Boyd v. Com.

• Decision Date: 02 April 1991
• Docket Number: No. 0254-89-2,0254-89-2
• Parties: Frank BOYD v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 914

402 S.E.2d 914

12 Va.App. 179

Frank BOYD v. COMMONWEALTH of Virginia.

Record No. 0254-89-2.

Court of Appeals of Virginia.

April 2, 1991.

Michael Morchower (Lauren A. Adler; Morchower, Luxton and Whaley, on brief), for appellant.

Richard A. Conway (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: COLEMAN, COLE and WILLIS, JJ.

COLEMAN, Judge.

Frank Boyd appeals his conviction for possession of cocaine with the intent to distribute. He challenges the validity of the search warrant which led to seizure of the cocaine and to his arrest. Boyd contends that an anonymous telephone tip from a caller who reported having observed in the past seventy-two hours cocaine packaged for distribution and scales used for that purpose at Boyd's residence did not possess sufficient indicia of reliability to provide the magistrate with probable cause to issue a search warrant. The critical issue which Boyd raises is, when the police verified certain innocent and innocuous details furnished about him by the caller, whether corroboration provided a basis upon which the magistrate could reasonably have concluded that the anonymous informer was honest and reliable. Boyd argues that this information did not substantiate criminal behavior and would have been readily available from common observation. Thus, Boyd argues that the search of his residence and the seizure of drugs and paraphernalia was unreasonable and violated his federal and state constitutional rights under fourth amendment, Article I, section 10 of the Virginia Constitution and Code § 19.2-52 et seq.

We conclude, based upon the totality of the circumstances contained in the affidavit, that the magistrate was justified in reasonably concluding that the informer was credible and reliable, and that his account of having recently observed drugs at Boyd's residence was worthy of belief. The fact that the police had verified personal information about Boyd which the informer had furnished, albeit general and easily ascertainable information, was but one of several factors that would have led a prudent and reasonably cautious person to conclude that drugs were still at Boyd's residence. Because we hold that the affidavit did provide the magistrate a substantial basis to believe the informer, whose tip provided probable cause to issue the search warrant, we affirm the conviction.

On March 28, 1988, a police officer from another jurisdiction contacted Investigator McRae of the Henrico County Police Department regarding an informer who was personally known to the other officer, but who wished to remain anonymous. The informer had advised the officer that in the last three days he had personally observed cocaine packaged for distribution, and scales used for such purpose, at Frank Boyd's residence in Henrico. The police officer told McRae that the anonymous informer was a concerned citizen over the age of eighteen, that he was a resident of the Richmond area, that he did not have a criminal record, and that he was employed in a substantial job which the police officer described. He also told McRae that the informer was familiar with cocaine and its packaging from experience through personal use, and that he had personally observed the cocaine in Boyd's home at 1218 Wilkinson Road in Henrico County. The police officer did not reveal the informer's identity or the circumstances of how his crime tip had come to that department's attention. The officer also did not in any way acknowledge that the informer had previously provided reliable information or that his department was familiar with the informer. The police officer did give McRae a telephone number to call and a fictitious name to which the informer would answer, should it become necessary for Officer McRae to contact him.

Officer McRae called the number and spoke to the individual who answered to the fictitious name. In response to McRae's questions, the informer gave McRae the same basic information McRae had received from the other officer. The informer gave McRae a personal description of Boyd, a description of Boyd's house and of his car, and informed McRae that Boyd had a girlfriend named Pauline Fields who lived at the same address. In an effort to verify the information which he had been provided, Officer McRae consulted the city street directory, checked the Division of Motor Vehicles records and the police department records, and sent an officer to photograph 1218 Wilkinson Road. By these efforts, McRae determined that Boyd and his girlfriend did reside at the address, that Boyd's house fit the description provided by the informer, and that Boyd did, in fact, drive a Mercedes Benz automobile as the informer had indicated.

In the search warrant affidavit, McRae recited as the material facts constituting probable cause to search that a "concerned citizen" had reported that, within the past seventy-two hours, he had personally observed packaged cocaine and cocaine being distributed at 1218 Wilkinson Road. He recited that the informer had described Boyd's residence, had described Boyd personally, had described his car, and knew that Boyd resided at the address with his girlfriend. The affidavit also set forth that McRae had independently verified that the address was listed as the residence of Frank Boyd, who did reside there with his girlfriend, and that the house and car fit the descriptions given by the informer.

As the basis for the magistrate being able to determine the "concerned citizen" informer's credibility and the reliability of his information, McRae stated in the affidavit:

This concerned citizen is over the age of eighteen (18) and has been a resident in the Richmond metropolitan area for the past year. This concerned citizen gained this knowledge of cocaine because of admitted use in the past. This concerned citizen is employed in a responsible job and does not have a criminal record, however, for fear of reprisal this concerned citizen wishes their name to remain anonymous.

At the suppression hearing, Officer McRae testified, and the Commonwealth stipulated, that McRae never learned the informer's identity and still did not know it at the time of the hearing. McRae testified that he had in his records the telephone number which he had dialed to reach the informer. The informer had told McRae the place of his employment. The trial court did not require McRae to reveal the informer's place of employment or the name of the police officer who initially had called him, for the reason that the testimony might lead to the disclosure of the informer's identity. The court ruled that it would receive the name of the police officer from McRae in camera; the record, however, does not disclose whether McRae was required to do so.

Following the hearing, the trial court denied Boyd's motion to suppress and ruled that the affidavit satisfied the criteria set forth in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), because it was free from any misleading statements or falsehood, and because it was sufficient on its face under the totality of the circumstances to provide probable cause to search. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). Specifically, the trial court was persuaded from the affidavit that the informer was a responsible citizen because, although he was unknown to the Henrico police, he was known to the police of another jurisdiction and had provided them with information to be furnished the Henrico police as to where he could be reached. The Henrico police also were able to verify the accuracy of personal information which the informer had provided. Thus, the court concluded that the informer was credible, that the information he had provided was reliable, and that because he had personally observed cocaine packaged for distribution and drug paraphernalia at the premises within seventy-two hours, the magistrate had probable cause to believe that drugs were there.

Here, it is clear that, if the credibility of the informer or the reliability of his information is established, the content of his tip provided sufficient probable cause to issue a search warrant. Thus, our focus must be upon whether there is a substantial basis upon which the magistrate could have concluded that the informer was reliable. The appellant argues that the only evidence which Officer McRae presented to the magistrate tending to establish the reliability of his anonymous informer was that the police officer had verified the innocent details or the innocuous information which the informer provided. The appellant contends that because that information could have been easily obtained by any casual observer, it does not support the informer's credibility nor does it show that the other relevant information was reliable. He argues that verifying information such as Boyd's address, the description of his house, the type of car which he drove, and that his girlfriend lived with him, did not provide the magistrate with the quality of information from which one reasonably and objectively could conclude that the informer was worthy of belief.

The fourth amendment requires that a warrant to search shall issue only on probable cause supported by oath or affirmation. "[The] function [of probable cause] is to guarantee a substantial probability that the invasion involved in the search will be justified by discovery of offending items." 1 W. LaFave, Search and Seizure § 3.1(b) at 544 (2d ed. 1987). "The rule of probable cause is a practical, nontechnical conception." Brinegar v. U.S., 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). The probable cause inquiry conducted by the magistrate entails "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at...