. 389, 402, 363 S.E.2d 440, 448 (1987). Constructive possession exists when “an accused has dominion or control over the drugs.” Andrews, 216 Va. at 182, 217 S.E.2d at 814. Such “possession may be proved by ‘evidence of acts, declarations or conduct of the accused from which the inference may be fairly drawn that he knew of the existence of narcotics at the place where they were found.’ ” Id. (citations omitted).

In the instant case, the trial court sitting without a jury heard all the evidence and found defendant guilty of possession of cocaine with intent to distribute. Although there was no evidence that cocaine was found on defendant’s person, he was in constructive possession of the cocaine which was hidden in the back seat of the car he had rented and was driving. The possession of drugs need not always be exclusive. It may be shared with another. Archer v. Commonwealth, 225 Va. 416, 418, 303 S.E.2d 863, 864 (1983); Gillis v. Commonwealth, 215 Va. 298, 301-02, 208 S.E.2d 768, 771 (1974). The drugs were in the back seat of the car. When the police officer stopped the car, Castaneda quickly directed the officer’s attention away from the car’s interior to the trunk. In fact, he opened a zipped duffle bag and began taking the contents out for the officer without being requested to do so. The fact finder could infer that this attempt to draw the officer’s attention away from the back seat where the drugs were hidden evinced knowledge of the location of the drugs.

In determining whether a defendant constructively possessed drugs, defendant’s proximity to the drugs and his occupancy of the vehicle must also be considered. Although mere proximity to the drugs is insufficient to establish possession, and occupancy of the vehicle does not give rise to a presumption of possession, Code § 18.2-250, both are factors which may be considered in determining whether a defendant possessed drugs. See Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982); see also Eckhart v. Commonwealth, 222 Va. 447, 281 S.E.2d 853 (1981). Although at trial defendant claimed that he had only loaned his VISA card to Roberto Castro to rent the car, his signature appeared on the rental agreement. Moreover, at the scene, when Agent Jones asked him if he had rented the car, he said that he had.

Castaneda’s explanation that his passenger, Castro, had possession of the car before the defendant entered the vehicle could reasonably have been rejected by the trial judge. The credibility of witnesses and the weight accorded their testimony are matters solely for the fact finder, who has the opportunity of seeing and hearing the witnesses. Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985); Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982). Under the facts and circumstances established by the Commonwealth, the trial court was justified in finding that the defendant was in exclusive possession and control of the cocaine. Therefore, we turn to the issue of intent to distribute.

When the proof of intent to distribute narcotics rests upon circumstantial evidence, the quantity which the defendant possesses may indicate the purpose for which it is possessed. Monroe v. Commonwealth, 4 Va. App. 154, 156, 355 S.E.2d 336, 337 (1987). Possession of a quantity greater than that ordinarily possessed for one’s personal use may be sufficient to establish an intent to distribute it. Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 (1973).

The evidence established that Castaneda was in the exclusive possession and control of 1018 grams of seventy-one percent pure cocaine. In addition, he was transporting the cocaine from Miami to New York on 1-95, a recognized route of drug couriers and a circumstance which the trial court can consider in determining the existence of an intent to distribute. Under these circumstances, we hold that the record contains ample evidence to support the conviction of the defendant for possession of cocaine with intent to distribute.

For the foregoing reasons, the decision of the panel is reversed and we affirm the conviction in the trial court.

Affirmed.

Duff, J., Hodges, J., Keenan, J., and Moon, J., concurred.

1 Judge Baker did not participate in this en banc proceeding.