Commonwealth v. Stallings

• Decision Date: 01 May 2017
• Docket Number: Criminal Docket No.: CR16-2669
• Court: Circuit Court of Virginia
• Parties: Re: Commonwealth of Virginia v. Lamont Stallings

Re: Commonwealth of Virginia v. Lamont Stallings

Criminal Docket No.: CR16-2669

FOURTH JUDICIAL CIRCUIT OF VIRGINIA CIRCUIT COURT OF THE CITY OF NORFOLK

May 1, 2017

DAVID W. LANNETTI JUDGE

Catherine Paxson, Esquire

Office of the Commonwealth's Attorney

City of Norfolk

800 East City Hall Avenue, Suite 600

Norfolk, Virginia 23510

Andrew Protogyrou, Esquire

London C. Crounse, Esquire

Protogyrou & Rigney, P.L.C.

125 St. Paul's Boulevard, Suite 150

Norfolk, Virginia 23510

Dear Counsel:

Today the Court rules on the motion filed by Defendant Lamont Stallings ("Stallings") to suppress all evidence stemming from his arrest and the search and seizure of a moped—both of which Stallings claims were unconstitutional. The questions before the Court are as follows: (1) whether information from a confidential informant, combined with corroborating information from a planned narcotics transaction, provided probable cause to arrest Stallings and conduct a search incident to arrest; (2) whether law enforcement had probable cause to search a moped—allegedly owned by Stallings—that was at the location of the planned narcotics transaction; and (3) whether the vehicle exception to the warrant requirement justified a warrantless search of the moped after law enforcement relocated it to the Police Operations Center ("POC").

Because the Court answers all of these questions in the affirmative, Stallings's motion to suppress is DENIED.

Background

On August 22, 2016, the Norfolk Vice and Narcotics Unit arrested an individual for an alleged narcotics offense. (Feb. 27, 2017, Hearing Tr. ("Tr.") 8.) This individual ("Informant") that same day identified his drug dealer, known to Informant as "Little Man," to Investigator L.D. Sapp of the Norfolk Police Department. (Id.) Informant provided Little Man's phone number and stated that Little Man usually drives either a dark colored, four-door automobile or a red moped. (Id. at 10, 16-17.) Investigator Sapp had never before received information from Informant, although another officer told Investigator Sapp that Informant was reliable.¹ (Id. at 9, 23.) Investigator Sapp asked other Vice and Narcotics Unit detectives if any of them knew Little Man's true identity. (Id. at 10, 12.) Investigator Todd Sterling stated that the alias "Little Man" was used by Lamont Stallings. (Id.) Investigator Sapp subsequently retrieved and showed a photograph of Stallings to Informant, who confirmed that the photograph depicted Little Man. (Id. at 12.)

Investigator Sapp asked Informant to arrange a narcotics transaction with Little Man. (Id. at 12-13.) Informant telephoned Little Man—with Investigator Sapp listening to the call—and arranged to buy some heroin. (Id. at 13-15.) Little Man instructed Informant to meet him at the Tinee Giant located at 2863 Early Street in Norfolk, and Investigator Sapp drove Informant to the designated location. (Id. at 15-16.) Upon arrival, Informant saw Stallings and promptly identified him as his drug dealer. (Id.at 16-17.) Stallings was standing in front of the Tinee Giant next to a red, Yamaha moped.² (Id. at 17-18.) It is not clear whether Stallings was already at the Tinee Giant or if he traveled there after speaking with Informant. (Id. at 28-29.) Investigator Sapp did not witness Stallings possess or sell any controlled substances, nor did he observe Stallings "change hands" with anyone or make any furtive gestures. (Id. at 34.)

A Narcotics and Vice Unit takedown team arrested Stallings almost immediately after Investigator Sapp and Informant arrived at the Tinee Giant, believing that probable cause existed—specifically, that Stallings was attempting to sell illegal narcotics. (Id. at 20.) Law enforcement searched Stallings incident to arrest; no narcotics or other controlled substances were found on his person. (Id. at 38.) Law enforcement searched accessible areas of the moped, but they could not open the seat compartment. (Id. at 40.) Detective J.A. Gomez testified that while law enforcement searched the moped at the Tinee Giant, Stallings admitted that the moped was his and said, referring to the moped, "[W]hy are you messing with my scooter? Leave my scooter alone. You don't have probable cause to search my scooter."³ (Id. at 39.) A crowd began to form, obstructing the entrance to the Tinee Giant. (Id. at 56.) A member of the takedown team then took possession of the moped key, picked up the moped, and placed it in the back ofDetective Gomez's pick-up truck, whereupon the moped was transported to the POC and parked in an unsecured parking lot. (Id. at 40-41.)

While traveling to the POC, Detective Gomez "YouTubed the make and model of the [moped] and was able to figure out how to actually open the seat."⁴ (Id.) Shortly after arrival at the POC, law enforcement opened the seat and found what turned out to be capsules of heroin and a quantity of crack cocaine. (Id. at 43-44.) The Commonwealth concedes that the search of the moped was not pursuant to an inventory search. A warrant was neither applied for nor obtained by law enforcement to search the moped. (Id. at 60.)

Positions of the Parties

Stallings's Position

Stallings argues that law enforcement unlawfully arrested him and unconstitutionally searched and seized the moped, claiming that law enforcement "had no probable cause, no consent, no exigent circumstance, nor any other exception to the warrant requirement to circumvent the violation of the Fourth Amendment to the Constitution of the United States and Article 1, Section 10 of the Virginia Constitution." (Mot. to Suppress 1.) Stallings therefore asks the Court to suppress, as fruit of the poisonous tree, "any physical or verbal evidence that was unveiled as a result of this constitutional violation." (Id. at 2.)

Stallings asserts that law enforcement arrested him absent probable cause because no illegal activities were observed that would corroborate information gained from "a patently unreliable arrestee." (Def.'s Br. in Supp. of Mot. to Suppress ("Def.'s Br. in Supp.") 9.) He points out that "the reliability of a 'criminal' informer . . . should be established by 'underlying facts or circumstances buttressing the credibility of the informer,'" as opposed to the presumed reliability of a "disinterested citizen." (Id. at 11 (quoting Saunders v. Commonwealth, 218 Va. 294, 298, 237 S.E.2d 150, 153-54 (1977)).) Stallings claims that Informant was unreliable because he was a "self-interested criminal who i) had been arrested the same day; ii) had never before provided reliable information to the lead Investigator; and iii) was actively soliciting a crime for consideration on a crime charged against them by the lead Investigator in this case." (Id.) He argues that "[w]ithout any coat of reliability or any previously consummated drug purchases, but rather the opportunity of potential leniency, the informant in this case provided a [patently unreliable] tip." (Id. at 12 (comparing the reliability of Informant to that in Florida v. J.L., 529 U.S. 266, 272 (2000)).)

Stallings further points out that, upon arrival, law enforcement merely observed him speaking with a black female before seizing and searching him. (Id. at 9.) The officers did not observe him arrive at the Tinee Giant nor did they observe him make any furtive gestures. (Id. at 13.) Stallings contrasts the present facts with those in Robinson v. Commonwealth, where the defendant was observed (1) arriving at the gas station as the informant predicted (2) meetingwith an unknown man inside and then leaving the building at different times, and (3) reaching into the unknown man's "driver's side door for ten seconds before leaving." (Id. at 13 (quoting Robinson, 53 Va. App. 732, 741, 675 S.E.2d 206, 211 (2009)).) Stallings also finds significant that law enforcement found neither contraband nor other "indicia of illegal activity" on his person and that he did not make any incriminating statements. (Id. at 9.) According to Stallings, law enforcement failed to sufficiently corroborate Informant's tip with objective facts and therefore unconstitutionally arrested him without a warrant. (Id. at 13.)

Stallings also argues that law enforcement unconstitutionally conducted a warrantless search of the moped, claiming that neither the vehicle exception nor any other exception to the warrant requirement applied,⁵ because (1) law enforcement lacked probable cause, (2) Stallings did not have a reduced expectation of privacy in the moped, (3) the moped is not a motor vehicle, (4) the moped was not readily mobile at the time of the search, and (5) no exigency justified the warrantless search. (See generally Def.'s Suppl. Br. in Supp. of Mot. to Suppress ("Def.'s Suppl. Br.").) Stallings also distinguishes a vehicle search pursuant to a traffic stop from the search of a vehicle parked on private property, as the moped apparently was here. (Def.'s Br. in Supp. 16.)

Stallings asserts that law enforcement lacked probable cause to believe the moped contained evidence of a crime because (1) Informant was unreliable, (2) law enforcement did not substantially corroborate Informant's tip, (3) law enforcement expected Stallings to be driving either of two vehicles, (4) the moped was parked on the sidewalk away from Stallings, (5) law enforcement never saw Stallings sitting or riding on the moped, (6) and law enforcement did not find any contraband when they searched the moped at the Tinee Giant. (Id. at 10.)

Stallings also asserts that the moped is not considered a "motor vehicle" under Virginia law. (Def.'s Suppl. Br. 4.) He relies on Section 46.2-100 of the Code of Virginia, which states, in pertinent part, that a "moped shall be deemed not to be a motor vehicle" and "[f]or purposes of Chapter 8 a moped shall be a vehicle while operated on a highway." (Id. at 3-4.)

Stallings further argues that no exigency justified a warrantless search of the moped because the Commonwealth has not shown that anyone else had access to the moped and because law...