Leonard Shelton Jackson v. Commonwealth of Virginia ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia
LEONARD SHELTON JACKSON
MEMORANDUM OPINION * BY
v. Record No. 0036-96-2 CHIEF JUDGE NORMAN K. MOON
NOVEMBER 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Maureen L. White (Theodore Tondrowski;
Grennan & Tondrowski, on brief), for
appellant.
Marla G. Decker, Assistant Attorney General
(Richard Cullen, Attorney General; Steven A.
Witmer, Assistant Attorney General, on
brief), for appellee.
Leonard Shelton Jackson ("Jackson") was convicted of
possession of cocaine with an intent to distribute and
distribution of cocaine, both in violation of Code § 18.2-248.
Jackson contends that the cocaine on which his conviction rests
was illegally seized and, thus, the trial judge erred in
declining to suppress that evidence. Finding no error, we affirm
the convictions.
On May 9, 1995, police officers received a tip from an
informant who had previously provided the police with reliable
information. The informant identified Jackson by name, claimed
he was selling drugs, and predicted where he would be found and
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
the car he would be using. The officers drove to the location
identified by the informant and saw both Jackson and the car
identified by the informant. The officers saw Jackson and Nelson
Washington ("Washington") get into the car, with Washington
driving.
The officers checked the car's license plate number and
discovered that the plates were for a different car owned by
Washington. They also learned that Washington's license was
suspended. The officers stopped the car and told Washington that
his plates were wrong and his license had been suspended. They
also told him that they had been told that the car he was driving
was being used to transport drugs.
An officer asked Washington to consent to a search, and he
consented. The officer discovered cocaine on Washington. The
officer then told Jackson why they stopped the car and that they
had information that Jackson was transporting drugs. The officer
asked Jackson to consent to a search, and he consented. The
officer began searching Jackson, but when he reached to search
his pants leg, Jackson ran. The officers apprehended Jackson and
arrested him, discovering cocaine in his pants leg.
In reviewing a trial court's denial of a motion to suppress,
the appellant has the burden to show that, considering the
evidence in the light most favorable to the Commonwealth, the
ruling constituted reversible error. Fore v. Commonwealth, 220
Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017
(1980). "``Ultimate questions of reasonable suspicion and
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probable cause to make a warrantless search' involve questions of
both law and fact and are reviewed de novo on appeal," McGee v.
Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997)
(en banc) (quoting Ornelas v. United States, ___ U.S. ___, ___,
116 S. Ct. 1657, 1659 (1996)), but "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.'" Id. at 198, 487 S.E.2d at 261
(citing Ornelas, ___ U.S. at ___, 116 S. Ct. at 1663).
Although the initial search of Jackson was consensual, his
flight implied a withdrawal of consent. Once consent is
withdrawn, the Fourth Amendment is implicated and police are
required to have probable cause to search further. Camden v.
Commonwealth, 17 Va. App. 725, 727-28, 441 S.E.2d 38, 40 (1994);
see Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869,
870 (1992) (citing Florida v. Bostick, 501 U.S. 429, 434 (1991)).
After verifying the reliable informant's identification of
Jackson, his location, and the car he was using, the officers
searched Jackson's companion, Washington, and found cocaine.
Jackson then consented to a search. When Jackson fled, he
impliedly withdrew consent. Nevertheless, the officers'
verification of the informant's information, their discovery of
Washington's possession of cocaine, and, most importantly,
Jackson's flight, together gave the officers probable cause to
search Jackson. Compare McGee, 25 Va. App. at 203, 487 S.E.2d at
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264 (holding that police lacked probable cause to search because
informant was an anonymous tipster, no evidence established the
reliability of the tipster, and the police did not observe any
suspicious conduct), with James v. Commonwealth, 8 Va. App. 98,
101-02, 379 S.E.2d 378, 380 (1989) (noting that flight helps
support a finding of probable cause), and Quigley v.
Commonwealth, 14 Va. App. 28, 33 nn.5-6, 414 S.E.2d 851, 854
nn.5-6 (1992) (noting that fight alone may constitute
"``"reasonable suspicion" when made in the face of lawful
authority'" and can "``color[] conduct which hitherto had appeared
innocent'") (quoting United States v. Lane, 909 F.2d 895, 899
(6th Cir. 1990), cert. denied, 498 U.S. 1093 (1991)).
For the foregoing reasons, we affirm.
Affirmed.
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