Bulatko v. Com.

• Decision Date: 23 March 1993
• Docket Number: No. 0789-91-4,0789-91-4
• Citation: 428 S.E.2d 306,16 Va.App. 135
• Parties: Eugene Thomas BULATKO v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 306

428 S.E.2d 306

16 Va.App. 135

Eugene Thomas BULATKO v. COMMONWEALTH of Virginia.

Record No. 0789-91-4.

Court of Appeals of Virginia.

March 23, 1993.

Jay K. Wilk, Asst. Public Defender, for appellant.

H. Elizabeth Shaffer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, BENTON and COLEMAN, JJ.

BARROW, Judge.

This appeal is from a conviction of driving a motor vehicle after having been adjudicated an habitual offender in violation of Code § 46.2-357. We hold that an anonymous report received by a police officer was sufficiently corroborated to constitute articulable suspicion justifying his investigative stop of the automobile driven by the defendant.

On the day the defendant was arrested, an anonymous person telephoned Chief Hassler of the Mount Jackson Police Department and told him that the defendant, whom he identified by name, was driving toward Mount Jackson and did not have a driver's license. The informant said that the defendant was driving a Dodge automobile and told Hassler the color and license plate number of the vehicle. Chief Hassler confirmed through a check of records that the defendant was an habitual offender and that the automobile bearing the reported license plate number did not belong to the defendant.

Later that same evening, Chief Hassler spotted the Dodge automobile with the color and license plate number provided him by the informant driving on Main Street in Mount Jackson. Hassler stopped the automobile and recognized that the defendant, whom he knew, was driving the vehicle.

A police officer may stop a motor vehicle, without probable cause, for investigatory purposes if he or she possesses a reasonable and articulable suspicion "that a motorist is [unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise] subject to seizure for violation of law." Waugh v. Commonwealth, 12 Va.App. 620, 621-22, 405 S.E.2d 429, 429 (1991) (quoting Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979)). Although the Commonwealth has the burden of proving that such an investigatory stop is lawful, Murphy v. Commonwealth, 9 Va.App. 139, 143, 384 S.E.2d 125, 127 (1989), the "level of suspicion required [for an investigative stop] is less demanding than the standard of probable cause." Quigley v. Commonwealth, 14 Va.App. 28, 33, 414 S.E.2d 851, 854 (1992).

Furthermore, anonymous information that has been sufficiently corroborated may furnish reasonable suspicion justifying an investigative stop. Alabama v. White, 496 U.S. 325, 331, 110 S.Ct. 2412, 2416, 2417, 110 L.Ed.2d 301 (1990). Every detail mentioned by an anonymous informer need not be verified to establish reasonable suspicion. Id. Significant aspects of the informer's information must be independently corroborated, however, to give "some degree of reliability to the other allegation" of the informant. Id. at 332, 110 S.Ct. at 2417-2418.

In this case, every fact related by the informant, except the identity of the driver of the car, was independently corroborated. The make, color, and license plate number of the automobile and the fact that the defendant had been declared an habitual offender were independently corroborated by Chief Hassler before he stopped the vehicle. Chief Hassler had sufficient information to know that, if the defendant was operating a motor vehicle, he was committing a felony. The anonymous information provided Chief Hassler a reason to suspect that the defendant was operating the identified vehicle. We hold, therefore, that reasonable and articulable suspicion of criminal activity justified the stop of the automobile driven by this defendant and his right to remain free from unreasonable search and seizure was not violated.

This case differs from Beckner v. Commonwealth, a recent decision of this Court. In that case, the informant did not give the officer the name of the driver, the license number of the automobile, or its color. Beckner v. Commonwealth, --- Va.App. ----, ----, 425 S.E.2d 530, 532-33 (1993). Furthermore, unlike Beckner, in this case, the police officer corroborated the informant's allegation that the defendant did not have a driver's license. In Beckner, on the other hand, the officer, not knowing the basis for the informant's allegation, had no independent corroboration of the crime. Furthermore, the officer in that case was unable to determine before he stopped the car that the person, which the informant said was driving, was not licensed. Id. The officer in Beckner was able to corroborate significantly less of the informant's information than the officer in this case.

The judgment of conviction is affirmed.

Affirmed.

BENTON, Judge, dissenting.

In "a close case," Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417-2418, 110 L.Ed.2d 301 (1990), the Supreme Court concluded that:

[T]he independent corroboration by the police of significant aspects of the informer's predictions imparted some degree of reliability to the other allegations made by the caller.

[It is] also important that, as in [Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ], "the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted." Id., at 245, 103 S.Ct. at 2335-2336.

Id. (emphasis added).

The information that the Sheriff received in this case cannot be described as containing a range of details indicating the informant had knowledge of the type that might be deemed reliable. The Sheriff testified:

The information that the caller gave me was that Mr. Bulatko was operating a vehicle heading towards Mount Jackson, and that he did not have a driver's license....

The caller also advised that he was driving a specific type of car, which was a Dodge, and a specific color, with the exact tag information that he gave me.

The information does not predict future conduct. The informant merely made a statement of a then-present existing condition. Moreover, the substance of the anonymous informant's information demonstrated no special knowledge that imparted a...