Byrd v. Com.

• Citation: 55 Va. App. 742,689 S.E.2d 769
• Decision Date: 09 March 2010
• Docket Number: Record No. 2197-08-1.
• Parties: Malachi Antonio BYRD v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

689 S.E.2d 769

55 Va. App. 742

Malachi Antonio BYRD v. COMMONWEALTH of Virginia.

Record No. 2197-08-1.

Court of Appeals of Virginia, Chesapeake.

March 9, 2010.

T. Gregory Evans, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Jennifer C. Williamson, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: HUMPHREYS, McCLANAHAN, JJ., and WILLIS, S.J.

HUMPHREYS, Judge.

Malachi Antonio Byrd ("appellant") was convicted at a bench trial of possession of a Schedule I or II controlled substance, in violation of Code § 18.2-250; and possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2. On appeal, appellant contends that the trial court erred when it denied his motion to suppress the evidence obtained from the search of the vehicle and appellant because the police lacked probable cause for the search. Appellant asserts that the confidential informant's tip lacked the detail necessary to support probable cause. Appellant also argues that the trial court erred when it refused to strike the charge of possession of a firearm by a convicted felon. For the following reasons, we agree that the trial court erred in denying appellant's motion to suppress; however, the motion to strike issue is not properly before this Court because it is procedurally defaulted.

BACKGROUND

On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (citation omitted). So viewed, the evidence is as follows.

At the suppression hearing held on January 8, 2008, Virginia Beach Police Officer William Canada ("Canada") testified that on March 27, 2007, at approximately 1:00 a.m., he received a tip from a reliable confidential informant ("CI") that in approximately thirty (30) minutes a drug transaction involving crack cocaine was going to take place at the Harris Teeter grocery store at 29th and Arctic Boulevard in Virginia Beach. Canada stated that the CI told him a green four-door vehicle, driven by a black female with a black male passenger, would pull into the Harris Teeter parking lot where the drug transaction would take place. The CI further told him that the male in the car had a gun. At the suppression hearing, Canada testified that he did not know the basis of the CI's knowledge with regard to this tip.

After receiving the information from the CI, Canada, Officers Jason Gregory ("Gregory"), and Robert Ernest ("Ernest") set up surveillance at the Harris Teeter. Gregory testified at the suppression hearing that Canada told them the CI stated a green Dodge with a black female driver and black male passenger would drive to the Harris Teeter, the passenger would get out, conduct a drug transaction, get back in the car, and they would leave. He further told them that the drug would be crack cocaine and the passenger would be armed.

The officers were in position at Harris Teeter ten minutes after receiving the tip. They waited for approximately twenty minutes when they saw a green four-door Dodge pull into the parking lot with a black female driver and a black male passenger. The driver pulled into a parking space, and after one minute the passenger got out and walked directly into the Harris Teeter. Approximately two minutes later, the passenger walked out of the store without anything in his hands and returned to the vehicle. They then drove out of the parking lot. The officers did not see what occurred in the store, nor did they see any visible purchases on the man.

Based on the information from the CI and the officers' observation, Canada stated that they stopped the vehicle on 28th Street and removed appellant, the black male passenger, and the female driver from the car. The officers detained the individuals and placed them in separate police cars. They then searched the passenger compartment and found a loaded Jimenez nine-millimeter handgun in the glove compartment. The female driver claimed ownership of the weapon.

After discovering the gun, Gregory took appellant to the Second Precinct police station where he read him his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant then waived his right to remain silent and to consult with counsel and indicated that he wanted to speak with Gregory. Appellant informed Gregory that even though his girlfriend owned the gun, his fingerprints would be found on it because he had moved it the previous night. After Gregory interviewed appellant at the police station, Ernest transferred him to the detective bureau where appellant was wanted on a different matter. Upon arriving at the First Precinct, Ernest took him to an interview room, and based on department policy had him remove his pants because he had a pair of shorts on underneath them. As appellant pulled off his pants, a small baggie containing a white substance fell to the floor underneath appellant's pant leg. Ernest testified that there had been nothing on the floor when they entered the room and that he saw the baggie fall to the floor. The certificate of analysis entered into evidence showed that the baggie contained .27 gram of cocaine.

Canada testified that the Harris Teeter area was known as a high crime drug area in which several narcotics arrests had been made. With regard to the CI, Canada testified that he knew the identity of the CI, and had worked with this CI for about eighteen (18) months with the last six (6) months of that time being after the CI had completed the process of becoming a confidential informant. Canada stated that the information the CI provided during this time was reliable, never found to be false, involved narcotics, and had resulted in "over twelve search warrants, seizures of large quantities of money, drugs, firearms, people with arrest warrants."

The trial court denied the motion to suppress on the grounds that there was a sufficient basis for the stop based on the CI's information and the totality of the circumstances. Specifically, the trial court stated that this case was distinguishable from Russell v. Commonwealth, 33 Va.App. 604, 535 S.E.2d 699 (2000), in that the information in this case was sufficient because the informant had been a source of twelve previous search warrants that resulted in seizure of significant quantities of drugs, weapons, and money, the accurate description of the vehicle and the occupants of the vehicle, and the time and place it was going to stop. The trial judge further observed that he did not think the officers needed to physically observe the criminal transaction before they made a stop.

At trial, the Commonwealth admitted, without objection, a copy of California Penal Code § 12021.1 along with a conviction order from the Superior Court of California, San Diego County, finding appellant guilty of possession of a firearm by a person previously convicted of a specified violent crime in violation of California Penal Code § 12021.1(a).

This appeal followed.

ANALYSIS

I. Motion to Suppress

Appellant contends that the police lacked probable cause to search him and the car based on the CI's tip and, thus, the evidence found in the stop and flowing from the subsequent arrest should be suppressed.¹ When reviewing a trial court's denial of a motion to suppress, this Court considers the evidence given at both the suppression hearing and the trial, DePriest v. Commonwealth, 4 Va.App. 577, 583, 359 S.E.2d 540, 542-43 (1987), and views the evidence "in the light most favorable to the Commonwealth, granting to the Commonwealth all reasonable inferences fairly deducible from it," Sabo v. Commonwealth, 38 Va.App. 63, 69, 561 S.E.2d 761, 764 (2002) (citing Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991)).

This Court is "bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). However, "we review de novo the trial court's application of legal standards . . . to the particular facts of the case." McCracken v. Commonwealth, 39 Va.App. 254, 258, 572 S.E.2d 493, 495 (2002) (citing Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663). "`Ultimate questions of reasonable suspicion and probable cause . . . involve questions of both law and fact and are reviewed de novo on appeal.'" Ramey v. Commonwealth, 35 Va.App. 624, 628, 547 S.E.2d 519, 521 (2001) (quoting Neal v. Commonwealth, 27 Va. App. 233, 237, 498 S.E.2d 422, 424 (1998)). "The burden is on the defendant to show that the denial of his suppression motion, when the evidence is considered in the light most favorable to the Commonwealth, was reversible error." McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001) (citing Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).

"The Fourth Amendment . . . protects `the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.'" Johnson v. Commonwealth, 26 Va. App. 674, 682, 496 S.E.2d 143, 147 (1998) (citation omitted). "[A] `highly intrusive, full-scale . . .' search[] . . . must be based upon probable cause to believe that a crime has been committed by the suspect." McGee, 25 Va.App. at 198, 487 S.E.2d at 261 (citing United States v. Sokolow, 490 U.S. 1, 7, 109...