Patty v. Com.

• Decision Date: 10 June 1977
• Docket Number: No. 761249,761249
• Citation: Patty v. Com., 235 S.E.2d 437, 218 Va. 150 (1977)
• Parties: Larry Dale PATTY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 437

235 S.E.2d 437

218 Va. 150

Larry Dale PATTY v. COMMONWEALTH of Virginia.

Record No. 761249.

Supreme Court of Virginia.

June 10, 1977.

P. H. Harrington, Jr., Fairfax (Farley & Harrington, Fairfax, on briefs), for plaintiff in error.

James E. Kulp, Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error.

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

COMPTON, Justice.

Indicted for possession of marijuana with intent to distribute, defendant Larry Dale Patty was tried by the court without a jury, found guilty, and, by order of May 25, 1976, sentenced to seven years' imprisonment, with execution of five years suspended.

The issues on appeal are: (1) Was there probable cause for defendant's arrest? (2) Was the search of the motor vehicle in which the marijuana was found constitutional? (3) Was the testimony sufficient to identify the substance seized as marijuana? (4) Was the evidence sufficient to support the finding that defendant was in possession of the contraband with the intent to distribute it?

The facts are not in material dispute. Upon arriving at his place of business near 6:00 a.m. on February 11, 1975, Harold Green, the operator of the Gainesville Mobil Service Center in Prince William County, found unattended on the parking lot a disabled locked Pontiac automobile bearing Texas license plates. Shortly after 7:00 a.m. on that day, Green received a telephone request from an anonymous male caller to repair the vehicle. No keys were left with the car, so in the process of working on it the doors were unlocked by use of a coat hanger. The repairs to a wheel bearing, a wheel cylinder and brake shoes were completed about 2:00 p.m. and, as the rear of the car was being lowered to the ground from its position on a bumper jack, "the trunk lid flew up." The compartment remained open for about 13 seconds before Green shut the lid. During this time, Green and at least two employees of the station, Green's son and Jacob Hecht, saw in the trunk what appeared to be marijuana.

The county police were called and about 3:00 p.m. Officer James R. Fisher, a narcotics investigator, arrived at the service station and questioned the informants about the contents of the trunk. To support his identification of the substance, Green's son told Fisher he had previously seen marijuana during a high school lecture on the subject; he, along with his father and Hecht, described in detail the characteristics of what they had seen. They indicated that it was plant material, that it was "brownish-green", that seeds were visible, and they described how it was packaged. The son drew for the officer a sketch of the seeds to aid the description.

Having been advised that the anonymous caller indicated the car was to be claimed between 4:00 and 5:00 p.m., the police decided about 3:30 p.m. not to approach the car for fear those in control of it "might come back and see us there and abandon the car". By about 5:00 p.m. additional officers had been called to the area and were in place to await the unknown person or persons who would come for the vehicle.

As security for payment of the bill before the car left the station, Green's son removed the ignition coil about 3:30 p.m.; this fact was known to the police, but the record is unclear when it was learned.

The police continued to wait in the area. Only two officers were actually on the station premises; Fisher was inside the station; the other officer waited in a car "alongside" the station. At approximately 8:10 p.m. a station wagon bearing Maryland license plates pulled to the station gas pumps. The vehicle was occupied by the defendant, four other adults and a child. The defendant and another occupant, Butch Carroll, went to the Pontiac. Defendant entered the vehicle by the left front door, which was still unlocked, and positioned himself behind the steering wheel. Carroll stood between the opened door and the body of the car. While defendant attempted to start the car using an ignition key in his possession, the police moved on a prearranged signal and arrested without a warrant the defendant and his companions.

The trunk of the Pontiac was then pried open by the police, no key to the trunk having been found in defendant's possession. A search warrant had not been obtained. Recovered by the officers from the trunk was over 450 pounds of marijuana contained in about 175 packages, made of brown paper and transparent, as well as opaque, plastic. The photographs taken at the time and received in evidence show that two of the packages had been broken open, exposing the substance they contained.

Defendant argues there was no probable cause for his arrest, presumably implying the trial court erred in refusing to suppress the marijuana seized from the car. Specifically, defendant contends that the arrest was made solely on the "hearsay" information received by Fisher from "unreliable informants." He urges also the informers only had a glimpse of the contents of the open trunk before it was closed. This brief observation, he says, coupled with the fact that most of the plant material was concealed in packages, prevented the informers, even if they were reliable, from reaching a trustworthy conclusion as to the contents of the trunk. There is no merit to this contention.

In the first place, the information related to Fisher, as the Attorney General points out, came from named citizens who were not the typical paid police informants. As we said in Guzewicz v. Commonwealth, 212 Va. 730, 735, 187 S.E.2d 144, 148 (1972):

"Public-spirited citizens should be encouraged to furnish to the police information of crimes. Accordingly, we will not apply to citizen informers the same standard of reliability as is applicable when police act on tips from professional informers or those who seek immunity for themselves . . . ."

See Simmons v. Commonwealth, 217 Va. 552, 555, 231 S.E.2d 218, 221 (1977). Secondly, the record shows that at least two of the citizen informers made their identifications based on prior personal experience with marijuana; Hecht testified he had seen it on "numerous" occasions and Green, Jr. had seen and been instructed about the substance during a high school lecture. While there is no requirement that a known reliable informant demonstrate the basis for his conclusion that the substance he observed was a narcotic, Wheeler v. Commonwealth, 217 Va. 95, 98, 225 S.E.2d 400, 403 (1976), the informants here spoke from experience and not from mere supposition. Finally, there is nothing inherently unreliable about an identification based on a 13-second examination of material arrayed openly and in transparent packages, as the marijuana was in this case.

Consequently, the information obtained from the three citizens, coupled with Fisher's personal observation of defendant's conduct in asserting control over the Pontiac, justified Patty's warrantless arrest; the officer had probable cause to believe a felony had been or was being committed by defendant. See McKoy v. Commonwealth, 212 Va. 224, 183 S.E.2d 153 (1971).

Defendant next argues the warrantless search of the locked trunk of the vehicle was unreasonable and hence unlawful. Recognizing the automobile-exigent circumstances exception to the warrant requirement, defendant says no urgency prevailed in this case to justify the failure of the police to acquire a warrant to search. Defendant contends there was adequate time to obtain a warrant between 3:00 p.m., when the police arrived at the scene, and the time of defendant's arrest five hours later. Pointing to the testimony of one of the officers who stated there was "no way" anyone would be allowed to "drive off in the car" after the "stake out" was established, defendant also argues the search was planned because actually, he says, the car was "seized", without being towed away, hours before defendant was arrested. Moreover, he urges, the police knew the car would not start because, near 3:30 p.m., the ignition coil had been removed. Patty also contends "at least seven police officers" were involved in watching the station premises and it was therefore unreasonable not to send one of the officers on the scene to obtain a warrant while the others maintained the "stake out."

While we agree the wiser course for the police would have been to acquire a search warrant, it does not necessarily follow that under these circumstances the failure to obtain one requires suppression of the evidence seized. The important factor here is that the police were dealing with contraband goods concealed and about to be illegally transported again in the automobile, and they knew it. The defendant's arguments on this phase of the case have been precluded by Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), as explicated in United States v. Mitchell, 538 F.2d 1230 (5th Cir. 1976), cert. denied --- U.S. ---, 97 S.Ct. 1578, 51 L.Ed.2d 792, a case strikingly similar to the case at bar. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Soriano, 497 F.2d 147 (5th Cir. 1974). See generally Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Schaum v. Commonwealth, 215 Va. 498, 501, 211 S.E.2d 73, 75 (1975).

In Mitchell, defendant appealed his conviction for possessing marijuana with intent to distribute. The sole issue was the constitutional validity of a warrantless search on a motel parking lot of a motor vehicle in which defendant was apprehended and in which the substance was discovered. In 1973, federal drug enforcement officials were informed by one Mancuso of a plan to smuggle marijuana by motor vehicle from Mexico to San Antonio, Texas. Mancuso advised the officials that he had been employed to pick up the truck, which he accurately described in great detail,...