Commonwealth v. Richard Emmanuel Broggin, Jr. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Overton and Senior Judge Hodges
Argued at Salem, Virginia
COMMONWEALTH OF VIRGINIA
v. Record No. 2791-95-3 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
RICHARD EMMANUEL BROGGIN, JR. MAY 7, 1996
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellant.
Joseph A. Sanzone (Joseph A. Sanzone
Associates, on brief), for appellee.
Richard Emmanuel Broggin, Jr. (appellee) was indicted for
possession of cocaine with intent to distribute in violation of
Code § 18.2-248. Appellee filed a motion to suppress the
cocaine, arguing that the police officer had no probable cause to
arrest him, searched him without a search warrant, and did not
act under exigent circumstances. The trial court granted the
suppression motion, and the Commonwealth appeals that ruling
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pursuant to Code § 19.2-398(2). On appeal, the Commonwealth
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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Code § 19.2-398 provides, in pertinent part, that:
A petition for appeal from a circuit court
may be taken by the Commonwealth only in
felony cases . . . from . . . (2) [a]n order
of a circuit court prohibiting the use of
certain evidence at trial on the grounds such
evidence was obtained in violation of the
provisions of the Fourth, Fifth or Sixth
argues that: (1) the officer had probable cause to arrest
appellee and search him incident to the arrest; and (2) even if
the officer lacked probable cause, exigent circumstances
justified the warrantless search. For the reasons that follow,
we affirm the trial court.
In June 1995, Investigator W. K. Dance (Dance) of the
Lynchburg Police Department received information from a reliable
confidential informant who, in the past, had provided Dance with
information that led to fifteen to twenty arrests and
convictions. The informant told Dance that appellee had been
selling cocaine at the Aerofin Corporation plant in Lynchburg
every Thursday since November 1994 and that the informant had
seen appellee sell cocaine. On the morning of Thursday, June 8,
1995, the informant called Dance and told him that: (1)
appellee, an employee at the Aerofin plant, would arrive at the
plant that day just before 3:30 p.m.; (2) he would be driving a
dark-colored Suzuki motorcycle; (3) he would have cocaine to sell
inside the plant; and (4) he would sell cocaine to his co-workers
after they cashed their paychecks during their dinner break at
8:00 p.m. The informant had also called Dance with this
information four to five days before June 8.
Dance did not obtain an arrest or search warrant prior to
going to the plant. On June 8, Dance and two police officers saw
Amendments to the Constitution of the United
States or Article I, Sections 8, 10 or 11 of
the Constitution of Virginia.
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appellee arrive at work at 3:25 p.m. on a black Suzuki
motorcycle. Dance approached appellee as he entered the plant
and asked "if he had anything." Appellee said no. Dance then
searched appellee's coat and found three plastic bags containing
crack cocaine. After finding the cocaine, Dance arrested
appellee.
Appellee filed a pretrial motion to suppress the cocaine
seized from his coat. On November 21, 1995, the trial court
granted the suppression motion and stated as follows:
[T]he Court is going to sustain and grant the
motion to suppress because I think . . . in
this case that even though the Commonwealth
established the reliability of the informant,
. . . there was an opportunity to go and get
the search warrant . . . .
The case law authorizes a temporary,
reasonable detention of a defendant under
these circumstances. There is nothing in the
record to indicate why the officer did not do
that. He had the information from the
informant at least prior to the search in
this case. And I think that there were no
ex[i]gent circumstances shown in the record
to justify the search.
In reviewing a trial court's ruling on a suppression motion,
this Court considers the evidence in the "light most favorable to
. . . the prevailing party below," the appellee in this instance,
and the decision will only be disturbed if plainly wrong.
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991).
"'[T]he test of constitutional validity [of a warrantless
search] is whether at the moment of arrest the arresting officer
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had knowledge of sufficient facts and circumstances to warrant a
reasonable man in believing that an offense has been committed.'"
Hardy v. Commonwealth, 11 Va. App. 433, 434-35, 399 S.E.2d 27,
28 (1990) (quoting DePriest v. Commonwealth, 4 Va. App. 577, 583-
84, 359 S.E.2d 540, 543 (1987), cert. denied, 488 U.S. 985(1988)).
"Probable cause to arrest must exist exclusive of the incident
search." Carter v. Commonwealth, 9 Va. App. 310, 312, 387 S.E.2d
505, 506 (1990). "The information provided by [an] informant
must describe not just easily obtained facts, but future third
party actions not easily predicted." Hardy, 11 Va. App. at 435,
399 S.E.2d at 28 (citing Illinois v. Gates, 462 U.S. 213 (1983)).
Viewing the evidence in the light most favorable to
appellee, we hold that the totality of circumstances did not
support Dance's search of appellee. When Dance went to the
plant, he verified only that appellee arrived at the plant where
he worked at a certain time. Nothing about appellee's behavior
indicated that he had drugs on his person, and Dance did not
pause to observe appellee's actions before stopping him. Thus,
Dance did not have probable cause to arrest appellee or to search
him for drugs.
Additionally, no exigent circumstances supported Dance's
search of appellee. "'Where there are exigent circumstances in
which police action literally must be "now or never" to preserve
the evidence of the crime, it is reasonable to permit action
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without prior judicial evaluation.'" Wright v. Commonwealth, 222
Va. 188, 193, 278 S.E.2d 849, 853 (1981). In Wright, the police
officer received the tip at 6:00 p.m., telling him that a drug
delivery would be made at 6:30 p.m. Id. The Supreme Court of
Virginia held that "[i]f he was to make the necessary
investigation, intercept the suspects while the reported crime
was in progress, and preserve the evidence of that crime, he had
to act 'now or never.'" Id. The instant case is distinguishable
from Wright in that Dance received the informant's tip several
hours before the crime was to occur and had sufficient time to
seek a search warrant.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
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