Russell v. Com.

• Decision Date: 24 October 2000
• Docket Number: Record No. 2530-99-3.
• Citation: 33 Va. App. 604,535 S.E.2d 699
• Parties: Donald Lloyd RUSSELL, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

535 S.E.2d 699

33 Va. App. 604

Donald Lloyd RUSSELL, Jr. v. COMMONWEALTH of Virginia.

Record No. 2530-99-3.

Court of Appeals of Virginia, Salem.

October 24, 2000.

Joseph A. Sanzone (Sanzone & Baker, P.C., on brief), Lynchburg, for appellant.

Shelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: COLEMAN, WILLIS and ELDER, JJ.

ELDER, Judge.

Donald Lloyd Russell, Jr., (appellant) appeals from his bench trial conviction for possession of cocaine with intent to distribute in violation of Code § 18.2-248. On appeal, he contends the trial court erroneously (1) denied his motion to suppress and (2) found the evidence sufficient to prove he constructively possessed the cocaine. We hold, under the totality of the circumstances, that the police lacked probable cause to arrest appellant or search his car and, therefore, that the trial court erroneously denied appellant's motion to suppress the evidence seized from his person, car and residence. Accordingly, we reverse appellant's conviction and remand for further proceedings if the Commonwealth be so advised.

I. BACKGROUND¹

At about 5:00 a.m. on February 3, 1999, Lynchburg Narcotics Investigator Duff had a face-to-face meeting with an informant with whom he had not previously met or had any dealings. In the hope of gaining "[c]onsideration on an outstanding charge," the nature of which does not appear in the record, the informant advised Duff that an African American male named Troy, who was from New York City, would deliver a large quantity of cocaine to a specified residence in the Lynchburg College area at 7:30 a.m. that same morning. Duff refused to testify to the actual address of the residence because it was "extremely specific as to the identity of the informant." The informant reported that Troy lived near Burrus Lumber Company off Campbell Avenue and that he drove a blue or green rented Ford Taurus. Although the "informant did not know Troy's full name, he described two previous shooting incidents in which Troy had been involved.

Because Duff had not previously worked with this informant, he conducted "an indepth interview with [him] to establish credibility and reliability ... as to his knowledge of the drug trade." Duff reported his personal belief that "one of the most important ingredients in reliability is [the informant's] knowledge of the drug trade," saying that he "value[d] that very highly." The informant admitted he was "involve[d] in the drug trade" as a seller and user of crack and powder cocaine and accurately described to Duff the process of making crack cocaine. He also gave Duff specific information about other people involved in the drug trade in the area, which coincided with information Duff had received from other informants Duff knew to be reliable.

With the specific information the informant had provided about "Troy," Duff was able to determine Troy was the alias of Donald Russell. Russell resided directly across the street from Burrus Lumber Company, and Duff observed a dark blue Ford Taurus in the driveway of the residence. Duff showed the informant a picture of Russell, and the informant confirmed Russell and Troy were the same person. Duff admitted that most of the verifiable information provided by the informant — appellant's name, city of origin, prior involvement in two specific shootings, and current residence — was public knowledge.

Duff opted not to apply for a search warrant at that time because he "wanted to verify more of this activity that was going to occur." He admitted he could have applied for an anticipatory search warrant conditioned upon appellant's arrival at the house specified by the informant.

At about 6:00 a.m., Duff began surveillance on appellant's residence. At about 7:10 a.m., appellant exited the house and entered the Taurus. He stopped the car briefly to put something in a mailbox and then drove to Route 29 North heading away from the city. Duff opted not to continue surveillance at that time and drove instead to the Lynchburg College areae where the informant reported appellant would deliver cocaine at 7:30 a.m. Appellant was out of Duff's view for about fifteen minutes. At precisely 7:30 a.m., Duff observed appellant drive into the Lynchburg College area. Appellant drove past the street on which the informant said he would stop, and Duff radioed to other officers, who stopped appellant's vehicle within one or two blocks of the residence specified for the drug transaction. Duff admitted appellant's vehicle was headed away from the specified residence at the time the officers stopped him but said "[t]here are different ways to get to that place" and "[i]t's not uncommon for somebody to circle an area before they make a cocaine drop."

Appellant was arrested, and the vehicle and appellant's person were searched. Using the evidence seized in that search, the police also obtained a warrant to search appellant's residence.

Appellant sought to suppress the fruits of those searches. The trial court denied the motion, noting that, "although we don't know the basis of the informant's information," "under the totality of the circumstance test I think there's enough."

II ANALYSIS

At a hearing on a defendant's motion to suppress, the Commonwealth has the burden of proving the challenged action did not violate the defendant's constitutional rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989)

. "[T]he test of constitutional validity [of a warrantless arrest] is whether at the moment of arrest the arresting officer had knowledge of sufficient facts and circumstances to warrant a reasonable man in believing that an offense has been committed." Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250 (1970). Probable cause to arrest must exist exclusive of the incident search. See Carter v. Commonwealth, 9 Va. App. 310, 312, 387 S.E.2d 505, 506 (1990).

On appeal, we view the evidence in the light most favorable to the prevailing party, here the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991)

. "[W]e are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them[,] and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). However, we review de novo the trial court's application of defined legal standards such as probable cause to the particular facts of the case.²

See Ornelas, 517 U.S. at 699,

116 S.Ct. at 1663.

When the factual basis for probable cause is provided by an informer, the informer's (1) veracity, (2) reliability, and (3) basis of knowledge are "highly relevant" factors in the overall totality-of-the-circumstances probable cause analysis. See Illinois v. Gates, 462 U.S. 213, 230, 233, 103 S.Ct. 2317, 2328, 2329, 76 L.Ed.2d 527 (1983)

.

[A] deficiency in [either veracity or basis of knowledge] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip. Likewise, if an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — we have found rigorous scrutiny of the basis of his knowledge unnecessary. Conversely, even if we entertain some doubt as to the informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case.

Id. at 233-34, 103 S.Ct. at 2329-30 (citations and footnote omitted).

When the informer is a "criminal" rather than a "disinterested citizen" victim or eyewitness and the tip is conveyed in the form of a police officer's hearsay testimony, the reliability of the tip may be established in many different ways, including by showing that:

(1) the informer has previously given reliable information; (2) the informer previously has worked with the police and has made controlled buys or worked in narcotic surveillance or other law enforcement efforts; (3) the informer provided detailed information that only a person who had actually observed the criminal activity would know; or (4) the informer has made a declaration against his penal interest.

Polston v. Commonwealth, 24 Va.App. 738, 745, 485 S.E.2d 632, 635 (1997), aff'd on other grounds, 255 Va. 500, 498 S.E.2d 924 (1998); see also Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir.1996)

(noting that statement against penal interest, without more, will not raise an informant's tip to probable cause). Also, knowledge of a particular area's "drug culture" is an appropriate factor for consideration in assessing an informant's credibility. See Polston, 24 Va.App. at 749,

485 S.E.2d at 637; see also United States v. Wilhelm, 80 F.3d 116, 121 (4th Cir.1996) (noting that this factor should be considered carefully because "anyone who occasionally watches the evening news can make generalizations about what marijuana looks like and how it is packaged and sold").

We applied these principles to the issuance of a search warrant in Boyd v. Commonwealth, 12 Va.App. 179, 402 S.E.2d 914 (1991). The informer indicated that he was familiar with cocaine and its packaging through personal use and that, within the...