Antonious Lamont Clark v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Senior Judge Hodges
Argued at Chesapeake, Virginia
ANTONIOUS LAMONT CLARK
MEMORANDUM OPINION * BY
v. Record No. 0581-00-1 JUDGE RUDOLPH BUMGARDNER, III
APRIL 17, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
H. Vincent Conway, Jr., Judge
Charles E. Haden for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Antonious Lamont Clark was convicted of possession of
cocaine, possession of marijuana, and possession of a firearm
while in possession of a controlled substance. He contends the
trial court erred in not suppressing evidence seized during
execution of a search warrant at his residence. He argues (1)
the warrant was not supported by probable cause, (2) the facts
used to support the probable cause finding were stale, and (3)
the good faith exception to the exclusionary rule does not
apply. We conclude the search warrant was properly issued and
affirm the convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Detective Wayne A. Sorrell submitted a five-page, typed
affidavit detailing information provided by a citizen-informant
and further developed through his investigation of those
reports. The magistrate found probable cause and issued a
search warrant for the defendant's person and his apartment.
On October 5, 1998, a citizen contacted the Newport News
Police Department and reported that the defendant possessed
cocaine within the past 48 hours. The citizen advised that the
defendant possessed a handgun and had sold drugs at two
specified locations within the city. Acting on the information,
Sorrell two days later sent a reliable informant to the
defendant's address. The informant could not purchase drugs but
reported that a man in the apartment fit the defendant's
description. The man had a violent or threatening manner and
implied he was armed.
On October 9, 1998, the detective again spoke with the
citizen-informant. The citizen had seen the defendant in his
apartment processing cocaine into crack within the last
seventy-two hours. The citizen advised that the defendant
smoked marijuana and had been selling cocaine from his residence
since June 1998. The citizen described the drug activity in the
defendant's neighborhood, named individuals who traded drugs
there, and demonstrated detailed knowledge of drug processing
techniques. Sorrell felt the citizen had extensive knowledge
about the distribution of cocaine. The detective's experience
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with the drug traffic in that neighborhood conformed with the
citizen's report.
The citizen revealed specific details about the defendant
including his date of birth, length of residence at the
apartment, and the make, model, and year of the car used to
transport drugs. He described exterior damage to the car, named
the owners of the car, and gave their address. The citizen knew
that the defendant's driver's license was suspended and that he
had recently been to court for driving on a suspended license.
Sorrell verified that information through the Division of Motor
Vehicles. He also determined that the defendant's criminal
record, which included drug and firearm offenses and acts of
violence, corresponded with the information provided by the
citizen.
The citizen provided Sorrell with the plan of the
defendant's apartment. It had two floors and a shed. He
advised that the defendant stored drugs in both places and kept
a black 9-millimeter handgun in a black case. The gun was
either beside the defendant's bed, on a dresser in his bedroom,
or on his person. On October 10, 1998, the citizen told Sorrell
that the defendant continued to sell cocaine but was otherwise
unemployed.
The citizen-informant met with the detective and provided
his name, his length of residence in the area, his employment,
and lack of criminal history. Sorrell verified the
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identification through criminal history and motor vehicle
records. He found no discrepancies.
The information in the affidavit came from a
citizen-informant. While the citizen wished to remain
anonymous, he was anonymous only in not being named in the
affidavit. "Citizen-informants do not carry the same
presumption of reliability as police officers, but less evidence
is required to establish their veracity than that of criminal
informants." Corey v. Commonwealth, 8 Va. App. 281, 287, 381
S.E.2d 19, 22 (1989) (citations omitted). "[W]e will not apply
to citizen informers the same standard of reliability as is
applicable when police act on tips from professional informers
or those who seek immunity for themselves, whether such citizens
are named, . . . or, as here, unnamed." Guzewicz v.
Commonwealth, 212 Va. 730, 735-36, 187 S.E.2d 144, 148 (1972)
(citations omitted).
The detective investigated the defendant's personal data
provided by the citizen and verified specific details. "A
citizen-informant's veracity may be established by . . .
independent police corroboration of the details [they] provided
. . . ." Corey, 8 Va. App. at 287, 381 S.E.2d at 22 (citation
omitted). "[C]orroboration of apparently innocent details of an
informant's report tends to indicate that other aspects of the
report are also correct." United States v. Lalor, 996 F.2d
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1578, 1581 (4th Cir.), cert. denied, 510 U.S. 983 (1993)
(citations omitted).
Much of the information the citizen provided was detail not
easily observed or readily available to the public. It revealed
personal knowledge of, and familiarity with, the defendant and
his activities in his apartment. An assertion of personal
observation is more persuasive than other types of information.
Boyd v. Commonwealth, 12 Va. App. 179, 191, 402 S.E.2d 914, 922
(1991). "[E]ven if we entertain some doubt as to the
informant's motives, his explicit and detailed description of
alleged wrongdoing, along with a statement that the event was
observed first-hand, entitles his tip to greater weight than
might otherwise be the case." Illinois v. Gates, 462 U.S. 213,
234 (1983).
The citizen reported that the defendant was unemployed and
earned his living by selling drugs. On October 9, the citizen
told Sorrell that within the past 72 hours he had personally
observed the defendant processing cocaine into crack. On
October 10, the citizen advised Sorrell the defendant continued
to sell cocaine. The magistrate issued the warrant on October
12, 1998.
"[W]hether probable cause continues to exist at the time
the warrant is executed depends on the length of delay and the
nature of the observed criminal activity, that is, whether the
activity is an ongoing enterprise or an isolated incident."
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Turner v. Commonwealth, 14 Va. App. 737, 745, 420 S.E.2d 235,
239 (1992) (eleven-day delay in executing warrant for contraband
in residence permissible). In Commonwealth v. Moss, 14 Va. App.
750, 752, 420 S.E.2d 242, 243 (1992), we held that a five-day
delay in executing a search warrant was permissible. Where the
evidence reveals ongoing drug activity, there is "no basis for
deeming that the circumstances providing probable cause for the
search had grown stale by the time the warrant was executed."
Id. at 753, 420 S.E.2d at 243.
Based on the facts in the affidavit, "we find that the
information was not rendered stale by the time frame presented
and, as such, that a substantial basis existed for the
magistrate's determination of probable cause." Tart v.
Commonwealth, 17 Va. App. 384, 389, 437 S.E.2d 219, 222 (1993).
We conclude the magistrate issued the search warrant upon
probable cause and the trial court properly denied the motion to
suppress the evidence seized during its execution.
Affirmed.
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