Simmons v. Com.

• Citation: 217 Va. 552,231 S.E.2d 218
• Decision Date: 14 January 1977
• Docket Number: No. 760429,760429
• Parties: Glenn Edward SIMMONS v. COMMONWEALTH of Virginia. Record
• Court: Supreme Court of Virginia

Page 218

231 S.E.2d 218

217 Va. 552

Glenn Edward SIMMONS v. COMMONWEALTH of Virginia.

Record No. 760429.

Supreme Court of Virginia.

Jan. 14, 1977.

Jonatham C. Kinney, Arlington (Kinney & Smith, Arlington, on briefs), for plaintiff in error.

James E. Kulp, Asst. Atty. Gen., (Andrew P. Miller Atty. Gen., on brief), for defendant in error.

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

I'ANSON, Chief Justice.

Defendant, Glenn Edward Simmons, was indicted for grand larceny. After waiving trial by jury, defendant was found guilty of petit larceny and sentenced to eight months in jail.

The sole issue before us is whether the trial court erred in overruling the defendant's motion to suppress certain evidence, a tape recorder, on the ground that it was the product of an unlawful search and seizure.

The evidence shows that about 2:30 p.m. June 26, 1975, John Gillen, a uniformed police officer assigned to patrol duty in Rosslyn, Arlington County, responded to a complaint of a suspected 'burglary' in a retricted area of the Xerox office building. Upon arrival Gillen interviewed the complainant who described the 'prowler' as a Negro male, about 5 6$' to 5 8 tall, dressed in a blue and white warn-up suit and sneakers. Gillen was told that when the prowler was asked his business, he left the building immediately without any explanation. So far as the complainant could determine, nothing had been taken.

Gillen then proceeded to make a routine check at a bank three blocks away. While there, he saw a young Negro male, matching the description of the prowler, walk in front of the bank. Gillen immediately left the bank and while approaching the defendant noticed that the defendant's warm-up jacket was sagging in the front. It appeared to Gillen that something was in the pocket of the jacket. Believing the object to be a weapon and that he might be in danger, he first radioed for assistance and then confronted the defendant and conducted a 'pat down' search of the defendant's outer clothing to determine whether he was armed. Feeling a hard object, which he believed might be a weapon, in the pocket of the warm-up suit, he removed it. The hard object was a pocket tape recorder bearing a sticker indicating that it was the property of the Bendix Corporation, which was located approximately 50 feet from the place where the confrontation occurred. When the defendant refused to tell where he had obtained the tape recorder, Gillen placed him under arrest.

Gillen further testified that he had been a uniformed foot patrolman in the Rosslyn area of Arlington County since April, 1975, and he had previously worked in that area by scout car and motorcycle. Rosslyn is a high-rise business community. The defendant was the first and only person that Gillen had ever seen in the area wearing a color-coordinated warm-up suit. Rosslyn's characteristic crimes were bank robbery and larceny from automobiles and office buildings. Gillen had confronted suspects in these types of crimes about two dozen times in Rosslyn and in three to six of those confrontations, he had found the suspects to be armed.

Defendant contends that the officer's action in stopping him was not justified at its inception because there was no indication of the identify and reliability of the informant, and that the officer's actions were unreasonable under the standards set out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 889 (1968) and Code § 19.1--100.2, now § 19.2--83. Hence, he argues that because the 'stop and frish' was unlawful, the tape recorder should have been suppressed.

In Terry, the Supreme Court held that when 'a police officer observes unusual conduct which leads him reasonably to conclude in the light of his experience that criminal activity may be afoot' and that the suspect 'may be armed and presently dangerous,' and he identifies himself to the suspect, then he is entitled to conduct a limited search of the suspect's outer clothing for the purpose of discovering weapons. Terry, at 30, 88 S.Ct. at 1884. Such an on-the-street frisk may not be based on the officer's 'hunch.' Rather, it must be justified by 'specific reasonable inferences.' Id. at 27, 88 S.Ct. 1868. The test for evaluating the reasonableness of those inferences incorporates both the circumstances as the officer perceived them at the time of the frisk and the officer's own unique experience and ability to discern suspicious and dangerous situations. Id. at 5, 88 S.Ct. 1868.

The principles announced in Terry were expanded and explicated in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). There the Court said:

'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 and 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.' 407 U.S. at 145--146, 92 S.Ct. at 1923. (citations omitted). In Howard v. Commonwealth, 210 Va. 674, 677, 173 S.E.2d 829, 832 (1970), we said:

'When a person is observed by a law enforcement officer under suspicious circumstances he is not clothed with the right of privacy which prevents a police officer from inquiring into his identity and actions. The welfare of the public demands that a law enforcement officer use his faculties of observation and act thereon within proper limits. It is not only the right, but the duty, of a police officer to investigate suspicious conduct, and he may 'in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. " Citing Terry, 392 U.S. at 22, 88 S.Ct. 1868.

Applying the principles set out in Terry, Adams, and Howard to the instant case, we believe Officer Gillen was justified in stopping the defendant for purposes of investigating his suspicious behavior even though there was no probable cause to make an arrest. Prior to stopping the defendant, Gillen had responded to a call from a person connected with the Xerox company who reported the suspicious activity of a man answering the description of the defendant. This information carried enough indicia of reliability to justify Gillen's forcible stop of the defendant for the purpose of investigating his suspicious activity in the Xerox building.

Thus we reject defendant's argument that reasonable cause for a 'stop and frisk' must be based solely on the officer's observation, rather than, in part, on information furnished by another person. When a person seeks immediate police assistance and gives a description of the suspected criminal agent, as here, 'the subtleties of the...