Commonwealth of Virginia v. Stanley Ray Parham ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1066-99-2 JUDGE SAM W. COLEMAN III
SEPTEMBER 14, 1999
STANLEY RAY PARHAM
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
Keith N. Hurley (Cawthorn, Picard & Rowe, on
brief), for appellee.
Stanley Ray Parham is charged with possession of cocaine as
the result of officers having found it during a search of Parham's
vehicle. The trial judge ruled that the traffic stop and
resulting search of Parham's vehicle violated his Fourth Amendment
rights and, accordingly, suppressed the evidence. Pursuant to
Code § 19.2-398, the Commonwealth appealed.
Upon review, we find the trial judge's ruling erroneous that
the stop was illegal, and we hold that the search did not violate
the Fourth Amendment. Therefore, we reverse the trial court's
suppression order and remand the case to the circuit court.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
BACKGROUND
At approximately 10:50 p.m., officers involved in a drug
interdiction effort observed Parham's vehicle enter the parking
lot of an apartment complex in a high crime area which, according
to the officers, is known to be associated with the sale and use
of illegal drugs. In accordance with their operating procedure,
when Parham's vehicle remained in the lot only for about two
minutes before exiting, Officer Brown followed the vehicle. After
observing that Parham's vehicle was in violation of Code
§ 46.2-1013 for failure to illuminate the rear license plate,
Brown radioed Officers Gordon and Benson who, in two separate
vehicles, stopped Parham. Brown arrived on the scene shortly
after the stop.
Brown and Gordon had Parham exit his vehicle and step to the
rear of the vehicle in order to observe the equipment violation.
As Parham stood five to ten feet behind the vehicle, Benson's drug
detection dog alerted to Parham. Benson returned the dog to his
police vehicle without walking him around Parham's vehicle. After
the dog alerted to Parham, the officers simultaneously searched
Parham and his vehicle for drugs. Inside the vehicle, the
officers found a crack stem, two small clear bags of cocaine, two
rods used to "stuff [the cocaine] down," and an unidentified red
device. The officers found no drugs on Parham.
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The trial court suppressed the cocaine seized from Parham's
vehicle after ruling that the traffic violation was a "subterfuge"
whose contrivance did not supply an articulable justification for
stopping the vehicle. In addition, the trial court ruled that
even if the traffic stop was legal, the dog's alert to Parham did
not supply probable cause to search Parham's vehicle.
ANALYSIS
On review of a suppression ruling, we view the evidence in
the light most favorable to the prevailing party and grant to that
party all reasonable inferences fairly deducible therefrom. See
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991). However, determinations of probable cause and
reasonable suspicion involve mixed questions of fact and law. See
McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S.
690, 691 (1996)). Thus, although we are bound by the trial
court's findings of historical fact unless plainly wrong or
without evidence to support them, see id. at 198, 487 S.E.2d at
261, "we review de novo the trial court's application of defined
legal standards to the facts of the case." Giles v. Commonwealth,
28 Va. App. 527, 532, 507 S.E.2d 102, 105 (1998).
We find that, at a minimum, the officers had sufficient
reasonable articulable suspicion to stop Parham's vehicle. See
Ford v. Commonwealth, 28 Va. App. 249, 255, 503 S.E.2d 803, 805-06
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(1998) (discussing the test to evaluate an investigatory stop).
Officer Brown testified that from fifty feet behind Parham's
vehicle, he could tell that the vehicle's license plate lacked
illumination in violation of Code § 46.2-1013. Before stopping
Parham, Officer Gordon confirmed Brown's observation of the
equipment violation.
Despite an officer's subjective reason for stopping a
vehicle, a stop is legal provided there is an objectively
reasonable basis for the traffic stop. See Whren v. United
States, 517 U.S. 806, 812-13 (1996); Logan v. Commonwealth, 29 Va.
App. 353, 359, 512 S.E.2d 160, 162-63 (1999); Bosworth v.
Commonwealth, 7 Va. App. 567, 570-71, 375 S.E.2d 756, 758 (1989).
Accordingly, regardless of whether the officers had as their
primary purpose stopping the vehicle to allow the dog to sniff for
drugs, the observed traffic violation supplied the officers legal
justification to stop Parham. The officers' ulterior motivation
does not negate the fact that probable cause existed to believe
that Parham was committing a traffic infraction, which gave the
officers legal justification for stopping the vehicle.
Where officers stop a motorist to issue a traffic citation,
the procedure, without more, does not authorize a full search of a
defendant's vehicle. See Knowles v. Iowa, 119 S. Ct. 484, 487-88
(1998). Here, however, the alert from the drug detection dog, in
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view of the totality of circumstances, supplied sufficient
probable cause to search Parham's vehicle. 1
Among recognized exceptions to the requirement that officers
obtain a warrant to search is the "automobile exception." Where
officers have probable cause to believe that a vehicle contains
evidence of a crime, officers may conduct a search of that vehicle
without first obtaining a warrant. See California v. Acevedo, 500
U.S. 565, 569 (1991).
The test for probable cause does not require "an actual
showing" of criminal activity, but, rather, "only a probability or
substantial chance" of such activity. Illinois v. Gates, 462 U.S.
213, 243-44 n.13 (1983).
In determining whether probable cause
to search exists, no hard and fast rule
exists which may be rigidly applied to yield
a certain result in each case. "Rather,
probable cause exists when the facts and
circumstances within the officer's
knowledge, and of which he has reasonably
trustworthy information, alone are
sufficient to warrant a person of reasonable
caution to believe that an offense has been
or is being committed."
1
Use of a drug detection dog that does not intrude upon a
zone of privacy does not implicate the Fourth Amendment and,
therefore, no degree of suspicion or probable cause is necessary
in the first instance to support the use of a drug detection dog
around or near an individual or vehicle. See Brown v.
Commonwealth, 15 Va. App. 1, 6, 421 S.E.2d 877, 881 (1992) (en
banc).
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Derr v. Commonwealth, 6 Va. App. 215, 219-20, 368 S.E.2d 916,
918 (1988) (quoting Taylor v. Commonwealth, 222 Va. 816, 820,
284 S.E.2d 833, 836 (1981)). Additionally, we have recognized
that experienced police officers "may be able to perceive and
articulate meaning in given conduct which would be wholly
innocent to the untrained observer." Richards v. Commonwealth,
8 Va. App. 612, 616-17, 383 S.E.2d 268, 271 (1989).
Here, after the police stopped Parham on an equipment
violation, and immediately after Parham exited his vehicle, a
drug detection dog alerted to Parham as he was standing behind
the vehicle. Under these circumstances, we find the officers
had probable cause to believe that Parham and Parham's vehicle
contained drug contraband. See Alvarez v. Commonwealth, 24 Va.
App. 768, 773-76, 485 S.E.2d 646, 648-50 (1997) (finding
probable cause to search where dog alerted on package in cargo
bay of bus). On these facts, had the drug dog alerted and
Parham been searched without drugs being found, probable cause
would have existed for a magistrate to believe that drugs were
in the vehicle and to have issued a warrant to search Parham's
vehicle. Based on this same reasoning, the officers had cause
to believe that drugs probably were in the vehicle.
Because we find the officers lawfully stopped Parham on an
equipment violation, and because we further find that the
circumstances created probable cause to believe that Parham's
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vehicle probably contained drugs, we reverse the trial court's
suppression order and remand the case to the trial court for
such further action that the Commonwealth deems necessary.
Reversed and remanded.
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