Waugh v. Com., 0093-90-3

• Decision Date: 04 June 1991
• Docket Number: No. 0093-90-3,0093-90-3
• Parties: Arnold Leon WAUGH v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 429

405 S.E.2d 429

12 Va.App. 620

Arnold Leon WAUGH v. COMMONWEALTH of Virginia.

Record No. 0093-90-3.

Court of Appeals of Virginia.

June 4, 1991.

Joseph Graham Painter, Jr., Blacksburg, for appellant.

Janet F. Rosser, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Before KOONTZ, C.J., and BARROW and MOON, JJ.

MOON, Judge.

In this appeal, we hold that a police radio broadcast, indicating that a person in a blue van was suspected of selling vacuum cleaners without a license and being very pushy in trying to gain entrance into person's houses, was insufficient to give rise to an articulable and reasonable suspicion that criminal activity was afoot, warranting the officer's actions in pulling over the appellant's van for an investigatory stop. Therefore, the evidence obtained during the stop was inadmissible and we reverse Arnold Leon Waugh's conviction of driving after having been declared an habitual offender.

On June 28, 1989, Officer Nathaniel S. Parker received a radio dispatch that there had been "numerous calls of a suspicious light blue van in the residential area of Christiansburg, possibly selling vacuum cleaners with no permit and being very pushy trying to gain entry into homes." Approximately four or five minutes after the broadcast, the officer saw a light blue van. He followed the van and radioed the dispatcher to verify its license plate number. Ascertaining that this was the van in question, he pulled the van over. The officer testified that the driver had committed no traffic infraction and was stopped solely to investigate the possibility that he was selling vacuum cleaners without a license. He approached the appellant, who was driving the van, and asked for his solicitor's permit. The appellant did not have a solicitor's permit in his possession, although he did in fact have a permit. An inquiry through the Division of Motor Vehicles revealed that the appellant had been adjudicated an habitual offender in 1980.

To stop an automobile and detain its occupants is impermissible "except in those situations in which there is at least an articulable and reasonable suspicion that a motorist ... is ... subject to seizure for violation of law." Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979). "If the stop of the vehicle is without a warrant, the Commonwealth has the burden to prove the stop was legal." Murphy v. Commonwealth, 9 Va.App. 139, 143, 384 S.E.2d 125, 127 (1989). We must determine upon an objective assessment of the totality of the circumstances "whether the officer could have entertained an articulable reasonable suspicion that the defendant was involved in unlawful activity." Murphy v. Commonwealth, 9 Va.App. at 144, 384 S.E.2d at 128.

The Commonwealth draws heavily upon Jones v. Commonwealth, 230 Va. 14, 334 S.E.2d 536 (1985) to support its position that the officer possessed a reasonable suspicion of criminal activity sufficient to warrant the investigatory stop. In Jones, an officer was on patrol. Earlier in the day, during roll call, the officer had been told to stay on the lookout for a suspected burglar described as "a...