Elder, J.,
dissenting.
I respectfully dissent. I would find that appellant in his petition, briefs and arguments before the trial court and this Court regarding the issue of whether there was probable cause for the warrantless search of the automobile implicitly raised the issue of whether his initial detention and the detention of the Pinto were constitutionally permissible.
Officer Larry Thrift was the first police officer to encounter Brown. Pulling his car to a stop in front of the brown Pinto, Thrift watched as Brown walked from the disco toward the Pinto. Brown continued to approach and, during an ensuing conversation with Thrift, revealed that the Pinto was in his custody. Brown asked for permission to turn off the car engine, but Thrift instructed him to remain where he was and await investigators.
When a second officer, Roy Sydnor, arrived to investigate, Thrift advised him that he had just detained Brown. Sydnor in turn informed Rufus Baines, a third officer, of Brown’s presence. At trial, Officer Baines described his initial encounter with Brown.
I went to Mr. Brown and said that I had information that drugs were being dealt there, and that we were going to search for any evidence. At that time he said, do you have a search warrant? And I said, no, I don’t need one. I asked him to come over close to the Pinto where we could watch him, and that at that point I called for Special Investigator Jones to come with the State Police narcotics dog.
Brown’s detention was plainly a “seizure.”
It is quite plain that the Fourth Amendment governs “seizures” of the person which do not eventuate in a trip to the station house and prosecution for crime—“arrests” in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person.
Terry v. Ohio, 392 U.S. 1, 16 (1968). It is well settled that, even when no formal arrest is involved, a seizure of a person “must be supported by probable cause.” Michigan v. Summers, 452 U.S. 692, 696 (1981). Likewise, it is quite plain that the officers seized the Pinto when they [12]*12informed Brown that they were going to search the car. See United States v. Place, 462 U.S. 696 (1983). A temporary detention of an individual’s personal effects is permissible based upon “specific articulable facts [warranting a reasonable belief] that the [effects] contain contraband or evidence of a crime.” Id. at 706.
According to the testimony of Officer Baines, the police had already decided to conduct a search of the car at the time Brown was stopped. However, at that time, the only information they had concerning Brown or the car was the informant’s instruction to “check the brown Pinto.” “‘[Suspicion, or even strong reason to suspect’ is not an adequate substitute for probable cause to justify the entry and search.” Derr v. Commonwealth, 6 Va. App, 215, 221, 368 S.E.2d 916, 919 (1988) (quoting Henry v. United States, 361 U.S. 98, 101 (1959)). “‘[T]he probable-cause determination must be based on objective facts that could justify the issuance of a warrant by a magistrate’” Derr, 6 Va. App. at 220, 368 S.E.2d at 918 (quoting United States v. Ross, 456 U.S. 798, 808 (1982)). Here, relying only on an informant’s instruction to “check” a particular car, the police had, at best, a suspicion of criminal activity relative to that car.
A narrow exception to the general rule requiring probable cause for a seizure of people or effects allows police to make “limited intrusions on an individual’s personal security based on less than probable cause.” Summers, 452 U.S. at 698. Such intrusions must be warranted by “substantial law enforcement interests” and must be supported by “an articulable basis for suspecting criminal activity.” Id. at 699.
The case before us is unlike Terry or Adams v. Williams, 407 U.S. 143 (1972), where officers acted on a reasonable belief that the suspects they confronted were armed and potentially dangerous. Here, police faced no such concern. Moreover, in our review of the record, we have found no “articulable basis for suspecting criminal activity” to support a detention of Brown and a seizure of the Pinto. The sole possible basis for the detention and seizure was the suggestion by the informant “to check the brown Pinto,” coupled with Brown’s acknowledgement that the Pinto was in his possession. Because police did not at the time know what information prompted the informant to transmit this cryptic message back to them, it cannot serve as an articulable basis of suspicion of criminal activity.
The facts before us are also distinguishable from those in Williams v. Commonwealth, 4 Va. App. 53, 354 S.E.2d 79 (1987), and Allen v. [13]*13Commonwealth, 3 Va. App. 657, 353 S.E.2d 162 (1987). In Williams, this Court held that officers who detained the defendant had “sufficient articulable facts” to support the suspicion that the defendant was engaged in criminal activity. 4 Va. App. at 65, 354 S.E.2d at 85. However, those articulable facts were, as required by the Virginia Supreme Court in Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982), “particularized and objective.” In Williams, police had been informed that the defendant possessed contraband and was engaged in the distribution of that contraband. They had a search warrant for the residence supported by probable cause to believe that the defendant was carrying on his illegal activities in the residence from which he had just departed. They also knew that the defendant had a history of drug-related offenses. 4 Va. App. at 65, 354 S.E.2d at 86. The facts in Williams stand in stark contrast to the facts of this case — a lone informant’s vague admonition that police “check” an automobile. As long as the police remained uninformed about the basis for their informant’s remark, they had no articulable basis to support their actions.
In Allen, this Court approved the detention of an individual seen driving away from premises as police arrived to execute a search warrant! 3 Va. App. at 661, 353 S.E.2d at 165. In so holding, this Court relied on Michigan v. Summers, 452 U.S. 692 (1981), in which the United States Supreme Court held that the existence of a search warrant provided objective justification for the detention of a defendant who was leaving his house just as police arrived to execute a search warrant on that house. In both Allen and Summers, the detention was based on a finding of probable cause for the issuance of a search warrant.
Of prime importance in assessing the intrusion is the fact that the police had obtained a warrant to search respondent’s house for contraband.
Free access — add to your briefcase to read the full text and ask questions with AI
Elder, J.,
dissenting.
I respectfully dissent. I would find that appellant in his petition, briefs and arguments before the trial court and this Court regarding the issue of whether there was probable cause for the warrantless search of the automobile implicitly raised the issue of whether his initial detention and the detention of the Pinto were constitutionally permissible.
Officer Larry Thrift was the first police officer to encounter Brown. Pulling his car to a stop in front of the brown Pinto, Thrift watched as Brown walked from the disco toward the Pinto. Brown continued to approach and, during an ensuing conversation with Thrift, revealed that the Pinto was in his custody. Brown asked for permission to turn off the car engine, but Thrift instructed him to remain where he was and await investigators.
When a second officer, Roy Sydnor, arrived to investigate, Thrift advised him that he had just detained Brown. Sydnor in turn informed Rufus Baines, a third officer, of Brown’s presence. At trial, Officer Baines described his initial encounter with Brown.
I went to Mr. Brown and said that I had information that drugs were being dealt there, and that we were going to search for any evidence. At that time he said, do you have a search warrant? And I said, no, I don’t need one. I asked him to come over close to the Pinto where we could watch him, and that at that point I called for Special Investigator Jones to come with the State Police narcotics dog.
Brown’s detention was plainly a “seizure.”
It is quite plain that the Fourth Amendment governs “seizures” of the person which do not eventuate in a trip to the station house and prosecution for crime—“arrests” in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person.
Terry v. Ohio, 392 U.S. 1, 16 (1968). It is well settled that, even when no formal arrest is involved, a seizure of a person “must be supported by probable cause.” Michigan v. Summers, 452 U.S. 692, 696 (1981). Likewise, it is quite plain that the officers seized the Pinto when they [12]*12informed Brown that they were going to search the car. See United States v. Place, 462 U.S. 696 (1983). A temporary detention of an individual’s personal effects is permissible based upon “specific articulable facts [warranting a reasonable belief] that the [effects] contain contraband or evidence of a crime.” Id. at 706.
According to the testimony of Officer Baines, the police had already decided to conduct a search of the car at the time Brown was stopped. However, at that time, the only information they had concerning Brown or the car was the informant’s instruction to “check the brown Pinto.” “‘[Suspicion, or even strong reason to suspect’ is not an adequate substitute for probable cause to justify the entry and search.” Derr v. Commonwealth, 6 Va. App, 215, 221, 368 S.E.2d 916, 919 (1988) (quoting Henry v. United States, 361 U.S. 98, 101 (1959)). “‘[T]he probable-cause determination must be based on objective facts that could justify the issuance of a warrant by a magistrate’” Derr, 6 Va. App. at 220, 368 S.E.2d at 918 (quoting United States v. Ross, 456 U.S. 798, 808 (1982)). Here, relying only on an informant’s instruction to “check” a particular car, the police had, at best, a suspicion of criminal activity relative to that car.
A narrow exception to the general rule requiring probable cause for a seizure of people or effects allows police to make “limited intrusions on an individual’s personal security based on less than probable cause.” Summers, 452 U.S. at 698. Such intrusions must be warranted by “substantial law enforcement interests” and must be supported by “an articulable basis for suspecting criminal activity.” Id. at 699.
The case before us is unlike Terry or Adams v. Williams, 407 U.S. 143 (1972), where officers acted on a reasonable belief that the suspects they confronted were armed and potentially dangerous. Here, police faced no such concern. Moreover, in our review of the record, we have found no “articulable basis for suspecting criminal activity” to support a detention of Brown and a seizure of the Pinto. The sole possible basis for the detention and seizure was the suggestion by the informant “to check the brown Pinto,” coupled with Brown’s acknowledgement that the Pinto was in his possession. Because police did not at the time know what information prompted the informant to transmit this cryptic message back to them, it cannot serve as an articulable basis of suspicion of criminal activity.
The facts before us are also distinguishable from those in Williams v. Commonwealth, 4 Va. App. 53, 354 S.E.2d 79 (1987), and Allen v. [13]*13Commonwealth, 3 Va. App. 657, 353 S.E.2d 162 (1987). In Williams, this Court held that officers who detained the defendant had “sufficient articulable facts” to support the suspicion that the defendant was engaged in criminal activity. 4 Va. App. at 65, 354 S.E.2d at 85. However, those articulable facts were, as required by the Virginia Supreme Court in Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982), “particularized and objective.” In Williams, police had been informed that the defendant possessed contraband and was engaged in the distribution of that contraband. They had a search warrant for the residence supported by probable cause to believe that the defendant was carrying on his illegal activities in the residence from which he had just departed. They also knew that the defendant had a history of drug-related offenses. 4 Va. App. at 65, 354 S.E.2d at 86. The facts in Williams stand in stark contrast to the facts of this case — a lone informant’s vague admonition that police “check” an automobile. As long as the police remained uninformed about the basis for their informant’s remark, they had no articulable basis to support their actions.
In Allen, this Court approved the detention of an individual seen driving away from premises as police arrived to execute a search warrant! 3 Va. App. at 661, 353 S.E.2d at 165. In so holding, this Court relied on Michigan v. Summers, 452 U.S. 692 (1981), in which the United States Supreme Court held that the existence of a search warrant provided objective justification for the detention of a defendant who was leaving his house just as police arrived to execute a search warrant on that house. In both Allen and Summers, the detention was based on a finding of probable cause for the issuance of a search warrant.
Of prime importance in assessing the intrusion is the fact that the police had obtained a warrant to search respondent’s house for contraband. A neutral and detached magistrate had found probable cause to believe that the law was being violated in that house and had authorized a substantial invasion of the privacy of the persons who resided there. The detention of one of the residents while the premises were searched, although admittedly a significant restraint on his liberty, was surely less intrusive than the search itself.
Summers, 452 U.S. at 701 (footnote omitted).
[14]*14Absent from the facts before us is any suggestion that, at the time Brown was detained and the Pinto seized, probable cause existed for a search of the Pinto. Whether probable cause later arose is, on these facts, irrelevant to the question whether it existed at the time of the initial detention of Brown and the Pinto.
With neither probable cause nor an articulable basis to believe that the Pinto contained evidence of crime, the police had no basis for detaining Brown or seizing the Pinto pending the arrival of the dog. Since the Pinto was illegally seized prior to the arrival of the dog, all evidence derived directly or indirectly from that search must be suppressed. See Derr, 6 Va. App. at 223, 368 S.E.2d at 920-21.
I would reverse and remand.