Terry Blackwell v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
TERRY BLACKWELL
MEMORANDUM OPINION *
v. Record No. 0999-02-1 PER CURIAM
JANUARY 14, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
(Jeffrey C. Rountree, on brief), for
appellant. Appellant submitting on brief.
(Jerry W. Kilgore, Attorney General; Leah A.
Darron, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
Terry Blackwell appeals his conviction for possession of a
firearm after having been convicted of a felony. He contends that
the anonymous informant's tip was not sufficient to justify his
detention and that, therefore, the trial judge erred in denying
his motion to suppress the firearm. We agree, and we reverse the
trial judge's denial of Blackwell's motion to suppress.
I.
In our review of a trial judge's denial of a motion to
suppress, we are guided by the following principles:
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
"[T]he burden is upon [the appellant] to
show that th[e] ruling, when the evidence is
considered most favorably to the
Commonwealth, constituted reversible error."
"Ultimate questions of reasonable suspicion
. . . " involve questions of both law and
fact and are reviewed de novo on appeal. In
performing such analysis, we are bound by
the trial [judge's] findings of historical
fact unless "plainly wrong" or without
evidence to support them . . . .
McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (en banc) (citations omitted). Viewed in the light
most favorable to the party that prevailed on the motion,
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991), the evidence proved that on the night of
September 16, 2001 the Newport News Police Department dispatcher
sent uniformed officers, Sergeant Duckworth and Officer Ngobeh,
to investigate a report that "a black male, name given was Terry
Blackwell, wearing a [dark] jacket, blue jeans, and a do-rag
. . . was brandishing a firearm [and] waving it at people" in
front of 4326 Lacy Cove Lane. The officers parked away from the
residence and walked through several yards to avoid being seen
as they approached the address. They saw a man, who matched the
description they had, in front of the residence. He was
standing beside a car and talking to two persons who were
sitting in the car. The officers saw no firearm and no other
people in the area.
Sergeant Duckworth announced, "Police. Don't move," and
"covered the car with the two persons because [the officers]
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could not see their hands." Sergeant Duckworth then instructed
the man to move away from the car and told him that they had
received a report of a person brandishing a firearm. After the
man moved away from the car, Officer Ngobeh approached the man
and asked him, "Do you have a weapon on you or anything?" The
man answered, "Yes." Officer Ngobeh then frisked the man and
recovered a .38 caliber firearm that was concealed in his waist
area. After the officers secured the firearm and put handcuffs
on the man, they learned he was Terry Blackwell. They did not
know Blackwell before this contact with him.
The trial judge ruled that "the totality of the evidence is
sufficient" and denied the motion to suppress. At the
conclusion of the bench trial, the judge convicted Blackwell of
possession of a firearm after having been convicted of a felony.
II.
The Fourth Amendment provides protection "against
unreasonable . . . seizures." U.S. Const. amend IV.
A police officer may stop and question
a person only if the officer has reasonable,
articulable suspicion to believe the person
may be involved in criminal activity.
Reasonable suspicion, while not as stringent
a test as probable cause, requires at least
an objective justification for making the
stop. A stop must be based on something
more than the officer's "inchoate and
unparticularized suspicion or 'hunch.'" "At
the time of the stop, the officer must be
able to point to specific and articulable
facts, which taken together with rational
inferences from those facts, objectively
warrant a reasonable person with the
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knowledge and experience of the officer to
believe that criminal activity is afoot."
In determining whether a police officer had
a particularized and objective basis for an
investigatory stop, a court must consider
the totality of the circumstances.
Ramey v. Commonwealth, 35 Va. App. 624, 629-30, 547 S.E.2d 519,
522 (2001) (citations omitted).
When the officers detained and seized appellant they acted
solely upon an anonymous report. We have previously held that
such seizures are to be determined by consideration of the
following standards:
"[A]nonymous tips are generally less
reliable than tips from known informants and
can form the basis for reasonable suspicion
only if accompanied by specific indicia of
reliability." . . . [A]n anonymous
tipster's "accurate description of a
subject's readily available location and
appearance" is not enough to establish that
the tipster had knowledge of the target's
criminal activity. The police officers must
investigate and determine, before detaining
the target, whether the tip is "reliable in
its assertion of illegality, not just its
tendency to identify a determinate person."
Reed v. Commonwealth, 36 Va. App. 260, 266-67, 549 S.E.2d 616,
619 (2001) (citations omitted) (emphasis added).
In this case, as in Florida v. J.L., 529 U.S. 266 (2000),
the totality of the circumstances in this record does not
establish the reliability of the tip and, thus, the officers had
an insufficient basis to justify the initial detention of
Blackwell. The tip's identification of a determinate person is
not sufficient to establish that it is "reliable in its
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assertion of illegality." Id. at 272. The information
contained in the tip regarding the man's race and clothing was
readily observable to anyone in the area. Moreover, the
evidence did not establish that the tip contained "a verifiable
explanation of how the informant came to know of the information
in the tip" and that "the police in turn independently
corroborate[d]" this. Ramey, 35 Va. App. at 631, 547 S.E.2d at
523. Likewise, the report "disclosed no knowledge of 'concealed
criminal activity' or 'ability to predict [appellant's] future
behavior.'" Id. at 632, 547 S.E.2d at 524.
Accordingly, the record failed to establish that the
officers had a reasonable articulable suspicion of criminal
activity to detain Blackwell. "With no basis in the record upon
which to judge the reliability of the tip/dispatch, we hold
that it fails scrutiny under the Fourth Amendment for lack of
any indicia of reliability and, therefore, is insufficient
justification for [Blackwell's] initial detention." Id. at
632-33, 547 S.E.2d at 524. Thus, the trial judge erred in
denying the motion to suppress. We, therefore, reverse
Blackwell's conviction and remand the case for such further
proceedings as the Commonwealth shall be advised to take.
Reversed and remanded.
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