Opinion
Record No. 0171-92-1
June 22, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS RANDOLPH T. WEST, JUDGE.
George B. Pavek, III, for appellant.
Oliver L. Norrell, III, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Benton.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The sole issue presented by this appeal is whether the police had sufficient probable cause to conduct the warrantless search of Troy R. Alan (appellant), who was convicted by the Circuit Court of the City of Newport News (trial court) for possessing cocaine with the intent to distribute. The cocaine was found during a search of appellant's person. Finding no error, we affirm the conviction.
We consider the evidence in the light most favorable to the Commonwealth, according it all reasonable inferences fairly deducible therefrom. Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). In that light, the record discloses that on July 11, 1991, Newport News police officer M.L. Davenport received information by telephone from an informant. The informant, whose voice he recognized, had given him reliable information in the past, leading to the arrest and conviction of many other persons for violation of the drug laws of the Commonwealth. In addition, from the information previously received from that informant, the police had seized quantities of illegal narcotics. The informant advised Davenport by telephone that "a black male . . . approximately five foot, eight inches tall with a heavy build, dark complexion, who was wearing a dark colored shirt with red horizontal stripes, with green shorts was sitting in front of building 13210 Aqueduct Drive and had cocaine in his right front pocket." The informant said that he had just left that place and had personally observed that person, whose name was "Troy," with cocaine in the described pocket.
Davenport, with other members of a narcotics team assigned to that general area, immediately went to the described address. They arrived approximately fifteen minutes following receipt of the information from the informant. Upon arrival, they saw appellant, a black male, stockily built, sitting in front of 13210 Aqueduct Drive wearing the clothing described by the informant. Davenport approached appellant, learned his name, searched him and, in appellant's right pocket, found twelve baggies containing cocaine. Davenport testified that based upon his experience in drug investigations, the baggies were packaged "for sale on the street."
Davenport explained his reasons for arresting appellant before obtaining a warrant:
At that time, I was conducting a search on the information. There were exigent circumstances that existed as far as not being able to obtain a search warrant because of the time frame involved. It's been my experience in the past with subjects that are selling or suspected to be selling narcotics, when the sales are made, they're made quickly on the street, there aren't extremely large amounts kept on the persons and they move about throughout whatever area they're in, and being assigned to the Denbigh area, in order to obtain a search warrant we have to travel downtown to the magistrate's office.
We find that this issue is controlled by Wright v. Commonwealth, 222 Va. 188, 278 S.E.2d 849 (1981). InWright, police detective George C. Robinson, Jr. received a telephone call from an informant, whose voice he recognized as that of a person who previously had given him reliable information leading to convictions in two narcotics cases. The informant advised Robinson that "a delivery of dope" would be made at Tweedies Record Rack at 6:30 p.m. and that delivery would be made by the defendant and another in a green Eldorado with a brown top. Robinson and several other officers went to Tweedies, set up surveillance, and at 6:30 p.m., observed two men, one of whom was defendant, arrive in a green Eldorado with a brown top. As the police approached the men, one of the occupants fled, but defendant remained in the car. Defendant was ordered out of the car, searched, found to be in possession of a quantity of heroin in his jacket pocket and arrested. Robinson testified that under the described circumstances, he did not have time to get a warrant. Although some of the informant's tips had proved reliable, and the police had been unable to confirm others, the Court said that "[w]hen, as here, an informant has a record of furnishing reliable reports, an officer is justified in crediting a new report without engaging in a statistical balancing act." Id. at 191, 278 S.E.2d at 852. The Court denied Wright's motion to suppress and said:
The investigation consisted of a surveillance of the place the informant said the crime would occur. The events and circumstances the investigating officers observed there verified the informant's report in every material detail. At that point, the officers, trained and experienced in crime control, had probable cause to believe the defendant was participating in a felony committed in their presence and, consequently, had the right to make a warrantless arrest. Since the warrantless arrest was lawful, the warrantless search of the defendant's person incident to that arrest was lawful, whether the object of the search was weapons or evidence.
Id. at 192-93, 278 S.E.2d at 852 (citations omitted).
As in Wright, the officers in this case verified the informant's report in every material detail. Trained and experienced in narcotics investigations, the officers had probable cause to believe appellant was engaged in felonious conduct in their presence and, consequently, had the right to make a warrantless arrest.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
The Commonwealth has relied upon Wright v. Commonwealth, 222 Va. 188, 278 S.E.2d 849 (1981), in several cases very similar to this case. Until now, this Court has rejected those arguments. In the most recent case, this Court stated:
"[T]he test of constitutional validity [of a warrantless search] is whether at the moment of arrest the arresting officer had knowledge of sufficient facts and circumstances to warrant a reasonable man in believing that an offense has been committed." An important element in establishing the reliability of an anonymous tip is the predictive nature of the information. The information provided by the informant must describe not just easily obtained facts, but future third party actions not easily predicted. Probable cause to arrest must exist exclusive of the incident search.
Hardy v. Commonwealth, 11 Va. App. 433, 434-35, 399 S.E.2d 27, 28 (1990) (citations omitted). This Court reached the same result in another factually similar case involving an unnamed informant. See Carter v. Commonwealth, 9 Va. App. 310, 387 S.E.2d 505 (1990).
Significantly, in Wright, the informant predicted activities of the defendant that would occur in thirty minutes. 222 Va. at 190, 278 S.E.2d at 851. The police verified significant details of the information and also observed that the activities occurred in the future as predicted by the informant. Id. at 190-91, 278 S.E.2d at 851.
In "a close case," Alabama v. White, 496 U.S. 325, 332 (1990), the Supreme Court concluded that:
[T]he independent corroboration by the police of significant aspects of the informer's predictions imparted some degree of reliability to the other allegations made by the caller.
[It is] also important that, as in [Illinois v. Gates, 462 U.S. 213 (1983)], "the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted."
Id. (emphasis added) (citations omitted).
The informant in this case did not relate any information that predicted future conduct. The informant merely made a statement of a then-present existing condition. Moreover, the substance of the information demonstrated no special knowledge that imparted a degree of reliability to the informant. "Anyone could have 'predicted' [those] fact[s] because [they were] a condition presumably existing at the time of the call." Id. The conduct that the informant reported and that the police observed fell "below activity necessary to justify a reasonable suspicion that a violation of law had occurred or was occurring." Zimmerman v. Commonwealth, 234 Va. 609, 612, 363 S.E.2d 708, 710-(1988).
I would reverse the conviction; therefore, I dissent.