Guy C. Amburgey, Jr. v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia
GUY C. AMBURGEY, JR.
MEMORANDUM OPINION * BY
v. Record No. 2503-96-2 JUDGE JOHANNA L. FITZPATRICK
SEPTEMBER 23, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
Muriel-Theresa Pitney, Senior Assistant
Public Defender, for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On September 30, 1996, Guy C. Amburgey, Jr. (appellant) was
convicted of operating a motor vehicle after having been declared
an habitual offender in a manner such as to endanger life, limb
or property (second offense) in violation of Code § 46.2-357. On
appeal, he argues that the trial court erred in finding the stop
of his car reasonable based upon information provided to the
police by an unnamed citizen. For the reasons that follow, we
reverse the decision of the trial court.
I.
The facts of this case are not in dispute. At about
1:00 a.m. on November 29, 1995, Deputy Sheriff Larry Lambrose
(Lambrose) of the Spotsylvania Sheriff's Department was on duty
in a marked police car. A woman in a vehicle stopped him by
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
flashing her lights and honking her horn at him. Lambrose had
never seen or met this woman prior to this time. The informant
told Lambrose that she had been at a local bar with her boyfriend
until they argued and she left the bar. Additionally, she told
Lambrose that her boyfriend and another man had been drinking,
would be in a black, two-door Ford, and would be traveling east
on Route 3 toward Fredericksburg. The informant indicated that
the man who owned the vehicle and who would be driving had a
suspended license, and that the passenger would be her boyfriend.
Although she gave the tag number of the car, Lambrose did not
attempt to independently determine whether the owner of the car
had a suspended license.
The informant provided no names or physical descriptions of
the people in the car, nor did she say how she knew the driver
was suspended. Lambrose testified at the suppression hearing
that "[s]he didn't give me any description at all. She just
advised there would be two fellows in the car and that the owner
of the vehicle should be driving the car." The woman did not
state how much or for how long these men had been drinking or
whether they were intoxicated. A car matching the description
passed, and she identified it as the car she described
previously. Lambrose followed the car for approximately four
minutes. He observed no erratic driving behavior and nothing
illegal or defective about the car, its tags, stickers, or
equipment. He stopped the car, and the driver admitted he was an
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habitual offender.
Prior to trial, appellant moved the court to suppress the
information obtained as a result of Lambrose's stop. The court
denied the motion.
II.
Appellant argues that the officer did not have a reasonable
articulable suspicion that the driver of the car was committing
any offense. We agree.
"[T]o justify an investigatory stop of a vehicle,
the officer must have some reasonable,
articulable suspicion that the vehicle or its
occupants are involved in, or have recently
been involved in, some form of criminal
activity." Logan v. Commonwealth, 19 Va.
App. 437, 441, 452 S.E.2d 364, 367 (1994).
"[R]easonable suspicion depends upon the
content of information [obtained by the
police] as well as its reliability." Gregory
v. Commonwealth, 22 Va. App. 100, 107, 468
S.E.2d 117, 121 (1996) (citing Alabama v.
White, 496 U.S. 325, 330, 110 S. Ct. 2412,
2416 (1990)). "In determining whether an
'articulable and reasonable suspicion'
justifying an investigatory stop of the
vehicle exists, courts must consider 'the
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totality of the circumstances -- the whole
picture.'" Murphy v. Commonwealth, 9 Va.
App. 139, 144, 384 S.E.2d 125, 128 (1989)
(quoting United States v. Sokolow, 490 U.S.
1, 8, 109 S. Ct. 1581, 1585 (1989)). "The
circumstances we may consider include the
characteristics of the area where the stop
occurs, the time of the stop, whether late at
night or not, as well as any suspicious
conduct of the person accosted such as an
obvious attempt to avoid officers or any
nervous conduct on the discovery of their
presence."
Gregory, 22 Va. App. at 107, 468 S.E.2d at 121 (quoting Smith v.
Commonwealth, 12 Va. App. 1100, 1103, 407 S.E.2d 49, 51-52 (1991)
(citations omitted)).
The instant case is controlled by the rationale of Beckner
v. Commonwealth, 15 Va. App. 533, 425 S.E.2d 530 (1993). In
Beckner, an unidentified driver pulled his car behind a police
cruiser and flashed his lights to get the officer's attention.
The officer pulled over, and the other driver pulled alongside.
The driver indicated that "there was a white female, who did not
have a driver's license, at a nearby gas station . . . pumping
gas into a 1966 Chevrolet." Id. at 534, 425 S.E.2d at 531.
Based on this information, the officer located and approached the
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defendant, and requested her license. First, we determined that,
under the circumstances of that case, the face-to-face
confrontation between the informant and the police officer
provided some indicia of reliability. See id. at 535, 425 S.E.2d
at 532. However, "[d]espite some indicia of the informant's
reliability, the basis of knowledge of the informant's tip
. . . is still questionable." Id. at 536, 425 S.E.2d at 532.
"If no basis of knowledge is stated in the [informant's] report,
it is unreliable and cannot be used to support an investigatory
stop." Id. Thus, we held that in a case where the proof of
criminal conduct required the informant to know the status of the
defendant's driver's license, "[t]he informant must provide some
basis for his knowledge before the police officer relies upon it
as being reliable enough to support an investigatory stop." Id.
at 537, 425 S.E.2d at 533.
The instant case reveals the same flaw as in Beckner: the
officer had no knowledge of the basis of the informant's tip.
While the informant predicted that a black Ford would be driving
past and would be occupied by two men, her tip was insufficient
to establish the reliability of the underlying information that
the driver was suspended. See Hardy v. Commonwealth, 11 Va. App.
433, 435, 399 S.E.2d 27, 28 (1990). The informant neglected to
tell Lambrose how she knew the driver had a suspended license.
The statement alone was not sufficiently reliable to justify
Lambrose's actions.
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Alternatively, the reliability of an informant's tip may be
established if "[s]ignificant aspects" of the information are
"independently corroborated." Bulatko v. Commonwealth, 16 Va.
App. 135, 137, 428 S.E.2d 306, 307 (1993). Here, however,
Lambrose did not independently corroborate the driver's status.
Without independent corroboration or knowledge of the basis for
the tip, the information was not sufficiently reliable to support
an investigatory stop.
Thus, we hold that the officer lacked a reasonable
articulable suspicion to effectuate this stop. Although
face-to-face, the informant was anonymous, the details were
"innocent," and the uncorroborated tip failed to indicate a
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foundation for the knowledge that the driver was suspended.
Accordingly, we reverse the decision of the trial court.
Reversed.
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