Record No. 1436-93-1
Decided: February 28, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, Edward W. Hanson, Jr., Judge
Andrew G. Wiggin (Office of the Public Defender, on brief), for appellant
John H. McLees, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Willis and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Anthony J. Williams, Sr. (appellant) appeals from his bench trial conviction by the Circuit Court of the City of Virginia Beach (trial court) for possession of cocaine. The sole issue presented by this appeal is whether the trial court erred when it denied appellant's motion to suppress evidence of cocaine found in appellant's possession. The Commonwealth having prevailed below, we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth. Ramdass v. Commonwealth, 246 Va. 413, 416, 437 S.E.2d 566, 568 (1993). Finding no error, we affirm the judgment of the trial court.
At approximately 3:00 a.m. on July 16, 1992, Virginia Beach Police Officer Wilson T. Sawyer (Sawyer) was patrolling in a marked police car near the intersection of South Lynnhaven Road and Courtview Drive in Virginia Beach. At 3:06 a.m., Sawyer observed appellant driving a motor vehicle on a public street near that intersection and the Reflections Apartments.
Sawyer was a seven-year veteran street patrol officer. Appellant's sudden high speed acceleration attracted Sawyer's attention, and when appellant turned off the street onto the Reflections Apartment property, Sawyer followed. As appellant drove around the apartment building, he accelerated and slowed at least a half-dozen times. Sawyer became concerned and suspected that appellant might be driving under the influence of alcohol or some other substance, and as appellant drove toward the public street, appearing to prepare to re-enter the highway, Sawyer considered appellant to be a threat to public safety and stopped him.
Sawyer requested appellant to show his driver's permit and determined that appellant was driving on a suspended operator's license and had no identification. Sawyer arrested appellant, patted him down, and, in Sawyer's patrol car, took him to a police station.
At the police station, pursuant to his arrest, appellant was searched. On appellant's person, the police found a smoking device containing cocaine residue. Possession of that cocaine resulted in the conviction from which this appeal emanates.
The trial court found that appellant's driving was sufficiently "erratic" to provide reasonable ground for the officer to make an investigatory stop.
In support of his position, appellant cites Castaneda v. Commonwealth, 6 Va. App. 476, 370 S.E.2d 109 (1988), and Taylor v. Commonwealth, 6 Va. App. 384, 369 S.E.2d 423 (1988). Taylor is inapposite. The reason assigned by the Court for reversing Taylor's conviction was that the officer's stop of Taylor was based upon "a drug courier profile" without articulating any other conduct that might justify an investigatory stop. Here, there was other conduct upon which Sawyer based his suspicion that there was a threat to public safety.
The other authority relied upon by appellant, Castaneda, was reversed by our Court en banc. Castaneda, 7 Va. App. 574, 376 S.E.2d 82 (1988) (en banc). The en banc decision does not support appellant's position.
" '[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.' " Baldwin v. Commonwealth, 243 Va. 191, 195, 413 S.E.2d 645, 647 (1992) (quoting Terry v. Ohio, 392 U.S. 1, 22 (1968)). In articulating the reasons for such a seizure, "the officer must prove only that a reasonable suspicion exists that criminal activity may be afoot." Lee v. Commonwealth, 18 Va. App. ___, ___, 443 S.E.2d 180, 182 (1994). "The test is less stringent than probable cause." Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982).
A police stop of a vehicle on a highway and detention of the driver constitutes a "seizure" within the meaning of the Fourth Amendment, even though the stop is limited, and the detention is brief. Lowe v. Commonwealth, 230 Va. 346, 349, 337 S.E.2d 273, 275 (1985), cert. denied, 475 U.S. 1084 (1986). The Fourth Amendment does not forbid all searches and seizures, only unreasonable searches and seizures. Terry, 392 U.S. at 9 (emphasis added). The police are authorized to effect stops of vehicles if the police officer articulates a reasonable need to protect the public interest or that criminal activity may be afoot. Barrett v Commonwealth, ___ Va. App. ___, ___, 447 S.E.2d 243, 245 (1994) (en banc). Here, appellant and the marked police car were within full view of each other when appellant accelerated to a high speed, left the public highway, drove in an erratic manner around an apartment complex, speeding up and slowing down without an apparent reason, and then headed toward the public street. The stop of the vehicle did not violate the unreasonable search and seizure provision of the Fourth Amendment.
An on-duty police officer patrolling the public streets is there to protect the public interest as well as that of appellant. In performing that duty, the officer is not a ceremonial palace guard. When the officer observes erratic driving as that shown by this record-and he sees the driver proceed back to the public highway-he not only is authorized to make an investigatory stop, he is obliged to do so. He has the duty to protect the public or the driver in his caretaking capacity upon reasonable suspicion that appellant may be in need of assistance due to physical incapacity of his person, a defect in his vehicle, or that the criminal activity, of driving under the influence of alcohol or some other substance, may be afoot. Id.
Upon this record, we cannot say that the judgment of the trial court was plainly wrong or without evidence to support it. Accordingly, the judgment of the trial court is affirmed.
I respectfully dissent from the majority's opinion, as I believe the arresting officer lacked a reasonable, articulable suspicion for stopping appellant's vehicle. For this reason, I would reverse and dismiss appellant's conviction.
As the majority recognizes, before an officer can make an investigatory stop of a vehicle, he or she must have some reasonable, articulable suspicion that the vehicle or its occupants may be involved in or have been recently involved in some form of criminal activity. See Lee v. Commonwealth, ___ Va. App. ___, ___, 443 S.E.2d 180, 182 (1994); Waugh v. Commonwealth, 12 Va. App. 620, 621-22, 405 S.E.2d 429, 429 (1991). This standard was not met in this case.
"The law enforcement officer conducting the stop . . . [was not] able to 'point to specific and articulable facts which, taken together with rational inferences from these facts, reasonably warrant[ed]' stopping [appellant] to conduct further investigation." Lowery v. Commonwealth, 9 Va. App. 314, 317, 388 S.E.2d 265, 266 (1990) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).
The crime suspected by Officer Sawyer was driving under the influence of alcohol or some other substance. However, Officer Sawyer's suspicion was not articulated to the court, and its reasonableness was not assessed independently of his subjective assertions. Taylor v. Commonwealth, 6 Va. App. 384, 388, 369 S.E.2d 423, 425 (1988) (citing United States v. Gooding, 695 F.2d 78, 82 (4th Cir. 1982). Accord Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (stating an investigative stop is valid if supported by reasonable and articulable suspicion of criminal activity, based upon objective facts).
It was only at the trial judge's prompting that Officer Sawyer agreed that drunk driving was a possible factor causing appellant's erratic driving. Additionally, Officer Sawyer's testimony lacked the necessary articulation to explain why appellant's actions were objectively indicative of criminal behavior. Although Officer Sawyer testified that his police experience led him to believe appellant was "possibly under the influence of a number of things" and was a "threat to public safety," he offered insufficient objective facts to support this assertion.
Not only did Officer Sawyer fail to describe specifically why his experience as an officer led him to suspect appellant, but appellant's high-speed turn into the apartment complex and his acceleration and deceleration on six occasions did not, in this case, objectively justify a traffic stop. See, e.g., United States v. Smith, 799 F.2d 704, 709 (11th Cir. 1986) (stopping defendant for failure to change lane safely and reckless driving was pretextual where driver only deviated six inches from road and weaved slightly within a single lane of a highway). Officer Sawyer made it clear that he felt that none of the conduct he observed constituted a traffic infraction or criminal offense. This case differs from those cases where an officer forms a suspicion of criminal activity based on erratic driving that includes weaving, straddling the center line, and speed variations. See, e.g., Talley v. Commonwealth, 16 Va. App. 473, 431 S.E.2d 65 (1993).
Furthermore, I disagree with the majority's extension of the rationale of Barrett v. Commonwealth, ___ Va. App. ___, 447 S.E.2d 243 (1994) (en banc) (Elder, J., dissenting) to this case. The majority has broadened Barrett beyond its constitutional parameters, which were heretofore limited by the Barrett majority to situations that involve maintaining order or rendering assistance. See generally Cady v. Dombrowski, 413 U.S. 433 (1973); South Dakota v. Opperman, 428 U.S. 364 (1976); Colorado v. Bertine, 479 U.S. 367 (1987). My admonition in my dissent in Barrett applies with even greater force in this case: "The new, expanded 'community caretaking function' adopted by the majority will effectively remove all objective limits on police activity [such as that which occurred in this case]." Barrett, ___ Va. App. at ___, 447 S.E.2d at 247.
Because neither appellant's behavior nor the officer's articulated reason for stopping appellant's vehicle provided a basis for reasonably suspecting criminal behavior, I believe that Officer Sawyer's traffic stop was invalid, as were the resulting arrest and search incident thereto. For these reasons, I respectfully dissent and would reverse and dismiss appellant's conviction.