Iglesias v. Commonwealth

*113 Baker, J.,

dissenting

Because the evidence contained in this record was not sufficient to justify Trooper Berry’s belief that appellant was engaged in the transportation of illegal drugs, I respectfully dissent and would suppress the evidence discovered as a result of appellant’s unlawful seizure. The majority concludes that since appellant matched certain characteristics of a “drug courier profile” and since he drove “recklessly,” the seizure and subsequent search were lawful. In my opinion that conclusion is not supported by the evidence and is contrary to the prohibitions of the Fourth Amendment. 1

I.

Some courts have noted that law enforcement officers have employed several types of drug courier profiles. 2 A review of some of these cases and the principles derived therefrom is appropriate here. The “purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but ‘to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.’ ” Mendenhall, 446 U.S. at 553-54 (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 544 (1976)).

The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. “[Wjhenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person,” and the Fourth Amendment requires that the seizure be “reasonable.” As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such seizures depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.

*114 United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975) (emphasis added) (citations omitted). When an officer makes a brief investigatory detention the Constitution does not mandate that he possess the quantity and quality of evidence required for probable cause to arrest.

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

Adams v. Williams, 407 U.S. 143, 145-46 (1972) (emphasis added). To justify a seizure such as is present in the case at bar, “[t]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968). The Fourth Amendment requires that the intrusion be reasonably brief, no longer than necessary to effect the purpose of the stop.

The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.

Royer, 460 U.S. at 500. “Thus, evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation.” Terry, 392 U.S. at 29 .

*115 In order to assess the reasonableness of the officer’s conduct “it is necessary ‘first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen.’ ” Id. at 20-21 (quoting Camera v. Municipal Court, 387 U.S. 523, 534-35 (1967)). Justice Powell, in his concurring opinion in Mendenhall, wrote of our society’s concern with illegal drugs:

The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit. Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances. Much of the drug traffic is highly organized and conducted by sophisticated criminal syndicates. The profits are enormous. And many drugs, including heroin, may be easily concealed. As a result, the obstacles to detection of illegal conduct may be unmatched in any other area of law enforcement.

446 U.S. at 561-62.

I am mindful, however, that even with the great public interest described by Justice Powell, “[t]he scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws 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.” Terry, 392 U.S. at 21 (footnote omitted). “[S]imple ‘good faith on the part of the arresting officer is not enough.’ ... If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” Id. at 22 (citations omitted).

In Royer, the record reveals that at an airport two narcotic investigating officers suspected that the defendant was a drug trafficker because of “the so-called ‘drug profile,’ ” which was defined in a footnote to be “an abstract of characteristics found to be typical of persons transporting illegal drugs.” Royer, 460 U.S. at 493 n.2. The prosecution argued that reasonable, articulable suspicion existed to justify a temporary detention under Terry . The Su *116 preme Court agreed but did not justify the seizure on the basis of a mechanical application of a drug courier profile. Rather the Court considered each articulated fact before determining that adequate grounds existed for suspecting Royer of carrying drugs and for detaining him. Royer, 460 U.S. at 502.

In Reid v. Georgia, 448 U.S. 438 (1980) (per curiam), the Court analyzed specific facts which “appeared to the agent to fit the so called ‘drug courier profile,’ ” and concluded that such facts could not warrant a reasonable suspicion of criminal activity. Id. at 440-41 . While the Court noted that there could “be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot,” it decided that Reid was not such a case. Id. at 441 .

In Mendenhall, Justice Stewart’s opinion lists the characteristics the DEA officers thought fit “the so-called ‘drug courier profile.’ ” 446 U.S. at 547 n.1. Since Justice Stewart, joined by Justice Rehnquist, concluded that Mendenhall was not seized, his opinion does not address whether such characteristics constituted reasonable suspicion of criminal activity. Justice Powell, joined by two other Justices, concluded in a concurring opinion that in light of all of the circumstances, the agents possessed reasonable and articulable suspicion of criminal activity. Id. at 565. He did not, however, base his finding on an automatic application of a drug courier profile, writing instead that “reliance upon the ‘drug courier profile’ [would not] necessarily demonstrate reasonable suspicion. Each case raising a Fourth Amendment issue must be judged on its own facts.” Id. at 565 n.6.

Thus, while noting that a drug courier profile has been developed by drug enforcement officers, the United States Supreme Court has yet to specifically approve or disapprove of its use to justify an investigatory stop. I agree with Judge Moylan that the United States Supreme Court will never approve a drug courier profile developed by drug enforcement officers to be adequate to meet the Terry requirements:

It is a convenient descriptive term without a great deal of legal significance. Some lament the fact that the Supreme Court has not yet told us whether meeting the so-called “drug courier profile” is an adequate predicate to establish either articulable suspicion for a stop or probable cause for *117 an arrest or search. Of course, the Supreme Court has not told us that and they never will. Indeed, they cannot, for there is no such thing as a single drug courier profile; there are infinite drug courier profiles. The very notion is protean, not monolithic. United States v. Mendenhall, refers to it as “an informally compiled abstract of characteristics thought typical of persons carrying illicit drugs.” It is simply an open-ended laundry list of more or less suspicious circumstances, some of which may occur in a particular case.

Grant v. State, 55 Md. App. 1 ,_, 461 A.2d 524, 526 (1983) (emphasis added) (citations omitted); see also Taylor v. Commonwealth, 6 Va. App. 384 , 369 S.E.2d 423 (1988) (Baker, J., concurring).

Because a drug courier profile is simply a checklist of many varying characteristics, a particular profile is itself of no legal significance in the determination of reasonable suspicion. Berry, 670 F.2d at 600; Grant, 55 Md. App. at _ , 461 A.2d at 526 . Whether an individual matches none, some or all characteristics of a certain profile does not perfunctorily decide one way or the other whether reasonable suspicion exists to support an investigatory stop. Mendenhall, 446 U.S. at 565 n.6 (Powell, J., concurring).

Instead, the critical determination is whether the specific and articulable facts upon which the particular seizure is based warrant the intrusion. Terry, 392 U.S. at 21-22 . Thus, a match between certain characteristics of a profile and characteristics exhibited by an individual “does not automatically establish reasonable suspicion.” Berry, 670 F.2d at 600. A judge must “evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.” Terry, 392 U.S. at 21 . A mechanistic application of a profile fails to focus on the particular circumstances of each case. “Each case raising a Fourth Amendment issue must be judged on its own facts.” Mendenhall, 446 U.S. at 565 n.6 (Powell, J., concurring).

Such a conclusion does not necessarily render irrelevant the characteristics listed as being part of a particular profile. The fact that an individual matches one or more characteristics of a profile may in the particular circumstances justify an investigative seizure.

*118 If an officer can demonstrate why some factor, interpreted with due regard for the officer’s experience and not merely in light of its presence on the profile, was, in the particular circumstances of the facts at issue, of such import as to support a reasonable suspicion that an individual was involved in drug smuggling, we do not believe that a court should downgrade the importance of that factor merely because it happens to be part of the profile. Our holding is only that we will assign no characteristic greater or lesser weight merely because the characteristic happensto be present on, or absent from, the profile.

Berry, 670 F.2d at 601 (emphasis added).

The majority initiates its discussion of the so-called drug courier profile by correctly stating that it is a descriptive term without legal significance, that the reviewing court must look at the actual observations testified to on a case by case basis and decide whether they add up to reasonable suspicion, just as if the phrase “drug courier profile” had never been coined. Had the majority applied its pronouncement of law to the facts of this case, it would have been compelled to find the seizure of appellant unsupported by reasonable suspicion of criminal activity. Instead, the majority promptly ignores the view it just espoused and erroneously attaches legal significance to the concept of a drug courier profile, stating that the simple matching of an individual to a profile can be relied upon by an officer to make a stop. The opinion then proceeds to justify the stop of appellant based on his matching certain characteristics of a profile, and concludes at the end of Part II that reasonable suspicion of criminal activity was established since appellant matched characteristics of a drug courier profile. The majority thus justifies the seizure of appellant not because the facts articulated, and evaluated in light of the particular circumstances irrespective of their presence on a profile, were of such import as to support a reasonable suspicion that appellant was involved in drug trafficking, but rather simply because the facts fit a profile. A particular seizure may be constitutionally permitted because the articulated facts justify it, but not simply because those facts have been designated as a drug courier profile.

In my concurring opinion in Taylor, 6 Va. App. at 389 , 369 S.E.2d at 425 , I expressed concern that both Federal and State *119 courts have permitted themselves to become so engrossed with the phrase “drug courier profile” that they are being led from the reasoning of Terry , which gives police officers the right to make stops of persons based on reasonable suspicion. My concern increases as I read the majority opinion here to declare that a stop of an individual can be justified by the presence of a profile without evidence or explanation why the characteristics relied upon for the particular stop create a suspicion of drug trafficking. The majority in Taylor appears to continue the chase of the elusive profile. The chase worsens here as the majority now declares that the profile, without any explanation of the meaning of the characteristics contained on the list, is sufficient to create in an experienced officer’s mind a suspicion which justifies his stopping an automobile engaged in what would otherwise appear to be innocent travel. I continue of the opinion that Terry governs, not a manufactured laundry list. To decide whether the record in this case supports the trial judge’s finding that the actions of the police were reasonable under the Fourth Amendment, this Court must examine the articulated facts given to justify the investigatory stop of appellant’s automobile to determine whether those facts warrant the intrusion. Trained police officers may be “able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.” Brown v. Texas, 443 U.S. 47 , 52 n.2 (1979); Brignoni-Ponce, 422 U.S. at 884-85 . The facts relied on must therefore be analyzed in light of the law enforcement officer’s knowledge and expertise. Mendenhall, 446 U.S. at 561 (Powell, J., concurring). However, any special meaning perceived by a police officer in certain conduct because of the officer’s peculiar expertise must be articulated or demonstrated to the court, and its reasonableness determined independently of the officer’s subjective assertions, if the court rather than the officer is to be the ultimate enforcer of the Fourth Amendment. United States v. Gooding, 695 F.2d 78, 82 (4th Cir. 1982); Berry, 670 F.2d at 601.

An examination of the record before us discloses that it is devoid of evidence as to why the facts alleged to match a “drug courier profile,” and relied upon by Trooper Berry, raised a reasonable suspicion that illegal drugs were being transported by appellant. 3 Berry testified that one reason he pulled appellant’s vehi *120 ele over was that appellant was traveling north on Interstate 95. Nothing in the record, though, indicates why northbound travel on Interstate 95 is significant or raises a suspicion of criminal activity. Such an activity is characteristic of many presumably innocent travelers. The majority’s statement at the end of its opinion that Interstate 95 is a “recognized” route of drug couriers is not supported by evidence, as Berry offered no testimony on the subject of routes used by drug couriers. Without any evidence before it, the majority has, sua sponte, declared travel on Interstate 95 inherently suspicious.

Trooper Berry further testified that one of the facts which persuaded him to stop appellant was that appellant was driving a rental car from Florida. There is, however, no explanation in the record why the use of a Florida rental car distinguishes appellant from law abiding travelers. The majority apparently attaches significance to the approximate mileage distance between Florida and Virginia, but fails to tell us how this distance relates to the determination of reasonable suspicion to stop appellant. Berry also testified that appellant appeared to be between the ages of twenty and thirty-five and was traveling alone. We are however, left without an indication why a young male traveling alone creates a suspicion of drug trafficking. Again, the majority’s statement that people in such an age group “might be drug couriers” is unsupported by any testimony. Moreover, an individual’s right to personal security free from interference by law enforcement officers cannot be abridged because he “might be” engaged in criminal activity. Such a standard cannot support the seizure of a person.

Berry opined that a cooler in the car indicated that appellant did not wish to make frequent stops. Nothing is articulated in this record to show that the desire of an interstate traveler to avoid frequent stops raises a suspicion that the traveler is transporting illegal drugs. Presumably, one chooses travel upon the interstate system precisely because of a wish not to stop frequently during the journey. The record is devoid of any indication why a cooler in a car signifies the presence of drugs. As it is not unusual for travelers to carry coolers on long automobile trips in July, the Court is left to speculate why such an activity is suspicious.

*121 Berry testified that as appellant’s vehicle passed through the toll booth, he observed no luggage inside the car, although in fact, luggage rested on the floor of the backseat. The majority infers that because Berry did not see luggage, appellant was making a quick trip, indicating therefore, that he was a drug courier. No evidence, however, was presented to show that a lack of luggage in the passenger compartment of an automobile signifies a quick trip, and nothing in the record indicates that those who make quick trips are drug couriers. The significance of luggage, or a lack thereof, was never articulated in the trial court. No testimony was offered that the manner in which one transports luggage bears a relationship to the trafficking of illegal drugs. The first mention that an absence of luggage in the passenger area of a car means a quick trip and the presence of drugs comes from the majority; and we are left to speculate how such a conclusion was reached since no evidence supports it. One must wonder what the majority feels is the purpose of an automobile’s trunk.

Sufficiently explained, the facts introduced might support the trooper’s suspicion of criminal activity and justify an investigatory stop. However, if those facts are to meet constitutional requirements, the officer must be able to articulate meaning to them so that the detached, neutral trial judge may determine the reasonableness of the officer’s suspicion. Gooding, 695 F.2d at 82 . While the facts may suggest to an experienced narcotics officer the presence of illegal drug activity which the average person could not detect, it is for the trial judge, not the officer, to decide based upon the evidence presented whether, in the light of the circumstances, the articulated facts are of such import as to support a reasonable suspicion that the person stopped was illegally engaged in transporting drugs.

In this case, there was no evidence presented to the trial judge to demonstrate that the so-called profile characteristics relied upon to seize appellant bore any relation to the trafficking of illegal drugs. It is impossible for a neutral and detached judicial officer to determine whether the trooper’s suspicion was reasonable if there is nothing to indicate why the facts relied upon by the trooper were suspicious. If the trial judge merely accepts the assertion of the law enforcement officer that in his mind the facts created a reasonable suspicion, the Fourth Amendment guarantee that the reasonableness of seizures be evaluated by a neutral and *122 detached judicial officer is breached.

II.

The majority attempts to bolster its position by relying on what it terms appellant’s “recklessness” in driving through the toll gate and in making a lane change. Again the record fails to support the majority’s view. 4 Trooper Berry testified that he noticed appellant’s car “jerk to the left and he appeared to try to make a rolling stop through the toll barrier there, and the gate itself made him come to a complete stop.” Berry never testified that appellant’s behavior at the toll booth constituted a traffic violation. In fact he testified that other cars attempted a “rolling type stop.” Berry merely characterized appellant’s actions as unusual, stating that appellant did not stop where the usual traffic stopped. Appellant deposited his money in the basket and stopped at the barrier until it rose. The record does not bear out the majority’s conclusion that appellant’s driving behavior at the toll booth was reckless or violated traffic laws. To Berry, appellant’s behavior merely indicated nervousness in the presence of a police officer, a characteristic of Berry’s drug courier profile. Mere nervousness cannot justify the stopping of appellant’s car.

The majority also claims that the lane change executed by appellant as he was being pursued by Trooper Berry supports the investigatory stop. Although Berry testified that he felt that a summons for an improper lane change was warranted, 5 it is clear from the record that the lane change played no part in Berry’s decision to stop appellant. No evidence was presented that appellant had violated any laws when he drove away from the toll booth, yet three unmarked police cars pursued him like a posse *123 chasing a bandit. Upon pulling appellant’s vehicle to the side of the highway, Berry did not issue any traffic summons but instead informed appellant that he was being stopped because he met the profile of a narcotics courier. Berry then asked if appellant was transporting illegal narcotics.

At the preliminary hearing the following colloquy took place between defense counsel and Berry:

QUESTION: This was purely a profile stop? It was not a stop for a traffic infraction or supposition of other activity? The sole and complete basis for your stopping him was in your view he met this profile?

ANSWER: That’s correct.

At the suppression hearing, defense counsel referred Berry to this testimony and asked him:

Q: Why did you answer as you did in the lower court? Was that answer correct, were you telling the truth in that incident?

A: What I felt like you were probably asking me was, was there a traffic infraction there that caused me to stop the man or did you stop him on a profile stop.

Thus, Berry’s suppression hearing testimony confirmed his preliminary hearing testimony that no traffic infraction precipitated the stop. It is obvious that Berry’s decision to stop appellant was based solely on appellant’s matching certain characteristics listed on the police profile, and was made when appellant drove away from the toll booth. Any other conclusion is at odds with the realities of the case and simply strains common sense. A claim that the stop was based upon the alleged improper lane change is simply a pretext for what actually happened, an afterthought obviously prompted by the prosecuting attorney’s attempt to add to the lack of evidence upon which to justify the seizure of appellant.

In determining when an investigatory stop is unreasonably pretextual, whether an officer theoretically could validly have stopped the car for a possible traffic infraction is not determinative. The actual subjective intent of the officer is similarly imma *124 terial. A stop for a possible traffic violation becomes a pretext for an investigatory or Terry-stop “not because the officer secretly hoped to find evidence of a greater offense, but because it [is] clear that an officer would have been uninterested in pursuing the lesser offense absent that hope.” United States v. Smith, 799 F.2d 704, 710 (11th Cir. 1986). Trooper Berry was never interested in pursuing an alleged traffic violator; rather he stopped appellant solely because, in his opinion, he fit some of the characteristics listed on his drug courier profile. The attempt to justify the stop upon the alleged traffic violation “was merely a pretext to legitimate the impermissible stop.” 6 United States v. Miller, 821 F.2d 546, 549 (11th Cir. 1987); Smith, 799 F.2d at 711 .

When we allow investigatory stops to proceed based upon pretextual reasons we further violate the Fourth Amendment requirement that the nature and scope of a seizure be reasonably related to its justification.

The manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they were warranted at all.'The Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing preconditions upon its initiation. The entire deterrent purpose of the rule excluding evidence seized in violation of the Fourth Amendment rests on the assumption that “limitations upon the fruit to be gathered tend to limit the quest itself.” Thus, evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation.

Terry, 392 U.S. at 28-29 (citations omitted). “If officers were permitted to conduct Terry-stops based upon what conceivably could give rise to reasonable suspicion of minor traffic violations, the necessary connection between a seizure’s justification and its scope would necessarily unravel.” Smith, 799 F.2d at 711 .

*125 III.

I recognize the great public interest in this nation’s war against illegal trafficking in narcotics. I concur in Justice Powell’s observations that the public has a compelling interest in detecting the illegal profiteers who deal in drugs, and further that few problems affecting the health and welfare of our population, particularly our young, cause us greater concern. Mendenhall, 446 U.S. at 561-62. As important as winning that war is, in fighting it the courts must not by their decisions repeal the Bill of Rights which guarantee a continued free society.

Because the record lacks an explanation why the trooper concluded that appellant’s car may have been transporting contraband, I am of the opinion that the stop of appellant’s vehicle was not justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, and further that the stop cannot be justified upon an allegation of traffic violation. Therefore, the stop was an unreasonable seizure prohibited by the Fourth Amendment to the Constitution of the United States and Article I, Section 10 of the Constitution of Virginia and violative of rights guaranteed to both the innocent and guilty. The seizure being unlawful, the consent to search is invalid and the use of evidence discovered as a result of the search is prohibited. Royer, 460 U.S. at 507-08; Zimmerman, 234 Va. at 613, 363 S.E.2d at 710. Without such evidence the record does not support appellant’s conviction.

Accordingly, I would reverse the judgment of the trial judge denying the motion to suppress and the subsequent conviction, and dismiss appellant from further prosecution.

Had the stop of appellant been lawful, I would affirm the conviction since the discovered evidence was sufficient to support the finding that appellant was guilty as charged in the indictment.

See, e.g., Florida v. Royer, 460 U.S. 491, 493 (1983); United States v. Mendenhall, 446 U.S. 544, 547 (1980); United States v. Berry, 670 F.2d 583, 600 (5th Cir. 1982); State v. Cohen, 103 N.M. 558 ,_, 711 P.2d 3, 4 (1985), cert. denied, 106 S. Ct. 2276 (1986); Grant v. State, 55 Md. App. 1 ,_, 461 A.2d 524, 526 (1983).

The majority states that Troopers Berry, Jones and Childers had their suspicions aroused by appellant and therefore followed him in separate unmarked cars. In fact, Jones *120 testified that he followed appellant because Berry directed him to, and since Childers did not testify at all, we do not know why he followed appellant.

The majority misstates the facts when it says that, after glancing at Trooper Berry, appellant “. . . jerked his car to the extreme left of the toll plaza. . . .” The statement implies that appellant abruptly changed lanes prior to entering a toll booth and then entered a booth away from where Berry was stationed. In fact, appellant entered the booth where Berry stood and. then jerked his vehicle to the extreme left of the single booth, and not to the extreme left of the entire toll plaza. In so doing, appellant moved his car away from Berry, who was standing on his right, and toward the exact change basket in which he then deposited his toll.

The only traffic violation which Berry testified that he felt appellant may have committed was an improper lane change, not reckless driving as implied by the majority’s footnote 4. Moreover, he only gave that testimony after the Assistant Commonwealth Attorney suggested to him that a lane change violation was “possible.”

The Attorney General also recognized the true significance of the alleged traffic violation and in argument before this Court did not rely upon the lane change but asked us to affirm the conviction based solely on facts perceived by Trooper Berry prior to his pursuit of appellant.