Record and brief — Taylor v. Virginia

wong

81-1475.

No. Se

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1981.

HENRY FOSTER TAYLOR, Petitioner,

vs.

CCMMONWEALTH OF VIRGINIA, Respondent.

PETITION FOR WRIT OF CERTIORARI

From the Supreme Court of Virginia

Robert P. Boyle

James Hingeley,

Counsel for Petitioner,

420 Park Street

P.O. Box 990

Charlottesville,

Virginia 22902

Robert P. Boyle

James Hingeley,

Counsel of Record,

420 Park Street

P.O. Box 990

Charlottesville,

Virginia 22902

(804)977-6155

February 2, 1982

QUESTION PRESENTED

Should evidence seized in, or ob-

tained as a consequence of, Virginia

State Trooper Spencer's warrantless

search of Henry Foster Taylor's truck

on the night of January 30, 1980, be

suppressed on the ground that Trooper

Spencer conducted the search without

probable cause in violation of the

Fourth Amendment to the United States

Constitution.

TABLE OF CONTENTS

Question Presented

Table of Authorities

Opinions Below

Jurisdiction

Statute Involved

Statement of the Case

Reasons for Granting

This Writ

Conclusion

Appendix A:

Opinion of the Supreme Court of

Virginia, of December 4, 1981.

Letter Opinion of June ll, i981

in the Circuit Court of

Louisa County

Judgment of Conviction and Sen-

tencing of September 8, 1980

in the Circuit Court of

Louisa County

Appellant's Motion to Suppress

filed in the Circuit Court

of Louisa County

aon fO ue

15

31

32

51

53

56

TABLE OF AUTHORITIES

CASES:

BRINEGAR v. UNITED STATES,

U. . .

CARROLL v. UNITED STATES,

U. 7. .

CHAMBERS v. MARONEY

399 U.S. 42 (1970), reh.

den. 400 U.S. 856.

JONES v. UNITED STATES,

U. . .

PRESTON v. UNITED STATES,

U.S. .

RAKAS v. ILLINOIS,

U. 7 970) .

CONSTITUTIONAL PROVISIONS:

U.S. CONST. AMEND. IV.

Pages

17, 18, 21

15, 16, 17,

21

27

29

24, 26, 27,

28

29

15

OPINIONS BELOW

The opinion of the Supreme Court of

Virginia is not officially reported at

this time, but is unofficially reported

at 222 Virginia Peports Reprints 750

(1981) and is printed in Appendix A here-

to, infra, page 32. The letter opinion

of the Circuit Court of Louisa County is

printed in Appendix A hereto, infra, page

51.

JURISDICTION

The judgment of the Supreme Court

of Virginia (Appendix A, infra, page 32)

was entered on December 4, 1981. The

jurisdiction of the Court is invoked un-

der 28 U.S.C. §1257(3).

STATUTE INVOLVED

U.S. CONST. AMEND. IV

The right of the people to be secure in

their persons, houses, papers, and ef-

fects, against unreasonable searches

and seizures, shall not be violated,

and no Warrants shall issue, but upon

probable cause, supported by Oath or

affirmation, and particularly describing

the place to be searched, and the persons

or things to be seized.

STATEMENT OF THE CASE

On the night of January 30, 1980, the

Petitioner, Henry Foster Taylor, was driv-

ing an Avis rental truck near Triangle

Plaza Shopping Center on State Route 22,

not far from the intersection of U.S.

Route 33 with Route 22 in Louisa County,

Virginia. Henry Taylor stopped this

vehicle for a brief period of time on

Route 22, and went over to talk with

some friends who were in an automobile

parked in the A & P Parking lot of Tri-

angle Plaza Shopping Center. While on

routine patrol, Trooper P. T. Spencer of

the Virginia State Police and Officer

Kenny Harper of the Louisa County Sher-

iff's Department pulled up in Mr. Spen-

cer's police cruiser behind this truck

and began questioning Mr. Washington, who

was seated on the passenger side of the

truck. Mr. Taylor came running over to

- 8-

move the truck, but he was not allowed

to do so. In response to Trooper Spen-

cer's questions, Mr. Taylor showed the

officer the rental papers by which he

Claimed possession of the truck, offered

to have his chauffeur's license and

social security number verified by the

Division of Motor Vehicles, and explained

that his sister-in-law, Augusta Gaynelle

Baird, had rented the vehicle for him

and that was the reason why her name

was on the rental papers.

Trooper Spencer did not accept this

explanation and placed Mr. Taylor under

arrest for unlawfully parking on a pub-

lic highway. At this time, Trooper

Spencer noticed that the truck appeared

to be loaded since its rear springs were

depressed on one side. In response to

Trooper Spencer's questions, Mr. Taylor

denied that the truck was loaded and

- 9 -

explained its appearance to the officer

by saying it was always like that.

Trooper Spencer asked Mr. Taylor for

permission to search the enclosed rear

cargo area of the truck. Mr. Taylor

refused to open the cargo doors for the

officer or give his permission for the

doors to be opened, and he told the

officer that if the officer did it him-

self he would be doing it against Mr.

Taylor's will.

Trooper Spencer then placed Mr. Tay-

lor and Mr. Washington in the custody

of Officer Harper, who placed them in

the: back of the police cruiser, and

radioed for police assistance. Several

police officers and police cars arrived

on the scene, and Trooper Spencer opened

the rear of the truck where he found a

large spool of aluminum wire. The

Petitioner, Henry Taylor, and all those

- 10 -

with whom he had been speaking in the

immediate area were then taken down to

the

Police Station and charged with

Grand Larceny. Neither Trooper Spencer

nor

Officer Harper had been made aware

prior to this incident of any alleged

unlawful activity on the part of Mr.

Taylor or any of the others arrested

that evening, nor were they on the look-

out

nor

for this particular rental truck for

reason. Neither of them searched

Taylor at the scene of the search of

rental truck, and neither Mr. Taylor

any of the others arrested were in

reach of the rear of the rental truck

when the doors were opened and the

search took place.

the

Finally, throughout this incident,

rental truck was solely in the pos-

session and control of the Petitioner,

Henry Taylor. The record is very clear

- il «-

that Gaynelle Baird rented the van at

Henry Taylor's request, for Henry Taylor,

and turned over complete possession and

control of the Vehicle to Henry Taylor.

Henry Taylor gave Gaynelle Baird the

money for the rental of the truck, Ms.

Baird gave Mr. Taylor the change hack

from this money, Ms. Baird gave Mr.

Taylor the keys which were the sole

means of control of this truck, and she

gave him the rental papers executed by

her at Avis.

In a timely manner before trial,

Mr. Taylor filed a written Motion to

Suppress all evidence obtained in the

January 30, 1980 search of the Avis

rental truck, and all leads to evidence

derived fromthe search, including but

not limited to the testimony of any and

all individuals who were at the scene of

the search and interrogated as a result

= 12 -

thereof. The Motion stated that the

evidence sought to be suppressed was

obtained in violation of the Fourth

Amendment to the Constitution of the

United States. An evidentiary hearing

on this Motion was conducted on May 20,

1980, following which, on June ll, 1980,

the Circuit Court of Louisa County de-

nied the Motion. On September 8, 1980,

the Circuit Court entered an Order sen-

tencing Henry Foster Taylor to six

months in jail, and a Notice of Appeal

was filed to the Supreme Court of Vir-

ginia.

The appeal to the Virginia Supreme

Court was timely pursued and, through

his assignment of error, Mr. Taylor

challenged the validity of the trial

court's denial of his Motion to Suppress.

By its decision of December 4, 1981, the

- 13-<-

Supreme Court of Virginia upheld the

trial court's denial of Mr. Taylor's

Motion to Suppress.

° 14 <

REASONS FOR GRANTING THIS WRIT

In its opinion of December 4, 1981,

the Virginia Supreme Court made it clear

that the one dispositive issue in this

case was whether State Trooper P.T.

Spencer, Jr. had probable cause to

search the 1978 model truck he encoun-

tered while on patrol in the T wn of

Louisa, Virginia, late in the evening

of January 30, 1980. This dispositive

issue was erroneously decided by the

Virginia Supreme Court which held that

probable cause to search existed. The

probable cause determination was central

to the case because the Fourth Amendment

to the U.S. Constitution, as construed

in Carroll v. United States, 267 U.S.

132 (1925), does not allow warrantless

searches of motor vehicles unless prob-

able cause to search and exigent circum-

- 15 -

stances, normally inferred from the mo-

bility of motor vehicles, exist at the

time the search is commenced. Since

the existence of exigent circumstances

has not been disputed here, the case

turns on the determination that probable

cause for Trooper Spencer's search did

exist.

Defining what constitutes probable

cause has been no easy task for courts,

and recognizing when it exists has pre-

sented tremendous difficulty to law en-

forcement officers in the field. This

is particularly true in the situation

where, as here, an officer makes a war-

rantless search and no neutral magis-

trate reviews the officer's grounds for

believing probable cause exists. The

Court in Carroll, supra, noted that def-

initions of probable cause appear fre-

quently in reported cases, and, after

- 16 -

examining a number of these, set out its

own formulation:

[T]he facts and circumstances

within their (the arresting

officers') knowledge and of

which they had reasonably trust-

worthy information were suffi-

cient in themselves to warrant

aman of reasonable caution in

the belief that intoxicating

liquor was being transported

in the automobile which they

stopped and searched.

267 U.S. 132, 162 (1925). This standard

was both confirmed and elaborated upon

in the later case of Brinegar v. United

States, 338 U.S. 160 (1949), which re-

viewed a probable cause determination

made on facts quite similar to those

‘

presented in Carroll, supra. The Court

in Brinegar stated:

In dealing with probable cause,

however, as the very name im-

plies, we deal with probabil-

ities. These are not techni-

cal; they are the factual and

practical considerations of

everycay life on which reason-

able and prudent men, not le-

gal technicians, act ... "The

- 17 -

substance of all the defini-

tions" of probable cause "is

a reasonable ground for belief

of guilt.” McCarthy v. De Armit,

99 Pa. St. 63, 69, quoted with

approval in the Carroll opin-

ion. 267 U.S. at 161. And this

--- has come to mean more than

bare suspicion.

338 U.S. 160, 175 (1949). The Brinegar

Court recognized as troublesome the line

between "mere suspicion and probable

cause” and opined that the "line neces-

Sarily must be drawn by an act of judg-

ment formed in the light of the particu-

lar situation and with account taken of

all the circumstances." 338 U.S. 160,

176 (1949).

A number of key points essential to

a careful review of the case at hand

emerge from these cases and their dis-

cussions of probable cause:

1) Probable cause must

exist at the time the search

is commenced; the discovery

of fruits or instrumentalities

of crime during a search

- 18 -

ed

is not a circumstance that

may be considered in hind-

sight as contributing to

the existence of probable

cause.

2) The existence of

probable cause is to be

judged in practical, non-

technical terms and from

the viewpoint of a man of

reasonable caution.

3) The only circum-

stances to be considered

in any probable cause de-

termination are those with-

in the knowledge of the law

enforcement officer conduct-

ing the search or of which

he has reasonably trust-

worthy information.

4) Probable cause is

more than suspicion.

Mechanically applying these accept-

standards to the facts of this case

cannot yield any result; rather, the

Court must consult its sound judgment

and wisdom born of experience in apply-

ing the standards, and in the process,

determine the result of this case and

give renewed vitality to the standards

- 19 -

themselves. It is submitted that the

facts of this case, when reviewed in the

light of sound judgment and experience,

and according to the applicable stan-

dards, do not establish any proper legal

basis for Trooper Spencer's warrantless

search of Henry Taylor's vehicle.

When Trooper Spencer first encoun-

tered Henry Taylor on January 30, 1980,

he had absolutely no reason to believe

that Mr. Taylor was engaged in any il-

legal undertaking, other than the possi-

ble traffic violation which Trooper

Spencer stopped to investigate. The

only reasonably trustworthy information

or personal knowledge Trooper Spencer

had, connecting Mr. Taylor with illegal

activity, he acquired in the few moments

before the search of Mr. Taylor's vehi-

cle was conducted. This stands in

stark contrast to the facts stated by

- 20 -

the Court in Carroll, supra and Brine-

gar, supra, where it was clear the law

enforcement officers had good reason to

know in advance of stopping the vehicles

and conducting their searches that the

drivers were engaged in illegal activity.

What information Trooper Spencer

did acquire in the few moments preceding

his warrantless search of Mr. Taylor's

truck may have aroused his suspicions,

but did not give him probable cause to

search. Because Mr. Taylor did not have

his driver's license with him, Trooper

Spencer was unable to make a positive

identification of Mr. Taylor. Mr. Tay-

lor, however, gave the officer his

true name, and the officer had no reason

to believe Mr. Taylor was not one of

the many law-abiding Virginia citizens

who from time to time misplace or for-

get their drivers' licenses. Mr. Taylor

e 21 «

gave what the officer considered to be

an unsatisfactory account of where he

had been and where he was going. Mr.

Taylor had no obligation to keep an ac-

curate record of his movements that eve-

ning, though, so his vague responses

could reasonably have denoted unfamil-

iarity with back roads and small town

names rather than suspicious behavior.

The officer also felt that Mr. Taylor

was unable to account satisfactorily for

his possession of the truck, but Mr.

Taylor produced the rental papers for

the truck and gave a reasonable and ac-

curate explanation why the rental papers

were made out in the name of his sister-

in-law, Augusta Gaynelle Baird. In each

of these instances, Mr. Taylor had done

nothing to set himself apart from ordi-

nary law-abiding citizens or to cause

the officer to focus upon him as possi-

- 22 -

bly being engaged in illegal activity.

An additional circumstance which

Trooper Spencer considered in determin-

ing to search Mr. Taylor's vehicle with-

out a warrant was Mr. Taylor's denial

that the truck was loaded. It had been

the officer's observation that the

truck body was leaning, from which he

concluded it contained a heavy load.

Mr. Taylor, however, explained to the

officer that during the time he had had

the truck, the truck body had always

been leaning. While this explanation

obviously failed to satisfy the officer,

it nonetheless raised a question at the

time about the officer's conclusion

that the truck was loaded. The conflict

between the officer's observations and

Mr. Taylor's explanation m: "ht be said

to justify some suspicion on the offi-

cer's part, but in the face of the offi-

- 23 -

cer's uncertain knowledge of whether

cargo was on board Mr. Taylor's truck,

it cannot be said that he had probable

cause to search for evidence of crime.

The facts in Petitioner's case

are remarkably similar to the facts

stated in Preston v. United States, 376

U.S. 364 (1964), a case in which the

United States Supreme Court was asked

to review the reasonableness of a war-

rantless search upheld in the lower

courts. The facts stated in the Preston

opinion are:

The police of Newport,

Kentucky, received a tele-

phone complaint at 3 o'clock

one morning that “three sus-

picious men acting suspicious-

ly" had been seated in a

motorcar parked in a business ¢

district since 10 o'clock

the evening before. Four

policemen straightaway went

to the place where the car

was parked and found peti-

tioner and two companions.

The officers asked the three

men why they were parked

@ 24 <

there, but the men gave

answers which the officers

testified were unsatisfac-

tory and evasive. All three

men admitted that they were

unemployed; all of them to-

gether had only 25 cents.

One of the men said that he

had bought the car the day

before (which later turned

out to be true), but he

could not produce any title.

They said that their reason

for being there was to meet

a truck driver who would pass

through Newport that night,

but they could not identify

the company he worked for,

could not say what his truck

looked like, and did not know

what time he would arrive.

The officers arrested the

three men for vagrancy, searched

them for weapons, and took

them to police headquarters.

The car, which had not been

searched at the time of the

arrest, was driven by an

officer to the station, from

which it was towed to a ga-

rage. Soon after the men

had been booked at the station,

some of the police officers

went to the garage to search

the car and found two loaded

revolvers in the glove compart-

ment. They were unable to

open the trunk and returned

to the station, where a detec-

tive told one of the officers

to go back and try to get into

- 25 -

the trunk. The officer did

so, was able to enter the

trunk through the back seat

of the car, and in the trunk

found caps, women's stockings

(one with mouth and eye holes),

rope, pillow slips, an ille-

gally manufactured license

plate equipped to be snapped

over another plate, and other

items. After the search one

of petitioner's companions

confessed that he and two

others - he did not name

petitioner - intended to rob

a bank in Berry, Kentucky,

a town about 51 miles from

Newport. At this, the police

called the Federal Bureau of

Investigation into the case

and turned over to the Bureau

the articles found in the car.

It was the use of these arti-

cles, over timely objections,

which raised the Fourth Amend-

ment question we here consider.

376 U.S. 364, 365-366. While the narrow

ground for decision in Preston, supra,

was the Court's determination that the

search and seizure were unreasonable

because they took place at some time

and distance removed from the initial

police investigation, it was necessary

- 26 -

for the Court also to conclude that the

police did not have probable cause to

search the vehicle when they first came

on the scene. There can be no doubt

that the Court does not regard the facts

in Preston, supra, as sufficient to give

rise to probable cause for a warrantless

vehicle search, for, in the later case

of Chambers v. Maroney, 399 U.S. 42

(1970), reh. den. 400 U.S. 856, the

Court stated:

In Preston, supra, the arrest

was for vagrancy; it was ap-

parent that the officers had

no cause to believe that evi-

dence of crime was concealed

in the auto.

399 U.S. 42, 46.

Every case must be judged on its

own unique facts, and the decision of

the Court in Preston, supra, is not

controlling in this case. Preston, how-

ever, is helpful for illustrating how

- 27 «

the abstract principles governing prob-

able cause determination operate in a

factual context quite similar to the

case at hand. The inability of the

persons arrested in Preston to account

satisfactorily for their presence in a

business district in the early hours of

morning, to say when they would be mov-

ing on, to describe who they were wait-

ing for, to produce title to their car,

or to give direct answers to all police

questions, did not, in the Court's view,

furnish probable cause for a warrant-

less search of the car by police. The

line between suspicion and probable

cause was not crossed in Preston, de-

spite a substantial accumulation of

suspicious circumstances.

The Petitioner here, Henry Foster

Taylor, respectfully submits that the

Court must, after reviewing the facts

- 28 -

and circumstances confronting Trooper

Spencer at the time he commenced his

warrantless search of Mr. Taylor's truck,

conclude that Trooper Spencer acted on

mere suspicion, rather than on probable

cause, which the law requires. The

warrantless search thus being without

proper legal basis, the evidence obtained

in the search or as a consequence of it

must be suppressed in accordance with

Mr. Taylor's timely filed Motion to

Suppress.

Despite the trial court's decision

that Mr. Taylor did not have standing to

challenge the validity of the warrantless

search of his vehicle, it is apparent

from the facts that he did have proper

standing in law, in accordance with the

principles set forth in Jones v. United

States, 362 U.S. 257 (1960) and Rakas v.

Illinois, 439 U.S. 128 (1970) and cases

- 29 -

cases therein cited. Mr. Taylor's

standing is further demonstrated by the

fact that the Virginia Supreme Court, in

its opinion in this case, (printed in

Appendix A, infra, p. 32) decided Mr.

Taylor's appeal to that Court on the

merits and without one mention of the

standing issue.

- 30 <-

CONCLUSION

For the foregoing reasons this

petition for a writ of certiorari should

be granted.

Respectfully submitted,

+ Site y - iihes meer ys wee

“James Hingeley - |

-Counsel for Petitioner

Robert P. Boyle

James Hingeley

Counsel of Record

420 Park Street

P.O. Box 990

Charlottesville, Virginia

- 22902

February 2, 1982

- 31 -

OPINION OF THE SUPREME COURT OF VIRGINIA

HENRY F. TAYLOR

Vv. Record No. 801978

COMMONWEALTH OF VIRGINIA

OPINION BY JUSTICE A. CHRISTIAN COMPTON

December 4, 1981

FROM THE CIRCUIT COURT

OF LOUISA COUNTY

F. Ward Harkrader, Jr., Judge

A jury found defendant Henry F.

Taylor guilty of grand larceny and fixed

his punishment at six months in jail

plus a fine of $500. He appeals the

trial court's September 1980 judgment of

conviction confirming the jury's finding

and sentencing defendant in conformity

with the verdict.

The sole issue on appeal is whether

the court below properly denied defen-

dant's motion to suppress evidence

- 32 -

discovered as the result of a warrant-

less search of a truck standing on a

public highway. More precisely, the

dispositive inquiry is whether there

was probable cause to believe the vehi-

cle contained the fruits of a crime.

Just before midnight on January 30,

1980, State Trooper P. T. Spencer, Jr.,

was patrolling in his police cruiser on

Route 33 in the Town of Louisa. Town

Officer Kenny James Harper was riding

with Spencer. Snow was falling and the

weather conditions were "nasty." As

Spencer drove east near the intersection

of Routes 33 and 22, he observed a two-

and-one~-half-ton truck with an enclosed

body containing no exterior lettering,

parked headed west on Route 22. The

truck entirely blocked the westbound

lane with its left wheels within one

- 33-

foot of the double solid lines marking

the center of the highway. Spencer

turned, drove through a shopping center

parking lot, “came in behind” the large

white and silver truck, and stopped to

its rear. The truck's “motor was run-

ning and the lights were on," but no

“emergency flashers" were in use.

As the trooper alighted from his

vehicle, he observed that no person was

on the “driver's side" of the truck cab.

Approaching that side, Spencer found

LeRoy Washington sitting on the "passen-

ger's side” of the vehicle. When asked

by the officer "what the problem was,"

Washington repi.ed that the driver was

talking to friends near a Ford Mustang

automobile parked in the shopping center

lot. Spencer looked across the road,

observed the Mustang about 100-200 feet

° 34 -

away, and saw defendant Taylor walk from

the car through the lot towards him.

Taylor proceeded across the road

to where Spencer was standing beside

the truck. Upon being asked by the

Officer "what the problem was," defen-

dant said he had stopped to converse

with "friends" and that he was preparing

to "move on." The trooper asked Taylor

for his operator's license; he replied

that he had none “with him." Spencer

asked defendant "if he had any identi-

fication;" the accused said he did not.

The officer asked Taylor who owned the

truck; defendant replied his sister-in-

law had rented the truck. Upon Spen-

cer's request for "the rental papers,"

defendant handed him a carbon copy of an

Avis-Rent-A-Car "bill." The only hand-

writing legible in any of the numerous

- 35 -

blank spaces on the pre-printed form was

the signature "Gaynelle Baird." Spencer

testified that Taylor "had nothing with

him to indicate who he was or that he

was supposed to have possession of the

vehicle."

The trooper then inquired of defen-

dant “where he was coming from"; Taylor

replied he did not know. He also said

he “didn't know where he was going."

The officer asked how defendant acquired

possession of the truck; Taylor re-

sponded that "he just picked it up on

{the] side [of] the road and did not

know exactly where."

The officer then observed that the

1978-model truck appeared to be in good

mechanical condition. But when he

looked at the left rear wheels, the

truck's springs on the left side were

- 36 -

depressed to th point that the truck

body was almost touching the left rear

tires. At that location the highway

from side to side was level. The offi-

cer then asked defendant "what was in

the truck;" the accused responded "it

was empty." When Spencer called the

truck's tilt to defendant's attention,

Taylor said "it was always like that."

From his police experience in weighing

vehicles, the trooper knew that the

truck had "an exceptional amount of

weight" on the left side. Spencer also

noticed that the truck had a hydraulic

lift on the rear which, he said, "is

ideal for stealing something." .

The officer then placed defendant

under arrest for the traffic infraction

of stopping a motor vehicle on a public

highway in such a manner as to impede

- 37 -

Or render dangerous the use of the high-

way by others. Code §§ 46.1-248 and

16.01. The trooper put defendant in the

custody of Town Officer Harper who had

remained at the police vehicle.

Spencer returned to the truck cab

and talked to Washington, who also had

no operator's license and no identifi-

cation, also did not know where he and

defendant had come from, also was un-

aware where they had "picked up" the

truck, and also claimed the truck was

empty. Washington was then taken back

to the police car so the town officer

could "watch" him. Because he was con-

fronted with “two extremely nervous indi-

viduals," Spencer asked Harper to call

by radio for additional officers "to

take care of" the individuals, five in

number, who were at the Mustang in the

parking lot.

- 38 -

Realizing the police on the scene

were outnumbered seven .o two and that

the five persons at the Mustang were

friends of both defendant and Washington,

the trooper, describing the circumstances

as "a very volatile situation," decided

to examine without a warrant the inside

of the truck's rear compartment. Spencer

said that, based on his experience of

ll years as a police officer, he was

"sure" the vehicle contained stolen prop-

erty. He also testified that he felt it

was important to conduct the search at

that time before the individuals in the

Mustang could drive away. After defen-

dant refused to comply with Spencer's

request to open the rear of the truck,

the trooper raised the unlocked rear

door.

Upon looking into the compartment,

Spencer saw a yellow flashlight and a

- 39 -

red “ton and a half come-along," de-

scribed as a type of block and tackle

used to move heavy equipment. He also

observed at the ieft front corner of the

storage area a large wooden spool

wrapped with new, heavy aluminum wire,

which, upon investigation, was found to

belong to the Virginia Electric and

Power Company. ‘The wire, having a steel

core, was about 6000 feet long, weighed

about 3000 pounds and was valued in

excess of $2100. The spool was standing

on its rims and was being braced by a

wooden site sign from a VEPCO storage

facility located near Mineral in Louisa

County.

Shortly after Spencer had completed

his examination of the rear of the truck,

a number of additional officers arrived.

The seven individuals at the scene were

- 40 -

arrested and charged with larceny of the

wire.

Subsequent investigation and the evi-

dence revealed that earlier during the

day in question defendant and one of the

accomplices sent Gaynelle Baird, defen-

dant's sister-in-law, to Charlottesville

with $100 cash to rent a truck for them.

They told her the truck was to be used to

haul furniture. After completing the

transaction at the Avis Company, Baird

handed the keys to the truck and the ren-

tal receipt to defendant. By prearrange-

ment, the group of seven men arrived at

the storage facility, an open field, in

the Mustang and the truck between 8:00

p.m. and 10:00 p.m. to steal the wire.

After laboring about one and one-half

hours at the site, the crew was finally

able manually to hoist one spool of wire

- 41 -

from the ground into the truck; they

tried to employ the hydraulic lift but

the weight of the wire prevented its use.

The two vehicles were driven from the

scene of the crime directly to Louisa

where the arrests took place.

Following a pretrial hearing, the

trial court overruled defendant's motion

to suppress all evidence obtained during

the search of the truck and all other

evidence derived from the alleged ille-

gal search. On appeal, defendant argues

the lower court erred because the war-

rantless search of the rented vehicle

was illegal as not justified by any

exception to the Fourth Amendment warrant

requirement. We do not agree; we hold

the officer acted upon probable cause in

exigent circumstances.

One of the established exceptions to

the warrant requirement is that if a

- 42 -

search without a warrant is made of an

automobile or other vehicle on the high-

way upon probable cause and if it is not

practicable to secure a warrant because

the motor vehicle can be quickly moved

out of the locality or jurisdiction in

which the warrant must be sought, the

search is valid. Carroll v. United

States, 267 U.S. 132, 249, 153 (1925).

In this case, defendant understandably

does not dispute the fact that exigent

circumstances were present at the time.

Instead, he contends the officer lacked

probable cause to search the truck.

The legal standard of probable cause,

as the term suggests, relates to prob-

abi_ities that are based upon the factual

and practical considerations in everyday

life as perceived by reasonable and pru-

dent persons. The presence or absence of

- 43 -

probable cause is not to be examined

from the perspective of a legal tech-

nician. Rather, probable cause exists

when the facts and circumstances within

the officer's knowledge, and of which

he has reasonably trustworthy informa-

tion, alone are sufficient to warrant a

person of reasonable caution to believe

that an offense has been or is being

committed. Draper v. United States,

358 U.S. 307, 313 (1959); Schaum v.

Commonwealth, 215 Va. 498, 500, 211 S.E.

2d 73, 75 (1975). In order to ascertain

whether probable cause exists, courts

will focus upon “what the totality of

the circumstances meant to police offi-

cers trained in analyzing the observed

conduct for purposes of crime control."

Hollis v. Commonwealth, 216 Va. 874,

877, 223 S.E.2d 887, 889 (1976).

- 44 -

In articulating his contention that

probable cause was lacking, defendant

says that, admittedly, the officer could

"guess" the truck was loaded based on

the depressed springs. However, defen-

dant argues, there was "nothing connect-

ing the fact that it was loaded to the

fact that it was loaded with contraband

as opposed to furniture or other legal

material." Defendant notes that neither

Trooper Spencer nor Officer Harper had

been made aware of any alleged unlawful

activity by defendant or his accomplices,

other than the improper stopping of the

vehicle. He points out that the police

were not on the lookout for these indi-

viduals or this particular truck. De-

fendant contends the “sole basis" for

the search was the belief the truck was

loaded with "something" and defendant's

- 45 -

denial that it was, in fact, loaded. He

argues that Trooper Spencer's “suspi-

cion" that the truck contained stolen

goods was “clearly no more than a hunch

on his part” and factually is insuffi-

cient to establish probable cause. We

disagree with defendant's analysis of

the evidence.

At this appellate stage of the pro-

ceedings we examine the evidence in the

light most favorable to the Commonwealth.

From that perspective, we turn to the

facts and consider what the totality of

these circumstances meant to a police

officer trained to interpret human con-

duct for the purpose of law enforcement.

Trooper Spencer was confronted at

night in “nasty" weather with an un-

marked truck blocking an entire travel

lane of a public highway. The truck had

- 46 -

its motor running and its lights were

burning. It was in apparent good me-

chanical condition, equipped with a hy-

draulic lift that was "ideal for steal-

ing something.” Both occupants were

"extremely" nervous. They professed to

have no operator's licenses and identi-

fication. They said they did not know

where they had been or where they had

obtained possession of the vehicle.

The document offered to corroborate the

fact the vehicle was leased to defen-

dant's relative furnished no informa-

tion about the rental; that fact was

apparent from a mere glance at the

paper. The occupants maintained that

the vehicle was empty; yet it obviously

was loaded. Near the truck and its

occupants was a group of five “friends,”

congregated around another motor vehicle,

- 47 -

who remained aloof during questioning of

defendant and Washington. As the troop-

er viewed the situation, it was "very

volatile” and “the vehicle was under

extreme suspicious circumstances."

We conclude that those facts, taken

as a whole in that setting as viewed by

a trained police officer were sufficient

to believe the truck probably contained

stolen property. See Adkins v. Common-

wealth, 218 Va. 945, 948, 243 S.E.2d

205, 207 (1978).

The case of Matthews v. Commonwealth,

218 Va. 1, 235 S.E.2d 306 (1977), relied

on by defendant, is inapposite. There,

a state trooper stopped the defendant

for a traffic violation. While talking

to the motorist, the officer observed a

pack of cigarette wrapping paper on the

floorboard of defendant's car. After

examining the paper, the trooper looked

- 48 -

further and discovered a folded brown

paper bag tucked beside the driver's

seat. Upon picking up and opening the

bag, the officer discovered a quantity

of marijuana.

We reversed defendant's conviction

for possessing the substance, holding

the search and seizure of the bag was

illegal. We held the trooper lacked

probable cause to believe defendant

possessed marijuana. We noted that the

police officer made "some connection"

between the cigarette papers, some-

times used for illegal purposes, and

the brown bag. We said, however, that

"the connection was not combined with

any other circumstance which

might have justified a rational belief

that the bag contained contraband drugs."

218 Va. at 3, 235 S.E.2d at 307.

- 49 -

But in the present case, contrary to

defendant's argument, the obvious fact,

denied by the occupants, that the vehi-

cle was loaded was combined with the

many Other circumstances that we have

enumerated to justify a rational belief

that the truck contained fruits of a

crime.

For these reasons the judgment

appealed from will be

Affirmed.

- 50 -

LETTER OPINION OF JUNE ll, 1981

IN THE CIRCUIT COURT

OF LOUISA COUNTY

F. WARD HARKRADER, JR., JUDGE

Sixteenth Judicial Circuit

Box 799

Louisa, Virginia 23093

TELEPHONE

Office

Louisa (703) 967-0797

June 1l, 1980

Mr. Stephen C. Harris

Commonwealth's Attorney

County of Louisa

Louisa, Virginia 23093

Mr. Charles F. Purcell

Attorney at Law

Purcell & Purcel

Louisa, Virginia 23093

RE: Commonwealth vs. Henry F. Taylor

Gentlemen:

I compliment counsel on their thor-

ough and helpful review of the law con-

tained in their respective memoranda.

In the opinion of the Court, this is an

extremely close case on the question of

standing. After a careful review of all

- 51-

of the evidence, with particular consid-

eration of the lack of ownershin, lack

of authorizing papers, absence from the

vehicle at the time of its discovery in

a position where it both constituted a

traffic violation and a traffic hazard,

the failure of Taylor to offer proof of

indentification or authority for posses-

sion, the negative and ambiguous an-

swers given by Taylor to the officer as

to how he came into possession, and where

he came into possession of the truck

after he belatedly claimed possession,

we hold the defendant, Henry Taylor,

lacks standing to object to the search

of the cargo section of the truck, and

we consequently deny the motion to sup-

press.

Sincerely,

/s/ F. W. Harkrader, Jr.

F. W. Harkrader, Jr.,

Judge

FWHjr/bl

cc: Mr. Dean P. Agee, Clerk

- §2 -

JUDGMENT OF CONVICTION AND

SENTENCING OF SEPTEMBER 8, 1980

IN THE CIRCUIT COURT OF LOUISA COUNTY

LAW BOOK 29 PAGE 132

VIRGINIA:

IN THE CIRCUIT COURT OF COUNTY OF LOUISA

SEPTEMBER 8, 19380

COMMONWEALTH OF VIRGINIA

Vv. FELONY CASE NO. 1191

HENRY F. TAYLOR

This day came the Attorney for the

Commonwealth, and Henry F. Taylor, who

was convicted in this Court for a felony,

to-wit: GRAND LARCENY VEPCO WIRE, by a

jury, on the 12th day of June, 1980,

appeared in Court in accordance with the

conditions of his recognizance. And came

also Charles F. Purcell, a discreet and

competent attorney at law, practicing

before the bar of this Court, retained

by the defendant to represent him in

this cause.

- 53 -

Whereupon the Probation Officer of

this Court, Albert LaFave presented his

report and was cross-examined by all

counsel, and the Court on the same.

Thereupon the Court after review of

the pre-sentence report having the

cross-examination of the Probation Offi-

cer, and argument of counsel, find the

said Henry F. Taylor, GUILTY of GRAND

LARCENY, in accordance with the verdict

of the jury.

And it being demanded of the defen-

dant if anything for himself he had or

knew to say why judgment should not be

pronounced against him according to law,

and nothing being offered or alleged in

delay of judgment, it is accordingly the

judgment of this Court that the defen-

dant is hereby sentenced to confinement

in the jail of this Court for the 6

- 54 -

months and pay a fine of $500.00 plus

cost of Court.

Thereupon counsel for the defendant

stated to the Court that he planned to

appeal and that he was requesting bond.

Whereupon after hearing counsel the

Court doth set bond at $7,500.00 cash or

$15,000.00 property.

The Court certified that at all times

during the trial of this case the accused

was personally present and his attorney

was likewise personally present and

capably represented the defendant.

And the prisoner is released having

made bond.

ENTER: /s/ F.W. Harkrader, Jr.Judge

F. W. Harkrader, Jr.

- §§ -

APPELLANT'S MOTION TO SUPRESS

FILED IN THE CIRCUIT COURT OF

LOUISA COUNTY

VIRGINIA:

IN THE CIRCUIT COURT OF LOUISA COUNTY

COMMONWEALTH OF VIRGINIA,

Plaintiff

Vv.

HENRY FOSTER TAYLOR,

Defendant

MOTION TO SUPPRESS

Comes now the Defendant, Henry

Foster Taylor, by and through Counsel,

and moves the Court to suppress all

evidence obtained pursuant to the il-

legal search of a certain Avis Ford

2-Ton Truck while it was located near

Triangle Plaza on U.S. Route 22, not

far from the intersection of Routes 33

and 22 in Louisa County, Virginia on the

30th day of January, 1980, and further

the Defendant, Henry Foster Taylor, by

and through Counsel, moves the Court to

- 56 -

Suppress all evidence derived from the

above referenced illegal search and all

leads to evidence derived from the above

referenced illegal search, including but

not limited to the testimony of any and

all individuals who were at the scene of

the above referenced illegal search and

interrogated as a direct result thereof,

the said evidence being unlawfully ob-

tained in violation of the Fourth Amend-

ment to the Constitution of the United

States and its application in the State

of Virginia.

HENRY FOSTER TAYLOR

By: /s/ Charles F. Purcell

Counsel

Charles F. Purcell

Attorney at Law

Purcell Building No. l

Louisa, Virginia 23093

- §7 -

NOTICE

The Plaintiff will hereby take

notice that the Defendant will move the

Court as above set forth on Tuesday,

May 20, 1980, at the hour of 3:00 p.m.,

or as soon thereafter as this matter

may be heard, in the Circuit Court Room

of the Louisa County Circuit Court.

- 58 -

ona

CERTIFICATE OF SERVICE

Pursuant to Rule 28.5(b) of the

United States Supreme Court I hereby cer-

tify that on the 2nd_ day of February,

1982, by my direction Susan S. Williams

of Lawyers Printing Company, Suite B-115,

7th and Franklin Building, Richmond, Vir-

ginia mailed first class postage prepaid,

from Richmond, Virginia three copies of

the foregoing Petition for Writ of Cer-

tiorari to Alexander E. Conlyn, Assistant

Attorney General for the Commonwealth of

Virginia, Supreme Court - State Library

Building, Richmond, Virginia 23219.

dime

_james Hingeley

- 59 -