Logan v. Commonwealth

452 S.E.2d 364, 19 Va. App. 437, 1994 Va. App. LEXIS 748

Opinions

Koontz, J., with whom Barrow, J., Benton, J., and Elder, J.,

join, dissenting in part and dissenting in judgment.

For the reasons more fully articulated in the panel decision, Logan v. Commonwealth, 18 Va. App. 136, 442 S.E.2d 416 (1994), I respectfully dissent from that part of the majority opinion which now upholds the legality of the initial seizure of Logan and his vehicle. In my view, the officers lacked a reasonable, articulable suspicion that Logan or his vehicle were, or recently had been, involved in some form of criminal activity. Waugh v. Commonwealth, 12 Va. App. 620, 621-22, 405 S.E.2d 429, 429 (1991). Accordingly, because the stop of Logan’s vehicle was in violation of Logan’s Fourth Amendment right to be free from unreasonable seizures and because all of the events thereafter flowed from that unlawful seizure, I would reverse and dismiss the charges against him.

The majority correctly states our standard of review to determine whether the requisite degree of suspicion existed to support the seizure in question. We must make an objective assessment of the totality of the circumstances, giving due credit to the knowledge, training, and experience that enables an officer to perceive and articulate meaning in particular conduct which would be wholly innocent to the untrained observer. Our task is to distinguish a mere hunch, regardless of its accuracy, from a reasonable, articulable suspicion of criminal activity. See Murphy v. Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128 (1989). The mere articulation of a suspicion by the police, however, does not make that suspicion reasonable for constitutional purposes.

Here, the officers knew only that a vehicle, popular with the general public and as well as with car thieves, appeared to have a broken vent window and that illicit entry into vehicles of that type was often accomplished by the breaking of a vent window. The majority holds that on those facts the police had a reasonable, articulable suspicion that Logan or his vehicle were, or recently had been, involved in some form of criminal activity. In my view, such a conclusion elevates the articulation of a suspicion above the requirement that the suspicion be reasonable. Our standard of review does not permit us to ignore what we know from common knowledge and human experience and to accept in a vacuum the conclusions articulated by the police in determining the reasonableness of the basis for the suspicion of criminal activity in a particular factual scenario.

It seems unrefutable to me that from common knowledge and human experience we know that vent windows on motor vehicles are broken by accident, by vandals, or in a prior theft of a vehicle or its contents. Thus, as here, the mere presence of a broken vent window without some additional suspicious circumstance does not establish a reasonable suspicion that a violation of the law has occurred or is occurring.

In short, I disagree with the majority’s conclusion that the mere operation of a motor vehicle with a broken vent window provides the police with a reasonable suspicion that criminal activity is involved. Accordingly, I respectfully dissent.