Carson v. Commonwealth

404 S.E.2d 919, 12 Va. App. 497, 7 Va. Law Rep. 2619, 1991 Va. App. LEXIS 101

• Court: Court of Appeals of Virginia
• Decided: May 14, 1991
• Docket: No. 0541-89-3
• Status: Published

Opinions

Opinion

BARROW, J.

Appealing convictions for possession of marijuana with intent to distribute and possession of cocaine with intent to distribute, the defendant contends the arresting officer violated his fourth amendment rights when the officer approached the defendant’s car as it stopped at a toll booth, seized a cut-off straw from between the driver’s legs and then searched the trunk of the defendant’s car. We disagree and hold that the police officer had a right to walk up to the defendant’s car stopped in a public place. We also hold that the officer satisfied the requirements of the plain view doctrine in seizing the straw. Finally, we hold that the discovery of white powder residue on the straw gave the officer probable cause to search the trunk of the car.

The arresting officer testified that he was standing at an exact change toll booth on Interstate 95 when a vehicle in which the defendant was a passenger approached. As the vehicle came through the toll booth, the officer said that he took one step closer to the vehicle and that “[a]s . . . [the driver] paid his toll, I looked into the vehicle and began to have a conversation with him, and about the same time I started the conversation, I noticed on the seat between the driver’s legs . . . what appeared to be about a one-and-a-half to two inch straw. . . .” From his past experience in drug enforcement work, the officer recognized the straw as the type “that people use to ingest cocaine through their nose.” He then “reached into the vehicle and retrieved the straw” because he feared the subjects might try to flee. Noticing a white powder residue on the straw, the officer instructed the driver of the car to pull to the side of the road. He searched the trunk of the car and found almost two pounds of marijuana and slightly more than two kilograms of cocaine.

I. THE OFFICER’S APPROACH AT THE TOLL BOOTH

We disagree with the defendant’s assertion that Delaware v. Prouse, 440 U.S. 648 (1979), is the controlling authority in this case. In Prouse, the Court held that the stop of a vehicle on the highway to check the driver’s license and automobile registration is a seizure for fourth amendment purposes; such a stop is unconstitutional unless accompanied by an articulable and reasonable suspicion or performed pursuant to a plan designed to limit police discretion. Id. at 663.

Here, the police officer did not stop the defendant’s automobile. The officer had a legal right to be at the public toll booth. By placing himself there, the officer did not create a roadblock, as the defendant contends. It was the toll booth, not the officer, that stopped the car. Every vehicle on the highway is required to stop to pay the toll.

By looking in the car to speak to the occupants, the officer did not impede traffic or, in any other way, require the car to stop. He did not block the car’s passage or touch the car. He was standing on a raised curb beyond the toll machine when he bent down and said, “Where are you coming from?” He did not signal the driver to stop; therefore, the driver was not obligated to do so. See Code §§ 46.2-102 and 46.2-817. He did not violate the fourth amendment by approaching the occupants of the car in a public place and asking them a question. See Florida v. Royer, 460 U.S. 491, 497 (1983); Richards v. Commonwealth, 8 Va. App. 612, 615, 383 S.E.2d 268, 270 (1989). Thus, before taking the straw, the officer did nothing to seize or detain the car or its occupants.

The fact that a police officer changes his position to look inside a legitimately stopped vehicle “is irrelevant to Fourth Amendment analysis.” Texas v. Brown, 460 U.S. 730, 740 (1983). Since the general public can peer into the interior of an automobile “from any number of angles,” an officer is not precluded from looking into an automobile to observe “what would be entirely visible to him as a private citizen.” Id.

Furthermore, a police officer’s approach of a person seated in a vehicle located in a public place does not constitute a seizure. 3 W. LaFave, Search arid Seizure § 9.2(h) (2d ed. 1987). In Isam v. State, 582 S.W.2d 441 (Tex. Crim. App. 1979), the defendant was a passenger in a vehicle when a police officer saw what appeared to be a marijuana cigarette in the defendant’s hand. The officer approached the defendant’s vehicle on foot as it stopped for a traffic light. The officer then smelled the odor of marijuana and directed the driver to pull over to the side of the road where the defendant was arrested. On appeal, the defendant contended that the officer’s approach of the vehicle was “investigative and violated the appellants’ constitutional rights.” Id. at 444. The court disagreed, holding that the defendant’s vehicle was stopped by the traffic light and not “by any overt action on the part of the police officers.” Id.

Also instructive is State v. Harlan, 301 N.W.2d 717 (Iowa 1981), where the police officer, without any reasonable suspicion, followed the defendant’s vehicle for several blocks and eventually approached the defendant’s vehicle on foot after the defendant stopped to pick up a passenger. The defendant had not exited his vehicle or turned off its engine when the officer approached. Shining a flashlight into the vehicle, the officer observed the defendant’s bloodshot, watery eyes and smelled alcohol on the defendant. The defendant was arrested for driving under the influence of alcohol. The court concluded that the officer’s actions did not constitute a seizure because “[t]he officer, like any other citizen, had a right to look into the car.” Id. at 720. The court distinguished Prouse on the ground that there was no evidence that the officer stopped the car or that he restrained its movement. Id.

Similarly, in this case, the officer did not stop the defendant’s car or restrain its movement before seeing and taking the straw. Therefore, we conclude that the officer’s approach of the defendant’s car as it stopped at the toll booth was not a seizure.

II. THE SEIZURE OF THE STRAW

Until recently, three requirements were needed to justify a warrantless seizure of an item in plain view: (1) a police officer must be lawfully in a position to view and seize the item; (2) the discovery of the item must be inadvertent; and (3) it must be immediately apparent that the item may be evidence of a crime. Cantrell v. Commonwealth, 7 Va. App. 269, 283, 373 S.E.2d 328, 335 (1988), cert. denied, 496 U.S. 911 (1990) (citing Coolidge v. New Hampshire, 403 U.S. 443 (1971)). Recently, however, the United States Supreme Court has made clear that inadvertence, even though “a characteristic of most legitimate ‘plain view’ seizures ... is not a necessary condition.” Horton v. California, 496 U.S. 128, 130 (1990). We need not, therefore, concern ourselves with whether the officer’s discovery of the cut-off straw was inadvertent. Instead, we must only determine if there is evidence from which the trial court could have found that the remaining two conditions justifying a warrantless seizure of evidence in plain view were present.

The evidence supports the trial court’s finding that the officer had a legal right to walk up to the defendant’s car as it stopped at the toll booth and, thus, the officer was in a place where he had a lawful right to be when he saw the straw. The officer’s right to seize the straw depends, however, on whether the incriminating nature of the cut-off straw was immediately apparent.

In Texas v. Brown, 460 U.S. 730 (1983) (plurality opinion), the Court equated the “immediately apparent” requirement with probable cause in the ordinary plain view seizure case.¹ Id. at 742. The Court stated that “probable cause is a flexible, common-sense standard . . . [which] merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief . . . that certain items may be . . . useful as evidence of a crime.” Id. (citation omitted). Applying this standard, the Court held that a police officer’s plain view seizure of an uninflated, tied-off balloon was supported by probable cause where the officer testified that he was aware in his experience that balloons tied in this manner were frequently used to carry narcotics and where the officer observed other incriminating items in the defendant’s glove compartment. Id. at 743. The Court stated that “the distinctive character of the balloon itself spoke volumes as to its contents— particularly to the trained eye of the officer.” Id.

In this case, the officer testified that he knew from his past experience as a narcotics investigator that the cut-off straw he saw in between the driver’s legs was “the type straw that people use to ingest cocaine through their noses.” The distinctive character of the straw coupled with the officer’s experience “would warrant a man of reasonable caution” to believe that the straw might be useful as evidence of a crime.

This case is distinguishable from Harris v. Commonwealth, 241 Va. 146, 400 S.E.2d 191 (1991), where the Court held that a police officer’s experience-based knowledge that certain people keep narcotics in film canisters falls short of establishing probable cause to search a suspect’s film canister. Id. at 154, 400 S.E.2d at 196. The Court reasoned that “law-abiding citizens, on a daily basis, also use film canisters to store film, which is a legitimate use.” Id. In contrast, the item seized in this case is a one and one-half to two inch straw. The uniqueness of the straw’s size distinguishes it from straws one would usually encounter for legitimate purposes. See Brown, 460 U.S. at 746 (concurring opinion).

Although possible, it is highly unlikely that a straw this size would have a legitimate use. Even assuming a legitimate use exists for a straw this size, probable cause to believe the straw is evidence of a crime may nonetheless be established. Even the uninflated, tied-off balloon in Texas v. Brown may have been simply a remnant of a birthday party and not an item used for carrying narcotics. However, an investigating officer does not have to “deal with hard certainties, but with probabilities,” and is permitted to make “common-sense conclusions about human behavior” in assessing a situation. Id. at 742.

The Sixth Circuit dealt with this issue in United States v. Truitt, 521 F.2d 1174 (6th Cir. 1975), where the police officer, while executing a lawful search of a gun shop, seized a sawed-off shotgun lying in plain view. Id. at 1175. In concluding that probable cause existed for the police to believe that the shotgun was “incriminating evidence of a crime,” the Court reasoned that “[a] sawed-off shotgun, properly registered to its owner, is not contraband, but its lawful possession is, in ordinary experience, rare indeed. There is very little legitimate use for such a weapon.”² Id. at 1177; see also United States v. Poulos, 895 F.2d 1113 (6th Cir. 1990) (plain view seizure of gun silencer component parts which may be lawfully possessed if properly registered supported by probable cause because silencer parts are “intrinsically suspicious”).

Similarly, in this case, opportunities for the lawful use of a one and one-half to two inch straw are “rare indeed.” Truitt, 521 F.2d at 1177. Since no showing is required that the officer’s belief was “more likely true than false,” Brown, 460 U.S. at 742, we hold that the officer’s common sense along with his law enforcement experience made it immediately apparent to him that the straw might be evidence of a crime.

In sum, we conclude that the officer met both requirements of the plain view doctrine and was justified in seizing the straw.

III. THE SEARCH OF THE TRUNK

The defendant’s contention that a lawful search incident to arrest does not include the trunk of a vehicle is inapplicable to this case. Here, the defendant was not under arrest; rather, he was detained because of the officer’s belief that cocaine was in the car. A police officer with probable cause to believe that contraband is concealed in a legitimately detained vehicle may search the trunk of the vehicle. United States v. Ross, 456 U.S. 798, 825 (1982). We conclude that the finding of white powder residue on a cut-off straw by an officer experienced in investigating crimes involving narcotics is sufficient to constitute probable cause to believe that cocaine was concealed in the car.

For the reasons stated, the decision of the trial court is affirmed.

Affirmed.

Coleman, J., concurred.

1 The Court extended this position to include all plain view seizure cases in Arizona v. Hicks, 480 U.S. 321, 326 (1987).

2 The Court in Truitt further recognized that “the environment in which the sawed-off shotgun was found, a gun and tackle shop” made the possession of the sawed-off shotgun “less suspicious.” Id.