Hardy v. Com., 0792-88-2

• Decision Date: 18 December 1990
• Docket Number: No. 0792-88-2,0792-88-2
• Citation: 399 S.E.2d 27,11 Va.App. 433
• Parties: Kenneth Lee HARDY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 27

399 S.E.2d 27

11 Va.App. 433

Kenneth Lee HARDY v. COMMONWEALTH of Virginia.

Record No. 0792-88-2.

Court of Appeals of Virginia.

Dec. 18, 1990.

Russell C. Williams, Asst. Public Defender (Kimberly B. O'Donnell, Asst. Public Defender, on brief), for appellant.

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

Before BARROW, COLE and WILLIS, JJ.

WILLIS, Judge.

Kenneth Lee Hardy was convicted of possession of cocaine by a judge sitting without a jury. He contends on appeal that the trial judge erred in refusing to suppress evidence obtained from a warrantless search of his person. We agree and reverse.

The Richmond Police Department received an anonymous telephone call telling them that Kenneth Hardy was walking north on Hull Street wearing a black coat with a white fur collar and black fur hat. The unknown informant said that Hardy was accompanied by a fat black man and that he was armed and had cocaine in his hat.

Officer Dunn, who knew Hardy, responded to the call and observed Hardy as described. He approached Hardy, who appeared nervous, and advised him that he had information that he was in possession of a weapon. A pat down failed to reveal a weapon. Officer Dunn then removed Hardy's hat where he found cocaine.

Relying on Wright v. Commonwealth, 222 Va. 188, 278 S.E.2d 849 (1981), the Commonwealth argues that the totality of the circumstances, the informant's information and the corroboration thereof, was sufficient to establish probable cause justifying Hardy's arrest and the search of his person. Thus we are asked to determine whether at the time of the search of Hardy's hat Officer Dunn had probable cause to believe that an offense had been committed which justified arresting Hardy. We conclude that he did not.

"[T]he test of constitutional validity [of a warrantless search] 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." DePriest v. Commonwealth, 4 Va.App. 577, 583-84, 359 S.E.2d 540, 543 (1987), cert. denied, 488 U.S. 985, 109 S.Ct. 541, 102 L.Ed.2d 571 (1988) (quoting Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250 (1970)). An important element in establishing the reliability of an anonymous tip is the predictive nature of the information. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990). The information provided by the informant must describe not just easily obtained facts, but future third party actions not easily predicted. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Probable cause to arrest must exist exclusive of the incident search. Bryson, 211 Va. at 86-87, 175 S.E.2d at 250.

The informant supplied the name of the defendant, a description of him, a description of his companion and their location, and stated what the defendant was carrying. Although Officer Dunn verified the description, this was nothing more than innocent details which any casual observer could have given. None of the information was predictive. None bolstered the informant's reliability by revealing inner-knowledge of Hardy's activities. Anyone who saw Hardy on Hull Street that day could have given the same description of him. The uncorroborated statement that Hardy had a gun and cocaine neither enhanced nor detracted from the establishment of probable cause.

The Commonwealth argues that in this case, as in United States v. Porter, 738 F.2d 622 (4th Cir.) (en banc), cert. denied, 469 U.S. 983, 105 S.Ct. 389, 83 L.Ed.2d 323 (1984), the details of the informant's tip, combined with the officer's observations and verification of those details, provided probable cause to arrest and search Hardy. We disagree. In Porter, the informant's information was predictive. The informant stated that Penny Porter was flying to Miami and would be returning with a quantity of cocaine. The informant described Porter and her companion. The police verified that a "T....