Sean A. Jerrells v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
SEAN A. JERRELLS
MEMORANDUM OPINION *
v. Record No. 0559-97-2 BY JUDGE MARVIN F. COLE
APRIL 21, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Charles L. McCormick, III, Judge
Buddy A. Ward, Public Defender, for
appellant.
Steven A. Witmer, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Appellant, Sean A. Jerrells, appeals his conviction in a
bench trial of possessing cocaine with the intent to distribute.
He contends that the trial court erred in denying his motion to
suppress the evidence obtained in an illegal stop of his car
which violated his Fourth Amendment rights. We agree and
reverse.
When viewed in the light most favorable to the Commonwealth,
the prevailing party below, the evidence proved that on October
13, 1995, Lieutenant R.J. Loftis, of the South Boston Police
Department, received a radio dispatch which reported that a
delivery driver had witnessed a drug transaction on the church
lot next to the brick house on Park Avenue at the intersection of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Hamilton Boulevard. The unnamed delivery driver had described a
white Ford Tempo, with license plate number RSF-211. She said
that two black males occupied the car. No further information
was given.
Lt. Loftis was familiar with the car described by the
informant. He knew that it was a rented vehicle from the license
plate number. Loftis had regularly, and including that day, seen
the car in the area of Park and Hamilton, an area known to him to
be an open air crack cocaine market. Loftis had made arrests
leading to convictions at that location within the previous year.
Loftis drove to the location but did not find the car there.
He continued to drive around in the area. When he got to the
intersection of West and Washington, he met the Ford Tempo, which
was stopping at the intersection. Loftis pulled in front of the
Tempo and stopped it. Three black males occupied the car;
appellant was the driver. As Loftis approached the Tempo, he
smelled marijuana and could see cigar tobacco on the floorboards.
According to Loftis, it was a common practice for marijuana
smokers to hollow out cigars and replace the tobacco with
marijuana.
Loftis asked appellant for his driver's license, which he
could not produce. Loftis checked on the status of appellant's
license and found that it had been suspended. Loftis then had
appellant exit the car and patted him down for weapons. He felt
a small square box in his right pocket. Loftis reached into the
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pocket and retrieved a tic-tac candy dispenser, which he
described as a "container of choice" for crack cocaine in the
locality. Appellant admitted that the container was his, it
contained crack cocaine, and he "may" have sold some cocaine
earlier. Accordingly, appellant was "cuffed and placed under
arrest."
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 reversible error." Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.
denied, 449 U.S. 1017 (1980). "[U]ltimate questions of
reasonable suspicion and probable cause to make a warrantless"
stop or seizure involve questions of both law and fact and are
reviewed de novo on appeal. Ornelas v. United States, 116 S. Ct.
1657, 1659 (1996). In performing such analysis, we are bound by
the trial court's findings of historical fact unless plainly
wrong, and we "give due weight to inferences drawn from those
facts by resident judges and local law enforcement officers."
Id. at 1663. 1 "We analyze a trial judge's determination whether
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Ornelas held that findings of historical fact are reviewed
on appeal only for "clear error." However, "'[c]lear error' is a
term of art derived from Rule 52(a) of the Federal Rules of Civil
Procedure, and applies when reviewing questions of fact" in the
federal system. Ornelas, 116 S. Ct. at 1661 n.3. In Virginia,
questions of fact are binding on appeal unless "plainly wrong."
Quantum Dev. Co. v. Luckett, 242 Va. 159, 161, 409 S.E.2d 121,
122 (1991); Naulty v. Commonwealth, 2 Va. App. 523, 527, 346
S.E.2d 540, 541 (1986).
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the Fourth Amendment was implicated by applying de novo our own
legal analysis of whether based on those facts a seizure
occurred." McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc) (citations omitted).
In Murphy v. Commonwealth, 9 Va. App. 139, 384 S.E.2d 125(1989), we reviewed the law that permits a police officer to stop
a motor vehicle based upon a reasonable suspicion of an unlawful
activity:
When the police stop a vehicle and detain its
occupants, the action constitutes a "seizure"
of the person for fourth amendment purposes.
If the stop of the vehicle is without a
warrant, the Commonwealth has the burden to
prove the stop was legal. Any warrantless
stop of a vehicle which leads to an arrest of
its occupants requires probable cause to
believe that a crime has been committed.
However, if an officer has an "articulable
and reasonable suspicion that a motorist is
unlicensed or that an automobile is not
registered, or that either the vehicle or an
occupant is otherwise subject to seizure for
violation of the law," the officer may
conduct an investigatory stop of the vehicle
limited in time and scope to ascertaining
whether the suspicions are accurate.
Id. at 143, 384 S.E.2d at 127 (citations omitted). See also
Bulatko v. Commonwealth, 16 Va. App. 135, 136-37, 428 S.E.2d 306,
307 (1993).
A seizure for Fourth Amendment purposes occurs when
"circumstances . . . amount to a show of official authority such
that 'a reasonable person would have believed that he was not
free to leave.'" Florida v. Royer, 460 U.S. 491, 502 (1983)
(citation omitted). "[W]henever a police officer accosts an
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individual and restrains his freedom to walk away, he has
'seized' that person." Terry v. Ohio, 392 U.S. 1, 16 (1967).
We conclude, as the Attorney General conceded in oral
argument, that the manner in which Loftis pulled his police
vehicle in front of appellant, stopping him at the intersection,
constituted a "seizure" for Fourth Amendment purposes. No
reasonable person would feel that he was free to leave if stopped
in such a manner by a police car.
If Lt. Loftis had reasonable, articulable suspicion that
appellant was engaged in, or was about to engage in, criminal
activity, he had a right to detain appellant to conduct a brief
investigation without violating his Fourth Amendment protection
against unreasonable searches and seizures. The justification
for stopping appellant need not rise to the level of probable
cause, but must be more than an "inchoate and unparticularized
suspicion or 'hunch.'" Terry, 392 U.S. at 27.
Anonymous information may furnish reasonable suspicion
justifying an investigative stop, provided it has been
sufficiently corroborated by other evidence. See Alabama v.
White, 496 U.S. 325, 331 (1990). See also Bulatko, 16 Va. App.
at 137, 428 S.E.2d at 307. Every detail reported by an anonymous
informant need not be corroborated to establish reasonable
suspicion. See id. Significant aspects of the informer's
information must be independently verified, however, to give
"some degree of reliability to the other allegation" of the
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informant. White, 496 U.S. at 332.
In this case, the Commonwealth alleges that the stop was
justified by reasonable suspicion of criminal activity and that
the information given by the unidentified truck driver was
sufficiently corroborated to give it reliability. It enumerates
the following to corroborate the informer's information: (1) the
driver reported actually seeing a drug deal at a specific
location; (2) the informant gave a detailed description of a
vehicle which included the make and license plate number, details
which were later verified by police observation; (3) Loftis was
familiar with the area and recognized the car as a rental car
that was kept at the described location, and he had seen the car
in the area many times; and (4) Loftis knew the area to be an
open air crack market. Therefore, the Commonwealth argues, Lt.
Loftis had reasonable suspicion that the occupants of the vehicle
were engaged in unlawful activity and he properly stopped the
vehicle to briefly investigate.
The appellant contends that Loftis seized him on the basis
of an anonymous, unsubstantiated statement by someone who
believed she had seen a drug transaction. He argues that the
police made no inquiry as to how she reached that conclusion,
what she saw, or what training she had that would support a
reasonable belief that appellant was committing a crime. Her
report made no predictions, but provided only information that
could be reported by anyone, regardless of whether he or she had
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seen a drug transaction. Therefore, appellant contends that
there was no evidence to give any credibility to the informant's
report. Appellant maintains that his motion for suppression
should have been granted and all the evidence secured as a result
of the illegal stop should have been suppressed. We agree.
We shall respond to the Commonwealth's corroboration
evidence in the order enumerated. The informant reported that
she had observed a drug transaction at Park Avenue and Hamilton
Boulevard. The dispatch related the description of a white Ford
Tempo that was occupied by two men. When Loftis went to this
location to verify the tip, he did not find the Tempo. The truck
driver reported seeing a drug transaction, but there is no
evidence in the record to support such an accusation except the
tip itself. Moreover, the record contains no testimony that
recites the activity observed or that describes the conduct of
the car's occupants as being involved in the suspected drug
transaction.
Loftis testified that he was familiar with the area and
recognized the car as a rental car, from its license number. He
had seen the car in the area many times before. Lt. Loftis did
not explain how this information would lead to a reason to
suspect that the occupants were engaged in criminal activity. He
indicated only that a rental car was kept in the area "most of
the time." We fail to see any connection between this testimony
and the informant's tip.
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Loftis testified that he knew the area at Park and Hamilton
Boulevard to be an open air crack market. Not every operator of
an automobile in the vicinity of where drugs are known to be sold
can reasonably be suspected of trafficking in drugs. Moreover,
the Tempo was not found at that location, but at West and
Washington Avenue, some distance away. The evidence does not
disclose that area to be an open air crack market. No
corroborating evidence places the Tempo at any location except
where the officers stopped it. The informant reported two
occupants in the Tempo. When located by Loftis, it contained
three occupants.
Based upon a totality of the evidence, we find that the
evidence is insufficient to properly corroborate the informant's
information and the stop was illegal. Therefore, the motion to
suppress the evidence should have been granted because the
seizure was unlawful. All of the evidence obtained after the
seizure should have been suppressed as "fruit of the poisonous
tree." Commonwealth v. Ealy, 12 Va. App. 744, 754, 407 S.E.2d
681, 687 (1991).
Accordingly, we reverse the conviction and dismiss the
charge.
Reversed and dismissed.
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