Clark v. Commonwealth, 0824-20-2
| Citation | 0824-20-2 |
| Case Date | November 03, 2021 |
| Court | Court of Appeals of Virginia |
STERLING LAFETTA CLARK, II
v.
COMMONWEALTH OF VIRGINIA
No. 0824-20-2
Court of Appeals of Virginia
November 3, 2021
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Beverly W. Snukals, Judge
Matthew T. Paulk (Law Office of Matthew T. Paulk, on brief), for appellant.
Matthew P. Dullaghan, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges Humphreys and O'Brien
MEMORANDUM OPINION [*]
MARLA GRAFF DECKER JUDGE.
Sterling Lafetta Clark, II, appeals his conviction for possession of a controlled substance with the intent to distribute, second offense, in violation of Code § 18.2-248(C). He contends that the trial court erred by denying his motion to suppress evidence because the stop followed by the search of his person violated the Fourth Amendment of the United States Constitution. For the reasons that follow, we affirm the judgment of the trial court.
I. BACKGROUND[1]
On September 7, 2019, around 5:00 p.m., three City of Richmond detectives responded to investigate a tip from a confidential informant. The informant reported that a man was selling narcotics at a particular intersection. When the detectives arrived at the intersection, Detective
Michael Poerstel noticed the appellant leaving a store. Seeing no activity indicative of drug distribution, the detectives continued to surveille the area.
As the detectives watched, the confidential informant contacted Poerstel by phone and told him that the person selling drugs was wearing a black and white basketball jersey, white pants, and sneakers. The outfit description matched that of the appellant. Poerstel next saw the appellant come out of an alley with another man. The other person had an "unknown amount of currency" in his left hand.
Poerstel and the other two detectives approached the appellant on foot in the parking lot. The armed detectives wore black vests with the word "Police" printed on the front and back. The other man who had been with the appellant walked away. The detectives stopped and spoke with the appellant. As they talked, the detectives positioned themselves around him so he could not leave. The appellant "frequently" looked around and moved his hands around his "fanny pack" on his waist. Detective Poerstel told the appellant to stop reaching around his bag, but instead of complying the appellant continued to do so.
The detectives handcuffed the appellant and conducted a pat down of his person, but they found no weapons. Less than five minutes later, Detective O'Connell arrived with a police dog and conducted a "scan" of the appellant. Prior to the arrival of the canine unit, the detectives had not searched the appellant or told him that he was under arrest. The dog alerted to "the odor of narcotics." The detectives then searched the appellant, found cocaine in his bag, and informed him he was under arrest.
A grand jury indicted the appellant for possession of a controlled substance with the intent to distribute it, second offense. He filed a motion to suppress the evidence found during the search.
At the pre-trial suppression hearing, Detectives Sean Alston and Poerstel, two of the detectives who participated in the stop, testified about the area of the encounter.[2] Alston explained that the area had a history of drug sales and gun possession. Poerstel testified that narcotics were frequently sold in the area and that he had conducted narcotics investigations there in the past. He also stated that he had worked with and received information from the confidential informant for over a year before the encounter with the appellant. In the past, the informant had provided Poerstel with accurate information. Poerstel had used the informant to make controlled purchases of illegal narcotics and had obtained search warrants based on information "in conjunction with" those purchases. At the time he provided Poerstel with the information about the appellant, the informant had two pending charges for possession with intent to distribute cocaine and heroin.
The appellant argued to the trial court that the circumstances did not support the stop. He also contended that the armed detectives unlawfully arrested him when they surrounded him, handcuffed him, and conducted the pat down.
The court denied the motion to suppress, finding that the detectives had lawfully detained the appellant based on a reasonable, articulable suspicion that he was actively selling drugs and did not arrest him until later. The appellant entered a conditional guilty plea pursuant to Code § 19.2-254, preserving his right to appeal the alleged violation of his Fourth Amendment rights. The court accepted the guilty plea, found the appellant guilty, and sentenced him to twenty years in prison with seventeen years suspended.[3]
II. ANALYSIS
The appellant argues that the search and seizure of his person violated his Fourth Amendment rights. He contends that the police stopped him for an investigatory detention without reasonable suspicion and, alternatively, they arrested him without probable cause before conducting the search.[4]
Our consideration of these related challenges involves well-defined legal principles. An appellant's claim that he "was seized in violation of the Fourth Amendment presents a mixed question of law and fact" that this Court reviews de novo. Cole v. Commonwealth, 294 Va. 342, 354 (2017) (quoting Cost v. Commonwealth, 275 Va. 246, 250 (2008)). "In making such a determination," the Court "give[s] deference to the factual findings of the [trial] court[] but . . . independently determine[s] whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment." McCain v. Commonwealth, 275 Va. 546, 552 (2008). In addition, "we give due weight to the inferences drawn from [the] facts by resident judges and local law enforcement officers." Knight v. Commonwealth, 71 Va.App. 771, 782-83 (2020) (quoting Cantrell v. Commonwealth, 65 Va.App. 53, 56 (2015)). Finally, the appellant bears the burden of establishing that the trial court erred in denying his motion to suppress. See id. at 782.
Fourth Amendment jurisprudence recognizes two types of non-consensual and warrantless encounters between police and citizens. The first category is "brief, minimally intrusive investigatory detentions based upon specific, articulable facts." Middlebrooks v. Commonwealth, 52 Va.App. 469, 476 (2008) (quoting Blevins v. Commonwealth, 40 Va.App. 412, 420-21 (2003), aff'd, 267 Va. 291 (2004)). The second category is "highly intrusive arrests and searches founded on probable cause." Id. (quoting Blevins, 40 Va.App. at 421).
A. Reasonable Suspicion to Support an Investigatory Detention
The appellant argues that the detectives stopped him without a reasonable, articulable suspicion. If "articulable facts support[] a reasonable suspicion" of unlawful conduct, a police officer may, without violating the Fourth Amendment, stop that person "briefly while attempting to obtain additional information." Sidney v. Commonwealth, 280 Va. 517, 524 (2010) (quoting Hayes v. Florida, 470 U.S. 811, 816 (1985)); see Terry v. Ohio, 392 U.S. 1, 30 (1968). The purpose of an investigatory stop or detention is "to permit an officer with reasonable suspicion of criminal activity to quickly confirm or dispel that suspicion." Davis v. Commonwealth, 35 Va.App. 533, 539 (2001). The reasonable-suspicion determination is based "not [on] what the officer thought" but, instead, on whether the objective "facts and circumstances apparent to him at the time of the stop were such as to create in the mind of a reasonable officer in the same position a suspicion that a violation of the law [had occurred, ] was occurring[, ] or was about to occur." Mason v. Commonwealth, 291 Va. 362, 368 (2016).
"[T]here are no bright line rules to follow when determining whether a reasonable and articulable suspicion exists . . . ." Middlebrooks, 52 Va.App. at 479 (first alteration in original) (quoting Hoye v. Commonwealth, 18 Va.App. 132, 134-35 (1994)). It "is more than an unparticularized suspicion or 'hunch.'" Sidney, 280 Va. at 523 (quoting Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000)). However, "[t]he likelihood of criminality 'need not rise to the level required for probable cause[, ] and it falls considerably short of satisfying a preponderance of the evidence standard' applicable in other contexts." Raab v. Commonwealth, 50 Va.App. 577, 581 (2007) (en banc) (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)).
In the instant case, the reason for the stop began with a tip provided by a confidential informant. In evaluating whether the circumstances supported a police encounter with the appellant based at least in part on information received from an informant, the informant's
"reliability and basis of knowledge" are "highly relevant." Byrd v. Commonwealth, 57 Va.App. 589, 597 (2011) (en banc) (quoting Jones v. Commonwealth, 277 Va. 171, 179 (2009)). One factor that has bearing on the reliability of an informant is whether the individual is a citizen-informer or a confidential criminal informant. See Polston v. Commonwealth, 24 Va.App. 738, 745 (1997) (allowing an inference of reliability for citizen informers without additional supporting circumstances but requiring supporting circumstances for information from criminal informants), aff'd on other grounds, 255 Va. 500 (1998).
It is widely recognized that confidential informants often are entangled in criminality. 2 Wayne R....
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