Iglesias v. Commonwealth

Benton, J., with whom Barrow, J.,

joins, dissenting.

This Court recently held in Taylor v. Commonwealth, 6 Va. App. 384 , 369 S.E.2d 423 (1988), that reasonable, articulable suspicion that illegal narcotics are being transported cannot rest solely on the fact that a traveller matches a drug courier profile. Id. at 388-89 , 369 S.E.2d at 425 ; see also Reid v. Georgia, 448 U.S. 438, 441 (1980). A seizure premised solely on a belief that an individual matches a drug courier profile is therefore violative of the fourth amendment. Taylor, 6 Va. App. at 388-89 , 369 *126 S.E.2d at 425 . Today, a different majority than that in Taylor , including the dissenters in Taylor , suggest that Taylor is distinguishable and not controlling as a principled basis for deciding this case. I disagree and dissent.

In order to support a legitimate seizure under the fourth amendment “suspicion must be focused on the particular individual seized.” United States v. Berry, 670 F.2d 583, 600 (5th Cir. 1982); see Zimmerman v. Commonwealth, 234 Va. 609, 612 , 363 S.E.2d 708, 709 (1988). Iglesias was stopped solely because he fit a drug courier profile. The profile “[neither] . . . focus[es] on the particular circumstances at issue [n]or . . . indicate [s] in every case that a specific individual who happens to match some of the profile’s vague characteristics is involved in actions sufficiently suspicious as to justify a stop.” Berry, 670 F.2d at 601 . In fact, the relationship of the profile characteristics to specific acts of criminality is an empirical question whose answer cannot be gleaned from this record.

There is no evidence on this record that the police officers observed conduct that suggested in light of their own experiences, and not merely because of the existence of the profile, that Iglesias was carrying drugs. Furthermore, the officers have not articulated on this record any conduct that would provide a basis for a trier of fact to draw such a conclusion. In upholding the seizure the majority ignores the basic precept of Taylor .

“[Particularized suspicion” is not achieved by the mere presence of drug courier profile characteristics. More is required to elevate a law enforcement officer’s “inchoate and unparticularized suspicion or ‘hunch’ ” to a “reasonable and articulable suspicion that the person seized is engaged in criminal activity.

The characteristics which the officer relied on in this case were insufficient to support a reasonable and articulable suspicion that the defendants in fact possessed illegal drugs. Black or Hispanic males from twenty to thirty-five years of age driving northbound on Interstate 95 in Florida registered rental cars constitute a large category of presumably innocent travelers. These characteristics have no apparent relationship to criminal activity, and there is no evidence in this record of an empirical relationship between these character *127 istics and criminal behavior. Thus, the drug courier profile provided no more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” This “hunch” may be a useful tool for law enforcement officers in identifying those who should be closely watched but, without more, cannot be the justification for an investigative detention.

Taylor, 6 Va. App. at 388-89 , 369 S.E.2d at 425 (citations omitted). In order to reach the conclusion that the majority asserts, it is necessary to assume the validity of the profile as a predictor of particularized criminal activity. Because the profile “is hazy in form, susceptible to great adaptations, and almost entirely speculative,” United States v. Sokolow, 831 F.2d 1413, 1424 (9th Cir. 1987), any conclusion that is grounded in the profile is equally speculative.

I agree with all of the discussion and analysis of the facts of this case contained in the dissenting opinion by Judge Baker. However, to the extent the legal discussion in his dissenting opinion disavows the holding of Taylor and acknowledges that “[sufficiently explained, the facts introduced might support the trooper’s suspicion of criminal activity and justify an investigative stop,” I cannot give my assent.

Law enforcement officers in our State have been provided with a drug courier profile developed by some other law enforcement entity and have been instructed to survey and stop vehicles that meet the profile. Taylor v. Commonwealth, 6 Va. App. at 393-94 , 369 S.E.2d at 428 , (Cole, J. dissenting). However, in assessing whether a particularized suspicion of ongoing criminal activity supports a seizure, the focus must be upon whether actions of the particular subject “betrayed an involvement in a developing crime.” Sokolow, 831 F.2d at 1419 . In analyzing the propriety of the selective and subjective intrusion that occurred in this case, and in other cases such as Taylor and Castaneda v. Commonwealth, 6 Va. App. 476 , 370 S.E.2d 109 (1988), this Court is “not obliged to accept blindly any fact the police can muster when the government fails to establish any credible connection between that fact and a suspicion of ongoing (or recently completed) criminal activity.” Sokolow, 831 F.2d at 1418 . The amorphous idea, called a “drug profile,” that forms the basis upon which police authorities stop young Black and Hispanic citizens who drive Florida *128 rental vehicles through the State of Virginia is a composite of such facts and cannot, standing alone, furnish the basis for finding particularized suspicion.

Absent evidence that the profile, which solely contains characteristics shared by large segments of the general population, has predictive validity, reliance upon a police officer’s rote statement of the premise upon which the profile was compiled as a justification for stopping a traveler is contrary to the principles of Terry. Not only does such testimony fail to establish particularized suspicion, but, being based upon an unproved hypothesis, it is also inherently unreliable.

In this type of case, the traditional focus on criminal activiiy shifts to a focus on the personal characteristics of the individual under scrutiny. Not only is this transfer of focus impermissible, its accuracy is often uncorroborated. Here, an officer must testify that a pattern of behavior, otherwise explicable as innocent behavior, does not exist in a significant number of innocent people. The officer testifies not about his own trained observation of a criminal activity, but instead about the probability that drug couriers generally exhibit certain external characteristics. Unfortunately, the testimony seldom is constructed in that extended a fashion. Empirical documentation would be necessary for the assertion that, for example, the class of nervous, cash-paying travelers to Miami does not include significant numbers of innocent persons. The court is left to evaluate not the reasonableness of an officer’s assessment of facts demonstrating an ongoing criminal enterprise, but the probabilistic evidence (compiled from cases not before the court) that indicates that “innocent” behavior is not so innocent.

* * *

The very transmutability of the profile demonstrates that it fails to justify a Fourth Amendment seizure. When the focus is away from facts indicating ongoing criminal activity and instead upon innocent behavior in which criminals may engage, virtually anything may support “reasonable” suspicion.

United States v. Sokolow, 831 F.2d at 1420 .

*129 The majority concludes that the officer was justified in stopping the defendant because he “exhibited behavior more drastic than” that exhibited by the suspects in Taylor . As Judge Baker’s dissent points out, the facts do not support the majority’s conclusion. Furthermore, the majority fails to explain how, even under its interpretation of the facts, the “exhibited behavior” which the officer is alleged to have detected created a suspicion of ongoing criminal activity. The officers suspicions did not rise above the level of an “inchoate and unparticularized suspicion or ‘hunch.’ ” Reid, 448 U.S. at 442 .

The evidence in the record belies after-the-fact attempts to provide a lawful justification for the stop. No evidence on this record supports the assertion that Iglesias attempted at any time to evade the law enforcement authorities or that he committed a traffic infraction. Again, as Judge Baker’s dissent points out, the assertion by the majority opinion that Iglesias did something evasive or suspicious at the toll booth is simply unsupported by the record.

The evidence establishes that after Iglesias drove away from the toll plaza, at least three officers ran from their observation posts at the toll plaza to their vehicles in order to pursue and stop Iglesias’ vehicle. Berry, whose unmarked vehicle “runs a little better than [Agent Jones’ vehicle],” was the first to reach Iglesias. Berry described what occurred as he closed the distance between his unmarked vehicle and Iglesias’ vehicle:

When I got up close enough, say within about 75 yards of him, he was driving in the left lane and was passing a tractor trailer. All of a sudden, he went over into the right lane in front of the trailer. The trailer had to slam on his brakes. I myself wasn’t operating a marked police car. That raised my suspicions for getting out of my way, when I’m just driving an every day car.

Berry did not testify that Iglesias attempted to evade him; moreover, when signalled to do so, Iglesias pulled onto the shoulder of the highway and stopped. Agent Jones, who also pursued Iglesias, arrived at the scene in his vehicle after Iglesias had stopped and exited his vehicle. Because Iglesias was travelling at the legal speed limit of fifty-five miles per hour, it is reasonable to infer from the timing of Jones’ arrival and Jones’ comments concerning the speed of Berry’s vehicle in relation to his that Berry was driv *130 ing at a high rate of speed as his unmarked vehicle came up behind Iglesias’ vehicle. Significantly, Berry’s own testimony establishes that Iglesias was simply “getting out of [the] way” of Berry’s fast moving vehicle when he changed lanes.

Similarly, the record fails to support the majority’s conclusion that the stop was justified because Iglesias committed a traffic infraction. Iglesias was not issued a traffic ticket. Berry testified that he neither stopped nor cited Iglesias for a traffic infraction. Significantly, the Commonwealth’s attorney stated during the trial: “[A]t the time[,] all [Berry] wanted to do was make a profile stop and not issue a summons, because there was no illegal activity.” The assertion that Berry had a right to issue a ticket evaporates in light of those statements and the inescapable inference that Iglesias moved his vehicle into the right lane in order to clear the lane for the vehicle that was fast approaching from his rear. 1

“[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); see also United States v. Miller, 821 F.2d 546, 549 (11th Cir. 1987). Berry’s own testimony that Iglesias “glanc[ed] in the mirror” before “getting out of [the] way” of the unmarked, fast moving vehicle as it closed behind him provides the reasonable explanation for the lane change and negates the assertion that the *131 lane change provided an objectively reasonable basis for the stop. Berry’s testimony negates any suggestion that he had probable cause or that there in fact existed probable cause to believe that a traffic violation had occurred. The evidence, thus, provides no basis upon which to conclude that “a reasonable officer would have made the seizure in the absence of illegitimate motivation.” Smith, 799 F.2d at 708 .

Finally, in response to the suggestion in Judge Keenan’s concurring opinion that the consent to search was voluntary, it should be noted that the trial judge has made no finding on this record that Iglesias’ consent was voluntary. See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973). Nor could such a finding be supported by the facts of this case. “When trying to establish that there was a voluntary consent after an illegal stop, the [Commonwealth] has a much heavier burden to carry than when the consent is given after a permissible stop.” United States v. Ballard, 573 F.2d 913, 916 (5th Cir. 1978). In discharging its burden the Commonwealth must establish that the claimed voluntary act, the alleged consent, was “sufficiently an act of free will to purge the primary taint” of the illegal seizure. Wong Sun v. United States, 371 U.S. 471, 486 (1963); United States v. Recalde, 761 F.2d 1448, 1458 (10th Cir. 1985). The record in this case fails to establish and, indeed, could not establish that the consent was free from the taint of the illegal seizure. The temporal proximity of the illegal seizure and the “consent,” the lack of intervening circumstances, and the purpose and flagrancy of the law enforcement officers all lead to the conclusion that the causal connection between the illegal seizure and the “consent” remained unbroken. See Recalde, 761 F.2d at 1459 .

For these reasons I would reverse the conviction and dismiss the indictment.

Contrary to the assertion in the concurring opinion by Keenan, J., defense counsel did not stipulate that Iglesias’ driving conduct provided a basis upon which Berry lawfully could have issued a traffic summons. The “stipulation” was made during the following examination of Berry:

COMMONWEALTH’S ATTORNEY: Now, taking that into consideration and taking into consideration the abrupt lane change where he endangered people’s lives, in your opinion —

DEFENSE COUNSEL: Judge, that is not his testimony that he endangered any people’s lives.

COMMONWEALTH’S ATTORNEY: He said that the truck had to slam on his brakes. THE COURT: That’s what he said.

COMMONWEALTH’S ATTORNEY: Could you have issued him a summons for a traffic violation?

DEFENSE COUNSEL: Judge, I’ll stipulate they could have issued one. He could have walked over and issued him one.

Berry quite obviously could have issued a ticket, because he had the power to do so; however, the issue to be resolved is the objective reasonableness of the stop and Berry’s right to issue a ticket.