ANALYSIS OF OCTOBER 30, 2007 CAV OPINION

[Posted October 30, 2007] The Court of Appeals hands down one published opinion today, an en banc rehearing of a divided panel decision from last May. The case is Raab v. Commonwealth , and involves a police officer’s actions during a Terry stop.

Early one morning, a Virginia Beach police officer was patrolling an area known as Chesapeake Beach, when he drove by an apparently closed restaurant and saw several cars parked there. The lot contained signage noting that it was restricted to restaurant patrons only, so he went in to investigate. As he did so, one of the cars started to back out of a parking space. The officer stopped the driver, Raab, and asked what he was doing there after hours. Raab answered that he had been out for a swim.

There are several well-documented problems with being intoxicated; one of those is that your capacity to fabricate plausible excuses is seriously diminished. There was no fooling this cop; not with Raab’s perfectly dry clothes and hair. The officer also took note of Raab’s red, glassy eyes, and the strong odor of alcohol. You can figure out the rest; Raab was convicted of DUI, unfortunately for him his third offense.

This case presents the sole question of whether the officer had a reasonable suspicion of possible criminal activity, sufficient to enable him to briefly detain Raab and ask him these few questions. The Court of Appeals finds that there was plenty such suspicion, given the totality of the circumstances. Those circumstances principally involved Raab’s presence in the parking lot of a closed, dark restaurant with signs restricting the lot’s use to patrons.

Raab earnestly contended that there could have been any number of perfectly innocent explanations for his presence in the parking lot. He could have been the last employee to leave, after locking up the joint. He could have been the owner, there taking down license plates of actual bad guys who were parking illegally in “his” lot. Perhaps so, the majority reasons today; but the police officer doesn’t have to have probable cause just to make a Terry stop. All he needs is a reason to ask a few more questions, and he had that here.

Judge Humphreys renews his earnest dissent, originally posited at the panel level. Citing precedent from the Supreme Court of Virginia in two Terry stop cases, he contends that this circumstance was no more suspicious than either of those (which both resulted in exclusion of inculpatory evidence). But he gathers no support at all from his colleagues today, and dissents alone.