Logan v. Com.

• Decision Date: 20 December 1994
• Docket Number: No. 2342-92-2,2342-92-2
• Citation: 19 Va.App. 437,452 S.E.2d 364
• Parties: Jonathan Waverly LOGAN, a/k/a Eric Montague Vaughan v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 364

452 S.E.2d 364

19 Va.App. 437

Jonathan Waverly LOGAN, a/k/a Eric Montague Vaughan v. COMMONWEALTH of Virginia.

Record No. 2342-92-2.

Court of Appeals of Virginia.

Dec. 20, 1994.

John B. Mann (Levit & Mann, on brief), for appellant.

Robert B. Condon, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Present: MOON, C.J., and BAKER, BARROW, BENTON, COLEMAN, KOONTZ, WILLIS, ELDER, BRAY and FITZPATRICK, JJ.

UPON REHEARING EN BANC

MOON, Chief Judge.

This Court granted the Commonwealth's request for a rehearing en banc from a panel decision reversing John Waverly Logan's convictions. The panel held that the discovery of the evidence used to convict Logan flowed from an unlawful seizure because the officers who arrested Logan lacked a reasonable, articulable suspicion for stopping him.

This case initially came before this Court on an appeal from the Circuit Court of the City of Richmond which, on August 17, 1992, entered final judgment convicting Jonathan Waverly Logan on charges of possession of cocaine with intent to distribute, possession of a firearm after having been convicted of a felony, and possession of a firearm while in possession of cocaine. In his appeal, Logan asserted that police lacked reasonable suspicion to initiate the traffic stop that resulted in his arrest and the subsequent discovery of the cocaine and a weapon in the search incident to that arrest. Logan also asserted that, even if the initial traffic stop was lawful, the evidence was insufficient to show that he had constructive possession of the weapon found in the car. As a result of its holding on the Fourth Amendment issue, requiring dismissal of the case, the panel never reached the merits of the latter issue.

We affirm the judgment because we hold that the evidence was sufficient to support the trial court's finding that the officers had a reasonable and articulable suspicion for stopping the vehicle. We also hold that the evidence was sufficient to show Logan had constructive possession of the weapon found in the car.

I. FACTUAL BACKGROUND

On the night of February 5, 1992 patrol officers Linda Tyler and Martin Harrison of the City of Richmond Police Department observed a Jeep Wagoneer with what appeared to be a broken or missing rear window vent on the passenger side. Tyler, a six year veteran on the police force, testified that her attention was drawn to the vent window because it was not reflecting light in the same way as the other windows. Tyler testified that she had considerable experience in recovery of stolen vehicles and, in her career on the force, had recovered about 200 stolen vehicles. Her experience and training suggested that a broken vent window on this type of vehicle often indicated that the vehicle had been broken into and stolen.

That same night, several thefts of this type of vehicle were announced over the radio. The officers observed no other suspicious circumstances. Because of unusually heavy radio traffic, the officers were unable to obtain further information on the vehicle. The officers decided to stop the vehicle to check the registration. Tyler noted that the City of Richmond decal had been torn off and replaced; the year indicator on the decal was upside down. Logan produced a driver's license for identification, but did not have a registration for the vehicle. A DMV check revealed an outstanding warrant for Logan's arrest.

Pursuant to his arrest, the officers searched Logan and recovered five bags of cocaine, a pager, and over one thousand dollars in cash. When Tyler asked if Logan had a weapon in the car, he replied, "Is this a dangerous area?" Tyler then searched the vehicle and found an automatic weapon in an infant carrier seat on the backseat of the vehicle. Logan later stated that the gun belonged to his girlfriend.

In a suppression hearing immediately prior to trial, Logan presented evidence that his vehicle had been broken into prior to the night he was arrested. Logan testified that the thieves had gained access to the vehicle by breaking the vent window. Logan further testified that he later had the window repaired with plexiglass and that his girlfriend had commented that it looked like there was no window there. The court denied Logan's motion to suppress the cocaine and the gun.

At the beginning of Logan's trial, immediately following the suppression hearing, Logan's defense counsel moved to adopt the evidence introduced during the suppression hearing. The evidence was accepted by the court without objection by the Commonwealth.

II. REASONABLE SUSPICION TO INITIATE TRAFFIC STOP

We begin our analysis by recognizing that "[w]hen the police stop a motor vehicle and detain an occupant, this constitutes a seizure of the person for Fourth Amendment purposes, even though the function of the stop is limited and the detention brief." Zimmerman v. Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709 (1988). In order to justify an investigatory stop of a vehicle, the officer must have some reasonable, articulable suspicion that the vehicle or its occupants are involved in, or have recently been involved in, some form of criminal activity. Murphy v. Commonwealth, 9 Va.App. 139, 143-44, 384 S.E.2d 125, 127 (1989). Although the Commonwealth has the burden of proving that such an investigatory stop is lawful, id. at 143, 384 S.E.2d at 127, the "level of suspicion required [for an investigative stop] is less demanding than the standard of probable cause," Quigley v. Commonwealth, 14 Va.App. 28, 33, 414 S.E.2d 851, 854 (1992).

"In determining whether an 'articulable and reasonable suspicion' justifying an investigatory stop of a vehicle exists, courts must consider 'the totality of the circumstances--the whole picture.' " Murphy, 9 Va.App. at 144, 384 S.E.2d at 128 (citing United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)). See also Zimmerman, 234 Va. 609, 612, 363 S.E.2d 708, 709. As we stated in Castaneda v. Commonwealth, 7 Va.App. 574, 376 S.E.2d 82 (1989) (en banc ): "Each instance of police conduct must be adjudged for reasonableness in light of the particular circumstances." Id. at 580, 376 S.E.2d at 85.

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.' " Id. at 580, 376 S.E.2d at 85 (citation omitted).

Therefore, when a court reviews whether an officer had reasonable suspicion to make an investigatory stop, it must view the totality of the circumstances and view those facts objectively through the eyes of a reasonable police officer with the knowledge, training, and experience of the investigating officer. Based upon that objective assessment courts must determine whether the officer could have entertained an articulable and reasonable suspicion that the defendant was involved in unlawful activity. If the officer's suspicion amounts to merely an "inchoate and unparticularized suspicion or hunch ... [rather] than a fair inference in light of his experience, [it] is simply too slender a reed to support the seizure" under the fourth and fourteenth amendments.

Murphy, 9 Va.App. at 144, 384 S.E.2d at 128 (citations omitted) (emphasis added).

As the crime suspected by the officers was that of auto theft, the specific question posed is what circumstances would reasonably justify a trained veteran police officer's suspicion that the car driven by Logan had been stolen. The officers observed that the rear passenger side vent window of the car appeared to be missing. Officer Tyler knew that the type of car observed was extremely popular among car thieves. Officer Tyler's training and experience suggested to her that a broken vent window on this type of car indicated that it had been broken into and stolen. That same night, several thefts of this type of car were announced over the radio. Under these circumstances, we hold that Tyler had reasonable suspicion in light of her experience and fully justified her investigatory detention of Logan.

We disagree with the panel's decision that a "broken or missing [rear vent] car window is at least as easily suggestive of vandalism, accident or a prior theft of the vehicle or its contents." Logan v. Commonwealth, 18 Va.App. 136, 139, 442 S.E.2d 416, 418 (1994). While such objective physical evidence might seem innocent to the untrained observer, we cannot say that for the trained police officer it would not rise to the level of an articulable, particularized suspicion of criminal activity. We think it unlikely that vandals would break out only the rear passenger side vent window when intentionally damaging cars or that the same limited destruction might result from a traffic accident. Lastly, we agree with the Commonwealth that if a broken window is suggestive of a prior theft, it is just as suggestive of what the officers suspected it might be in this case, a theft in progress.

Our holding in this case is supported by decisions in similar cases from other states. See Commonwealth v. Epps, 415 Pa.Super. 231, 608 A.2d 1095, 1097 (1992) ("The broken rear vent window, as understood by those versed in the field of law enforcement, constituted sufficient grounds to give rise to reasonable suspicion"); In re C.A.P., 633 A.2d 787, 789 (D.C.App.1993) ("We agree with the trial judge's conclusion that the smashed rear vent window, taken together with the officer's experience with other [unauthorized use of motor vehicle] arrests, was sufficient to support a reasonable suspicion in the officer's mind that the vehicle had been stolen"); People v. Brown, 255 Ill.App.3d 425, 194 Ill.Dec. 224, 229, 627 N.E.2d 340, 345 (1 Dist.1993) ("Even a report that the car was not listed as stolen does not obviate the possibility of a recent theft, and the broken...