Limonja v. Commonwealth

¶1dissenting.

¶2I respectfully dissent. In affirming this conviction the majority sanctions a warrantless seizure, based on less than probable cause, of a package removed from an automobile trunk during a traffic stop. The majority further holds that because the occupants of the automobile fit a drug courier profile, they could be detained for a substantial period of time while law enforcement officers sought to locate a dog for the purpose of sniffing the package for narcotics. Because the conduct of the law enforcement officers in detaining the occupants was unreasonable and unnecessarily intrusive, I would hold that a fourth amendment violation occurred and I would suppress the fruits of the unlawful seizure and detention.

¶3A full account of the facts is necessary to disclose the purposefulness of the officer’s conduct and to demonstrate the illegality of the extraordinary detention of the package and the occupants of the automobile. The facts show that State Trooper Thomas Keith was patrolling in an unmarked vehicle when he saw a Florida rental automobile traveling north on Interstate 95. Keith determined that the automobile and its two occupants, Margaret Mary Limonja, the driver, and Raymond James Brooks, fit a drug courier profile. Although the evidence does not indicate that the automobile was exceeding the speed limit, Trooper Keith began “pacing” the automobile because he was “trying to . . . get the speeding ticket.” He also called his dispatcher for a check of the license plate number; however, the record system computer was not working. Before he “got a pace on them,” the automobile left the interstate highway. Solely because he believed that the automobile fit a drug courier profile, Keith followed the automobile. He parked his vehicle and observed the automobile as it went to *429one gas station that was closed and then proceeded to another that was open for business. Keith waited and watched while Limonja went to the restroom and Brooks got gas and checked the oil.

¶4Keith contacted State Trooper Dempsey while he was watching the automobile. He told Dempsey that he was observing an automobile that fit a drug profile and that he “was going to wait to see if [he] could get a pace on them.” Dempsey, who was driving a marked state police vehicle, indicated to him that he was coming to that location.

¶5Keith followed the automobile when it left the gas station. He testified that “[s]ometime in between the time that the car left the Exxon station” and before it reached the toll gate to enter the highway he decided to call for a narcotic’s detection dog. He told Dempsey that he wanted a dog and “[a]s far as [he knew the request for a dog] was made by Trooper Dempsey” before Limonja drove back onto the interstate highway.

¶6Because the automobile “didn’t stop when [it] went through [an unmanned, automatic toll] booth,” Keith activated his grill lights and stopped the automobile as it re-entered the interstate highway. Dempsey testified that he was already at the southbound side of the same exit when he received Keith’s call. Dempsey testified: “I was stationary looking directly over to the northbound lane when I saw the vehicle go right through the toll booth plaza, the stop sign. It did not stop for the stop sign at all.”

¶7Keith stopped Limonja at 12:10 p.m., informed her “that she had run the automatic toll booth,” and asked “was there any particular reason why she did this.” She told him that she only had four quarters and the toll booth required exact change of ten cents. He then asked for her driver’s license and automobile rental agreement. From his position outside the automobile Keith saw no luggage in the passenger compartment and saw an object under Brooks’ seat that he was unable to identify.3 After he received the *430license and rental agreement, Keith asked to search the automobile. He testified that Limonja and Brooks permitted the search. They were told to leave the automobile and were guarded by Dempsey as they stood on the shoulder of the highway.4 During the search of the automobile, Keith first found a radar detector “partially stuck in behind underneath the right front seat where Mr. Brooks was sitting.” Keith testified that both the toll booth offense and the possession of a radar detection offense are traffic offenses that are handled through the issuance of citations.

¶8When Keith began his search of the trunk, Brooks and Limonja were required to identify their luggage. Keith searched the luggage but found no contraband. A gift wrapped package was removed from the trunk and placed on the hood of Keith’s idling automobile. When the package was discovered, Dempsey again called concerning the dog. Brooks told Keith that he was delivering the package for a friend and he was asked by Keith to sign a written consent to search the package. Brooks signed the document at 12:45 p.m. but then revoked the consent at 12:48 p.m. When Brooks revoked his consent, he and Limonja were not permitted to leave and were required to wait on the side of the highway while the officers continued their efforts to locate a narcotics detection dog and have it brought to the scene. While they waited, Keith questioned Limonja and Brooks concerning their destination and the package. The gift wrapped package remained on the hood of the idling police vehicle while Dempsey was on his radio attempting to locate a dog.

¶9When the dog arrived at 1:13 p.m., the package was removed from the hood of Keith’s automobile and placed on the front seat of the rental automobile. Limonja needed to use a toilet and, after *431the dog arrived, was taken by Trooper Worrell at 1:19 p.m. to a toilet in a nearby restaurant. At 1:23 p.m. Keith requested assistance for preparation of a search warrant for the package. Worrell returned with Limonja to the scene at 1:32 p.m. After Trooper Worrell returned to the scene, he saw the dog go around the automobile and then into the automobile. The state police dispatcher’s log reflects that Worrell advised the dispatcher at 1:36 that dog had “a positive hit.” Keith told Brooks that if he did not consent to a search of the package, a search warrant would be secured. Brooks then permitted the search which led to the discovery of cocaine. Limonja and Brooks were arrested and later taken to the magistrate’s office. The traffic citations were given to Limonja at the magistrate’s office at 4:30 p.m.

¶10“The Fourth Amendment is ... a guarantee against . . . unreasonable searches and seizures.” United States v. Sharpe, 470 U.S. 675, 682 (1985). In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court recognized a “narrowly drawn” exception to the fourth amendment requirement of probable cause, and held that a police officer may conduct an investigative stop where he is able to “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21.

“ The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissibleThe reasonableness requirement of the Fourth Amendment requires no less when the police action is a seizure permitted on less than probable cause because of legitimate law enforcement interests. The scope of the detention must be carefully tailored to its underlying justification.

The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably *432available to verify or dispel the officer’s suspicion in a short period of time. It is the State’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.

¶11Florida v. Royer, 460 U.S. 491, 500 (1983)(citations omitted) (emphasis added). A detention for investigative purposes subsequent to a valid traffic stop and unrelated to the justification for that initial stop may be so extended as to be unreasonable and violative of the fourth amendment. See United States v. Recalde, 761 F.2d 1448, 1455 (10th Cir. 1985).

¶12In the present case the Commonwealth failed to demonstrate that the seizure of Limonja, Brooks, their vehicle, and their belongings were “justified] on the basis of a reasonable suspicion . . . sufficiently limited in scope and duration to satisfy the conditions of [the] investigative seizure.” Royer, 460 U.S. at 500. Although Keith’s testimony provides a sufficient basis upon which to conclude that Keith stopped the automobile because of the drug courier profile, he testified that he stopped the automobile, in fact, because Limonja had failed to pay a toll at the booth and had run the toll’s stop sign. “[A] brief delay while [a law enforcement officer] issued a traffic citation was inevitable, proper, and minimally intrusive.” Recalde, 761 F.2d at 1455.

¶13Although the documents were in order, Keith did not then issue a citation for the traffic violation. Instead, while retaining their identification, he asked Limonja why she had run the toll gate. Because Keith intended to pursue his suspicions that they were drug couriers, he sought and obtained from Limonja and Brooks consent to search the interior of the automobile and trunk. Thereafter, Keith obtained a written consent from Brooks to open the wrapped package found within the trunk; however, Brooks validly revoked the consent before the officer opened the package. See Mason v. Pulliam, 557 F.2d 426 (5th Cir. 1977)(consent may be revoked); United States v. Homburg, 546 F.2d 1350 (9th Cir. 1976), cert. denied, 431 U.S. 940 (1977)(same). Assuming the validity of the intrusion that occurred prior to the withdrawal of consent, it is at this point that the scope and subsequent duration of the ensuing detention and search were clearly no longer “ ‘strictly tied to and justified by’ the circumstances which ren*433dered [their] initiation permissible.” Terry, 392 U.S. at 19 (quoting Warden v. Hayden, 387 U.S. 294, 310 (1967)(Fortas, J., concurring)).

¶14Our Court recently held in Taylor v. Commonwealth, 6 Va. App. 384, 369 S.E.2d 423 (1988) (en banc), that reasonable, articulable suspicion that illegal narcotics are being transported cannot rest solely on the fact that a traveller matches a drug courier profile. See also Reid v. Georgia, 448 U.S. 438, 441 (1980). Seizures premised solely on a belief that individuals match a drug courier profile are violative of the fourth amendment. Id.Since the drug courier profile did not provide a reasonable, articulable suspicion that Brooks and Limonja were transporting drugs, the continuing seizure and detention were unlawful. When Brooks withdrew his consent and the law enforcement authorities said that a dog was on its way and that a search warrant would be obtained, the seizure of the package, Brooks, and Limonja continued, see United States v. Place, 462 U.S. 696, 707 (1983), based upon nothing more than an “inchoate and unparticularized suspicion or ‘hunch’ ” that the gift wrapped package found in the luggage of the car contained drugs. Terry v. Ohio, 392 U.S. 1, 27 (1967).

¶15Not only was the continued seizure unlawful but the delay which occurred as the officers sought to validate their suspicions exceeded the bounds of reasonableness. The constitutional limits of the duration and scope of the detention subsequent to the revocation of Brooks’ consent and prior to the discovery of the narcotics must be measured solely by its relation to the only valid purpose of the stop — the issuance of a traffic citation. A police officer is allowed “to detain an individual stopped for [a traffic violation] only the time necessary to obtain satisfactory identification from the violator and to execute a traffic citation.” United States v. Luckett, 484 F.2d 89, 91 (9th Cir. 1973). In this case the extraordinary detention occurred because “the officers’ subsequent actions were motivated entirely by their suspicions of narcotics,” Recalde, 761 F.2d at 1455; thus, the detention bore no relationship to the observed traffic violation.

¶16In my view, the additional forty-eight minute detention of Brooks and Limonja, which occurred after Brooks revoked his consent and before the cocaine was discovered, was unrelated to the purpose of issuing a traffic citation. Keith testified that the *434traffic citations had been written ten minutes after the initial stop. However, when the dog was reported to have “alerted” on the package, the officers had not issued traffic citations even though one hour and twenty-six minutes had passed since officers stopped the vehicle. Until the time the dog alerted, the officers had observed no additional factors that would justify detention beyond the time Brooks revoked his consent.

¶17The detention of Limonja and Brooks that occurred after the revocation of Brooks’ consent became “in important respects indistinguishable from a traditional arrest.” Dunaway v. New York, 442 U.S. 200, 212 (1979). During the roadside detention, Keith did not return Brooks’ or Limonja’s identification papers or issue traffic citations. They were informed neither that their licenses and papers would be returned nor that they could leave. The issuance of the traffic citations some four hours after the vehicle had been stopped conclusively establishes that they could not have left. Thus, Limonja and Brooks were captives of the officers for whatever time the officers deemed necessary to investigate and probe their suspicions. “The inescapable conclusion to be drawn from the record is that the officers, lacking probable cause to arrest [Limonja] for [transporting illegal drugs,] seized [and] detained [them at the roadside] ... in the hope of developing sufficient probable cause.” Recalde, 761 F.2d at 1456. “The police conduct in this case cannot be characterized as minimally intrusive. This sort of police activity is an abuse of investigative detention and violates the Fourth Amendment.” Id.

¶18“[The] police procedures [became] qualitatively and quantitatively ... so intrusive with respect to [Brooks’ and Limonja’s] freedom of movement and privacy interests as to trigger the full protection of the Fourth and Fourteenth Amendments.” Hayes v. Florida, 470 U.S. 811, 815-16 (1985). “In assessing whether a detention is too long in duration to be justified as an investigative stop ... it [is] appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” Sharpe, 470 U.S. at 686 (1985). Whether the police have acted with due diligence may be measured solely as a function of the amount of time that elapses. See Place, 462 U.S. at 709-10. Unlike the twenty minutes detention in Sharpe, which was attributed entirely to the evasive actions of the *435defendant in that case, see 470 U.S. at 687-88, Limonja and Brooks bore no responsibility for the extensive detention to which they were subjected. Here the detention delay was solely attributable to the law enforcement officers; thus, “[t]he length of the detention . . . alone precludes the conclusion that the seizure was reasonable.” Place, 462 U.S. at 709.

¶19The suggestion that Brooks consented to the search of the package after the illegal detention and the sniff by the narcotics detection dog must also fall. As earlier stated, the police “made a ‘seizure’ of [the package] for purposes of the Fourth Amendment when, following his refusal to consent to a search,” the police called for assistance in arranging for the issuance of a search warrant and detained the package, Limonja, and Brooks while a dog was being located. See Place, 462 U.S. at 707. Not only had Brooks been seized when he gave his second oral consent to open the package, but also the scope of a legitimate investigative stop had been exceeded.

¶20Because the seizure and detention exceeded lawful limits, the consent that was obtained was tainted by the illegality. The evidence in this record does not establish a break in the causal connection between the illegal detention and the evidence obtained as a consequence of the illegality. See Dunaway, 442 U.S. at 217-18; Brown v. Illinois, 422 U.S. 590, 602-05 (1975). An alleged consent must be “sufficiently an act of free will to purge the primary taint” of the illegal detention. Brown, 422 U.S. at 602. The temporal proximity of the illegal detention and the “consent,” the lack of intervening circumstances, and the flagrancy of the misconduct of the police all militate against the voluntariness of the consent. See Dunaway, 442 U.S. at 218; Brown, 422 U.S. at 603-04.

¶21Here, the alleged consent occurred during the illegal detention; moreover, there were no intervening circumstances established on this record. The flagrancy of the misconduct and illegal detention can be measured by the “quality of purposefulness” of the officers’ conduct. Brown, 422 U.S. at 605. Keith began “pacing” the suspected drug courier profile car in order “to get the ticket.” He watched the car as it stopped to refuel and he had decided to call for a dog and stop the automobile before the driver committed a violation. Keith’s intent to seize the automobile by some means is clearly evidenced by his own testimony that he informed Worrell *436that he would resume his “pacing” when the automobile left the service area. In order to accomplish their ultimate goal of searching the seized automobile, the officers forced the occupants to remain at the roadside by not returning their licenses, papers, and by not issuing the traffic citations following the stop. To suggest that a detention which accompanied such a purposeful attempt to find a violation and which later continued for a period of forty-one minutes during the pursuit of an available narcotics dog is unobtrusive or reasonable is to close one’s eyes to the command of the fourth amendment.

¶22Moreover, the officers procured the “consent” only after Keith threatened to detain Limonja and Brooks further while he secured a search warrant. The coerciveness of the police action was apparent. From the outset this was “an ‘expedition for evidence’ admittedly undertaken ‘in the hope that something might turn up.’ ” Dunaway, 442 U.S. at 218 (quoting Brown, 422 U.S. at 605).

The manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they were warranted at all. The Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing preconditions upon its initiation. The entire deterrent purpose of the rule excluding evidence seized in violation of the Fourth Amendment rests on the assumption that “limitations upon the fruit to be gathered tend to limit the quest itself.” Thus, evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation.

¶23Terry, 392 U.S. at 28-29 (citations omitted).

¶24Finally, the majority incorrectly relies upon Placeto hold that a search did not occur when the dog was used to sniff the package and the contents of the automobile. Place’s holding that “exposure of respondent’s luggage, which was located in a public place, to a trained canine - did not constitute a ‘search’ within the meaning of the Fourth Amendment” is inapposite to this case. 462 U.S. at 707 (emphasis added). Here the package that was sniffed was only in a public place because it was removed by the authorities from the trunk of the automobile and detained on the hood of the idling police vehicle. The use of a narcotics detection dog to sniff a *437package that has been placed in the public domain by unlawful police action such as under the circumstances of this case constituted a warrantless search without probable cause.5

¶25For these reasons, I would hold that the motions to suppress should have been granted.