Lawson v. Com.

• Decision Date: 08 October 1976
• Docket Number: No. 760216,760216
• Citation: 228 S.E.2d 685,217 Va. 354
• Parties: Clarence LAWSON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 685

228 S.E.2d 685

217 Va. 354

Clarence LAWSON v. COMMONWEALTH of Virginia.

Record No. 760216.

Supreme Court of Virginia.

Oct. 8, 1976.

F. Lee Cogdill, Newport News, for plaintiff in error.

Andrew P. Miller, Atty. Gen., Jim L. Chin, Asst. Atty. Gen., for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARRISON, Justice.

Clarence Lawson was indicted for possession of heroin in violation of Code § 54--524.101:2 (now Code § 18.2--250). The defendant, having waived trial by jury, was tried by the court, found guilty and sentenced to eight years confinement in the penitentiary. The court suspended two years of the sentence. Lawson has appealed, claiming that the officers did not have probable cause to arrest him or to search the automobile in which he was riding.

On April 10, 1975, about 5:30 p.m., an unidentified informant telephoned Detective T. W. Morgan of the Hampton, Police Department and told him that Clarence Lawson and Harold Butts were in a maroon and white 1973 Oldsmobile Toronado automobile bearing New Jersey license plate number 660 AMO, owned by Butts, and that together they were selling heroin at Hampton Institute. The testimony of the officer is not clear whether the informant stated that the parties were selling heroin or that they were observed with heroin in the car. Detective Morgan was personally familiar with both Lawson and Butts and with the automobile. He testified that at times the car had borne New Jersey license plates and at other times Virginia license plates had been attached. For that reason, Detective Morgan was not satisfied that the informant had given him the correct license plate number which was then attached to the car and, therefore, did not procure a search warrant. The officer did proceed to Hampton Institute but failed to locate the vehicle.

About 8:45 p.m. on the same day, Morgan, while on routine patrol, saw Butts' car stopped for a red light at an intersection. The detective said he approached the automobile, recognized Butts as the driver and Lawson as the passenger, exhibited his badge, knocked on the window and identified himself as a police officer. Morgan testified that 'Mr. Lawson turned around, locked the passenger's door of the vehicle. At which time I observed a small yellow bag being passed between the passenger and the driver. The bag was thrown on the floor of the passenger's side of the vehicle.' Morgan then took out his pistol and knocked with it on the window and demanded that the door be opened. Lawson complied and Morgan reached into the vehicle, retrieved the bag, opened it and identified the contents as resembling marijuana. The bag was in fact a small (1 1/2 inches by 2 1/3 inches) yellow manila envelope and, although its contents were not visible until the envelope was opened, the detective testified that it looked like a 'nickel bag of marijuana'. Upon searching Lawson the detective found another envelope in defendant's left front pocket with six pieces of folded aluminum foil in it. The contents of the foil packages were subsequently established to be heroin and resulted in the prosecution under review.

If Morgan had probable cause to believe that there was contraband in the yellow envelope, he had the right to seize it, and, when its contents appeared to be marijuana, to arrest Lawson for its possession. Incident to this arrest the officer also had a right to make a search of Lawson's person and to seize the foil packets.

Our decision in Hollis v. Commonwealth, 216 Va. 874, 223 S.E.2d 887 (1976), controls the disposition of the instant case. The detective in Hollis testified that 'he received information from a known reliable informant that a yellow Mustang automobile, bearing District of Columbia license plates, was transporting drugs from another part of the state to the area of Azalea and Chamberlayne Avenues, in the City of Richmond'. The informant told the detective that the information had been given to the informant in a telephone conversation, the source and nature of which were not disclosed. When the officer investigated he found the described automobile parked in the designated area. As he drove by he activated a hand spotlight on the automobile and observed Hollis, seated in the passenger seat, remove what appeared to be a hand-rolled cigarette from his mouth and throw it to the floor of the car. The detective testified that from his experience in narcotics cases he had found such a movement to be one made by people trying to rid themselves of contraband. The detective then got out of his police car, went to the passenger side of the Mustang, shined the spotlight on the floor of the vehicle and there saw the cigarette, which appeared to him to be a marijuana cigarette. He opened the car door, smelled marijuana, seized the cigarette and arrested Hollis for possession of marijuana. A subsequent search of a bag lying on the car seat beside Hollis revealed quantities of LSD and marijuana which the detective also seized. We held that this bag was properly searched and that the narcotics found therein and seized by the officers were admissible in evidence against Hollis.

While in Hollis the information furnished the officers by an informant had, in turn, been furnished the informant by an unnamed and unidentified source, here the information furnished Detective Morgan came from one who personally...