Castaneda v. Com.

• Decision Date: 17 January 1989
• Docket Number: No. 1404-86-2,1404-86-2
• Citation: 7 Va.App. 574,376 S.E.2d 82
• Parties: Orestes CASTANEDA v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 82

376 S.E.2d 82

7 Va.App. 574

Orestes CASTANEDA v. COMMONWEALTH of Virginia.

Record No. 1404-86-2.

Court of Appeals of Virginia.

Jan. 17, 1989.

[7 Va.App. 576] Willis F. Hutchens (William E. Johnson, Hutchens & Hutchens, P.C., on brief), for appellant.

Virginia B. Thiesen, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BARROW, BENTON, COLE, COLEMAN, DUFF, HODGES, KEENAN and MOON, JJ.

ON REHEARING EN BANC

COLE, Judge.

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

I.

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

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

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

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

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

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

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

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

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

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

II.

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

We have had occasion recently to review the law concerning investigatory stops of motor vehicles in two cases, Taylor v. Commonwealth, 6 Va.App. 384, 369 S.E.2d 423 (1988) (en banc ), and Iglesias v. Commonwealth, 7 Va.App. 93, 372 S.E.2d 170 (1988) (en banc ). What was said in those cases is applicable here. The stop of a vehicle on a highway and detention of the driver constitutes a "seizure" within the meaning of the fourth amendment, even though the stop is limited and the detention brief. Lowe v. Commonwealth, 230 Va. 346, 349, 337 S.E.2d 273, 275 (1985), cert. denied, 475 U.S. 1084, 106 S.Ct. 1464, 89 L.Ed.2d 720 (1986).

In United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), Chief Justice Burger established the two elements which must be present before a stop is permissible:

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

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

Id. 449 U.S. at 418, 101 S.Ct. at 695.

There is no "litmus test" for reasonable suspicion. Each instance of police conduct must be judged for reasonableness in light of the particular circumstances. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).

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

The scheme of the Fourth Amendment becomes...