Richard Lee Carter, Jr. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
RICHARD LEE CARTER, JR.
MEMORANDUM OPINION * BY
v. Record No. 1159-95-2 JUDGE SAM W. COLEMAN III
JULY 2, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Thomas V. Warren, Judge
(William R. Blandford, Jr., on briefs), for
appellant. Appellant submitting on brief.
(James S. Gilmore, III, Attorney General;
Brian Wainger, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
Richard Lee Carter, Jr. was convicted in a bench trial of
petit larceny, a subsequent offense, in violation of Code
§§ 18.2-96 and 18.2-104. Carter contends that the trial court
erred by admitting into evidence illegally seized cartons of
cigarettes that allegedly were the subject of the larceny. He
also asserts that the evidence is insufficient to support the
conviction. Because the trial court erred by admitting the
cartons of cigarettes into evidence, we reverse the defendant's
conviction and remand the case for further proceedings if the
Commonwealth be so advised. Accordingly, we do not address the
question of the sufficiency of the evidence.
On the evening of October 19, 1994, Hunter Goode, the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
assistant manager of the IGA supermarket in Powhatan County,
observed the defendant enter the store with Kenneth Harold Gage
and Richard Greene. Goode had seen the defendant and one of the
other two men enter the store on at least five occasions in the
preceding two months and had become suspicious of their
activities. Consequently, Goode decided to closely watch the
defendant, particularly after he placed approximately eight
cartons of cigarettes in his shopping basket. When the defendant
noticed that Goode was watching him, he walked to the checkout
stand, placed his basket on the counter, and stated that he had
to go to his car to get money. The defendant then exited the
store and did not return; he "walked down the sidewalk" and was
picked up in a car driven by Gage and occupied by Greene.
Goode did not see the defendant take anything from the
store, but Goode remained suspicious and decided to ban the three
men from the store. Accordingly, Goode called the Sheriff's
Department in order to obtain their names, addresses, and Social
Security numbers. Deputy Sheriff Darren Law responded to the
call, and after talking with Goode, Law located and followed the
vehicle in which Gage, Greene, and the defendant were riding.
Deputy Law stopped the vehicle for the purpose of advising the
men "that they were no longer welcome[] at IGA and that they were
never to come back again." When Law approached the vehicle, Gage
and Greene were sitting in the front seat and the defendant was
lying down in the backseat.
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Deputy Law noticed a Food Lion bag between Gage and Greene,
whereupon he "advised them that they were suspects in a
shoplifting from the IGA." Law "asked them what was in the bag";
Law determined that it contained "a half full carton of Newport
cigarettes" and "several cartons of Marlboro cigarettes." Deputy
Law found "two or three other . . . cartons of Marlboros" under
the backseat. The serial number "912" was stamped on five of the
eight cartons that Law recovered from the vehicle.
Deputy Law called Goode, who told Law that he suspected the
men of stealing cigarettes and verified that "912" was IGA's
identification number. Law arrested the three men. After the
defendant was advised of his Miranda warnings, he gave the
following written statement:
I entered the store to pick up a few things
and also some cigarettes. I placed six
cartons into the basket, and the other two
guys came into the store and got them by
placing them on themselves, leaving the
store. They then returned to pick up the
remainder of the cigarettes, and the store
manager seemed to notice something about them
as well as myself, began walking the store
everywhere I went. They got food and were on
the way out the store, got into the car
together and picked me up about 10 or 15
yards. I got into the back of the car, and
they said to get down and do something with
the cigarettes. I removed the ones I seen
and placed them under the back seat.
At trial, the court admitted into evidence, over the
defendant's objection, the eight cigarette cartons that Deputy
Law recovered from the vehicle. The court also admitted, without
objection, the defendant's written statement.
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The Commonwealth concedes that Deputy Law seized the
defendant, for fourth amendment purposes, when he stopped the
vehicle. Therefore, the question is whether Deputy Law possessed
reasonable and articulable suspicion to conduct an investigatory
stop. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20
L. Ed. 2d 889 (1968).
When a law enforcement officer receives information about
possible criminal activity from an ordinary citizen in a
"face-to-face confrontation," the officer can "form[] a
reasonable belief that the informant [is] reliable." Beckner v.
Commonwealth, 15 Va. App. 533, 535, 425 S.E.2d 530, 532 (1993);
see State v. Davis, 393 N.W.2d 179, 181 (Minn. 1986); State v.
Ege, 420 N.W.2d 305, 308 (Neb. 1988); State v. Davis, 517 A.2d
859, 868 (N.J. 1986). Nevertheless, "[t]he informant must
provide some basis for his knowledge before the police officer
relies upon it as being reliable enough to support an
investigatory stop. That information may come in questioning or
it may be implied in the information." Beckner, 15 Va. App. at
537, 425 S.E.2d at 533.
Here, Hunter Goode testified that he "called the Sheriff's
Department and asked them to get the names and addresses and
social security number of the [defendant and his companions] so
[he could] have them banned from the store." Goode did not
testify that he had reason to believe that they had stolen items
from IGA, nor did he report that he suspected them of having
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committed a criminal act. Deputy Law confirmed that his purpose
in stopping the vehicle was "[t]o advise [the men] that they were
no longer welcome[] at IGA and that they were never to come back
again." Deputy Law further testified that he "didn't have time
to talk to [Goode] . . . before the vehicle got out of the
parking lot," apparently referring to the vehicle in which Gage,
Greene, and the defendant were traveling. Consequently, Law
called Goode to "ask[] him what [the men] were suspected of
stealing" after he stopped the vehicle and after he had found the
cigarettes. According to this record, Goode did not tell Deputy
Law of any suspected criminal activity that he observed which was
the reason for Goode banning the men from the store. Neither
Goode nor Law testified that Goode informed Law of any reasons or
facts that would have led Law to suspect that the defendant was
engaged in criminal activity. In fact, although Goode testified
that the defendant acted suspiciously, he also stated that he did
not see the defendant take any cigarettes or other items from the
store and did not tell Law why he wanted them banned from IGA.
Therefore, although Deputy Law "advised [Gage, Greene, and the
defendant] that they were suspects in a shoplifting from the
IGA," the evidence fails to show that either he or Goode had
reason to suspect that they were, or had been, engaged in
criminal activity.
The fact that Goode informed Deputy Law that he wanted the
men banned from the IGA, without further explanation, does not
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support an inference that the men were, or had been, shoplifting.
"Implications of a personal basis of knowledge may arise when an
individual reports that a person has 'just run a red light,' or
'nearly struck my vehicle,' or 'is displaying a gun.'" Beckner,
15 Va. App. at 537, 425 S.E.2d at 533. The request that Deputy
Law received from Goode did not provide any indication of what
Goode had witnessed or why he wanted the men banned from the
store. Deputy Law could not reasonably infer that Goode had
witnessed the defendant engaging in criminal activity or
reasonably suspect him of criminal activity merely from learning
that Goode had banned the defendant from the store. A decision
to ban persons from a grocery store could be based upon
inappropriate dress or language, disruptive behavior, or a myriad
of reasons not related to suspected criminal activity.
Accordingly, Goode's statement that he was banning the men from
the store did not provide a basis for him to personally suspect
the defendant of criminal activity, and in the absence of further
information, Deputy Law did not have an articulable reason to
suspect the defendant of criminal activity. Thus, Deputy Law had
no basis for conducting an investigatory stop, and the cigarette
cartons that were obtained as a result of that stop were the
product of an illegal seizure.
The Commonwealth contends that even if the trial court erred
by admitting the cigarettes, the error was harmless.
"Constitutional error . . . is harmless only when the reviewing
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court is 'able to declare a belief that it was harmless beyond a
reasonable doubt." Lavinder v. Commonwealth, 12 Va. App. 1003,
1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting Chapman v.
California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 765
(1967)). The cigarettes Deputy Law found in the vehicle tended
to independently prove that the defendant was guilty of the
charged offense, and also corroborated the defendant's statement
to the police. The evidence that tends to prove defendant's
guilt, absent the cigarettes, is not overwhelming. White v.
Commonwealth, 21 Va. App. 710, 716, 467 S.E.2d 297, 300 (1996).
Thus, we cannot conclude that the admission of the cigarettes was
harmless beyond a reasonable doubt.
Because the trial court committed reversible error by
admitting the cigarettes into evidence, we do not decide whether
the evidence is sufficient to support the conviction. We reverse
the defendant's conviction and remand the case for further
proceedings if the Commonwealth be so advised.
Reversed and remanded.
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