Commonwealth v. Louviere Cradle ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Humphreys
Argued by teleconference
COMMONWEALTH OF VIRGINIA
v. Record No. 0876-02-1
LOUVIERE CRADLE
MEMORANDUM OPINION * BY
JUDGE ROBERT J. HUMPHREYS
COMMONWEALTH OF VIRGINIA OCTOBER 8, 2002
v. Record No. 0877-02-1
LOUVIERE CRADLE
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
Marla Graff Decker, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on briefs), for appellant.
S.H. Weaver, Jr., for appellee.
Pursuant to Code § 19.2-398, et seq., the Commonwealth of
Virginia appeals orders of the trial court suppressing evidence
found by police during a search of Louviere Cradle's vehicle. The
suppressed evidence relates to Cradle's indictment for possession
of cocaine with intent to distribute, possession of cocaine with
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
intent to distribute on school property, and possession of a
firearm while in possession of cocaine.1 For the reasons that
follow, we affirm the decision of the trial court.
Background
During the hearing on Cradle's motion to suppress the
evidence, Detective L. Defredas, of the Portsmouth Police
Department, testified that on June 21, 2001, at approximately
7:15 p.m., he received a telephone call on his cellular phone
from a confidential informant. The informant told Defredas that
ten minutes prior to making the telephone call, he had observed
an individual he referred to as "Big" in possession of, and
selling, crack cocaine from a burgundy Volvo. The informant
gave Defredas the license plate number of the Volvo and told him
that "Big" was driving the Volvo and that there were three other
individuals in the car. The informant described "Big" as a
"heavy-set black male with medium brown skin and dreads," and
1
Although each of the charges against Cradle originates
from the same set of circumstances, the indictment for
possession with intent to distribute was issued separate and
apart from the indictment against Cradle for possession with
intent to distribute on school property, and possession of a
firearm while in possession of cocaine. Thus, two separate
cases are pending against Cradle, Circuit Court Case Numbers
CR01-2632 and CR01-2633. However, the record reflects that the
matters were consolidated by the trial court for purposes of the
hearing on the motion to suppress, and its resulting orders
suppressing the evidence. Therefore, the Commonwealth filed a
petition for appeal in both matters. Since the factual
circumstances underlying the motion and the trial court's
decision in each matter are identical, we likewise, consolidate
the appeals.
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told Defredas that "in thirty minutes[, 'Big'] would be pulling
up to 45 East Pollux Circle." "[A]t that point [the individuals
in the car] would be selling crack to two individuals who were
meeting ['Big'] there." Finally, he informed Defredas that the
contraband would be "on ['Big']."
However, on cross-examination, there was some dispute as to
whether Defredas had testified during the preliminary hearing that
the informant told him how he knew Cradle would have drugs on his
person. There was also some dispute as to whether Defredas had
testified at the preliminary hearing that the informant had told
him the location was "East Pollux," as opposed to "West Pollux,"
and whether the informant had told him Cradle was going to that
location for the purpose of selling drugs.
Defredas testified that he knew "Big" to be Louviere Cradle. 2
He further testified that the confidential informant had been
arrested in Portsmouth and charged with possession of drugs with
intent to distribute, as well as possession of a firearm. He had
been providing information to the police concerning drug activity
in Portsmouth "with a view to [sic] helping reduce his charges,"
and had been giving Defredas information for about "[f]our to six
weeks" prior to the date of the telephone conversation at issue.
2
Defredas testified that the informant referred to Louviere
Cradle as William Cradle. It was later determined that Cradle
often used the name of his brother, "William Cradle," and that
Cradle had used his brother's name in this instance.
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Defredas stated that he had been able to substantiate information
provided by the informant on "four or five occasions."
Nevertheless, the informant had not provided information that had
led to an arrest in Portsmouth, nor had he provided information
that had yet led to the discovery of illegal drugs. 3
Defredas testified that he was off-duty and with his
children at the time he received the informant's telephone call.
He contacted Officer Vicky Miller, who was working uniform
patrol at the time, and relayed "the information to her in
relation to Mr. Cradle and where he would be going, what he
would be driving, his description, and that there would be three
other people in the vehicle." Defredas denied having received
"any information . . . with respect to safety issues" from the
informant and denied having relayed such information to Officer
Miller.
Officer Miller testified that Defredas called her on her
cellular phone at approximately "ten minutes to eight" that
evening. She stated that Defredas told her
[t]hat an individual that went by the
nickname of Big named William Cradle who
would be a large, heavy-set black male with
dreads would be driving a burgundy Volvo
bearing Virginia tags 647845 who would
3
Defredas testified, however, that after Cradle's arrest,
one of the individuals about whom the informant had provided
information was arrested in the City of Norfolk, "based on that
information and other investigation."
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be making – And he would have a large amount
of crack cocaine secreted about his person.
He would be making a delivery in the area of
East Pollux Circle, specifically in the 40
block."
Miller also testified that Defredas had told her that "one or
more guns may be in the vehicle."
Miller then contacted two other officers who were in the
area, Officer J.C. Knorowski and Officer Grove, and relayed the
information to them. Miller stated that she and Officer Grove
subsequently reported to the area on foot and stood off to the
side by a tree. Officer Knorowski reported to the area in his
marked police car, stopping to observe from around the corner on
West Pollux Circle. Shortly thereafter, Officer Miller observed
a burgundy Volvo, bearing the license plate number 647845,
driving toward the area on the right side of the road. The
Volvo then "pulled from the right side of the road, came across
the traffic lane, [and] pulled to the curb in the left side of
the road opposing traffic [sic]." Miller observed that there
were four occupants in the car. After bringing the car to a
stop, Cradle, who was driving, "looked back over his left
shoulder," looked in the direction of Officers Miller and Grove,
and appeared to be startled. He then "turned his head around
real quick, stepped on the gas[,] . . . broke traction and sped
off at a very high rate of speed," around the corner. Officer
Miller radioed Officer Knorowski and advised him to stop the
Volvo "and perform a traffic stop."
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Officer Knorowski testified that Officer Miller told him the
driver of the car would be in possession of a large quantity of
cocaine and that it was possible there were weapons in the car.
Accordingly, Knorowski activated his emergency lights and
conducted a "felony stop" of the car. Once he stopped the car, he
used the "PA system" to order the occupants out of the car, one at
a time, with their hands raised. By this time, Officers Miller
and Grove had arrived on the scene. Each of the officers then
approached the vehicle and the occupants with their weapons drawn,
handcuffed the occupants, and placed them under investigative
detention. The officers next conducted a search of the vehicle,
as well as the individuals, and found no drugs or weapons.
Officer Miller testified that she then contacted Detective
Defredas, at approximately 8:30 p.m. Miller stated that Defredas
arrived at the scene at approximately 8:50 p.m. Once he arrived,
he spoke with Officer Miller and "the individuals from the
vehicle." Defredas testified that when he spoke with Cradle, he
advised him of his Miranda rights and stated that Cradle indicated
he understood the rights, and waived them. Defredas then told
Cradle about the information he had received from the informant
and told him that he believed Cradle "had cocaine about his
person." Cradle denied having drugs, but after some discussion
with Defredas, agreed to a strip-search.
Defredas and Knorowski transported Cradle to the nearest
police station to conduct the strip-search. Once they arrived
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there, Cradle conceded that he "had a quarter of an ounce," but
claimed "he had thrown it out . . . as they had come [sic] around
the bend when the police were trying to stop him." Defredas told
Cradle he would notify the officers at the scene to look for the
drugs, but stated that he was going to go through with the
strip-search. Cradle then took each of his clothing items off,
one-by-one, so the officers could search his clothing as well as
his person. Initially, the officers found only a "large amount of
U.S. currency," and found no drugs. However, as Cradle began to
put his clothing back on, Defredas observed a plastic bag, which
appeared to contain crack cocaine, located between the rolls of
fat on the rear, upper portion of Cradle's thigh. Defredas seized
the item and placed Cradle under arrest. At that time, Cradle
consented to a search of his home where officers recovered
firearms, a scale, and cash from Cradle's bedroom.
Based upon this evidence, the trial court granted Cradle's
motion to suppress, finding:
The confidential informant is not somebody
who's been verified much [sic]. It's just
somebody who [Defredas] made a deal with
when he arrested him, and then [Defredas]
says that the informant gave him some
information. There's some peculiarity about
the information. Did the guy have a gun?
Did he not have a gun? Did he have drugs on
him or did he not have drugs on his person?
[H]ad he given information in the past that
led to something, some reliable information?
Has it led to arrests? Has it led to
finding any drugs? Everything depends – And
Defredas is not the one who made the stop.
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He gave the information to another police
Officer who made the stop.
* * * * * * *
And I am going to suppress the evidence. I
think that this is very tenuous in this
case. If the policeman had enough evidence
that he thought there should have been an
arrest made, he should have followed it up.
He should have corroborated it in some way.
He shouldn't have – We shouldn't be getting
this evidence second – and third-hand, from
Miller to Knorowski to the Court and back;
and there was no need for those policemen to
sit out there and wait for the off-duty
policeman to come who couldn't come in the
beginning. It seems to me that the police
department ought to have enough people on
the street at any time to have worked this
case out rather than have to wait for
Defredas to do it all. I'm going to grant
the motion to suppress.
II. Analysis
On an appeal of a ruling on a motion to suppress, we view the
evidence in the light most favorable to the party prevailing
below, granting to it all reasonable inferences fairly deducible
therefrom. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407
S.E.2d 47, 48 (1991). "[W]e 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 v. Commonwealth, 25 Va. App. 193,
198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v.
United States, 517 U.S. 690, 699 (1996)). However, we review
de novo the trial court's application of defined legal standards.
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Ornelas, 517 U.S. at 699. Thus, in this matter, the burden is
upon the Commonwealth to show that the trial court's ruling, when
the evidence is considered most favorably to Cradle, constituted
reversible error. See Fore v. Commonwealth, 220 Va. 1007, 1010,
265 S.E.2d 729, 731 (1980); Commonwealth v. Tart, 17 Va. App. 384,
390-91, 437 S.E.2d 219, 223 (1993).
The Commonwealth contends that here, "the trial court based
its conclusion that the defendant was unlawfully stopped and
searched on an incorrect interpretation of the law."
Specifically, the Commonwealth argues "[t]he judge, while not
making any factual conclusions to support suppression of the
evidence . . . focused on legally irrelevant facts relating to
procedures of the Portsmouth Police." We disagree with the
Commonwealth's contention that the trial court made no factual
findings. Indeed, we find that they are dispositive of the issue
presented and, therefore, affirm the judgment of the trial court
on the motion to suppress.
A fair reading of the trial court's lengthy commentary, in
conjunction with its holding, establishes that the trial court
was clearly concerned with the credibility of the Commonwealth's
witnesses in this matter. In fact, just before suppressing the
evidence, the trial court stated:
You know, Detective Defredas' involvement in
this is peculiar, to be honest with you. He
gets a phone call at his personal phone and
calls some friend of his on the police force
who's not a detective, who's not in the Vice
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Squad, who's not an officer, who's not
somebody who can assign. He didn't call the
dispatcher. And then that person stops the
car and waits for Defredas who said he
couldn't come earlier because he was not
working, and then does come. And in the
process of this investigation he starts
making deals with the guy he just made a
deal with to catch. When does it ever stop?
And that's probable cause to – Is that what
you're saying?
* * * * * * *
It all depends on Defredas, doesn't it?
Everything in this case depends on me
believing what Defredas has said, right?
Thus, because the factual decisions to be made in determining
the reliability of the informant, as well as the reliability of
the tip, turned solely on the credibility of the witnesses, the
trial court held that reliability had not been established.
It is well settled that in hearing a defendant's motion to
suppress, "the trial court, acting as fact finder, must evaluate
the credibility of the witnesses . . . [and] resolve the conflicts
in their testimony . . . ." Witt v. Commonwealth, 215 Va. 670,
674, 212 S.E.2d 293, 297 (1975). Indeed, when a trial court is
sitting as fact finder, it "must evaluate the credibility of the
witnesses, resolve the conflicts in their testimony and weigh the
evidence as a whole." Albert v. Commonwealth, 2 Va. App. 734,
738, 347 S.E.2d 534, 536 (1986) (emphasis added). Such
"determinations of the trial court, like those of a jury, are
binding on this Court, and we will reverse such findings 'only if
they are plainly wrong or without evidence to support them.'"
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Mercer v. Commonwealth, 259 Va. 235, 243, 523 S.E.2d 213, 217
(2000) (quoting McCaskey v. Patrick Henry Hospital, 225 Va. 413,
415, 304 S.E.2d 1, 2 (1983)).
In the case at bar, the trial court resolved the internal
conflicts in the Commonwealth's evidence in favor of the defendant
and, therefore, found no credible evidence upon which to base a
determination of the reliability of the confidential informant's
tip. On this record, we cannot find that the trial court's
determination in this regard was plainly wrong.
On appeal the Commonwealth recognizes the trial court's
concern with Defredas' testimony, but contends that because the
trial court made no specific finding as to Defredas' credibility,
we must assume the trial court relied upon his testimony in
reaching a finding as to the reliability of the tip. However, "a
reviewing court 'faced with a record of historical facts that
supports conflicting inferences must presume — even if it does not
affirmatively appear in the record — that the trier of fact
resolved any such conflicts in favor of the [prevailing party
below], and must defer to that resolution[.]'" Wright v. West,
505 U.S. 277, 296-97 (1992) (quoting Jackson v. Virginia, 443 U.S.
307, 326 (1979)).
Accordingly, because the remaining evidence necessarily
flowed from Defredas' interaction with the confidential informant,
we find that the trial court was not plainly wrong in finding that
the Commonwealth failed to present credible evidence upon which to
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determine the reliability of the confidential informant's tip and,
thus, failed to establish that the police had probable cause to
arrest and search Cradle based on the tip. Therefore, we affirm
the judgment of the trial court, granting the motion to suppress
the evidence.
Affirmed.
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