Jackson v. Com., Record No. 3238-01-1.

Docket NºRecord No. 3238-01-1.
Citation41 Va. App. 211, 583 S.E.2d 780
Case DateJuly 29, 2003
CourtCourt of Appeals of Virginia

583 S.E.2d 780
41 Va.
App. 211

Jerald Lorenzo JACKSON
v.
COMMONWEALTH of Virginia

Record No. 3238-01-1.

Court of Appeals of Virginia, Richmond.

July 29, 2003.


583 S.E.2d 784
Mark L. Williams, Newport News, for appellant

Susan M. Harris, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

583 S.E.2d 785
Present: FITZPATRICK, C.J., BENTON, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON and KELSEY, JJ

UPON REHEARING EN BANC

KELSEY, Judge.

The trial court found the appellant, Jerald Lorenzo Jackson, guilty of possession of cocaine (Code § 18.2-250), possession of a concealed weapon (Code § 18.2-308), and possession of a firearm while simultaneously possessing illegal drugs (Code § 18.2-308.4(A)). On appeal, Jackson challenges only the trial court's denial of his pretrial suppression motion. A divided panel of the Court affirmed the conviction. Jackson v. Commonwealth,, 39 Va.App. 624, 576 S.E.2d 206 (2003). Upon rehearing the matter en banc, we likewise affirm the trial court, finding no error in either its analysis or conclusion.

I.

On appeal from a denial of a suppression motion, we must review the evidence in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences. Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000); Sabo v. Commonwealth, 38 Va.App. 63, 69, 561 S.E.2d 761, 764 (2002).

At 2:10 a.m. on June 17, 2001, the Newport News Police Department dispatched Officer M.A. Cook to a street corner next to a "small bar" to investigate an anonymous complaint. The caller reported (and the dispatcher advised the responding officers) that "three black males" were acting disorderly and "at least one of them had a firearm and was brandishing it." The caller also stated that the three "were getting into a car and leaving." The caller described the vehicle as a "white Honda." Sending backup, the police interpreted the report as "a high risk situation with a gun possibly involved."

Three to five minutes later, Cook and other officers arrived at the scene and observed a white Honda leaving the area. They saw no other white vehicles of any type. The white Honda "pulled out right in front" of Cook, permitting the headlights of his police cruiser to shine directly into the vehicle. Cook clearly saw three black males in the white Honda. On the basis of the brandishing tip, the officers followed the vehicle and stopped it several blocks away.

Cook approached the car and explained the reason for the stop. Sergeant James Hogan went to the passenger side of the vehicle and shined a light into the car. Jackson sat in the front passenger seat with his arms folded across his stomach. Hogan noted an unusual bulge underneath Jackson's shirt, which the officer suspected to be a firearm. The bulge, Hogan concluded, "obviously was not part of his body" and was "too big" to be anything other than a handgun.

Hogan asked Jackson if he had a gun on him. Jackson said no. Hogan then said, "Could you pull your shirt up so that I can be comfortable with us talking, because I believe you have a firearm?" In response, Jackson pulled his shirt "a couple inches and put it back" and then "crossed his arms back across his stomach."

Fearing for his safety, Hogan unholstered his sidearm and ordered Jackson out of the car. After Jackson got out of the vehicle, Officer B.D. Bartley immediately conducted a weapons search and removed a Glock, .40 caliber, semiautomatic handgun from Jackson in the exact area of the previously noticed bulge. The officers then handcuffed Jackson and placed him under arrest. In a search incident to his arrest, the officers also found crack cocaine in Jackson's pants pocket.

II.

At trial, Jackson moved to suppress the evidence, claiming that the police officers (i) lacked a sufficient basis to stop the white Honda and to question its occupants, and (ii) had equally insubstantial grounds for searching him for weapons or drugs. Both events, Jackson contended, violated search and seizure principles protected by Virginia law and the United States Constitution.1

583 S.E.2d 786
The trial court denied the motion, stating that the officers had "an obligation to protect the citizens of this community" and would have been "derelict in their duty" had they not acted as they did. The procedures they followed, the trial judge concluded, were "strictly by the book." For the following reasons, we agree with the trial court and affirm its decision

A.

Though the ultimate question whether the officers violated the Fourth Amendment triggers de novo scrutiny, we defer to the trial court's findings of "historical fact" and give "due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." Davis v. Commonwealth, 37 Va.App. 421, 429, 559 S.E.2d 374, 378 (2002) (citing Neal v. Commonwealth, 27 Va.App. 233, 237, 498 S.E.2d 422, 424 (1998)). Viewing the case through this evidentiary prism, we examine the trial court's factual findings to determine if they are plainly wrong or devoid of supporting evidence. See Mier v. Commonwealth, 12 Va.App. 827, 828, 407 S.E.2d 342, 343 (1991). The appellant must shoulder the "burden" of showing that the trial court's decision "constituted reversible error." McGee v. Commonwealth, 25 Va.App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citations omitted); see also Davis, 37 Va. App. at 429, 559 S.E.2d at 378.

B.

The Fourth Amendment "does not proscribe all seizures, only those that are `unreasonable.'" Hodnett v. Commonwealth, 32 Va.App. 684, 690, 530 S.E.2d 433, 436 (2000) (quoting Welshman v. Commonwealth, 28 Va.App. 20, 30, 502 S.E.2d 122, 126-27 (1998) (en banc)); see also Hamlin v. Commonwealth, 33 Va.App. 494, 499, 534 S.E.2d 363, 365 (2000). The Constitution simply "does not proscribe reasonable searches and seizures." Barkley v. Commonwealth, 39 Va.App. 682, 691, 576 S.E.2d 234, 238 (2003). The text of the Fourth Amendment draws the line there; so too must the courts.

In this context, reasonableness depends on the extent of the individual's loss of freedom caused by the seizure and the objective reason for it. A full custodial arrest requires a showing of probable cause. When police officers merely stop an automobile, however, they need only have a reasonable, articulable suspicion that the driver is unlicensed, the automobile unregistered, or the "person stopped may be involved in criminal activity." Bass, 259 Va. at 474-75, 525 S.E.2d at 923-24 (citations omitted).2 Actual proof that "criminal activity is afoot is not necessary," only that it "may be afoot." Harmon v. Commonwealth, 15 Va.App. 440, 444, 425 S.E.2d 77, 79 (1992); see also United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002); Hamlin, 33 Va.App. at 501, 534 S.E.2d at 366. Though an officer's reliance on a mere hunch cannot justify a stop, "the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." Arvizu, 534 U.S. at 274,

583 S.E.2d 787
122 S.Ct. at 751.3

Under equally settled principles, "anonymous information that has been sufficiently corroborated may furnish reasonable suspicion justifying an investigative stop." Bulatko v. Commonwealth, 16 Va. App. 135, 137, 428 S.E.2d 306, 307 (1993) (citing Alabama v. White, 496 U.S. 325, 331, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990)). "An informant's tip can provide the justification for a Terry stop even if the informant's reliability is unknown and certainly can do so if, as here, the information is corroborated." Washington v. Commonwealth, 29 Va.App. 5, 11, 509 S.E.2d 512, 515 (1999) (en banc) (citation omitted). "Anonymous information sufficiently corroborated may give reasonable suspicion for an investigative stop although the unverified tip by itself would not justify a forcible stop." Washington, 29 Va.App. at 12, 509 S.E.2d at 515.

Described as "the classic case on the value of corroborative efforts of police officials," Illinois v. Gates, 462 U.S. 213, 242, 103 S.Ct. 2317, 2334, 76 L.Ed.2d 527 (1983), the United States Supreme Court decision in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), involved a known informant who reported that the suspect would be arriving on a particular train, wearing certain kinds of clothes, carrying particular pieces of luggage, would walk briskly, and "would be carrying a quantity of heroin." Gates, 462 U.S. at 242, 103 S.Ct. at 2334. The informant "gave no indication of the basis for his information." Id. The police verified all of these details except the allegation that the suspect had "heroin on his person or in his bag." Gates, 462 U.S. at 243, 103 S.Ct. at 2334. By itself, however, this omission did not invalidate the reliability of the tip. As the Supreme Court explained,

with every other bit of [the informant's] information being thus personally verified, [the officer] had "reasonable grounds" to believe that the remaining unverified bit of [the informant's] information—that [the suspect] would have the heroin with him— was likewise true.

Id. (quoting Draper, 358 U.S. at 313, 79 S.Ct. at 333); see also Boyd v. Commonwealth, 12 Va.App. 179, 189, 402 S.E.2d 914, 920 (1991) ("The verification of the personal information becomes, then, but another circumstance the [officer] may consider in determining whether the informer is to be believed. It is a factor which reduced the chances that [the informer's report was] a reckless or prevaricating tale." (citing Gates, 462 U.S. at 244-45, 103 S.Ct. at 2335) (internal quotations omitted)).

The Fourth Amendment has never required that the same inflexible rule of reliability be applied to all cases involving informants. "Rigid legal rules are ill-suited to an area of such diversity. `One simple rule will not cover every situation.'" Gate...

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6 practice notes
  • Jackson v. Com., Record No. 031867.
    • United States
    • Virginia Supreme Court of Virginia
    • April 23, 2004
    ...v. Commonwealth, 40 Va.App. 88, 578 S.E.2d 51 (2003), the Court of Appeals again affirmed the convictions, Jackson v. Commonwealth, 41 Va. App. 211, 583 S.E.2d 780 (2003). We awarded Jackson this appeal limited to the question whether the circuit court erred in denying Jackson's pretrial mo......
  • Fitzgerald v. Commonwealth, Record No. 2030-08-3 (Va. App. 11/3/2009), Record No. 2030-08-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • November 3, 2009
    ...possessor) or situs (being in a place where weapons are forbidden), it is not a crime to possess a weapon." Jackson v. Commonwealth, 41 Va. App. 211, 231, 583 S.E.2d 780, 790 (2003) (en banc), rev'd on other grounds, 267 Va. 666, 594 S.E.2d 595 (2004). Also, nothing in the record indicated ......
  • Coleman v. Commonwealth of Virginia, Record No. 2676-02-3 (Va. App. 11/18/2003), Record No. 2676-02-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • November 18, 2003
    ...weight we give to the inferences drawn from those facts by resident judges and local law enforcement officers. Jackson v. Commonwealth, 41 Va. App. 211, 222, 583 S.E.2d 780, 786 (2003) (en banc). Thus, we must give deference to the factual findings of the trial court and independently deter......
  • Rhodes v. Com., Record No. 2975-01-2.
    • United States
    • Virginia Court of Appeals of Virginia
    • July 29, 2003
    ...sponte decides the jury should not have considered. The trial judge, however, was required to submit to the jury, on proper instructions, 583 S.E.2d 780 not only the determination of combat and provocation but also the essential element of heat of passion. See id. at 9, 104 S.E.2d at 4 (not......
  • Request a trial to view additional results
6 cases
  • Jackson v. Com., Record No. 031867.
    • United States
    • Virginia Supreme Court of Virginia
    • April 23, 2004
    ...v. Commonwealth, 40 Va.App. 88, 578 S.E.2d 51 (2003), the Court of Appeals again affirmed the convictions, Jackson v. Commonwealth, 41 Va. App. 211, 583 S.E.2d 780 (2003). We awarded Jackson this appeal limited to the question whether the circuit court erred in denying Jackson's pretrial mo......
  • Fitzgerald v. Commonwealth, Record No. 2030-08-3 (Va. App. 11/3/2009), Record No. 2030-08-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • November 3, 2009
    ...possessor) or situs (being in a place where weapons are forbidden), it is not a crime to possess a weapon." Jackson v. Commonwealth, 41 Va. App. 211, 231, 583 S.E.2d 780, 790 (2003) (en banc), rev'd on other grounds, 267 Va. 666, 594 S.E.2d 595 (2004). Also, nothing in the record indicated ......
  • Coleman v. Commonwealth of Virginia, Record No. 2676-02-3 (Va. App. 11/18/2003), Record No. 2676-02-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • November 18, 2003
    ...weight we give to the inferences drawn from those facts by resident judges and local law enforcement officers. Jackson v. Commonwealth, 41 Va. App. 211, 222, 583 S.E.2d 780, 786 (2003) (en banc). Thus, we must give deference to the factual findings of the trial court and independently deter......
  • Rhodes v. Com., Record No. 2975-01-2.
    • United States
    • Virginia Court of Appeals of Virginia
    • July 29, 2003
    ...sponte decides the jury should not have considered. The trial judge, however, was required to submit to the jury, on proper instructions, 583 S.E.2d 780 not only the determination of combat and provocation but also the essential element of heat of passion. See id. at 9, 104 S.E.2d at 4 (not......
  • Request a trial to view additional results

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