Taylor v. Com.

• Decision Date: 17 May 1988
• Docket Number: No. 1279-85,1279-85
• Citation: 369 S.E.2d 423,6 Va.App. 384
• Parties: Gifton Anthony TAYLOR and Charlton Albert Malcolm v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 423

369 S.E.2d 423

6 Va.App. 384

Gifton Anthony TAYLOR and Charlton Albert Malcolm v. COMMONWEALTH of Virginia.

Record No. 1279-85.

Court of Appeals of Virginia.

May 17, 1988.

Ronald I. Kurland, Baltimore, Md., Michael C. Allen, Chesterfield (Kroop, Kurland & Rosenberg, Baltimore, Md., Englisby, Barnes & Allen, Chesterfield, on briefs), for appellants.

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

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

OPINION ON HEARING EN BANC

BARROW, Judge.

In this criminal appeal we conclude that a drug courier profile, having no apparent relationship to criminal activity, may not alone justify stopping an automobile on a highway for further investigation. Consequently, the evidence seized in a subsequent search of the defendants' automobile was inadmissible and the defendants' convictions must be reversed.

A Chesterfield County police officer, patrolling Interstate Route 95, saw a northbound automobile having characteristics similar to those contained in a drug courier profile. The automobile was a four-door Toyota with Florida rental plates. Two black men, appearing to be between twenty and thirty-five years old, were in the car. The car was riding level and moving at the speed limit.

The police officer had attended a briefing given by the Virginia State Police. He was told to be alert for vehicles having these characteristics: (1) traveling north on Interstate 95, (2) bearing Florida license plates containing the letter "Z", indicating a rental vehicle, (3) containing black or Hispanic male occupants between the ages of twenty and thirty-five years, and (4) the occupants exhibiting nervous behavior. ¹ Other suggested characteristics, such as (1) a rental agreement or vehicle registration under an alias, (2) little or no luggage, (3) luggage stowed in the rear passenger seat, were not observed by the police officer prior to his stopping the vehicle, and, therefore, are not relevant to our inquiry.

The officer kept the automobile under surveillance for four to five miles and noticed that its speed varied, although it remained within the speed limit. The officer, driving an unmarked automobile, pulled parallel with the driver's side of the Toyota, saw the driver of the Toyota "cut his eyes" toward the officer's automobile, and noticed the Toyota's speed decrease slightly. After traveling less than a mile alongside the driver's side of the Toyota at a speed slightly below the speed limit, the officer dropped back and positioned his vehicle on the passenger side. At that time he saw both occupants of the car "cut their heads back" and again "cut their eyes" in the officer's direction.

The police officer radioed other officers in another vehicle to stop the Toyota. Using red lights and siren the other police vehicle stopped the Toyota, and further investigation was conducted. The defendants, who were the occupants of the Toyota, consented to a search which uncovered approximately 173 pounds of marijuana in the trunk of the Toyota. The defendants were arrested and later convicted of conspiring to possess and possession of marijuana with intent to distribute. The only issue before us is whether the police officers were authorized to stop the defendants' vehicle.

Even when the purpose of a stop is limited and the resulting detention brief, the fourth and fourteenth amendments of the United States Constitution apply to stopping an automobile and detaining its occupants. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979); 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). Since the driver of an automobile must stop when directed to do so by the siren and flashing lights of a police vehicle, there can be no suggestion that the fourth amendment does not apply because the driver did not have to comply. See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983) (in some instances an individual approached by law enforcement officers on the street or in a public place may "go on his way".)

Before a vehicle may be stopped on the highway, there must be "specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual" or the vehicle must be stopped "pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640-41, 61 L.Ed.2d 357 (1979); Lowe, 230 Va. at 350, 337 S.E.2d at 276. In this case the Commonwealth does not assert and the evidence does not suggest that the defendant's vehicle was stopped pursuant to such a plan. Therefore, the stop of the defendant's vehicle must have been based on "specific, objective facts".

The prerequisites to an investigative stop of an automobile are comparable to those required for an "on-the-street encounter." United States v. Brignoni-Ponce, 422 U.S. 873, 880-81, 95 S.Ct. 2574, 2579-80, 45 L.Ed.2d 607 (1975) (discussing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Terry requires a police officer to be able to "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant" stopping a person to conduct further investigation. Terry, 392 U.S. at 21, 88 S.Ct. at 1879-80. More specifically, an investigative stop of an automobile "must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981) (footnote omitted).

A police officer must assess all of the information available to him, and that assessment must produce "a suspicion that the particular individual being stopped is engaged in wrongdoing." Cortez, 449 U.S. at 418, 101 S.Ct. at 695. In making this assessment and arriving at this suspicion, a trained law enforcement officer may identify criminal behavior which would appear innocent to an untrained observer; however, "any such special meaning must be articulated to the courts and its reasonableness ... assessed independently of the police officers' subjective assertions." United States v. Gooding, 695 F.2d 78, 82 (4th Cir.1982).

This "particularized suspicion" is not achieved by the mere presence of drug courier profile characteristics. See Reid v. Georgia, 448 U.S. 438, 440-41, 100 S.Ct. 2752, 2753-54, 65 L.Ed.2d 890 (1980); United States v. Haye, 825 F.2d 32, 34 (4th Cir.1987); United States v. Aguiar, 825 F.2d 39, 40-41 (4th Cir.1987). More is required to elevate a law enforcement officer's "inchoate and unparticularized suspicion or 'hunch' " to a "reasonable and articulable suspicion that the person seized is engaged in criminal activity." Reid, 448 U.S. at 440-41, 100 S.Ct. at 2753-54.

The characteristics which the officer relied on in this case were insufficient to support a reasonable and articulable suspicion that the defendants in fact possessed illegal drugs. Black or Hispanic males from twenty to thirty-five years of age driving northbound on Interstate 95 in Florida registered rental cars constitute a large category of presumably innocent travelers. See Reid, 448 U.S. at 442, 100 S.Ct. at 2755. These characteristics have no apparent relationship to criminal activity, and there is no evidence in this record of an empirical relationship between these characteristics and criminal behavior. Thus, the drug courier profile provided no more than an "inchoate and unparticularized suspicion or 'hunch.' " Id. This "hunch" may be a useful tool for law enforcement officers in identifying those who should be closely watched but, without more, cannot be the justification for an investigative detention. Becton, The Drug Courier Profile: "All Seems Infected That Th' Infected Spy, As All Looks Yellow To The Jaundic'd Eye", 65 N.C.L.Rev. 417, 471 (1987).

The officer's observation that the occupants "cut their heads back" and "cut their eyes" in his direction adds nothing to the supposition that the defendants were engaged in criminal activity. Although in some contexts nervous behavior may be relevant, the mere observation that a traveler is nervous is not indicative of criminal behavior. Gooding, 695 F.2d at 84. The presence of an unidentified motor vehicle alternately tracking the defendants' vehicle from one side to the other for a period of four to five miles on an interstate highway could explain why the defendants' concerned for their own safety, looked in the officer's direction.

Neither the drug courier profile nor the officer's other observations provided an objective manifestation that the defendants were, or were about to be, engaged in criminal activity. Therefore, the officers were not justified in stopping the automobile for further investigation, and doing so violated the protection assured the defendants by the fourth and fourteenth amendments of the United States Constitution. As a result, the subsequent search of the automobile was illegal, and the evidence seized was inadmissible. For these reasons, we reverse the defendants' convictions and dismiss the indictments against them.

Reversed and dismissed.

BAKER, Judge, concurring.

I concur in the finding that appellants' Fourth Amendment rights were violated when their car was stopped. I am troubled by the apparent acceptance by some courts--and seemingly the majority here--that there is a legally meaningful entity known as a drug courier profile.

I am of the opinion that reviewing courts have permitted themselves to become so engrossed with the phrase "drug courier profile" that they have attributed to it more significance than it is due. The phrase, created by drug enforcement officers, has been declared in some quarters to be a useful law enforcement...