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Carson v. Commonwealth5/14/1991
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 "as... [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.
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