Harris v. Com.

• Citation: 276 Va. 689,668 S.E.2d 141
• Decision Date: 31 October 2008
• Docket Number: Record No. 080437.
• Court: Supreme Court of Virginia
• Parties: Joseph A. Moses HARRIS, Jr. v. COMMONWEALTH of Virginia.

668 S.E.2d 141

276 Va. 689

Joseph A. Moses HARRIS, Jr. v. COMMONWEALTH of Virginia.

Record No. 080437.

Supreme Court of Virginia.

October 31, 2008.

Cassandra M. Hausrath, Assistant Public Defender (Karen L. Stallard, Supervising Appellate Defender, on briefs), for appellant.

Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice S. BERNARD GOODWYN.

In this appeal, we consider whether an anonymous tip, combined with observations by a police officer, provided the officer with the reasonable suspicion required to conduct an investigative traffic stop in compliance with the Fourth Amendment of the United States Constitution.

Joseph A. Moses Harris, Jr. ("Harris") was charged with feloniously operating a motor vehicle while intoxicated in violation of Code § 18.2-266. Harris filed a motion to suppress in the Circuit Court of the City of Richmond, claiming that the investigative stop of his car was in violation of the Fourth Amendment. The court denied the motion to suppress and convicted Harris.

Harris appealed to the Court of Appeals. The Court of Appeals affirmed the conviction in an unpublished opinion. Harris v. Commonwealth, Record No. 2320-06-2, 2008 WL 301334 (February 5, 2008). This Court granted Harris an appeal.

FACTS

On December 31, 2005, Officer Claude M. Picard, Jr. ("Officer Picard"), of the Richmond Police Department, received a call from a dispatcher informing him that "there was a[n] intoxicated driver in the 3400 block of Meadowbridge Road, [who] was named Joseph Harris, and he was driving [a green] Altima, headed south, towards the city, possibly towards the south side." The dispatcher also gave Officer Picard a partial license plate number of "Y8066" for the green Altima and stated that the driver was wearing a striped shirt. The dispatcher did not include any information concerning the identity of the person who had called in the information communicated in the dispatch or the time frame in which the caller had observed the car or the driver.

Officer Picard responded to the call, and shortly thereafter, saw a green Altima traveling south on Meadowbridge Road. Officer Picard began to follow the car. While following the car that Harris was driving, Officer Picard noticed that the license plate number, "YAR-8046", was similar to the one reported by the anonymous caller. Harris was driving within the posted speed limit, and Officer Picard did not observe the car swerve at any time.

While following Harris' car, Officer Picard observed the car's brake lights flash three times. The first time Harris activated the car's brake lights was when Harris "slowed down" at an intersection although he had the right of way. The second time was approximately 50 feet prior to a red traffic light at the intersection of Meadowbridge Road and Brookland Park Boulevard, when Harris "slowed down" as he approached the red traffic light. The third time the brake lights flashed was when Harris brought the car to a complete stop for the red traffic light at the intersection of Meadowbridge Road and Brookland Park Boulevard.

When the traffic light turned green, Harris proceeded through the intersection, drove his car to the side of the road and stopped of his own accord. Officer Picard activated his emergency lights to signify the initiation of a traffic stop, and positioned his car behind Harris' already stopped car. During the traffic stop, Officer Picard detected a strong odor of alcohol on Harris' breath and noticed that his eyes were watery and his speech was slurred. Harris was charged with feloniously operating a motor vehicle while intoxicated after being previously convicted of two like offenses.

ANALYSIS

Harris claims that he was stopped by Officer Picard in violation of the Fourth Amendment and that the Court of Appeals erred in affirming the circuit court's denial of Harris' motion to suppress, which was based on that alleged violation of the Fourth Amendment. Responding, the Commonwealth asserts that the Court of Appeals properly affirmed the circuit court's denial of Harris' motion to suppress because the anonymous tip, coupled with Officer Picard's observations, provided reasonable suspicion for Officer Picard to conduct an investigative stop.

The Fourth Amendment protects the privacy and security of individuals against arbitrary searches and seizures by governmental officials. Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Brown v. Commonwealth, 270 Va. 414, 418, 620 S.E.2d 760, 762 (2005). Although limited in purpose and length of detention, an investigative traffic stop constitutes a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004). An investigative stop must be justified by a reasonable suspicion, based upon specific and articulable facts, that criminal activity is "afoot." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 516 (2008); Jackson, 267 Va. at 672, 594 S.E.2d at 598; see Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Further, pursuant to the "the fruit of the poisonous tree" doctrine, evidence seized as a result of an illegal stop is inadmissible against the defendant at trial. Jackson, 267 Va. at 672, 594 S.E.2d at 598; see Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

A defendant's claim that he was seized in violation of the Fourth Amendment presents a mixed question of law and fact that we review de novo on appeal. Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002); see Bolden v. Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704 (2002); McCain v. Commonwealth, 261 Va. 483, 489, 545 S.E.2d 541, 545 (2001); see also Ornelas v. United States, 517 U.S. 690, 691, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). In making such a determination, we give deference to the factual findings of the circuit court, but we independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment. Bolden, 263 Va. at 470, 561 S.E.2d at 704; McCain, 261 Va. at 490, 545 S.E.2d at 545; Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000). The defendant has the burden to show that, considering the evidence in the light most favorable to the Commonwealth, the trial court's denial of his suppression motion was reversible error. Bolden, 263 Va. at 470, 561 S.E.2d at 704; McCain, 261 Va. at 490, 545 S.E.2d at 545; Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980).

Harris contends that the anonymous tip and Officer Picard's observations were not sufficient to create the reasonable suspicion necessary to justify the stop of Harris' car. Whether the Fourth Amendment has been violated is a question to be determined from all the circumstances. Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006); see Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996).

Whether an officer has reasonable suspicion for a Terry stop is based on an assessment of the totality of the circumstances, which includes "`the content of information possessed by police and its degree of reliability.'" Jackson, 267 Va. at 673, 594 S.E.2d at 598-99 (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). When the factual basis for probable cause or reasonable suspicion is provided by an anonymous informant, the informant's veracity or reliability, and the basis of his or her knowledge are "highly relevant" factors in the overall totality of the circumstances analysis. Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see White, 496 U.S. at 328-31, 110 S.Ct. 2412.

The analysis regarding the use of an anonymous tip to provide reasonable suspicion for an investigative stop was clarified by this Court in Jackson, in which we relied upon the United States Supreme Court's Fourth Amendment jurisprudence in Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), and White, 496 U.S. at 328-31, 110 S.Ct. 2412. See Jackson, 267 Va. at 674-75, 594 S.E.2d at 599-600. An anonymous tip has a relatively low degree of reliability, requiring more information to sufficiently corroborate the information contained in the tip. See J.L., 529 U.S. at 270, 120 S.Ct. 1375; Jackson, 267 Va. at 673, 594 S.E.2d at 599. "Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, `an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity.'" J.L., 529 U.S. at 270, 120 S.Ct. 1375 (quoting White, 496 U.S. at 329, 110 S.Ct. 2412) (citation omitted).

The indicia of reliability of an anonymous tip may be bolstered when the tipster provides predictive information, which the police can use to test the tipster's basis of knowledge and credibility. Jackson, 267 Va. at 676, 594 S.E.2d at 600. However, for such predictive information to bolster the tipster's basis of knowledge or credibility, the information must relate to the alleged criminal activity. Providing information observable or available to anyone is not predictive information and can only "help the police correctly identify the person whom the tipster [meant] to accuse." J.L., 529 U.S. at 272, 120 S.Ct. 1375. An anonymous call that provides no predictive information leaves the police without a means to test the tipster's knowledge or credibility. J.L., 529 U.S. at 271, 120 S.Ct. 1375.

In this case, the anonymous tip included the following information: Joseph Harris, described as wearing a striped shirt, was intoxicated and driving a green...