Beckner v. Com., No. 1600-91-3

• Docket Nº: No. 1600-91-3
• Citation: 15 Va.App. 533, 425 S.E.2d 530
• Case Date: January 05, 1993
• Court: Court of Appeals of Virginia

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.

Page 531

[15 Va.App. 534] 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.

[15 Va.App. 535] 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.

Page 532

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 [15 Va.App. 536] 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...