Devon Lamont Alexander v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia
DEVON LAMONT ALEXANDER
MEMORANDUM OPINION * BY
v. Record No. 2886-00-1 JUDGE ROBERT P. FRANK
JUNE 26, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
H. Vincent Conway, Jr., Judge
Charles E. Haden for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark. L. Earley, Attorney General, on
brief), for appellee.
Devon Lamont Alexander (appellant) was convicted, in a bench
trial, of possession of cocaine with intent to distribute, in
violation of Code § 18.2-248. On appeal, he contends the trial
court erred in not granting his motion to suppress the drugs. He
contends the informant's tip was not sufficient to provide
probable cause to arrest him. Finding no error, we affirm the
judgment of the trial court.
I. BACKGROUND
At 9:01 p.m. on October 11, 1999, Newport News Police
Sergeant Mark A. Trawitzki received a phone call from a
"confidential informant." Sergeant Trawitzki had known the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
informant for several years, and the police had used him as an
informant for at least one year. The informant was known to be
reliable, and previous information provided by the informant had
led to seizures of narcotics and the arrests of approximately 100
suspects for drug and weapons offenses. During the time Sergeant
Trawitzki had used the informant, the informant had never provided
information that was "unreasonable." The informant had previously
been instructed not to call the police with information unless it
was based on his personal knowledge and observation.
The informant advised Officer Trawitzki that he had observed
a light-skinned black male, who was approximately 6' or 6'1" tall,
weighed between 180 and 190 pounds, and was approximately
twenty-five years old, with cocaine on his person. The informant
said the suspect was wearing a black shirt and blue jeans and
would be standing in the area of the 600 block of 41st Street,
accompanied by another black male with cornrows in his hair. The
informant told Trawitzki the suspect was "somebody that [he] had
looked at in the past." Trawitzki had had previous contact with
appellant, and the informant was aware that Trawitzki had "looked
at" the appellant in the past.
Responding to this tip, Trawitzki arrived at the specified
location within two minutes. Trawitzki immediately recognized
appellant and saw a black male with cornrows in his hair at the
corner, "standing off to the side." Accompanied by Detective
Graham, Trawitzki approached appellant. Trawitzki told appellant
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he had information that appellant was in possession of cocaine and
advised him of his Miranda rights. Appellant indicated he
understood those rights. Appellant was handcuffed, and Detective
Flythe told appellant, "Come on, we need to walk over to the van
so I can search your crotch." While walking in the direction of
the van, appellant reached into his waistband and removed a
plastic bag. Flythe shouted to the other officers present, "He
has it in his hands." That bag contained fourteen baggie corners,
each of which contained cocaine.
At a suppression hearing, the trial court denied the motion
to suppress, finding the officer had probable cause to arrest
appellant.
II. ANALYSIS
Appellant contends the informant's tip did not provide
probable cause to arrest him. 1
"In reviewing a trial court's denial of
a motion to suppress, '[t]he burden is upon
[the defendant] to show that th[e] ruling,
when the evidence is considered most
favorably to the Commonwealth, constituted
1
There was no search pursuant to an arrest since appellant
attempted to dispose of the drugs prior to any search. Clearly,
if the police had probable cause to arrest, they could search
appellant pursuant to that arrest. "'Whether a warrantless
arrest was constitutionally valid depends upon whether, at the
moment the arrest was made, the officers had probable cause to
make it.'" Jefferson v. Commonwealth, 27 Va. App. 1, 12, 497
S.E.2d 474, 479 (1998) (citations omitted). If so, such "arrest
of a suspect . . . is a reasonable intrusion under the Fourth
Amendment" and, "that intrusion being lawful, a search incident
to the arrest requires no additional justification." United
States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477, 38
L. Ed. 2d 427 (1973).
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reversible error.'" McGee v. Commonwealth,
25 Va. App. 193, 197, 487 S.E.2d 259, 261
(1997) (en banc) (citation omitted). "[W]e
review de novo the trial court's application
of defined legal standards such as probable
cause and reasonable suspicion to the
particular facts of the case." Hayes v.
Commonwealth, 29 Va. App. 647, 652, 514
S.E.2d 357, 359 (1999) (citation omitted).
"In performing such analysis, we are bound by
the trial court's findings of historical fact
unless 'plainly wrong' or without evidence to
support them and we give due weight to the
inferences drawn from those facts by resident
judges and local law enforcement officers."
McGee, 25 Va. App. at 198, 487 S.E.2d at 261
(citing Ornelas v. United States, 517 U.S.
690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d
911 (1996)).
Hamlin v. Commonwealth, 33 Va. App. 494, 497-98, 534 S.E.2d 363,
364 (2000), aff'd, 35 Va. App. 375, 545 S.E.2d 556 (2001). "When
we review a trial court's denial of a suppression motion, '[w]e
view the evidence in a light most favorable to . . . the
prevailing party below, and we grant all reasonable inferences
fairly deducible from that evidence.'" Wilson v. Commonwealth, 34
Va. App. 25, 29, 537 S.E.2d 608, 610 (2000) (quoting Commonwealth
v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)
(citation omitted)).
When making a warrantless arrest, an
officer "'may rely upon information received
through an informant, rather than upon his
direct observations,'" so long as the officer
has reasonable grounds to believe that the
informant's statement is true. Id. at 242,
103 S.Ct. at 2334 (citation omitted); see
also Draper v. United States, 358 U.S. 307,
312-14, 79 S. Ct. 329, 333, 3 L. Ed. 2d 327
(1959). Because the value and reliability of
information provided by informants to the
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police varies greatly, the veracity of an
informant and the basis of his or her
knowledge regarding a particular tip are
"relevant considerations" in the
totality-of-the-circumstances analysis that
guides the determination of probable cause.
Gates, 462 U.S. at 232-33, 103 S.Ct. at 2329
(quoting Adams v. Williams, 407 U.S. 143,
147, 92 S. Ct. 1921, 1924, 32 L. Ed. 2d 612
(1972)); see also Alabama v. White, 496 U.S.
325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d
301 (1990) (stating that both the content and
reliability of information possessed by the
police are considered when determining
whether the totality of the circumstances
justified an officer's determination of
probable cause). When reviewing an officer's
determination of probable cause based upon
information provided by an informant, a court
should conduct a "balanced assessment of the
relative weights of all the various indicia
of reliability (and unreliability) attending
[the] informant's tip." Gates, 462 U.S. at
234, 103 S.Ct. at 2330; see also White, 496
U.S. at 329-30, 110 S.Ct. at 2416.
Jefferson v. Commonwealth, 27 Va. App. 1, 12-13, 497 S.E.2d 474,
479-80 (1998).
"When the factual basis for probable cause is provided by an
informer, the informer's (1) veracity, (2) reliability, and
(3) basis of knowledge are 'highly relevant' factors in the
overall totality-of-the-circumstances probable cause analysis."
Russell v. Commonwealth, 33 Va. App. 604, 610, 535 S.E.2d 699, 702
(2000) (citation omitted).
Viewing the "totality-of-the-circumstances," we find that
the officer had probable cause to arrest appellant.
"'[P]robable cause is measured against
an objective standard.'" Taylor v.
Commonwealth, 10 Va. App. 260, 266, 391
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S.E.2d 592, 595-96 (1990) (citations
omitted). It "'exists where "the facts and
circumstances within the arresting officers'
knowledge and of which they had reasonably
trustworthy information are sufficient in
themselves to warrant a man of reasonable
caution in the belief that" an offense has
been or is being committed.'" Jefferson, 27
Va. App. at 12, 497 S.E.2d at 479 (citation
omitted). "'In assessing an officer's
probable cause for making a warrantless
arrest, no less strict standards may be
applied than are applicable to a
magistrate's determination that an arrest
warrant should issue.'" Ford, 23 Va. App.
at 144, 474 S.E.2d at 851 (citation
omitted).
Golden v. Commonwealth, 30 Va. App. 618, 622-23, 519 S.E.2d 378,
380 (1999).
The informant was reliable and Officer Trawitzki had known
the informant for "several years." The informant had been a
police informant for at least one year. Previous information
supplied by the informant had resulted in the arrest of
approximately 100 individuals for drug and weapons offenses and
in the apprehension of fugitives. He had never given any
information that was "unreasonable."
Further, the informant had been instructed not to call with
a tip unless he had personal knowledge of the criminal activity
through observation. The informant also told Officer Trawitzki
that he personally observed the suspect possessing the drugs.
See Spinelli v. United States, 393 U.S. 410, 416 (1969),
abrogated on other grounds by Illinois v. Gates, 462 U.S. 213,
238 (1983) (stating that an informant's statement that he
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"personally observed" the criminal activity disclosed by him
would sufficiently establish his basis of knowledge).
Additionally, the informant described the suspect and his
clothing and indicated the suspect "would be standing" in the
600 block of 41st Street with a "second black male" with
cornrows in his hair. Within two minutes after receiving the
phone call from the informant, Officer Trawitzki went to the
location and observed appellant, who fit the description given
by the informant. A black male with cornrows was "standing off
to the side."
During the phone conversation with Officer Trawitzki, the
informant told the officer that the suspect "was somebody that
[he] had looked at in the past." However, appellant's name was
not mentioned. Officer Trawitzki testified that the informant
was aware that he had "looked at" appellant in the past. When
Officer Trawitzki went to the location, he immediately
recognized the suspect as appellant.
In "applying the totality of the circumstances analysis,"
the United States Supreme Court has "consistently recognized the
value of corroboration of details of an informant's tip by
independent police work." Gates, 462 U.S. at 241.
Much of the informant's tip was corroborated by Officer
Trawitzki at the scene. The description of appellant's physical
appearance and clothing matched. Within two minutes after the
tip, appellant was at the location indicated by the informant,
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as was the man with cornrows. But more significantly, the
informant said that the suspect was someone who Officer
Trawitzki had "looked at" in the past. The officer immediately
recognized appellant as one who he had been investigating in the
past.
Thus, the evidence clearly indicates the informant's basis
of knowledge, reliability and veracity and the subsequent
corroboration of the details provided probable cause for the
arrest. Therefore, for these reasons, we find the trial court
did not err in denying appellant's motion to suppress and,
accordingly, we affirm the judgment of the trial court.
Affirmed.
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