Opinion
Record No. 1523-91-2
December 1, 1992
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND JAMES M. LUMPKIN, JUDGE.
Jody Ann Jacobson, Assistant Public Defender (David J. Johnson, Public Defender; Russell C. Williams, Assistant Public Defender, on briefs), for appellant.
Kathleen B. Martin, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Elder.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
This case is controlled by our decisions in Hardy v. Commonwealth, 11 Va. App. 433, 399 S.E.2d 27 (1990), andCarter v. Commonwealth, 9 Va. App. 310, 387 S.E.2d 505 (1990).
The informant's identity was not disclosed at trial. It was reported that he previously had given information which proved to be true, but the nature of that information, and the circumstances surrounding its general availability, were not disclosed. The trial court expressly declined to find the informant reliable.
The informant's tip was like that in Hardy and Carter. The informant reported that a drug transaction had occurred, and he described two men. Upon arrival at the scene, the police saw men matching the description given by the informant, but observed no illegal or suspicious conduct by Brown.
The confrontation between the police and Brown was neither consensual nor investigative. Brown was physically seized in a manner tantamount to arrest. It was the seizure that disclosed the presence of drugs. The seizure was unlawful in the absence of probable cause. The tip and the officers' observations at the scene did not provide probable cause. See Hardy, 11 Va. App. at 435-36, 399 S.E.2d at 29; Carter, 9 Va. App. at 313, 387 S.E.2d at 507.
Reversed and dismissed.
I disagree with the majority's holding that the outcome of this case is controlled by our decisions in Hardy v. Commonwealth, 11 Va. App. 433, 399 S.E.2d 27 (1990), and Carter v. Commonwealth, 9 Va. App. 310, 387 S.E.2d 505 (1990). Unlike the majority, I would conclude that the officers possessed the requisite probable cause to justify a "search" of appellant's hand. In so concluding, however, I would first apply the reasonable suspicion standard of Terry v. Ohio, 392 U.S. 1 (1968).
The majority holds that, because the court did not find the informant's tip reliable, the officers did not have probable cause to arrest and search appellant. I agree with their reasoning to the extent they hold that an informant's tip must be predictive rather than merely descriptive in order to provide probable cause for an arrest. See Hardy, 11 Va. App. at 435, 399 S.E.2d at 28; see also Carter, 9 Va. App. at 313, 387 S.E.2d at 507. In Hardy, the tip "merely described [the appellant] and reported where and with whom he was. It gave no indication of where he was going or what he was going to do." Hardy, 11 Va. App. at 435-36, 399 S.E.2d at 29. This Court held that the tip in Hardy was insufficient to provide probable cause for an arrest. Id. at 436, 399 S.E.2d at 29.
Our holding in Carter also involved the reliability of an informant's tip. As in Hardy, the record in that case contained no information about the informant's reliability, and the only information that the police were able to corroborate concerned the suspect's appearance. 9 Va. App. at 313, 387 S.E.2d at 507. Although the officers observed the suspect standing with a group of people on a street corner, they observed no behavior indicating that he was engaged in drug distribution or any other illegal activity. They then approached appellant and patted him down for weapons, but found none. Id. at 311, 387 S.E.2d at 506. Subsequently, however, they conducted a more thorough search and found cocaine in a zippered pocket in appellant's jacket. This Court concluded that "[n]othing in the pat down, or in [appellant's] behavior when approached by [the officers], provided [them] with additional information giving rise to probable cause to arrest." Id. at 313, 387 S.E.2d at 507. On that basis, we concluded that the search was unconstitutional and that the drugs seized should have been suppressed. Id.
Similar facts existed in this case. The informant's tip provided descriptions of both appellant and his companion, but they were not found at the reported location nor were they observed engaging in any illegal activity. In this case, however, unlike in Hardy and Carter, certain additional facts justified the officers' actions. When appellant and his companion spotted the police, appellant's companion fled. This fact, when combined with the informant's tip, provided the police with the reasonable suspicion necessary to conduct aTerry stop to question appellant. Incident to conducting a valid search for weapons, the officers asked appellant to take his hands out of his pockets. In doing so, appellant raised a clenched fist, which the officers knew, based on their experience, most likely contained illegal drugs. This knowledge gave them the probable cause necessary to arrest appellant, thereby justifying the search of his hand.
This case is also easily distinguishable from Goodwin v. Commonwealth, 11 Va. App. 363, 367, 398 S.E.2d 690, 692 (1990), and Smith v. Commonwealth, 12 Va. App. 1100, 1104, 407 S.E.2d 49, 52 (1991), in which we held that each appellant's jamming his hand in his pocket or his pants upon seeing the police did not provide the reasonable suspicion necessary for a Terry stop. In both cases, the police had not received a tip from an informant, reliable or not, and had no reason to suspect Goodwin or Smith of criminal activity other than that they were then in areas known for drug dealing. In this case, by contrast, the arresting officers had received a tip from an informant, albeit of questionable reliability, about appellant's drug-related activities, and appellant's companion fled when the police approached.
For the aforementioned reasons, I would hold, under the totality of circumstances test, that the arresting officers had the reasonable suspicion necessary to justify a Terry stop. In questioning appellant and conducting a limited search for weapons, the officers were justified in asking appellant to take his hands out of his pockets. Once they saw his clenched fist, they had probable cause to arrest and search his person, thereby justifying admission of the heroin into evidence.