Iglesias v. Com., 0651-86-2

• Decision Date: 06 September 1988
• Docket Number: No. 0651-86-2,0651-86-2
• Citation: 372 S.E.2d 170,7 Va.App. 93
• Parties: Alexander Julio IGLESIAS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 170

372 S.E.2d 170

7 Va.App. 93

Alexander Julio IGLESIAS v. COMMONWEALTH of Virginia.

Record No. 0651-86-2.

Court of Appeals of Virginia.

Sept. 6, 1988.

Michael C. Allen (Englisby, Barnes & Allen, Chesterfield, on brief), for appellant.

H. Elizabeth Shaffer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

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

OPINION ON HEARING EN BANC

COLE, Judge.

Appellant, Alexander Julio Iglesias, appeals his conviction of possession of cocaine with the intent to distribute in violation of Code § 18.2-248. He presents the following questions on this appeal: (1) whether his seizure and detention and the seizure of evidence from his motor vehicle violated rights guaranteed to him under the fourth amendment of the United States Constitution and article I, section 10 of the Virginia constitution; ¹ 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. ² For the following reasons, we find no error and affirm the conviction.

I.

On July 17, 1985, at approximately 7:30 p.m., three Virginia State Police officers assigned to the narcotics division were stationed at the Interstate 95 toll plaza located adjacent to the Colonial Heights exit ramp. Their purpose was to observe northbound traffic in an effort to identify possible drug couriers. The officer in charge was special agent Stephen A. Berry, assisted by agents Vernon Jones and John Childers.

Berry had been a special agent investigating narcotics crimes for the Virginia Department of State Police for eight years. As part of his training, he had attended a forty hour course with the State Police Academy, a two week training course with the Drug Enforcement Administration, and an additional two week analytical school. Berry had received further specific training in the illegal transportation of narcotics through "drug courier profile" lecture material developed by the Virginia Department of State Police. He had participated in over 300 felony narcotics arrests involving a variety of activities from executing search warrants to making "street buys."

Berry was wearing blue jeans, tennis shoes, and a pullover shirt. His badge was displayed on his belt; his gun was exposed, and he held a walkie-talkie in his hand. He was slightly elevated because he was standing on the barrier between the exact change lanes. This allowed him to see into cars as they went through the toll. From that vantage point, he observed two vehicles approaching. At first glance, the car to his right appeared to be a rental car from Florida because it had no tags or front windshield decals, and the front license plate was an advertisement. As the car approached, the driver, later determined to be appellant Iglesias, glanced briefly at Berry, looked quickly away, and then jerked his car over to the extreme left of the toll plaza, as far from Berry as he could get.

Berry testified that Iglesias "didn't pull up [to the toll box], stop, throw his money in, wait for the barrier to raise and go." Rather, Berry said, he rolled through the barrier and threw the toll in without giving the machinery a chance to process the quarter and without giving the gate sufficient time to open so that Iglesias had to slam on his brakes at the gate to avoid hitting it. Officer Jones also testified that he saw the front end of the vehicle "dive" because the gate was down, action which he described as abnormal. Both Berry and Jones shouted at the defendant to stop, but he continued north on I-95. Berry considered this activity to be a nervous reaction to his presence. He testified that, from his experience as a police officer, rarely did he see cars go through the toll plaza as Iglesias did.

As Iglesias went through the barrier, Berry was able to make further observations: the driver was a male between the ages of 20 and 35, travelling alone; a cooler was on the right front floorboard; no luggage was in the vehicle; and the rear license plate contained the letter "Z," indicating that the car was a rental vehicle from Dade County, Florida.

Their suspicions aroused, Berry, Jones and Childers followed Iglesias in separate unmarked cars. Iglesias glanced in his rear view mirror as he drove in the left lane of I-95. When Berry, in the lead vehicle, got within seventy-five yards of Iglesias, Iglesias suddenly "jerked" his vehicle over into the right lane in front of a tractor-trailer unit, causing it to slam on its brakes to avoid a collision. Given this dangerous lane change, Berry activated the emergency lights on his car and pulled Iglesias's vehicle off the road.

Upon stopping Iglesias, Berry identified himself as a police officer and obtained Iglesias's driver's license and the car's rental papers. After a brief conversation, Berry asked Iglesias if he was transporting any illegal narcotics. He responded in the negative and said, "go ahead and search the vehicle if you want to." Berry then asked him to produce the keys to the trunk, which he did. Berry asked if everything in the car belonged to him, and Iglesias acknowledged that it did. The trunk was empty.

At the same time, special agent Jones searched the passenger compartment. In the back seat, he found a silver tote bag, unzipped and open, containing a male's personal belongings and a brown package. Jones took the brown package to the rear of the car, where Iglesias and Berry were talking. Berry opened a corner of the package and saw a white, powdery substance which appeared to him to be cocaine. A field test was performed and the substance tested positive for cocaine. Iglesias was then arrested and advised of his Miranda rights.

Iglesias stated that, while in Florida, he had met Jose Martinez. When Martinez discovered Iglesias planned a trip to New York to see his sister, Martinez asked him to deliver a package to New York, for which he would be paid $200. According to his statement, Iglesias did not observe where in the car Martinez had put the package, nor did he know what it contained. Martinez was to call Iglesias in New York, either at his sister's house or her office, to tell him what to do with the package.

A subsequent laboratory analysis indicated the package contained 999 grams of cocaine of seventy-four percent purity. Based on his years of experience in narcotics investigations, Berry estimated that the "street" value of the cocaine was $400,000, and that, when cut and sold in gram quantities, it would yield 4,000 separate sales. He testified that such a quantity, almost 2.2 pounds, was more than would be required for individual usage.

At trial, Iglesias moved to suppress all evidence obtained incident to the stop, contending the stop was illegal because it was not based upon probable cause or reasonable and articulable suspicion. Over Iglesias's objection, his motion to suppress was denied. At the close of the Commonwealth's evidence, Iglesias moved to strike the evidence because it failed to show that he possessed or that he had intent to distribute cocaine. The motion was overruled. Iglesias was convicted of possession of cocaine with the intent to distribute and sentenced to fifteen years, eight of which were suspended. He was also fined $10,000, $8,000 of which was suspended. This appeal followed.

II.

Iglesias contends that the trial court erred in denying his motion to suppress all evidence obtained as a result of his seizure and detention because constitutional rights guaranteed him under the fourth amendment and the Virginia Constitution were violated. More specifically, he argues that, absent independent individual indicia of criminal activity, the matching of characteristics of a drug courier profile does not provide sufficient cause for an investigatory stop, and that under the facts of this case, no credible evidence exists from which a suspicion of criminal activity can reasonably be inferred.

It is clear that stopping a motor vehicle on a highway and detaining the driver "constitutes a 'seizure' within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the ... detention ... brief." Lowe, 230 Va. at 349, 337 S.E.2d at 275 (citations omitted). But the fourth amendment does not prohibit all seizures; it prohibits only those that are unreasonable. As with other categories of police action subject to fourth amendment constraints, the reasonableness of a seizure depends on a balance between the public interest and the individual's right to personal security, free from arbitrary interference of law officers. Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968).

Well established fourth amendment jurisprudence has placed police-citizen confrontations into three categories. First, there are communications between police officers and citizens that are consensual and, therefore, do not implicate the fourth amendment. Second, there are brief investigatory stops which must be based on specific and articulable facts which, taken together with rational inferences from these facts, reasonably warrant a limited intrusion. Third, there are highly intrusive, full-scale arrests, which must be based on probable cause. United States v. Poitier, 818 F.2d 679, 682 (8th Cir.1987), cert. denied 484 U.S. 1006, 108 S.Ct. 700, 98 L.Ed.2d 651 (1988); United States v. Hanson, 801 F.2d 757, 760-61 (5th Cir.1986). Because Iglesias did not raise the third type of confrontation in the trial court, ³ we are concerned in this case with only the second type of confrontation, the so-called Terry stop.

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, 392 U.S. at 21, 88 S.Ct. at 1879. The Supreme Court acknowledged, in United States v....