Hervert Clayton Moretz v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
HERBERT CLAYTON MORETZ
v. Record No. 0389-95-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA FEBRUARY 27, 1996
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Robert B. Cromwell, Jr., Judge
Roy B. Martin, III (Jonathan Silverman;
Staton, Perkinson, Doster, Post, Silverman &
Adcock, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Herbert Clayton Moretz (defendant) entered pleas of guilty
to possession of cocaine and a related firearm offense, reserving
his right to appeal the denial of an earlier motion to suppress
the substantive evidence of these offenses. Defendant now
pursues such appeal, arguing that the trial court erroneously
1
admitted evidence resulting from an unlawful seizure. We
disagree and affirm the convictions.
The parties are fully conversant with the record in this
case, and we recite only those facts necessary to a disposition
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Although defendant asserts violations of both the U.S. and
Virginia Constitutions, the relevant provisions of the state
constitution are "substantially the same as those contained in
the Fourth Amendment" and we, therefore, address only the federal
issue. See Lowe v. Commonwealth, 230 Va. 346, 348 n.1, 337
S.E.2d 273, 275 n.1 (1985), cert. denied, 475 U.S. 1084 (1986)
(citations omitted).
of this appeal.
Upon review from a trial court's denial of a motion to
suppress, we consider the evidence in the light most favorable to
the prevailing party below, the Commonwealth in this instance,
granting to it "all reasonable inferences fairly deducible from
that evidence." Commonwealth v. Grimstead, 12 Va. App. 1066,
1067, 407 S.E.2d 47, 48 (1991); Reynolds v. Commonwealth, 9 Va.
App. 430, 436, 388 S.E.2d 659, 663 (1990). The findings of the
trial court will not be disturbed unless "plainly wrong,"
Grimstead, 12 Va. App. at 1067, 407 S.E.2d at 48, and the burden
is upon the appellant to show that the ruling constituted
reversible error. Reynolds, 9 Va. App. at 436, 388 S.E.2d at
663.
The record discloses that Virginia Beach Detective Hodges
and Sergeant Liverman were involved in "drug interdiction"
activities on the evening of October 2, 1993. Both Hodges and
Liverman had prior information that the Holly Kove Motel was "an
area that crack could be bought from," a "hot spot." A "Crime
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Solver," "reliable . . . informant" and "concerned citizen" had
each advised Hodges of cocaine trafficking specifically related
to Room 102 at the motel. As a result, the officers were
conducting "roving or moving surveillance" of the motel from an
unmarked police vehicle.
2
The caller had informed Hodges earlier that day of crack
sales from Room 102 at the motel and "heavy vehicle . . . and
foot traffic."
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At approximately 8:15 p.m., the crime solver again contacted
Hodges and reported that "a black male . . . was standing outside
of Room 102, [and] that . . . the foot . . . and . . . car
traffic was [now] very light." The police then established a
"stationary surveillance" of Room 102, which immediately verified
the crime solver's most recent tip.
Within minutes, the officers observed a "newer model red
Corvette" enter the motel lot and park near Room 102. A
passenger, a "white male with long hair," exited the vehicle and
entered the room, returning to the vehicle after "two or three
minutes." The Corvette then backed into an area of the lot
hidden from the officers' view and, after a "minute or so," left
the motel. The officers followed the Corvette to "get the
license plate number," noting that it displayed Florida tags.
Almost immediately, the crime solver once more contacted Hodges
and advised that a passenger in the Corvette had just "solicited
[him] to buy crack" in the motel parking lot. The caller's
description of this passenger was consistent with the officers'
earlier observations.
The police continued to follow the Corvette and, after it
stopped briefly at another motel and nearby trailer park,
requested uniformed Officer R. L. Christie to "pull" the vehicle.
The disputed evidence was discovered during the ensuing
investigation, and defendant contends that this detention lacked
the requisite "reasonable suspicion."
It is well established that "[w]hen the police stop a
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vehicle and detain its occupants, the action constitutes a
'seizure' of the person for fourth amendment purposes." Murphy
v. Commonwealth, 9 Va. App. 139, 143, 384 S.E.2d 125, 127 (1989)
(citations omitted). However, not all seizures are unlawful.
The fourth amendment prohibits only those which are
"unreasonable." Terry v. Ohio, 392 U.S. 1, 9 (1968); Iglesias v.
Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988). A
brief detention to investigate "incipient criminal activity" is
not unreasonable if "supported by the officer's reasonable and
articulable suspicion that criminal activity may be afoot."
Layne v. Commonwealth, 15 Va. App. 23, 25, 421 S.E.2d 215, 216
(1992); see Terry, 392 U.S. at 21, 30.
"In determining whether an 'articulable and reasonable
suspicion' justifying an investigatory stop of [a] vehicle
exists, courts must consider 'the totality of the circumstances--
the whole picture.'" Murphy, 9 Va. App. at 144, 384 S.E.2d at
128 (citations omitted). However, "[j]ustification for stopping
an automobile does not depend on the subjective intent of the
police. Compliance with the fourth amendment depends, instead,
on 'an objective assessment of an officer's actions in light of
the facts and circumstances then known to him.'" Bosworth v.
Commonwealth, 7 Va. App. 567, 570, 375 S.E.2d 756, 758 (1989)
(citations omitted).
A tip from an anonymous informant, without indicia of
reliability, may provide the reasonable suspicion necessary to
justify an investigatory stop. Alabama v. White, 496 U.S. 325,
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331 (1990); see also Bulatko v. Commonwealth, 16 Va. App. 135,
137 (1993), 428 S.E.2d 306, 307 (1993). However, the officer
must have "some objective basis for assessing the reliability of
the informant's knowledge of the information contained in his
report in order to establish a reasonable and articulable
suspicion to stop the suspect." Beckner v. Commonwealth, 15 Va.
App. 533, 536, 425 S.E.2d 530, 532 (1993).
Here, the crime solver had first reported personal
observation of illicit drug sales in Room 102 earlier in the day,
providing additional information in a second call which was
independently confirmed by Hodges and Liverman. Moments
thereafter, the Corvette arrived at the motel, and subsequent
events were consistent with the third report of the crime solver
which specifically implicated the vehicle and its passenger in
criminal conduct. Hodges' suspicions were further supported by
(1) the presence of a "very nice car," licensed in a "solar
state" for narcotics distribution, parked at "a low-rent motel,"
(2) the activity of the passenger at the motel, and (3) the brief
stops at the nearby motel and trailer park, all of which Hodges
found compatible with "drug trafficking."
Viewing such circumstances with the totality of the record,
we find abundant support for the reasonable and articulable
suspicion necessary to justify the investigatory stop of the
automobile and, accordingly, affirm the convictions.
Affirmed.
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