Opinion
Record No. 1145-92-3 Record No. 1144-92-3 Record No. 1143-92-3
November 6, 1992
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY GEORGE E. HONTS, III, JUDGE.
Eugene Murphy, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellant.
James M. Roe, Jr. (Carter, Roe, Emick Roe, on brief), for appellee Jessie Lee Calloway.
Wayne D. Inge for appellee Michael Eugene Davis.
J. Harold Eads for appellee Carl Anthony Lawrence.
Present: Chief Judge Koontz, Judges Moon and Bray.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
The Commonwealth seeks reversal of the circuit court decision granting the defendants' motion to suppress evidence seized pursuant to a search based upon an informant's tip. We hold that probable cause existed to arrest the three defendants, and that the search was a valid search incident to that arrest, even though the search preceded the arrest. Therefore, we reverse the decision suppressing the evidence.
"[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 under the Draper,Augilar and Spinelli line of cases." McKoy v. Commonwealth, 212 Va. 224, 227, 183 S.E.2d 153, 156 (1971). "Probable cause to arrest must exist exclusive of the incident search. So long as probable cause to arrest exists at the time of the search, however, it is unimportant that the search preceded the formal arrest if the arrest `followed quickly on the heels of the challenged search.'" Carter v. Commonwealth, 9 Va. App. 310, 312, 387 S.E.2d 505, 506-07 (1990) (citations omitted).
On January 16, 1992, Officer Hammond of the Virginia State Police received information from an informant concerning Jessie Lee Calloway, Michael Davis and Carl Lawrence. This informant had given reliable information in the past. The informant stated that the three men would drive to New York City that day to exchange guns for crack cocaine and would return immediately with the narcotics. The informant described the car, gave the license plate number, and stated that the three men would be returning in the early hours of January 17.
The police stationed themselves in Botetourt County on Interstate 81, which was the expected route of the three from New York City. The police saw the vehicle with the same license plate number. The vehicle was occupied by three people, as the informant had predicted. The police stopped the vehicle and found the three men who had been described by the informant inside the car. The immediate search of the car revealed no narcotics; however, the police discovered ammunition for a .9 millimeter weapon.
The police, without formally arresting them, began to search the persons of the three men. While Calloway was strip searched, Lawrence reached inside his pants and threw a package, later identified as containing cocaine, to the ground.
The trial judge determined that the officers had probable cause to search the vehicle, but did not have probable cause to arrest the defendants. He ruled the search was incident to an invalid arrest, and that the cocaine thrown from Lawrence's person was a fruit of the invalid arrest. However, the same evidence that would establish probable cause to search a suspect's vehicle may also establish probable cause to arrest the suspect. See Spinelli v. United States, 393 U.S. 410, 416-18 (1969) (probable cause for search warrant); Draper v. United States, 358 U.S. 307, 312-14 (1959) (probable cause for warrantless arrest).
The Virginia Supreme Court, in McKoy v. Commonwealth, 212 Va. 224 183 S.E.2d 153 (1971), held that the informant's report had been sufficiently verified to support a finding of probable cause. The informant reported that the defendant was operating a particular automobile, was about to leave a particular address, and was transporting heroin.
Here, more verification of the informant's report was made than was made in McKoy. In this case, before searching the three men, the police verified the following facts contained in the informant's tip: (1) three persons would be in the car; (2) they would return from New York on Interstate 81 in the early morning of January 17; and (3) they would be in a specific car with a specific license plate number. Based on the verification of the three factors, the police officers had probable cause to arrest the three men for possession of cocaine with intent to distribute.
The defendants contend that after the officers' search of the vehicle revealed only ammunition, the failure of the officers to discover any narcotics in the vehicle negated probable cause to believe that the defendants were engaged in illegal activity, and that the investigation should have ceased at that point.
The police had probable cause to believe that the three men were transporting drugs. The fact that drugs were not found in the vehicle provided an even stronger reason to believe that the defendants had concealed the narcotics on their persons. In addition, the discovery of the ammunition in the car was consistent with and corroborated that aspect of the tip that firearms would be exchanged for drugs. Thus, probable cause to arrest continued to exist after the search of the car.
The police began to search Calloway before formally arresting him. However, because probable cause to arrest existed independent of the search, it is of no consequence that the search incident to the valid arrest preceded the formal arrest.See Carter v. Commonwealth, 9 Va. App. 310, 312, 387 S.E.2d 505, 506-07 (1990).
The detailed tip by the known reliable informant was verified and under these circumstances, the police had probable cause to arrest the three men. The search incident to the arrest was valid, and the action of Lawrence in discarding the cocaine after Calloway was searched is not a fruit of an illegal search.
For these reasons, the suppression order of the circuit court is reversed and the case remanded for trial.
Reversed and remanded.