Opinion
Record No. 0702-98-2
JUNE 1, 1999
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge
Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender; Office of the Public Defender, on brief), for appellant.
Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Judges Elder, Bray and Senior Judge Baker
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.
Byron K. Hughes (defendant) was convicted for possession of cocaine with intent to distribute, a violation of Code § 18.2-248. On appeal, he contends that the trial court erroneously denied his motion to suppress evidence obtained as the result of an unlawful search of his person. We disagree and affirm the conviction.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary for disposition of the appeal.
In reviewing a trial court's ruling on a suppression motion, we consider the evidence in the light most favorable to the prevailing party below, the Commonwealth in this instance, granting to it all reasonable inferences fairly deducible therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
"Ultimate questions of reasonable suspicion and probable cause to make a warrantless search" involve questions of both law and fact and are reviewed de novo on appeal. In performing such analysis, we are bound by the trial court's findings of historical fact unless "plainly wrong" or without evidence to support them, and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.
McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United States, 517 U.S. 690, 691, 699 (1996)). "The burden is upon [defendant] to show that th[e] ruling . . . constituted reversible error."Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731,cert. denied, 449 U.S. 1017 (1980).
The record discloses that, on July 10, 1997, Detective J. Renee Payne of the Richmond Police Department received a message on her "voice mail" from a known informant, with established reliability, that
The record does not disclose the precise time the message was recorded on Payne's voice mail.
there was a very light complected male standing out in the front walk in the area of 320 West Grace Street, and that that person was dealing narcotics there, that he was keeping the money in his left pocket, and that drugs were kept in his underwear area, and that he was wearing a white shirt, blue jeans and he had very pretty hair.
Acting on this information within ten minutes of receipt, Payne, accompanied by two officers, arrived at the intersection of "Grace and Madison" and observed defendant "standing . . . at the corner," "across the street" from 320 West Grace, the "area" designated by the informant. The officers determined that defendant, "a very light complected male with dark wavy hair wearing blue jeans and a white shirt," was the individual described in the tip.
Payne approached defendant and advised him "that [she] had received information that a person fitting his description was out there dealing narcotics." Defendant denied possessing "any drugs or weapons" and consented to a pat-down search, which revealed money in his left pocket. Upon discovery of the money, Payne declared, "Well if the money is in your left pocket, then, the drugs should be in your underwear," and defendant agreed to allow Payne to "check further." To "ensure [defendant's] privacy" and with his continuing assent, Officer Rogers accompanied defendant to "an apartment building across the street[,] into the front hallway area" and "check[ed]" his underwear. Finding nothing, defendant agreed to "ben[d] over" and "cough," revealing "a plastic bag containing [the offending] narcotics in his behind."
Defendant contends on appeal, as he did before the trial court, that he was seized and searched by the officers without probable cause and subjected to an improper "cavity" search, all without consent or with consent "obtained as a result of an illegal detention." In response, the Commonwealth asserts that defendant consented to searches by the officers during a detention supported by probable cause or "certainly . . . reasonable suspicion that . . . [he] was concealing drugs" on his person. In overruling defendant's motion, the trial court concluded that the circumstances clothed police with the "right to approach [defendant], investigate and pat him down."
It is well established that " 'police officers may approach a person for the purpose of investigating possible criminal behavior even though no probable cause exists for arrest.' " Johnson v. Commonwealth, 20 Va. App. 49, 54, 455 S.E.2d 261, 264 (1995) (citations omitted). "The standard for conducting such a detention is less than probable cause, but more than an 'inchoate and unparticularized suspicion or "hunch." ' "Gregory v. Commonwealth, 22 Va. App. 100, 105, 468 S.E.2d 117, 120 (1996) (citations omitted). Thus, "[a]n investigative detention to detect or prevent incipient criminal activity is, when supported by the officer's reasonable and articulable suspicion that criminal activity may be afoot, consonant with fourth amendment protections against unreasonable seizures."Layne v. Commonwealth, 15 Va. App. 23, 25, 421 S.E.2d 215, 216 (1992) (citations omitted).
We assume, without deciding, that the instant circumstances gave rise to a seizure of defendant. See McGee, 25 Va. App. at 200-01, 487 S.E.2d at 262-63.
"Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the 'totality of the circumstances' . . . that must be taken into account when evaluating whether there is reasonable suspicion." Alabama v. White, 496 U.S. 325, 330 (1990) (citation omitted); accord Gregory, 22 Va. App. at 107, 468 S.E.2d at 121. Stated differently, "whether the stop was justified is dependent upon whether the facts available to the officer at the moment of the seizure or the search would warrant a man of reasonable caution in the belief that the action was appropriate." Johnson, 20 Va. App. at 54, 455 S.E.2d at 264 (citations and internal quotations omitted).
Here, the reliability of the informant had been previously established with Detective Payne. The content of the message, "there was a very light complected male standing out . . . in the area of 320 West Grace Street, . . . dealing narcotics there, . . . wearing a white shirt, blue jeans and [having] very pretty hair," suggested a contemporaneous observation by the informant. Within ten minutes of receiving the report, police observed a "very light complected male with dark wavy hair wearing blue jeans and a white shirt," "standing at the [street] corner" in the area designated in the tip. Thus, the accuracy of the information imparted to Detective Payne was tested by prompt corroboration under circumstances which indicated that the informant had recently seen the unlawful conduct. Such facts, considered together, "carried enough indicia of reliability to justify" an investigatory "Terry stop" of defendant by police. Adams v. Williams, 407 U.S. 143, 146-47 (1972).
Subsequently, the evidence, viewed most favorably to the Commonwealth, clearly established that defendant consented to a pat-down search, resulting in the discovery of money in his left front pocket. " 'Because [the] informant [was] right about some things, he [was] more probably right about other facts,' including the claim" of drugs in defendant's underwear area.Illinois v. Gates, 462 U.S. 213, 244 (1983) (citation omitted);accord White, 496 U.S. at 331-32. Thus, further investigation was warranted and properly pursued, with defendant's continuing consent, until the offending contraband was found on his person. See e.g. Commonwealth v. Rice, 28 Va. App. 374, 378, 504 S.E.2d 877, 879 (1998).
Defendant's argument that police conducted an intrusive cavity search ignores his assent to Rogers' request that he "ben[d] over" and "cough."
Defendant, therefore, was properly detained incident to a brief police investigation. The ensuing encounter was attended by appropriate exchanges between defendant and the officers that resulted in consensual searches of defendant's person and the eventual discovery of the cocaine. Such circumstances disclose no unconstitutional seizure and search of defendant, and the court properly denied the motion to suppress.
Affirmed.
I agree with the majority that the officers' actions amounted to an investigatory detention, but I would hold that the officers lacked the reasonable suspicion of criminal activity necessary to justify such a detention. Therefore, I respectfully dissent.
When the police expressly inform an individual that they have received information that the individual is engaged in criminal activity, the police "convey a message that compliance with their requests is required" and "that failure to cooperate would lead only to formal detention." . . . When confronted with [such] an accusation from police, . . . no reasonable person would feel free to leave.
McGee v. Commonwealth, 25 Va. App. 193, 200-01, 487 S.E.2d 259, 262-63 (1997) (en banc) (citations omitted). Under such circumstances, "[t]he unmistakable message conveyed to [a] defendant [is] that the officers [have] reason to suspect that he [is] selling drugs and that they [are] detaining him to investigate this activity." Id. at 201, 487 S.E.2d at 263. Here, like in McGee, the officers told defendant that he matched the description of a person reported to be selling drugs at that location. See id. at 196, 487 S.E.2d at 260. Therefore, defendant was seized under the Fourth Amendment, and the dispositive question is whether the officers had a reasonable basis to suspect defendant of criminal activity in order to justify the investigatory stop. I would hold that they did not.
In determining whether information supplied by an informant provides probable cause for an arrest or issuance of a search warrant, a court must consider the totality of the circumstances, including both "the veracity of the informant and the basis of his or her knowledge regarding a particular tip." Jefferson v. Commonwealth, 27 Va. App. 1, 13, 497 S.E.2d 474, 480 (1998). "These factors are also relevant in the reasonable suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard." Alabama v. White, 496 U.S. 325, 328-29 (1990).
Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors-quantity and quality-are considered in the "totality of the circumstances . . ." that must be taken into account when evaluating whether there is a reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.
Id. at 330.
Here, assuming without deciding that Detective Payne received the tip from a reliable informant, evidence of the basis for the informant's knowledge is lacking.
It makes no sense to require "some indicia of reliability" that the informer is personally reliable but nothing at all concerning the source of his information, considering that one possible source would be another person who was totally unreliable. It may be argued . . . that most informers report personal observations, and that such should be assumed to be the case when the lesser standard for a stop rather than an arrest is being considered. But there is simply no established need to go to this extreme; as Justice White once observed, "if it may be so easily inferred . . . that the informant has himself observed the facts or has them from an actor in the event, no possible harm could come from requiring a statement to that effect."
4 Wayne R. LaFave, Search and Seizure § 9.4(h), at 221 (3d ed. 1996) (quoting Spinelli v. United States, 393 U.S. 410, 426 (1969) (White, J., concurring); see also State v. Bridges, 963 S.W.2d 487, 492 (Tenn. 1997) (holding that "[w]hen an informant reports an incident at or near the time of its occurrence, a court can often assume that the report is first hand").
Manifestly, when a reliable informant reports that he has just observed a particular person selling drugs at a location, such a report provides the necessary basis for his knowledge. Here, by contrast, the informant's message indicated only that "a very light complected male" with "very pretty hair," wearing a white shirt and blue jeans and "standing . . . in the area of 320 West Grace Street," was "dealing narcotics." It did not indicate that the informant personally observed such a transaction or that he had done so contemporaneously. The majority notes that "[t]he content of the message suggests contemporary observation by the informant," but the tip itself provided no indication as to how the informant obtained this knowledge, and Detective Payne did not contact the informant to inquire about the basis for that knowledge before proceeding to the designated location.
Finally, the record does not establish that the report was contemporaneous with the suspect's narcotics dealings. The record contains no testimony regarding the amount of time that elapsed between when the informant left the message and when Detective Payne arrived at 320 Grace Street to look for the suspect. Payne testified only that she arrived at the designated location within ten minutes of retrieving the information from her voice mail; she gave no indication as to when she had last checked her voice mail or when the informant left the message. The mere fact that Detective Payne found a person fitting the general description given by the informant at the location the informant specified does not permit the conclusion that the informant's report was contemporaneous or first-hand or that the detention itself occurred close in time to the observation and report.
Based on the absence of even minimal evidence detailing the basis for and timeliness of the informant's report and the subsequent investigation, I would hold that the evidence was insufficient to permit the detention. Therefore, the detention was improper and vitiated the defendant's consent to the search. For these reasons, I dissent.