Long v. Commonwealth

• Citation: 72 Va.App. 700,853 S.E.2d 65
• Decision Date: 26 January 2021
• Docket Number: Record No. 1971-19-1
• Court: Virginia Court of Appeals
• Parties: Shaka Markel LONG v. COMMONWEALTH of Virginia

72 Va.App. 700

853 S.E.2d 65

Shaka Markel LONG

v.COMMONWEALTH of Virginia

Record No. 1971-19-1

Court of Appeals of Virginia.

JANUARY 26, 2021

Michael A. Hyman (Collins & Hyman, on brief), Williamsburg, for appellant.

Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Beales, Malveaux and Senior Judge Clements

OPINION BY JUDGE RANDOLPH A. BEALES

Appellant Shaka Markel Long was convicted in the Circuit Court of York County of transporting a Schedule I/II controlled substance into the Commonwealth, possession with intent to distribute a Schedule I/II controlled substance, possession with intent to distribute marijuana, and conspiracy to distribute a Schedule I/II controlled substance. Long was convicted upon a conditional guilty plea that preserved his right to appeal the circuit court's denial of his motion to suppress. In this appeal, he argues that the circuit court erred in allowing testimony to be admitted at the suppression hearing regarding information "obtained from informants over the defense's objection." Furthermore, he argues that the circuit court "erred in overruling and denying Appellant's Motion to Suppress."

I. BACKGROUND

"In accordance with established principles of appellate review, we view the ‘evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court.’ " Bryant v. Commonwealth, 72 Va. App. 179, 182, 843 S.E.2d 383 (2020) (quoting Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555 (2004) ). As we must for the same reason, "[w]e also accord the Commonwealth the benefit of all inferences fairly deducible from the evidence." Id. (quoting Riner, 268 Va. at 303, 601 S.E.2d 555 ).

At the hearing on Long's motion to suppress, Investigator Josh Drury of the James City County Police Department testified that he worked on a regional drug task force assigned to investigate street-level and high-profile drug cases in the greater Williamsburg area. Investigator Drury said that the task force routinely utilized undercover operations and confidential informants who would provide information helpful to the task force's investigations. He stated that approximately "a month or so" before the events giving rise to this appeal, he began communicating with C.E., a confidential informant who was concerned about her daughter's involvement with drugs and her daughter's dealings with a woman named Lauren Jarrell. Investigator Drury testified that he learned from C.E. that C.E.’s daughter had overdosed in the past and sought treatment, but upon her release from rehabilitation, she came back in contact with Jarrell and began using drugs again. Investigator Drury stated that he was familiar with Jarrell, who had been listed as an "involved other or a witness" in multiple overdose cases around James City County. Investigator Drury testified that he was aware of Jarrell's involvement in these cases and that the overdoses occurred at several different motels around the area. In addition, Investigator Drury said that he had conducted several arrest operations and "post-arrest debriefs" during which numerous targets of the task force's investigations provided information on Jarrell.

C.E. informed Investigator Drury that C.E. and her daughter shared a vehicle, a gray Honda Civic, and that both of their names were on the registration for the Honda Civic. According to C.E., the two specifically discussed that they would not let other people drive the vehicle, and C.E. was concerned that her daughter was allowing Jarrell to use the vehicle for the purpose of conducting drug transactions. Based on her suspicions, C.E. purchased a GPS tracking device and installed it in the Honda Civic in order to monitor its location. She would regularly text or call Investigator Drury with information about the location of the vehicle, which information Drury corroborated by reviewing highway toll records and toll video footage. In addition, Investigator Drury verified the license plate number of the vehicle through the Virginia Department of Motor Vehicles (DMV).

On February 8, 2018, around 9:30 p.m., Investigator Drury was off duty and at home when he received a call from C.E. She explained that her daughter had been arrested earlier that day and was in jail but that the GPS tracker showed that the Honda Civic was still moving around Williamsburg. C.E. told Investigator Drury that she wanted her vehicle back. She tracked the location of the vehicle using the GPS device that she had installed on it and informed Investigator Drury that the vehicle had stopped moving and was stationary at the Travel Lodge on Bypass Road in York County. Investigator Drury testified that, in his role as a member of the drug task force, he had visited the Travel Lodge roughly "[t]hirty or more times" to conduct "post-arrest debriefs" in cases involving drug transactions that took place at the Travel Lodge. Investigator Drury then drove to the Travel Lodge and arrived there approximately forty-five minutes after he received the call from C.E. Upon entering the parking lot, Drury saw a gray Honda Civic. The license plate of the Honda Civic matched the license plate that Investigator Drury had previously verified through DMV.

As he drove past it in his unmarked car, Investigator Drury said that he noticed that the driver's seat of the Honda Civic was empty, although there was a woman seated in the passenger's seat. Next to the Honda Civic, Investigator Drury observed a black Dodge Durango with North Carolina license plates. There were two people in the Durango – one in the driver's seat and one in the passenger's seat. Investigator Drury testified that Long was seated in the driver's seat, "and then who I suspected to be Lauren Jarrell[,] based on DMV photos and Lin[x]¹ photos[,] seated in the passenger's seat of that Durango."

Investigator Drury said he then proceeded farther into the parking lot and parked his vehicle so that he could continue his surveillance. From his position of surveillance, he observed Long and Jarrell sitting in the vehicle talking to each other, with neither party exiting the vehicle or going inside the Travel Lodge. Because he was off duty, in plain clothes, and in an unmarked vehicle, Investigator Drury did not intend to engage the parties directly. Instead, he testified that he "wanted to just stay off to the side covertly to observe in the event that [he] needed to continue surveillance or tail the vehicles to another location." Consequently, he placed a call to the York County Sheriff's Office dispatch "and asked them to just stop out with the suspicious occupied vehicle in the parking lot."² Investigator Drury "didn't really give the dispatcher a whole lot of information as to [the] case" or as to the details of the investigation, but informed the dispatcher that he was off duty, on the scene, and maintaining surveillance.

Deputy Wesley Simms of the York County Sheriff's Office was dispatched to the Travel Lodge in response to the call from Investigator Drury. Deputy Simms testified that, when he arrived at the Travel Lodge, he saw the Honda Civic and Dodge Durango. He stated that he parked approximately two vehicles away from the Durango and activated the emergency lights on his police cruiser. After turning on his emergency lights, Deputy Simms said that he approached the passenger's side of the Durango and made contact with Jarrell, who was still seated in the passenger's seat. Ultimately, the stop led Deputy Simms to discover physical evidence that caused Long to be charged with transporting a Schedule I/II controlled substance into the Commonwealth, possession with intent to distribute a Schedule I/II controlled substance, possession with intent to distribute marijuana, and conspiracy to distribute a Schedule I/II controlled substance.

Long moved to suppress the evidence obtained by Deputy Simms, arguing that Deputy Simms's stop of the Durango violated the Fourth Amendment. At the suppression hearing, the Commonwealth elicited testimony from Investigator Drury to explain the basis for his call to the York County Sheriff's Office dispatch asking for someone to "stop out with the suspicious occupied vehicle in the parking lot." When Investigator Drury began explaining the statements C.E. made to Drury prior to and during the phone call on February 8, Long objected "on foundation grounds," arguing that the Commonwealth had not established "where this information is coming from and if it's reliable." The trial judge asked, "So your objection is hearsay for the purposes of reliability and what this officer does next?" Long replied that "[i]t was a foundation objection" because "I don't know where that information is coming from and if it's a reliable source that provided that information or if it's just hearsay here on the streets." The Commonwealth responded that C.E.’s statements were reliable because Investigator Drury corroborated the information that C.E. provided. Furthermore, the Commonwealth maintained that the statements were not offered for their truth, but instead were offered to show the effect the statements had on Investigator Drury and to explain his actions in driving to the motel and then requesting a "stop out." The trial court overruled the objection.

In his closing argument, Long urged the trial court to grant his motion to suppress on the ground that Investigator Drury lacked a reasonable, articulable suspicion to conduct an investigatory stop. Specifically, Long claimed that Investigator Drury acted upon a mere hunch of criminal activity and that his call to dispatch was unsupported by a reasonable suspicion that the occupants of the Durango were engaged in any criminal activity. He also argued that, even assuming Investigator Drury had a reasonable, articulable suspicion of criminal activity, Drury's knowledge could not be imputed to Deputy Simms under the "collective knowledge" doc...