Beckner v. Com.

• Decision Date: 05 January 1993
• Docket Number: No. 1600-91-3,1600-91-3
• Citation: 15 Va.App. 533,425 S.E.2d 530
• Court: Virginia Court of Appeals
• Parties: Donna Phelps BECKNER v. COMMONWEALTH of Virginia. Record

Page 530

425 S.E.2d 530

15 Va.App. 533

Donna Phelps BECKNER v. COMMONWEALTH of Virginia.

Record No. 1600-91-3.

Court of Appeals of Virginia.

Jan. 5, 1993.

David D. Embrey, Lynchburg (Cunningham & Embrey, on briefs), for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and MOON and BRAY, JJ.

MOON, Judge.

Donna Phelps Beckner was convicted of operating a motor vehicle while her operator's license was suspended. She contends that the police officer lacked reasonable suspicion to stop her vehicle and, therefore, the evidence obtained should have been suppressed. We agree and reverse her conviction.

On April 26, 1991, an unidentified driver pulled his car and flashed his lights behind the cruiser of Officer Royal of the Lynchburg Police Department. When the officer pulled over, the driver pulled alongside the officer, rolled down his window, and stated that there was a white female, who did not have a driver's license, at a nearby gas station on Campbell Avenue pumping gas into a 1966 Chevrolet.

Based on this tip, the officer proceeded down Campbell Avenue where he observed the 1966 Chevrolet at the gas station. The officer followed the white female, the appellant, as she drove off the lot. The officer did not observe anything unlawful about her driving. As the appellant pulled into an Exxon station to use a pay phone, the officer activated his emergency lights, stopped his marked patrol car behind the appellant's vehicle, and immediately asked her for her license.

She told Officer Royal that she did not have a license, the suspension of which was later verified by a check with the Division of Motor Vehicles. At trial, the judge refused to grant a motion to suppress the evidence upon appellant's contention that the officer lacked reasonable suspicion to stop the vehicle.

First, the Commonwealth concedes that the officer effectuated a stop within the meaning of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because the officer's actions constituted enough authority to lead a reasonable person to believe that she was not free to leave. See Baldwin v. Commonwealth, 243 Va. 191, 195-99, 413 S.E.2d 645, 647-49 (1992); Waugh v. Commonwealth, 12 Va.App. 620, 621-22, 405 S.E.2d 429, 429-30 (1991); Florida v. Royer, 460 U.S. 491, 501-02, 103 S.Ct. 1319, 1326-27, 75 L.Ed.2d 229 (1983). Thus, the question is whether the police officer had reasonable suspicion to stop the appellant. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880-81.

The appellant asserts that the informant failed the reliability test of Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), because the informant did not predict any future actions of the subject. The appellant construes Alabama v. White to hold that information supplied to the government by an unidentified informant may not establish reasonable suspicion to effect an investigative stop, unless the information predicts the future actions of the individual stopped. We disagree with the appellant on this point. We believe that a finding of reasonable suspicion may be warranted in some circumstances, despite the unidentified informant not providing the government with information that predicts the future actions of the subject, if some other indicia of reliability of the informant exists.

The informant here had a face-to-face confrontation with the police officer. Any informant who pulls alongside an officer should reasonably know that the police officer may track down his vehicle and learn his identity merely by tracing his license plate number. If this informant gives false information, he will be subject to prosecution for giving a false report of a crime to a police officer. See Code § 18.2-461. The fact that the police officer chose not to trace the informant does not make the informant less reliable than he would have been had the officer taken down the license number.

Thus, it was not necessary that the informant should have predicted future movements by Mrs. Beckner to establish some indicia of his reliability. Under these facts of the face-to-face confrontation, the police officer could have formed a reasonable belief that the informant was reliable. State v. Davis, 393 N.W.2d 179, 181 (Minn.1986) (holding that an investigative stop was justified based on a face-to-face confrontation with an individual in an easily traceable car).

The Commonwealth also cites State v. Davis and contends that the informant in this case was not an anonymous tipster, based on the face-to-face confrontation analysis above, and, thus, that reasonable suspicion to stop the appellant existed in this case. We do not believe Davis or other cases go as far as the Commonwealth contends and establish that information from a non-anonymous informant necessarily establishes reasonable suspicion. Even if the informant is not anonymous and some indicia of his personal reliability exists because of the face-to-face confrontation, the officer still must have some objective basis for assessing the reliability of the informant's knowledge of the information contained in his report in order to establish a reasonable and articulable suspicion to stop the suspect.

Despite some indicia of the informant's reliability, the basis of knowledge of the informant's tip in this case is still questionable. In Davis, the Minnesota Supreme Court found that reasonable suspicion existed, based on a report by an informant in a face-to-face confrontation with a police officer. Like the facts here, the informant in Davis had not predicted any actions by the suspect, but the basis of the informant's knowledge in Davis was not an issue. In Davis, unlike the case here, it was evident the informant actually saw the violation. The informant, who was a passenger in a car, pulled alongside a police officer and reported that the defendant had "just [run] the red light." 393 N.W.2d at 180. The court noted that this information was gained in a reliable way, because "[c]learly, either the informant [passenger] or the driver had seen the car in question drive through the red light." 393 N.W.2d at 181.

The Washington Court of Appeals used the same basis of knowledge analysis applied in Davis to answer the question whether a face-to-face report to a police officer of a probable nearby drunk driver justified reasonable suspicion to make a Terry -stop. In Campbell v. Department of Licensing, 31 Wash.App. 833, 644 P.2d 1219 (1982), the court reasoned that no factual information given by the passing motorist enabled the officer to determine the accuracy of the report. Although there was some indicia of reliability given the face-to-face confrontation, there was no basis of knowledge contained in the informant's report. If no basis of knowledge is stated in the motorist's report, it is unreliable and cannot be used to support an investigatory stop. Id. at 836, 644 P.2d at 1221.

Unlike Davis, where the court held that it was apparent that the informant had viewed the criminal act herself (the running of a red light), Campbell found insufficient the report by the motorist that there was a possible drunk driver. "It simply 'makes no sense to require some indicia of reliability that the informant is personally reliable but nothing at all concerning the source of his information ...' " 31 Wash.App. at 835, 644 P.2d at 1220 (quoting 3 W. Lafave Search and Seizure § 9.3, at 100 (1st ed. 1978)) (emphasis added)....