Limonja v. Com.

• Decision Date: 15 August 1989
• Docket Number: No. 1230-86-2,1230-86-2
• Citation: 383 S.E.2d 476,8 Va.App. 532
• Parties: Margaret Mary LIMONJA and Raymond James Brooks v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 476

383 S.E.2d 476

8 Va.App. 532

Margaret Mary LIMONJA and Raymond James Brooks v. COMMONWEALTH of Virginia.

Record No. 1230-86-2.

Court of Appeals of Virginia.

Aug. 15, 1989.

Marvin D. Miller (Thomas L. Barney, on brief), for appellants.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

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

COLE, Judge.

The appellants, Margaret Mary Limonja and Raymond James Brooks, were convicted in a bench trial of possession of cocaine with intent to distribute. On appeal they contend that the seizure of their persons, the search of their car, and their extended detention violated rights guaranteed to them under the fourth and fourteenth amendments to the United States Constitution. A decision of a panel of this court affirmed the judgment of the trial court. Limonja v. Commonwealth, 7 Va.App. 416, 375 S.E.2d 12 (1988). On petition the appellants were granted a rehearing en banc.

I.

We review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it. Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code § 8.01-680).

On November 17, 1985, Trooper Thomas C. Keith of the Virginia State Police was patrolling Interstate 95 in an unmarked vehicle near the Walthall exit. He observed the defendants traveling north in a car with a Florida license plate indicating that the vehicle was a rental car from Dade County. His suspicions aroused, Trooper Keith attempted to run a license check, but all of the computers in Florida were down. At this time, Keith radioed for a narcotics dog and a backup.

Soon thereafter, the defendants drove through a stop sign at an automatic toll booth without paying the toll. Officer Keith pulled them over at 12:20 p.m. Officer Dempsey joined Keith as a backup. Keith asked for and received the defendants' drivers' licenses and the rental agreement in place of a registration card. These checked satisfactorily. He explained to the driver, Limonja, that he had stopped her because she had run the automatic toll booth without stopping or paying. When asked why she had done so, she replied that she did not have a dime, the required exact change. From his vantage point outside of the car, Keith noticed, according to his testimony, "a part of the radar detector on the other side of the vehicle in the passenger seat." On cross-examination, Keith stated that he "could see a portion of it" but did not know "exactly" what it was.

Having determined that the vehicle had been rented in Florida and that a radar detector was partially in view on the passenger's side of the vehicle, Keith asked permission to search the vehicle, suspecting the two individuals of drug trafficking. When the defendants consented to a search, Keith had both Limonja and Brooks exit the vehicle and move to the rear where they would be "away from traffic." Officer Dempsey stated that he was "positioned at the side of the occupants looking to see that they did not get hit." Keith proceeded to search the passenger compartment and trunk.

During the course of the search, Keith took possession of the radar detector behind the right front passenger seat. He also found a dime and four nickels in the ashtray located on the dash. In the trunk, Keith found suitcases and a gift wrapped package. Keith asked Brooks and Limonja which piece of luggage belonged to them. They each identified their luggage. The suitcases were searched but nothing unusual was found. Keith then asked to whom the gift wrapped package belonged. Defendant Brooks stated that it belonged to neither of them and that he was delivering it for a friend. Keith thought the package was addressed to "Ray," Brooks' first name, but Brooks said that it was addressed to "Roy." Although he said that he did not know what was inside of it, Brooks stated that he had written and placed the label on the package. According to the testimony of Keith, although it was not a hot day, Brooks "broke out in a heavy sweat under both arms while we were talking about the package" and "once I took the package and had it set on the front of my car, ... Mr. Brooks had his mind strictly on that package." Brooks eventually signed a written consent to open the package.

Shortly after the vehicle was stopped, Officer Keith again requested the State Police communication center to obtain a narcotics dog. When the dispatcher discovered their own narcotics dog was not available, he contacted the Chesterfield County police, the Petersburg police and other area jurisdictions in an effort to obtain a narcotics dog. While waiting for the narcotics dog to arrive, Brooks withdrew his consent to search the package at 12:48 p.m., saying that he wanted to wait and see what the narcotics dog did.

At 1:10 p.m., a narcotics dog from Chesterfield County arrived on the scene. Approximately fifty minutes had elapsed. The dog, an experienced drug detection canine, alerted on the package. Keith then explained to Brooks what had occurred. Brooks asked Keith: "What happens if I don't let you open the package?" In response to the question, Keith then "explained to him that [he] would have to get a search warrant to open it since the dog had hit on it." Brooks then consented, stating that the package was not his and he did not know what was in it.

Keith had difficulty opening the package which was covered with electrical tape. Brooks provided a nail file to assist him. As the package was being opened, Brooks inquired, "What if it's a radar detector?" The package consisted of gift wrapping of a cardboard box bearing the markings of Micronta Road Patrol XK radar detector device which was the same make and model number of the radar detection device found earlier and served as a basis for the radar detection violation. When Keith opened the package, he found a white powder substance, subsequently determined to be approximately 1000 grams of cocaine of 82.2% purity. Both defendants were then arrested. The time of the arrests was 1:20 p.m. Another search of Brooks' suitcase disclosed an additional 300 grams of cocaine of 78.4% purity.

After opening the package, additional time was taken at the scene to search the baggage of the parties and to make provisions for the security of their vehicle. Officer Keith left the scene at approximately 3:30 p.m. to go to the magistrate's office. Finding the magistrate extremely busy, Keith had to wait. The arrest warrant on the drug charge and the traffic citations (which had been written at the scene but not issued to the defendants) were finally processed and executed upon the defendants between 4:00 p.m. and 6:00 p.m.

Prior to trial, Limonja and Brooks 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 their objection, the motion to suppress was denied.

II.

Although Limonja and Brooks admit that the police could lawfully have stopped them for running the automatic toll booth stop sign, they claim the stop was pretextual because it was for the purpose of conducting an illegal investigation of suspected criminal activity. As proof that the stop was pretextual, they point to the fact that the stop occurred at 12:20 p.m., that the traffic summons was not issued until 4:30 p.m., and that, during the interim period, the police focused their attention upon the contraband investigation. They maintain that, as a consequence of this unlawful conduct, all of the subsequent acts are tainted by the initial alleged illegality.

The Commonwealth asserts that the police were justified in stopping the defendant's vehicle for its failure to stop at the stop sign in violation of Code § 46.1-173 ¹ and failure to pay the required toll in violation of Code § 33.1-345(8). ² Further, it maintains that unless the defendants can demonstrate that the police do not ordinarily stop people who run through stop signs and toll booths, no pretext can be claimed.

The objective sufficiency of the reasons for the stop is the test for determining whether the stop is pretextual. Police actions are to be tested "under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved." Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978) (footnote omitted).

[T]he validity of an arrest is normally gauged by an objective standard rather than by inquiry into the officer's presumed motives. If this were not so, an arrest's validity could not be settled until long after the event; it would depend not only on the psychology of the arresting officer but the psychology of the judge.

United States v. McCambridge, 551 F.2d 865, 870 (1st Cir.1977). "Whether a Fourth Amendment violation has occurred 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,' and not on the officer's actual state of mind at the time the challenged action was taken. Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985) (quoting Scott, 436 U.S. at 136, 138-39 n. 13, 98 S.Ct. at 1722, 1723-24 n. 13). "[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) (emphasis in original).

In Horne v. Commonwealth, 230 Va. 512, 339 S.E.2d 186 (1986), the defendant was a suspect in a rape and murder investigation....