Jones v. Com., 841091

Decision Date06 September 1985
Docket NumberNo. 841091,841091
PartiesThelonius L. JONES, a/k/a Tony Brown v. COMMONWEALTH of Virginia. Record
CourtVirginia Supreme Court

Michael P. Weatherbee, Arlington, for appellant.

Eugene Murphy, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

CARRICO, Chief Justice.

The defendant, Thelonius L. Jones, was charged in a warrant with failing to identify himself at the request of a police officer in violation of § 17-13(c) of the Arlington County Code. Jones was also charged in an indictment with possessing heroin with intent to distribute in violation of Va.Code § 18.2-248.

Tried by the court without a jury, Jones was convicted of both offenses and sentenced to thirty days' confinement in jail on the misdemeanor charge and twenty years' imprisonment in the penitentiary, with ten years suspended, on the felony charge. We granted this appeal to review (1) the constitutionality of Arlington Code § 17-13(c), and (2) the trial court's denial of Jones' motion to suppress the heroin as the product of an illegal search.

The record shows that on the evening of August 10, 1983, Officer Noel Edward Hanrahan of the Arlington County Police Department was patrolling in the Crystal City area of the county "with specific references to some burglaries that had been occurring in the area." Hanrahan had been alerted at his afternoon roll call to be on the lookout for a suspect described as "a black male in his 20's, 5' 10""", 175, with a husky build, dark complexion, and in one incident [was] wearing shorts and a T-shirt [and in] another ... was ... wearing a jogging suit [and] carrying a large knapsack like bag, possibly a duffel bag."

Shortly after 8:00 p.m., Hanrahan observed Jones emerging from a garage at the rear of a Crystal City hotel, some 300 yards from the scene of one of the recent burglaries. Jones matched the physical description Hanrahan had been given of the suspect and in addition was dressed in a jogging suit and was carrying two duffel bags. Jones appeared to be looking for "something or someone." He walked to a nearby convenience store, went in, and came out within twenty seconds. He returned to the vicinity of the hotel garage, where Hanrahan approached him.

Hanrahan identified himself as a police officer and told Jones he fit the description of the person suspected of committing recent burglaries in the area. Hanrahan "patted ... down" both Jones' person and his duffel bags. Feeling some hard objects in one of the bags, Hanrahan unzipped the bag and found a camera and a set of headphones, but no weapons. Hanrahan searched no further at the time.

Hanrahan asked Jones for identification and was handed "a commercially made up I.D. card," which appeared to have been "tampered with." The card bore the name Tony N. Brown, an address, and a Social Security number. Hanrahan asked Jones his middle name, and Jones said he had none. When asked his address, Jones gave a location different from the one on the card and could not explain the discrepancy. When asked his Social Security number, Jones first gave a number different from the one listed on the card and then corrected himself and recited the listed number.

Hanrahan also asked Jones where he applied for the Social Security number listed on the card, and Jones said, "Washington, D.C." Hanrahan knew, however, that the number on the card, as well as others with the same prefix, had been issued in the state of New York.

Hanrahan placed Jones under arrest for failing to provide identification as required by the Arlington County Code. Hanrahan then went through Jones' bags "seeking additional information for positive identification." In the course of this search, Hanrahan found "several packs of white powder" and placed a charge against Jones of possessing drugs. Upon analysis, the white powder "turned out to be heroin."

On appeal, Jones seeks reversal of both his convictions. He says that the convictions depend for their validity upon § 17-13(c) of the Arlington County Code, that the code provision is unconstitutional and, hence, that the convictions are erroneous.

Section 17-13 of the Arlington County Code is entitled "Loitering--Peace and good order." Subsection (c) provides:

It shall be unlawful for any person at a public place or place open to the public to refuse to identify himself by name and address at the request of a uniformed police officer or of a properly identified police officer not in uniform, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.

Jones argues that § 17-13(c) is unconstitutional because it is "[v]iolative of Fourth Amendment Rights." The code section "allows police to stop citizens without any reasonable suspicion that the individual is involved in criminal activity," Jones asserts, and "does not require the police officer to have even an articulable suspicion that the individual detained is involved in, has committed, or is about to commit a crime." Jones concludes that, because it was unlawful for the police to detain and question him, his arrest for violating § 17-13(c) was also unlawful and, because the heroin was the fruit of the unlawful arrest, the evidence concerning the drug should have been suppressed. 1

We disagree with Jones. As the Attorney General points out, § 17-13(c) does not purport to authorize a police officer to stop and question an individual on the street. Rather, as the Attorney General indicates further, criminal liability for failure to furnish identification under § 17-13(c) arises only when some independent basis justifies the detention and questioning of an individual in the first place, for example, "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968).

The Commonwealth has relied upon Terry, rather than § 17-13(c), both in the trial court and here, to justify Officer Hanrahan's detention and questioning of Jones. We believe this reliance is fully warranted.

Terry permits a police officer, even without probable cause, to stop and question an individual on the street, provided the officer has a reasonable suspicion, based upon objective facts, that the individual is involved in criminal activity. 392 U.S. at 21-23, 88 S.Ct. at 1879-1881. The objective facts known to the officer in this case support a Terry stop. At his afternoon roll call, Officer Hanrahan had been given a report of recent burglaries in the area, including one that had occurred only a day or two before the incident in question. Hanrahan also had been given a description of the suspect's physical appearance and of the clothes he wore and the luggage he carried.

Jones matched the physical description of the suspect, and he wore clothes and carried luggage of the same type as those worn and carried by the suspect. Jones' behavior after emerging from the hotel garage was sufficiently suspicious, in the language of Terry, to " 'warrant a man of reasonable caution in the belief,' " id. at 22, 88 S.Ct. at 1880, that "criminal activity may be afoot," id. at 30, 88 S.Ct. at 1884, and that "the action taken [in stopping Jones] was appropriate," id. at 22, 88 S.Ct. at 1880. Indeed, employing other language of Terry, "[i]t would have been poor police work ... for an [experienced] officer [with knowledge of the burglaries] in this same neighborhood to have failed to investigate this behavior further." Id. at 23, 88 S.Ct. at 1881.

Terry also permits a police officer who has stopped an individual on reasonable suspicion of criminal behavior to frisk the suspect for weapons if the officer reasonably believes the suspect may be armed and dangerous. Id. at 30, 88 S.Ct. at 1884. Jones tacitly concedes that if Officer Hanrahan had grounds to stop him in the first place, the pat-down of his person and his bags was proper. Jones argues, however, citing Terry, that when the pat-down revealed no weapons or evidence of crime, it was a violation of his Fourth Amendment rights for Hanrahan to detain and question him further.

Jones reads Terry too narrowly. The Supreme Court explained in Terry that a police officer may stop a person in appropriate circumstances "for purposes of investigating possibly criminal behavior," id. at 22, 88 S.Ct. at 1880, and in the course of the investigation may make "reasonable inquiries," id. at 30, 88 S.Ct. at 1884. In further explication, the Court stated in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), that Terry permits "[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information." Id. at 146, 92 S.Ct. at 1923.

Nothing in Terry or its progeny indicates that the authority of a police officer to make "reasonable inquiries," to "determine [a suspect's] identity," and to obtain "more information" from or about a suspect depends in any way upon whether a pat-down reveals weapons or evidence of crime. We believe that Terry gave Officer Hanrahan full authority to question Jones about his identity, regardless of the outcome of the pat-down.

Neither can we find any support in Terry or its progeny for Jones' further argument that Officer Hanrahan's authority to question him about his identity terminated when he handed Hanrahan an identification card. To the contrary, in full accord with Terry, we believe the fact the card had been "tampered with" indicated that "something was awry and created even more reason for the investigation [into Jones' identity] being pursued further." United States v. Richards, 500 F.2d 1025, 1029 (9th Cir.1974), cert. denied, 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393 (1975). Then, "[f]ollow-up questions were made necessary by [the] unconvincing and suspicious answers"...

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