Opinion
Record No. 1510-91-1
January 19, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK ALFRED W. WHITEHURST, JUDGE
B. Thomas Reed, for appellant.
John H. McLees, Assistant Attorney General (Mary Sue Terry, Attorney General, on briefs), for appellee.
Present: Judges Baker, Barrow and Bray
Argued at Norfolk, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Steven Antonio Branch (defendant) was convicted of possession of heroin with intent to distribute and sentenced to five years imprisonment. He complains on appeal that the trial court erred in declining to suppress evidence discovered during a warrantless search of his person. We disagree and affirm the decision of the trial court.
The parties are fully conversant with the record and this memorandum opinion recites only those facts necessary to a disposition of the issue before the Court.
The evidence disclosed that Officer James Stevens (Stevens) "received information by telephone from a confidential informant" that "three people . . . were dealing drugs" on "Bagnall Road," located in the city of Norfolk. The informant described the three suspects in detail and related that he had either "seen . . . drugs in [each] person's hand" or "observed him selling." Stevens testified that he "kn[e]w who the informant was" because the informant had "worked with" another officer "for some length of time," providing information that had resulted in "quite easily . . . 150 to 200 narcotic-related arrests, if not more."
Acting on this information, Stevens and two "other officers" "drove straight" to "Bagnall Road," where they "came across" defendant, appearing substantially "as described" and standing "where he was supposed to be." Defendant was approached by the police, "patted down for weapons," "handcuffed and placed in the back of a . . . unit" with "one officer," while Stevens and the remaining officer "went [in a second police vehicle] to . . . locate the other two." The officers quickly found these suspects and searched one with "negative results," but the third man "managed to evade" them. Returning within "ten minutes," Stevens more thoroughly searched defendant and discovered "five glassine envelopes" in "his left sleeve," each of which contained heroin. Defendant was then advised that "he was under arrest."
During this period, the vehicle in which defendant was a passenger moved a short distance to "a dead end street" that "goes off Bagnall," "out of the main line of traffic."
Defendant filed a motion to suppress both the heroin and his statements to police, arguing that Stevens "did not have probable cause to arrest," but was overruled by the trial court. He then entered a conditional guilty plea, reserving his right to appeal the court's ruling on the suppression issue.
"'[P]robable cause exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed.'" Derr v. Commonwealth, 6 Va. App. 215, 219-20, 368 S.E.2d 916, 918 (1988) (quoting Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981),cert. denied, 456 U.S. 906 (1982)). "[W]hen an officer receives from a known reliable informant a report that a felony is being committed that is so detailed as to raise an inference either of personal observation or of acquisition of the information in a reliable way then the officer has probable cause to arrest."McKoy v. Commonwealth, 212 Va. 224, 227, 183 S.E.2d 153, 156 (1971).
Defendant's reliance upon Hardy v. Commonwealth, 11 Va. App. 433, 399 S.E.2d 27 (1990), for the proposition that an informant's report must always be "predictive" rather than merely "descriptive" is misplaced. See Beckner v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1993). Although the predictive nature of the tip is an "element in establishing the reliability" of the informant, Hardy, 11 Va. App. at 435, 399 S.E.2d at 28, his or her "credibility or reliability" may also be established by showing that "the informer has previously given reliable information." Boyd v. Commonwealth, 12 Va. App. 179, 187 n. 2, 402 S.E.2d 914, 920 n. 2 (1991); see also Wright v. Commonwealth, 222 Va. 188, 191, 278 S.E.2d 849, 852 (1981).
Here, the informant had previously provided information to police that resulted in "at least 150 to 200 narcotic-related arrests," a circumstance which sufficiently established his reliability. He reported to Stevens "three people . . . dealing drugs," described the individuals and their location and explained that he had "seen the drugs in [each] person's hand" or "observed him selling." The source and content of such information, much of which was verified by Stevens' personal observation, provided sufficient probable cause necessary to arrest defendant.See Wright, 222 Va. at 192, 278 S.E.2d at 852; McKoy, 212 Va. at 227, 183 S.E.2d at 156; Carter v. Commonwealth, 9 Va. App. 310, 312-313, 387 S.E.2d 505, 507 (1990). "So long as probable cause to arrest exists at the time of the search," "it is unimportant that the search preceded the formal arrest if the arrest 'followed quickly on the heels of the challenged search.'"Carter, 9 Va. App. at 312, 387 S.E.2d at 506-07 (quotingWright, 222 Va. at 193, 278 S.E.2d at 852-53). Thus, Stevens' search was incident to defendant's lawful arrest and the motion to suppress was properly denied.
Accordingly, the decision of the trial court is affirmed.
Affirmed.