Bryson v. Com.

• Decision Date: 15 June 1970
• Citation: 175 S.E.2d 248,211 Va. 85
• Court: Virginia Supreme Court
• Parties: Roy Lee BRYSON v. COMMONWEALTH of Virginia.

Page 248

175 S.E.2d 248

211 Va. 85

Roy Lee BRYSON v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

June 15, 1970.

John H. Kennett, Jr., Roanoke, for plaintiff in error.

D. Gardiner Tyler, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN, and HARMON, JJ.

COCHRAN, Justice.

Roy Lee Bryson was indicted for promoting or being concerned in managing, by his operation or conduct of, a lottery commonly known as the numbers game, a felony unddr Code § 18.1--340. A jury found him guilty as charged. Bryson appeals from the judgment order entered on the verdict fixing his punishment at nine months in jail and a fine of $250.

The numerous assignments of error present two contentions which merit discussion: (1) the conviction was based upon evidence obtained through illegal search and seizure, and (2) the trial court erred in its instructions to the jury.

Officer H. J. Heath, head of the Vice Squad of the Roanoke City Police Department, was the only witness who testified at the trial. According to Heath, on September 6, 1968, at approximately 11:45 A.M., he and Officer Dyer were driving south on First Street, between Wells Avenue and Loudon, in Roanoke when they saw Bryson standing in front of Nick's Restaurant. Circling the block they parked in an alley and observed Bryson walking across First Street.

The officers got out of their car, crossed First Street and caught up with Bryson on the sidewalk. He was alone and not disorderly. When they asked him for identification Bryson fumbled through his wallet. Heath described what he then saw:

'At this time, I could see a rubber band around his ring finger on this right hand. Inside of his hand, I could see a small piece of paper underneath this rubber band.'

Upon seeing the paper Health immediately arrested Bryson, without a warrant, for 'being concerned in a lottery'. Seizing the paper, Heath saw for the first time, when he unfolded it, that there was a list of numbers written on it. A search of Bryson at police headquarters disclosed other slips of paper with numbers written on them, also introduced in evidence over objection, and $27.50 in small bills and change.

Heath explained the organizational structure and method of operation of the numbers racket in Roanoke. According to his computations the cash bets represented by the numbers found on Bryson aggregated $26.85.

This meager record, as Bryson contends, falls short of showing probable cause for his arrest. Mere possession of a piece of paper attached to his finger by a rubber band is not sufficient to justify the arrest of a man walking alone in an orderly manner on a city street in the middle of the day.

A law enforcement officer may lawfully arrest, without a warrant, for a felony or upon 'reasonable suspicion' that a felony has been committed by the arrested person. Muscoe v. Commonwealth, 86 Va. 443, 10 S.E. 534 (1890). See also Byrd v. Commonwealth, 158 Va. 897, 164 S.E. 400 (1932).

The test of constitutional validity is whether at the moment of arrest the arresting officer had knowledge of sufficient facts and circumstances to warrant a reasonable man in believing that an offense has been committed. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Fierst v. Commonwealth, 210 Va. 757, 173 S.E.2d 807 (1970). If the arresting officer had no probable cause to arrest then he could not lawfully search the defendant's person. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960). But see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). (An exception to the rule, inapplicable here, arises when the officer has reasonable grounds to believe that the defendant is armed and dangerous.)

In Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) police officers arrested Beck without having any reasonable grounds to believe that he was acting unlawfully. They knew that Beck had a police record for gambling and they had received information, the nature of which was not revealed, that he was engaged in 'clearing house' activities, another name for the numbers game. After his arrest Beck was searched and clearing house slips were found, upon which evidence he was convicted of violating the applicable Ohio criminal statute.

On appeal Beck's arrest was held to be unlawful. The clearing house slips were therefore inadmissible in evidence since they were obtained by means of an unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments to the United States Constitution.

It was pointed out in the opinion that, when the validity of an arrest is challenged, the trial court must be informed of the facts upon which the arresting officers acted in order to determine whether they had probable cause to arrest. If an informer had furnished information to the officers which gave them probable cause to arrest Beck it was the prosecution's duty to show what the informer said and why the officers thought the information was credible. But the record failed to supply the necessary facts with sufficient specificity. Cf. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

Probable cause must exist before the warrantless arrest, and an incident search may not precede and serve to justify the arrest. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 228, 92 L.Ed. 210 (1948). Thus, where an officer, without previous information, observed a man talking to known drug addicts over a period of eight hours, but saw nothing pass between them, he had no probable cause to arrest and search the man for narcotics. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

Here, the folded paper fastened to Bryson's finger was insufficient, standing alone, to give probable cause for his arrest. Since the record fails to establish a lawful arrest the evidence seized on Bryson was inadmissible and his conviction must be reversed.

As Bryson may be tried again, we will review the rulings of the trial court on two instructions.

Instruction No. 2, tendered by the Commonwealth, was given, over objection, as follows:

'INSTRUCTION NO. 2

'The Court instructs the jury that if you believe from the evidence beyond a reasonable doubt that the defendant did for himself or another person, buy, sell or transfer, or have in his possession for the purpose of sale or with intent to exchange, negotiate or transfer, or aid in selling, exchanging, negotiating or transferring, a chance or ticket in, or share of a ticket in, a lottery which consisted of the operation or conduct of a lottery commonly known as the numbers game or numbers racket, then you shall find the defendant guilty as charged in the...