Washington v. Com., 0230-96-2

• Decision Date: 24 February 1998
• Docket Number: No. 0230-96-2,0230-96-2
• Citation: 496 S.E.2d 135,26 Va.App. 657
• Parties: Welford V. WASHINGTON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 135

496 S.E.2d 135

26 Va.App. 657

Welford V. WASHINGTON v. COMMONWEALTH of Virginia.

Record No. 0230-96-2.

Court of Appeals of Virginia,

Richmond.

Feb. 24, 1998.

Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.

Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: BENTON and ANNUNZIATA, JJ., and COLE, Senior Judge.

BENTON, Judge.

Welford V. Washington was convicted of possession of heroin and possession of cocaine. See Code § 18.2-250. Contending that he was illegally seized and that the police unlawfully entered his home, Washington argues that the trial judge erred in denying his motion to suppress. We agree and reverse his convictions.

I.

The evidence proved that on August 30, 1995, a bondsman telephoned Officer Michael Moore and asked Officer Moore to meet him at the 2000 block of Mecklenburg Street. Officer Moore testified that the bondsman received a tip from an informant that Reginald Ford, for whom a capias had been issued, could be found at 2347 Bethel Street. Officer Moore testified that he verified that a capias was outstanding, that he did not obtain a copy of the capias, and that he believed Ford "had either jumped or was about ready to jump [bail]." Officer Moore also testified that he had not checked to determine Ford's address and did not have a physical description of Ford. Only the bondsman could recognize Ford.

At 10:30 a.m., Officer Samuels and Sergeant Kemp met Officer Moore and the bondsman at 2347 Bethel Street, Washington's residence. Officer Samuels testified that he was told that Ford "was supposed" to be in the residence. He knew only Ford's name. He did not have a physical description of Ford, and he had no information concerning the capias. He had not been told that Ford was dangerous, but he testified that he "take[s] everybody to be dangerous."

Officers Samuels and Kemp went to the back door of Washington's residence. Officer Moore and the bondsman went to the front door. Officer Moore knocked on the front door for a "[c]ouple of minutes." Moore did not see anybody look out of a window.

Officer Samuels testified that he heard Officer Moore knocking on the front door. Three to four seconds after the knocks began, Washington opened the back door and stepped out. Officer Samuels testified that Washington opened the door "rather fast." Samuels placed his hands on Washington and said, "Mr. Ford." Washington replied, "[N]o. I'm Welford Washington." Officer Samuels then frisked Washington and asked Washington for identification. Washington said his driver's license was inside the residence and turned to go inside. Officer Samuels went into the house in front of Washington. Officer Kemp followed. When Officer Samuels entered the kitchen, he saw "syringes with cocaine and heroin" residue and baggies of white powder and he arrested Washington. Ford was not in the residence.

Washington contended the officers unlawfully entered his residence without a search warrant in violation of the Fourth Amendment. The trial judge denied the motion to suppress the seized evidence.

II.

To justify a Terry stop, a "police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). When a stop is based on an informant's tip, the "informant must provide some basis for his knowledge [of the facts he reported] before the police officer relies upon it as being reliable enough to support an investigatory stop." Beckner v. Commonwealth, 15 Va.App. 533, 537, 425 S.E.2d 530, 533 (1993). In addition, "[s]ignificant aspects of the informer's information must be independently corroborated ... to give 'some degree of reliability to the ... allegation' of the informant." Bulatko v. Commonwealth, 16 Va.App. 135, 137, 428 S.E.2d 306, 307 (1993) (quoting Alabama v White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990)). On appeal, we review de novo the trial judge's determination that reasonable suspicion existed to stop Washington. See Ornelas v. United States, 517 U.S. 690, 698-700, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).

We hold that the police officers lacked a reasonable suspicion that Ford was at 2347 Bethel Street, that Washington was Ford, or that Washington was engaging in criminal activity. The evidence proved that Washington resided at 2347 Bethel Street. The police learned from the bondsman that an unidentified informant said Ford could be found at that address. No evidence established the basis of the unknown informant's asserted knowledge that Ford could be found at Washington's residence. Moreover, no evidence established that either the informant or the bondsman was a reliable informant. Indeed, none of the officers attempted to corroborate the tip by determining Ford's address or by determining who resided at 2347 Bethel Street. Because neither the informant's reliability nor the basis for the informant's knowledge was established, the officers lacked a reasonable suspicion to believe that Ford was in the residence at 2347 Bethel Street. See McGee v. Commonwealth, 25 Va.App. 193, 203, 487 S.E.2d 259, 264 (1997) (en banc). See also State v. Rubert, 46 Or.App. 843, 612 P.2d 771 (1980).

Officer Samuels lacked a reasonable suspicion to believe that Washington was Ford. The uncontroverted testimony of Officer Samuels and the other officers established that none of the officers had a physical description of Ford. Officer Samuels simply speculated that Washington might be Ford. The uncorroborated, unsubstantiated informant's tip was not enough, alone, to provide Officer Samuels with reasonable suspicion to believe that any man who was in the residence was Ford. Furthermore, Washington promptly identified himself to Officer Samuels by stating that his name was Welford Washington.

Finally, the fact that Washington opened the rear door of the residence after Officer Moore knocked on the front door is insufficient to justify a stop of Washington. No evidence proved that the officers announced their presence or that Washington knew the police were at the door. Washington testified that he opened the rear door because he believed the knock was at that door. Even if Officer Samuels suspected that Washington intended to flee, "flight alone may not supply sufficient reason to suspect a person of criminal activity." Buck v. Commonwealth, 20 Va.App. 298, 303, 456 S.E.2d 534, 536 (1995). Washington's appearance at the rear door could give rise "to no more than an 'inchoate and unparticularized suspicion or "hunch" ' " about his intention. Deer v. Commonwealth, 17 Va.App. 730, 736, 441 S.E.2d 33, 37 (1994) (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883). In the absence of any particular information, Officer Samuels lacked a reasonable articulable suspicion that Washington, when he opened the door, was involved in a criminal offense or that he was armed and dangerous.

"Th[e] demand for specificity in the information upon which police action is predicated is the central teaching of [the United States Supreme] Court's Fourth Amendment jurisprudence." Terry, 392 U.S. at 21 n. 18, 88 S.Ct. at 1880 n. 18. Based upon the scant information provided by the informant, we hold that Officer Samuels lacked a reasonable suspicion to believe that Ford could be found at 2347 Bethel Street, that Washington was Ford, or that Washington was involved in a criminal offense. Accordingly, the stop and frisk of Washington was unlawful.

III.

Citing Barnes v. Commonwealth, 234 Va. 130, 360 S.E.2d 196 (1987), the Commonwealth further argues that the officers had a "limited authority to enter [Washington's residence] pursuant to the capias." We disagree. Even if the police had been armed with an arrest warrant for Ford and had a reasonable basis to believe he was in the residence, they still would have needed a search warrant to lawfully enter Washington's residence to arrest Ford. "[T]he entry into a home [of a person not named in an arrest warrant] to ... make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a [search] warrant." Steagald v. United States, 451 U.S. 204, 211, 101 S.Ct. 1642, 1647, 68 L.Ed.2d 38 (1981).

The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home--a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their ... houses ... shall not be violated." That language unequivocally establishes the proposition that "[a]t the very core [of the Fourth Amendment] stands the right of a [person] to retreat into his [or her] own home and there be free from unreasonable governmental intrusion." In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980) (citation omitted). Thus, "to the extent that [an arrest warrant] is invoked as authority to enter the homes of third parties," that entry is violative of the Fourth Amendment rights of those third parties. Steagald, 451 U.S. at 220, 101 S.Ct. at 1652.

The Commonwealth further argues that Officer Samuels' entry into the residence was justified because of "the potential for danger." No evidence supports that argument. We reiterate that the officers had no information that Washington's home was Ford's residence. Officer Samuels justified his entry on the grounds that he "needed to know who [Washington] was" and that he con...