Opinion
Record No. 1125-92-4
April 19, 1994
FROM THE CIRCUIT COURT OF STAFFORD COUNTY JAMES W. HALEY, JR., JUDGE
Benjamin H. Woodbridge, Jr. (Woodbridge Reamy, on brief), for appellant.
Marla Lynn Graff, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Appellant, Rex Alan Johnson, was convicted of driving after being declared an habitual offender. On appeal, Johnson contends that because his vehicle was unlawfully stopped, the trial judge erred in denying appellant's motions to quash the indictment, suppress the evidence and dismiss the proceeding. Finding no reversible error in the trial judge's ruling that the stop was reasonable, we affirm.
On June 30, 1991, Sergeant Decatur of the Stafford County Sheriff's Department visited a private residence to conduct a follow-up interview, unrelated to this case, with a subject named Tina Horne. Appellant happened to be at the residence at the time. When appellant answered the door, he was holding an open beer can from which he drank in the officer's presence. Decatur did not recall conversing with appellant other than asking to speak to the subject inside. However, the officer noticed that appellant had a "very strong odor of alcohol" about his person. Decatur is a five year veteran officer who has been involved in "very many" drunk driving arrests. He testified that the strong odor emanating from appellant was indicative of one who is intoxicated rather than a person who has consumed merely "a little bit of beer." During the brief confrontation, Decatur could not recall any outward signs of intoxication by appellant. Appellant stood at the door until Horne appeared; during that time he was "cooperative and pleasant." When Horne came to the door, she and Decatur went outside to talk.
After the interview, Decatur drove down the street and pulled into a nearby school parking lot, where he took notes of the Horne interview. Approximately ten minutes later, Decatur left the parking lot, and, while on the road, he observed appellant driving a car behind his police car. Decatur turned off the road in order to make a U-turn and get behind appellant's car. There was heavy traffic which prevented Decatur from getting very close to appellant's car; however, from a distance he could not say that he saw appellant's vehicle make any improper maneuvers. Eventually, appellant entered Interstate 95, where Decatur followed him, flashed his blue lights and pulled him over. Appellant responded appropriately, coming to a controlled stop.
Claiming he left his license at home, Johnson gave the officer a false social security number. Decatur informed appellant that he could be charged with providing false identification to a police officer. Appellant eventually disclosed the correct number which allowed Decatur to discover that appellant had been adjudged an habitual offender.
At the conclusion of the pretrial motion hearing, defense counsel argued that the stop was unlawful and any information gained after the stop should be excluded. He emphasized the absence of any "clear signs of intoxication," or "physical indicia of intoxication," such as appellant "staggering or stumbling in the house, coupled with the strong odor of alcohol," or "slurred speech, or some other manifestation of intoxication."
The trial judge denied the motion, finding that, along with drinking a beer in the officer's presence, appellant "did manifest one of the physical indicia of intoxication, a strong odor of alcohol." The judge observed:
Indeed, this officer might have been neglectful when he has somebody drinking, a strong odor of alcohol, and he sees them drinking, and ten minutes later he sees them driving. I think the stop is reasonable and accordingly your motion to quash is denied.
On March 24, 1992, appellant was found guilty of operating a vehicle after being declared an habitual offender. He was given a five year sentence, with four years suspended.
In reviewing a trial court's denial of a motion to suppress, "the burden is upon [the appellant] to show that this ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error." Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731,cert. denied, 449 U.S. 1017 (1980); accord DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 543 (1987),cert. denied 188 U.S. 985 (1988)
"We view the evidence in a light most favorable to the prevailing party below, and we grant all reasonable inferences fairly deducible from that evidence. We will not reverse the trial judge's decision unless it is plainly wrong. Code § 8.01-680." Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
In examining an automobile stop, a court "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.'" Waugh v. Commonwealth, 12 Va. App. 620, 622, 405 S.E.2d 429, 430 (1991) (citation omitted). Under the Constitution,
"[a] suspect may be detained briefly for questioning by an officer who has 'a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.' The test is less stringent than probable cause.
In order to determine what cause is sufficient to authorize police to stop a person, cognizance must be taken of the 'totality of the circumstances — the whole picture.' Assessing that whole picture, 'the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.'"
Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (quoting Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 488 (1982)).
The detaining police officer "must be able to articulate something more than an 'inchoate and unparticularized suspicion or "hunch."' The Fourth Amendment requires 'some minimal level of objective justification' for making the stop." United States v. Sokolow, 490 U.S. 1, 7 (1989). Moreover, "[t]he reasonableness of [an] officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. Such a rule would unduly hamper the police's ability to make swift, on-the-spot decisions . . . and it would require courts to 'indulge in "unrealistic second-guessing."'" Id. at 11 (citations omitted).
The courts must apply objective standards in determining whether the requisite degree of suspicion exists, taking into account that "trained police officers may be 'able to perceive and articulate meaning to given conduct which would be wholly innocent to the untrained observer.'" United States v. Gooding, 695 F.2d 78, 82 (4th Cir. 1982). Attention must be focused on objective reasonableness rather than on the police officer's subjective intent.
Iglesias v. Commonwealth, 7 Va. App. 93, 101, 372 S.E.2d 170, 174-75 (1988) (en banc).
In the light most favorable to the Commonwealth, the evidence showed that Decatur, a five year veteran who has made "very many" drunk driving arrests, observed appellant drinking a beer in the officer's presence. Decatur also detected a "very strong odor" of alcohol emanating from appellant, an odor which his experience associated with one who is intoxicated. Ten minutes later, Decatur observed appellant operating a vehicle on the highway.
We find that these observations gave Officer Decatur a "reasonable articulable suspicion" that appellant was operating the vehicle while intoxicated. The standard is a reasonable suspicion which can be articulated, not probable cause. The fact that the officer may have been wrong in a particular case does not negate the reasonableness of the suspicion which initially existed.
Nor do we find any merit in appellant's argument of coercion regarding Decatur's threat of criminal prosecution if appellant did not identify himself. The issue was not properly raised in the trial court, and we will not notice it for the first time on appeal. Rule 5A:18. Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to the Rule.
Accordingly, the judgment appealed from is
Affirmed.
The law does not prohibit a person from driving a non-commercial motor vehicle after having consumed alcohol.But cf. Code § 46.2-341.31 ("No person shall drive a commercial motor vehicle while having any amount of alcohol in his blood"). The law prohibits driving either "while . . . [having] a blood alcohol concentration of .10 percent or more by weight by volume . . . [or] while . . . under the influence of alcohol." Code § 18.2-266. In my judgment, the police officer's perception that Johnson had "a strong odor of alcohol coming from his facial area" when he spoke to Johnson at the residence was not sufficient in the absence of other indicators to provide a reasonable articulable suspicion that Johnson was driving in violation of Code § 18.2-266.
The police officer conversed with Johnson at the door of the residence and observed Johnson in his immediate presence for thirty seconds to a minute. He described Johnson as cooperative and pleasant. Although the officer testified that he detected a strong odor of alcohol coming from Johnson's facial area, he also testified that he observed no outward signs of intoxication. Indeed, he saw nothing to indicate Johnson was under the influence of alcohol.
Ten minutes after his encounter with Johnson at the door of the residence, the officer came to a stop at an intersection and saw Johnson driving an automobile directly behind him. Despite the officer's testimony at trial that the odor of alcohol that he detected on Johnson caused him to believe Johnson was driving under the influence of alcohol, the officer did not stop Johnson. The officer testified that he decided to follow Johnson "to make an attempt to observe him." Thus, the officer's own conduct refutes the assertion at trial that he stopped Johnson because of the odor of alcohol.
Moreover, the odor of alcohol did not mean that Johnson had been drinking to excess. The facts in the record establish that Johnson's demeanor while in the immediate presence of the officer was pleasant and cooperative. Johnson did nothing to suggest to the officer that he was under the influence of alcohol. The officer stated that he spoke with Johnson and detected no slurring of his speech and no unsteadiness in his bearing. The officer affirmatively testified that nothing in Johnson's driving conduct indicated that Johnson was under the influence of alcohol. Thus, the officer ignored the many objective facts of sobriety that he observed. He reached a conclusion based solely upon his subjective judgment that the odor he detected was indicative of intoxication. His conclusion drawn from his subjective judgment was unreasonable. See Zimmerman v. Commonwealth, 234 Va. 609, 612, 363 S.E.2d 708, 709 (1988).
"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.'" Waugh v. Commonwealth, 12 Va. App. 620, 622, 405 S.E.2d 429, 430 (1991) (citation omitted). The evidence established that the officer made a turn to get behind Johnson's automobile and followed Johnson for a distance with other automobiles between them. Although the officer testified that he followed Johnson to observe his driving, the officer observed no erratic driving, no improper maneuvers, and no other conduct that suggested that Johnson was under the influence of alcohol. When Johnson drove onto the interstate highway, the officer followed him, closed the distance between their vehicles, and signaled Johnson to stop about a mile from their entrance onto the highway. Johnson responded appropriately to his signal and brought his automobile to a controlled stop.
When the officer stopped Johnson and asked Johnson for his driver's license, Johnson told the officer that he left his license at home. The officer then asked Johnson to come to the officer's vehicle and called to check Johnson's driving status. When the officer learned that Johnson had given him a false social security number, the officer threatened to arrest Johnson for failing to identify himself. After Johnson gave him the correct information, the officer checked Johnson's status and arrested Johnson for driving after having been declared an habitual offender. At some point, the officer gave Johnson an "alcosensor test;" however, the record contains no indication of Johnson's blood alcohol concentration. Moreover, the record contains no evidence that Johnson was charged with driving under the influence of alcohol or of another violation of Code § 18.2-266.
When we look at the totality of the circumstances that led to the stop, see Murphy v. Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 127, 125 (1989), the officer's suspicion was not "coupled with other articulable facts, such as erratic driving, a traffic violation, or some behavior which independently raise[d] suspicion of criminal activity." Id. at 145, 384 S.E.2d at 128. The officer's suspicion arose from a hunch that did not provide a reasonable basis to believe Johnson was driving under the influence of alcohol.
I dissent.