Quigley v. Com.

• Decision Date: 03 March 1992
• Docket Number: No. 0419-90-2,0419-90-2
• Citation: 414 S.E.2d 851,14 Va.App. 28
• Parties: Ellen Marie QUIGLEY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 851

414 S.E.2d 851

14 Va.App. 28

Ellen Marie QUIGLEY v. COMMONWEALTH of Virginia.

Record No. 0419-90-2.

Court of Appeals of Virginia.

March 3, 1992.

Craig S. Cooley, Richmond, for appellant.

Janet F. Rosser, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, BENTON and ELDER, JJ.

JOSEPH E. BAKER, Judge.

Ellen Marie Quigley (appellant) appeals from her bench trial conviction by the Circuit Court of the City of Richmond (trial court) for possession of more than five pounds of marijuana with intent to distribute in violation of Code § 18.2-248.1(3). The sole issue presented by this appeal is whether the trial court erred when it overruled appellant's motion to suppress the evidence of the marijuana found in her car and in a hotel room, along with $11,250 cash. Finding no error, we affirm.

On May 22 and 23, 1989, Richmond Police Officers Lloyd Booth, Ronald D. Reed, Johnny Venutli and Detective Holston, all assigned to the Narcotics Division, were involved in the investigation and arrest of appellant for possession of more than five pounds of marijuana with intent to distribute. Henrico County Investigator Steven B. Shaw and his narcotics search dog "Ben" assisted in the investigation and discovery of the marijuana in appellant's possession.

Upon familiar principles, we recite the facts in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 218 S.E.2d 534 (1975). The investigation began as a result of information supplied to Booth on May 22, 1989, by an informant, who previously had given him information which proved to be reliable and which had culminated in at least one conviction. The informant told Booth that a female named Quigley was staying at La Quinta Motel, was driving a rental car bearing Massachusetts plates although she was from California, and had in her possession a large quantity of marijuana. Upon receiving that information, Booth went to the motel, checked its parking lot and found a rental car with Massachusetts license plates on it. He inquired at the motel and verified that a person named Ellen Quigley was registered in Room 309.

On May 23, 1989, after discussing tactics to be used in their investigation, the officers, including Investigator Shaw and the dog, "Ben," stationed themselves and their unmarked vehicles at various places in and around the motel parking lot. From their respective positions they could view the motel and the Massachusetts licensed car. Shaw was driving a van with a siren and blue lights. The others were in unmarked cars. Reed's car had a telephone and, in accordance with the police plan, he called appellant, told her that he was the maintenance man and that he had "heard some narcotics officers were checking on who was in the room." Without responding to that information, appellant within "forty-five seconds" left her room "at a fast pace," and, carrying a duffel-type bag, ran to the rented Massachusetts licensed vehicle, "looked all around in each direction," put the bag in the trunk of the vehicle, "jumped in the driver's door" and drove off. Suspecting that appellant might be carrying marijuana, and in furtherance of their investigation, the police attempted to block her normal exit route with their cars.

Shaw was sitting in a position where he could see appellant leave the motel and place the bag in the trunk of her car. Three of the police cars attempted to place their vehicles in positions to stop appellant. To avoid them, she drove onto the curb section, then back onto the roadway, then back onto the curb, along the sidewalk, back onto the adjoining street and "headed toward the Turnpike." As she entered the adjoining street, Shaw activated his blue lights and siren and fell in behind her. At the turnpike, a short distance from the motel, appellant ran a stop sign, nearly causing a collision with another car that braked so hard it slid on the street. Shaw kept his whirling blue lights and siren activated during the entire chase. Approximately three quarters of a mile away, Shaw caught up with and passed appellant's car and, with the other police cars, was able to stop her from further flight by blocking her passage.

Shaw is an experienced canine handler and had been working with the golden retriever, "Ben," who was trained to alert to the presence of concealed narcotics. Shaw and "Ben" twice circled the outside of appellant's car. Experienced dog handlers refer to the first pass as a "free pass," which merely orients the dog to location, wind and current. On the second pass, "Ben" showed "interest in the trunk." When they moved to the driver's door, "Ben" entered and immediately went to the rear seat and started clawing. "Ben's" clawing in this manner indicated to Shaw that the dog had discovered narcotics in the trunk area. ¹ The police procured the trunk keys, opened it and found the duffel bag containing nineteen plastic Ziploc bags with marijuana inside.

At the time the marijuana was discovered in the trunk, appellant was seated in the car with Detective Holston. After the marijuana was found, he advised her of her rights and placed her under arrest. After her arrest, appellant told Holston that she had left a six-month old baby in the motel room. Other police were notified to go to the room to assure the baby's safety. Holston asked appellant for her consent to search the motel room and she agreed. Subsequently, at the motel, she voluntarily signed a consent to search form.

When the police entered appellant's motel room for the purpose of securing the baby's safety, they found in plain view a plastic garbage bag which also contained marijuana. The police found a total of 18.29 pounds of marijuana and $11,250 in cash in appellant's possession or under her control.

Prior to the hearing from which this appeal emanates, appellant filed a motion to suppress the evidence of marijuana found in the car trunk and her motel room, alleging that the marijuana was discovered as a result of unlawful searches. In her motion, appellant asserted that she merely "left her motel room to move her automobile from one location to another within the parking lot," and that her consent to search her motel room was given solely because "it was the only way she would be able to stay with her six-month old daughter." ²

In her brief when stating the facts, appellant concedes that an "informant had called in to advise [the police] that he had been told by someone that a female was in Room 309 of the La Quinta Motel traveling and selling marijuana." ³ She then argues that this information did not establish probable cause. We do not disagree with that statement; however, an informant's tip may be sufficient to support a Terry ⁴ stop even though the information given is insufficient to support issuance of an arrest or search warrant. Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972); Williams v. Commonwealth, 4 Va.App. 53, 64, 354 S.E.2d 79, 85 (1987). The Terry principles apply equally to an automobile stop. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), Williams, 4 Va.App. at 64, 354 S.E.2d at 85.

Terry established that police officers may approach a person for the purpose of investigating possible criminal behavior even though no probable cause exists for arrest. Terry further held that whether the stop was justified is dependent upon whether "the facts available to the officer at the moment of the seizure or the search [would] 'warrant a man of reasonable caution in the belief' that the action was appropriate." Terry, 392 U.S. at 21-22, 88 S.Ct. at 1879-80. Here, the record supports the belief that "at the moment of seizure" the action taken by the police was warranted.

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

Adams, 407 U.S. at 145-46, 92 S.Ct. at 1922-23 (citations omitted).

The level of suspicion required from a Terry stop is less demanding than the standard of probable cause. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). There may be circumstances where wholly lawful conduct might justify the suspicion that criminal activity may be afoot. Id. We hold that, having verified all the matters that were reported to them by the informant except the actual possession of the contraband, and having observed appellant, within forty-five seconds after receiving the telephone call, rush from her room carrying a bag which could conceal contraband such as had been reported to them, and jump into her car as if to flee the scene, the police had reasonable suspicion of criminal activity and were justified in attempting to stop her in order to continue their investigation. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). We further hold that when appellant failed to respond to the blue lights and siren following immediately behind her ⁵ and ran the stop sign nearly causing a collision with another car, the police were justified in blocking her from further flight ⁶ and using the narcotics search dog in furtherance of their investigation.

Appellant does not contend that the dog search per se was unlawful. The validity of that search is supported by ample authority. See United States v. Lewis, 708 F.2d 1078, 1080 (6th Cir.1983). See also United States v. Stone, 866 F.2d 359 (10th Cir.19...