Limonja v. Commonwealth , 7 Va. App. 416 ( 1988 )

Opinion

COLE, J.

Margaret Mary Limonja and Raymond James Brooks were convicted in a bench trial of possession of cocaine with intent to distribute. On appeal, they contend that the seizure of their persons, the search of their car, and their extended detention violated rights guaranteed to them under the fourth and fourteenth amendments to the United States Constitution. We disagree and affirm.

I.

We review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)(citing Code § 8.01-680).

On November 17, 1985, Trooper Thomas C. Keith of the Virginia State Police was patrolling Interstate 95 in an unmarked vehicle near the Walthall exit. He observed the defendants traveling north in a car with a Florida license plate indicating that the vehicle was a rental car from Dade County. His suspicions aroused, Trooper Keith attempted to run a license check, but all of the computers in Florida were down. At this time, Keith radioed for a narcotics dog and a backup.

Soon thereafter, the defendants drove through a stop sign at an automatic toll booth without paying the toll. Officer Keith pulled them over at 12:20 p.m. Officer Dempsey joined Keith as a backup. Keith asked for and received the defendants’ drivers’ licenses and the rental agreement in place of a registration card. These checked satisfactorily. He explained to the driver, Limonja, that he had stopped her because she had run the automatic toll booth without stopping or paying. When asked why she had done so, she replied that she did not have a dime, the required exact change. From his vantage point outside of the car, Keith noticed, according to his testimony, “a part of the radar detector on the other side of the vehicle in the passenger seat.” On cross-examination, Keith stated that he “could see a portion of it” but did not know “exactly” what it was.

Having determined that the vehicle had been rented in Florida, that the driver was Hispanic, that no luggage was in the vehicle, and that a radar detector was partially in view on the passenger’s side of the vehicle, Keith asked permission to search the vehicle, suspecting the two individuals of drug trafficking. When the defendants consented to a search, Keith had both Limonja and Brooks exit the vehicle and move to the rear where they would be “away from traffic.” Officer Dempsey stated that he was “positioned at the side of the occupants looking to see that they did not get hit.” Keith proceeded to search the passenger compartment and trunk.

During the course of the search, Keith took possession of the radar detector behind the right front passenger seat. He also found a dime and four nickels in the ashtray located on the dash. In the trunk, Keith found suitcases and a gift wrapped package. Keith asked Brooks and Limonja which piece of luggage belonged to them. They each identified their luggage. The suitcases were searched but nothing unusual was found. Keith then asked to whom the gift wrapped package belonged. Defendant Brooks stated that it belonged to neither of them and that he was delivering it for a friend. Keith thought the package was addressed to “Ray,” Brooks’ first name, but Brooks said that it was addressed to “Roy.” Although he said that he did not know what was inside of it, Brooks stated that he had written and placed the label on the package. According to the testimony of Keith, although it was not a hot day, Brooks “broke out in a heavy sweat under both arms while we were talking about the package” and “once I took the package and had it set on the front of my car, . . . Mr. Brooks had his mind strictly on that package.” Brooks eventually signed a written consent to open the package.

Shortly after the vehicle was stopped, Officer Keith again requested the State Police communication center to obtain a narcotics dog. When the dispatcher discovered their own narcotics dog was not available, he contacted the Chesterfield County police, the Petersburg police and other area jurisdictions in an effort to obtain a narcotics dog. While waiting for the narcotics dog to arrive, Brooks withdrew his consent to search the package at 12:48 p.m., saying that he wanted to wait and see what the narcotics dog did.

At 1:10 p.m., a narcotics dog from Chesterfield County arrived on the scene. Approximately fifty minutes had elapsed. The dog, an experienced drug detection canine, alerted on the package. Keith then explained to Brooks what had occurred. Brooks asked Keith: “What happens if I don’t let you open the package?” In response to the question, Keith then “explained to him that [he] would have to get a search warrant to open it since the dog had hit on it.” Brooks then consented, stating that the package was not his and he did not know what was in it.

Keith had difficulty opening the package which was covered with electrical tape. Brooks provided a nail file to assist him. As the package was being opened, Brooks inquired, “What if it’s a radar detector?” The package consisted of gift wrapping of a cardboard box bearing the markings of Micronta Road Patrol XK radar detector device which was the same make and model number of the radar detection device found earlier and served as a basis for the radar detection violation. When Keith opened the package, he found a white powder substance, subsequently determined to be approximately 1000 grams of cocaine of 82.2 percent purity. Both defendants were then arrested. The time of the arrests was 1:20 p.m. Another search of Brooks’ suitcase disclosed an additional 300 grams of cocaine of 78.4 percent purity.

After opening the package, additional time was taken at the scene to search the baggage of the parties and to make provisions for the security of their vehicle. Officer Keith left the scene at approximately 3:30 p.m. to go to the magistrate’s office. Finding the magistrate extremely busy, Keith had to wait. The arrest warrant on the drug charge and the traffic citations (which had been written at the scene but not issued to the defendants) were finally processed and executed upon the defendants between 4:00 p.m. and 6:00 p.m.

Prior to trial, Limonja and Brooks moved to suppress all evidence obtained incident to the stop, contending the stop was illegal because it was not based upon probable cause or reasonable and articulable suspicion. Over their objection, the motion to suppress was denied.

II.

Although Limonja and Brooks admit that the police could lawfully have stopped them for running the automatic toll booth stop sign, they claim the stop was pretextual because it was for the purpose of conducting an illegal investigation of suspected criminal activity. As proof that the stop was pretextual, they point to the fact that the stop occurred at 12:20 p.m., that the traffic summons was not issued until 4:30 p.m., and that, during the interim period, the police focused their attention upon the contraband investigation. They maintain that, as a consequence of this unlawful conduct, all of the subsequent acts are tainted by the initial alleged illegality.

The Commonwealth asserts that the police were justified in stopping the defendant’s vehicle for its failure to stop at the stop sign in violation of Code § 46.1-173¹ and failure to pay the required toll in violation of Code § 33.1-345(8).² Further, it maintains that unless the defendants can demonstrate that the police do not ordinarily stop people who run through stop signs and toll booths, no pretext can be claimed.

The objective sufficiency of the reasons for the stop is the test for determining whether the stop is pretextual. Police actions are to be tested “under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved.” Scott v. United States, 436 U.S. 128, 138 (1978)(footnote omitted).

[T]he validity of an arrest is normally gauged by an objective standard rather than by inquiry into the officer’s presumed motives. If this were not so, an arrest’s validity could not be settled until long after the event; it would depend not only on the psychology of the arresting officer but the psychology of the judge.

United States v. McCambridge, 551 F.2d 865, 870 (1st Cir. 1977). “Whether a Fourth Amendment violation has occurred ‘turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,’ and not on the officer’s actual state of mind at the time the challenged action was taken.” Maryland v. Macon, 472 U.S. 463, 470-71 (1985) (quoting Scott, 436 U.S. at 136, 138-39 n.13). “[I]n determining whether an investigative stop is invalid as pretextual, the proper inquiry is whether a reasonable officer would have made the seizure in the absence of illegitimate motivation.” United States v. Smith, 799 F.2d 704, 708 (11th Cir. 1986)(emphasis in original).

In Horne v. Commonwealth, 230 Va. 512, 339 S.E.2d 186 (1986) , the defendant was a suspect in a rape and murder investigation. When the police learned of two outstanding misdemeanor warrants against him, they arrested him on those charges but interrogated him concerning the rape and murder investigation. The defendant confessed. On appeal, the defendant argued that the misdemeanor arrests were pretextual and therefore all evidence derived therefrom should have been suppressed. Id. at 514-15, 339 S.E.2d at 188. The Virginia Supreme Court disagreed:

[E]ven though the officers were acting on the basis of warrants, [the defendant] would have us analyze the motive of the police. We think such an approach would be unworkable. It would require a judge in every squad car. In every case of an arrest pursuant to a warrant, the court would have to look over the shoulder of the police, and ask, “Why is he really arresting this person?” We reject this subjective approach in a case such as this where the officers were executing warrants.

Id. at 517, 339 S.E.2d at 189-90. “[I]f the arrest is bona fide,” held the Court, “the police can make preplanned coordinated use of the arrest to give them the opportunity to ask questions about matters for which probable cause to arrest does not exist.” Id. at 517, 339 S.E.2d at 190.

The same reasoning applies when a traffic infraction rather than an arrest is the basis for the stop. It is inappropriate in either case to attempt to determine the true motive of the officer. Rather, the appropriate test is whether a reasonable officer would have made the seizure.

In the present case, the police had the authority to stop the motor vehicle for failing to stop at a stop sign in violation of Code § 46.1-173(C) and for failing to pay the required toll in violation of Code § 33.1-345(8). We believe that any reasonable police officer who observed such conduct would have seized that individual and issued him a citation or an arrest warrant. See McCambridge, 551 F.2d at 870 (stopping defendant for “following too closely” was not pretextual where sheriff had just stopped another driver for same offense); cf. Smith, 799 F.2d at 709 (stopping defendant for failure to change lane safely and reckless driving was pretextual where driver only deviated six inches from road and weaved slightly within a single lane of an interstate highway). Therefore, we find that the initial stop was not pretextual.

III.

The Commonwealth further justifies the extended detention on the basis of consent. The defendants contend that the consent they gave was obtained by coercion and deception, and that the Commonwealth did not meet its burden of proving the consent was freely and voluntarily given. They claim that they were never apprised of their right to leave the scene or to refuse the search.

Where consent is freely and voluntarily given, probable cause and a search warrant are not required. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The defendants are correct in asserting that the burden is on the Commonwealth to prove the voluntariness of the consent. Lowe v. Commonwealth, 218 Va. 670, 678, 239 S.E.2d 112, 117 (1977), cert. denied, 435 U.S. 930 (1978). Whether the consent was freely given is a question of fact to be determined from “the totality of all the circumstances.” Id. The voluntariness of the consent is a question of fact to be determined by the trial court and must be accepted on appeal unless clearly erroneous. Stamper v. Commonwealth, 220 Va. 260, 268, 257 S.E.2d 808, 814 (1979), cert. denied, 445 U.S. 972 (1980).

In Schneckloth, the Supreme Court established the standard to determine voluntariness of a consent:

[W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.

412 U.S. at 248-49.

The evidence in this case adequately establishes that Limonja and Brooks voluntarily and intelligently consented to a search of the vehicle. Officer Keith approached the defendants’ vehicle and explained to them that he had stopped them because the operator had run the automatic toll booth. At that point, Keith asked for permission to search the vehicle. Both defendants gave oral consent, first Limonja and then Brooks. Keith had them exit the car and stand to the rear in order to be away from traffic. The search was not made upon any claim of authority by the police; there was no show of force by the police; there were no threats; the defendants have claimed no mental or emotional infirmity nor does the record disclose any; and there has been no deception as to identity or purpose on behalf of the police. Furthermore, Officer Keith’s failure to inform the defendants of their fourth amendment protections or their right to refuse consent does not render the consent involuntary. United States v. Watson, 423 U.S. 411, 425 (1976).

Although the defendants claim coercion and deception, they have not pointed to any specific facts in the record to support these conclusions. There is no evidence of coercion or deception on the part of the police. Because a valid consent to search obviates the need for probable cause or a warrant, it was not necessary for the Commonwealth to prove probable cause to search.

IV.

The defendants contend that even if the traffic stop was valid, the traffic citation should have been issued and they should have been permitted to go on their way. They argue that when the police detained them over an extended period of time without probable cause and searched their car and its contents, they exceeded the scope of their authority and the purpose of the stop, requiring suppression of the evidence seized as a result of the search.

The Commonwealth does not claim probable cause for the search, but justifies the continued detention upon the standards announced in Terry v. Ohio, 392 U.S. 1 (1968). The Commonwealth claims that the police possessed reasonable suspicion based upon articulable facts to justify the detention beyond the time necessary to issue the traffic summons. Further, the Commonwealth maintains that the extended detention was justified because the defendants voluntarily consented to it.

As stated in part III of this opinion, we find that the oral consent to search the car was freely and voluntarily given. Written consent was then given to search the gift wrapped package but was withdrawn at 12:48 p.m. Because the detention was consensual until that point, only the delay thereafter must be considered in determining whether the length of the detention was unreasonable. Approximately twenty-two minutes elapsed between withdrawal of Brooks’ consent and when the narcotics dog alerted on the package.

At the time consent to search the gift-wrapped package was withdrawn, the police knew that the defendants matched some of the criteria of the drug courier profile, an informally compiled abstract of characteristics that experience has shown are typical of persons transporting illicit drugs: (1) the defendants were driving a Florida rental vehicle from Miami; (2) they were traveling north on 1-95, a known route of drug traffickers from Florida to the northeast; (3) two persons were in the car, one of whom was Hispanic; and (4) no luggage was seen in the vehicle. Furthermore, they knew that the defendants were in possession of a radar detector in violation of Code § 46.1-198.1. Defendant Limonja lied about her reason for running the toll booth; she did, in fact, have the required exact change. Defendant Brooks became very nervous and sweated heavily when the gift-wrapped package was discovered, and, although he said he knew that it was addressed to “Roy” because he placed the label on it, he said it was not his and that he did not know what was in it. We find that this combination of articulable facts gave the officers reasonable suspicion to justify the detention after the consensual stop ended.

The defendants contend that the police exceeded the bounds of an investigatory stop by detaining them for over sixty minutes. Thus, argue the defendants, probable cause to arrest was required and since it did not exist, any evidence seized must be suppressed. However, as just stated, only twenty-two minutes of the detention were without consent, not sixty, as the defendants contend.

“[Tjhere is [no] litmus paper test for . . . determining when a seizure exceeds the bounds of an investigative stop.” Royer v. Florida, 460 U.S. 491, 506 (1983). The Supreme Court has refused to adopt a “hard-and-fast time limit for a permissible Terry stop.” United States v. Sharpe, 470 U.S. 675, 686 (1985); United States v. Place, 462 U.S. 696, 709 n.10 (1983,). “Much as a ‘bright line’ rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria.” Sharpe, 470 U.S. at 685.

In assessing whether a detention is too long in duration to be considered an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.

Id. at 686.

Using the foregoing test, courts have upheld detentions of forty-five minutes, United States v. Davies, 768 F.2d 893, 901 (7th Cir.), cert. denied, 474 U.S. 1008 (1985); fifty minutes, United States v. Alpert, 816 F.2d 958, 964 (4th Cir. 1987); sixty minutes, United States v. Large, 729 F.2d 636, 639 (8th Cir. 1984); United States v. Campbell, 627 F. Supp. 320, 325-26 (D. Alaska 1985), aff'd, 810 F.2d 206 (9th Cir. 1987); and seventy-five minutes, United States v. Borys, 766 F.2d 304, 313 (7th Cir.), cert. denied, 474 U.S. 1082 (1985). Each of the last four cited cases involved delays necessitated by efforts to obtain a narcotics dog for sniffing luggage or packages, as in this case.

The defendants’ reliance upon United States v. Place, 462 U.S. 696 (1983), is misplaced. In Place, the Court found that the police had not “diligently pursue [d] their investigation” because they “knew the time of Place’s scheduled arrival at LaGuardia, had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on [Place’s] Fourth Amendment interests.” Id. at 709. In our case, however, as in United States v. Quinn, 815 F.2d 153, 158 (1st Cir. 1987), there was “no way that the agents could have greatly shortened their inquiry if they were to ‘confirm or dispel their suspicions’ meaningfully.” Unlike Place, the police, in this case, had not been investigating the defendants, had not anticipated the encounter, and could not have dispelled their suspicions more quickly.

Even in airport cases, the courts have recognized that there is no requirement that narcotics dogs be maintained at the airport so as to be “immediately available.” Borys, 766 F.2d at 314; see Alpert, 816 F.2d at 964. It is just as clear that there will be inevitable delay in obtaining a dog to sniff luggage or packages transported on interstate highways. If, as in this case, the officers make a diligent effort to obtain a dog, continued detention during the delay does not violate the constitution. Therefore, applying Place and Sharpe, we find that the detention did not exceed the permissible bounds of an investigatory stop.

V.

Finally, the defendants contend that Brooks’ consent to open the package was not freely and voluntarily given but rather was the result of coercion and deception. This contention is without merit. When the narcotics dog alerted on the package, probable cause to search existed. United States v. Race, 529 F.2d 12 (1st Cir. 1976). Officer Keith told Brooks that if he did not consent, Keith could get a search warrant. Keith did not misrepresent the situation to Brooks, and no evidence exists that any of the other factors negating voluntary consent, as discussed in part III of this opinion, were present. Therefore, we find that the consent to search the gift wrapped package was voluntary and the evidence obtained pursuant to the search was properly admitted into evidence.

For the reasons stated, we affirm the judgment of the trial court.

Affirmed.

Duff, J., concurred.

1 Code § 46.1-173 states, in pertinent part:

A. The State Highway and Transportation Board may classify, designate and mark state highways and provide a uniform system of marking and signing such highways under the jurisdiction of this Commonwealth .... The driver of a vehicle shall obey and comply with the requirements of road signs erected upon the authority of the State Highway and Transportation Board.

C. The failure of such driver to obey such signs, signals, markings or lights or to comply with the provisions of this section shall constitute a traffic infraction.

2 Code § 33.1-345(8) provides that fialure or refusal to pay a toll constitutes a Class 1 misdemeanor. For reasons unknown, Officer Keith did not arrest defendant Limonja on this offense. Had he done so, a warrantless search of the car’s passenger compartment and any containers therein would have been justified as incident to an arrest. See New York v. Belton, 453 U.S. 454 (1981).

Effective July 1, 1988, failure or refusal to pay a toll is a traffic infraction in violation of Code § 46.1-229.4.