Pharondus Molix Clemon v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia
PHARONDUS MOLIX CLEMON
v. Record No. 0035-94-2 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA MAY 2, 1995
FROM THE CIRCUIT COURT OF LANCASTER COUNTY
Joseph E. Spruill, Jr., Judge
Francis A. Burke (Burke & Kilduff, on brief),
for appellant.
Robert B. Beasley, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Pharondus Molix Clemon was convicted in a bench trial of
possessing cocaine with the intent to distribute. Clemon
contends that the trial court erred by denying his motion to
suppress the seized cocaine because the police officers did not
have the requisite suspicion to stop and frisk him. For the
following reasons, we affirm the trial court's decision.
Officer Martin Shirilla, a dispatcher with the Lancaster
County Sheriff's Office, received a telephone call around noon on
the crime stoppers' hotline. The caller stated that he
personally knew that five black males in a small red car, bearing
Virginia license plate OIG-163, were in the Weems area and were
in possession of cocaine. The caller explained that he was
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
familiar with cocaine, he described the amount of cocaine the
individuals possessed, and he reported that the cocaine was
located inside the suspects' pants. He also told the dispatcher
that the car in which the suspects were riding was registered to
a person in West Point and that the suspects would be returning
to West Point by 3:30 that afternoon. Lastly, the caller
reported that he had previously worked with an Investigator
Allen, to whom he had provided information that had resulted in
several drug convictions.
Officer Shirilla dispatched the information to Officer Joan
Webb. Shirilla told Webb that he thought he had recognized the
caller's voice and he identified to Webb whom he thought the
caller to have been. Officer Webb responded that she knew that
person to be a reliable informant.
Officer Webb contacted two additional officers who were
members of a drug interdiction task force. At 2:01 p.m., the
three officers observed a small red car, occupied by five black
males, bearing Virginia license plate DIJ-163. The officers
followed the car. It travelled at a slow rate of speed, the
occupants appeared "nervous," and they continually turned around
and watched the police officers who were following them. Officer
Webb recognized one of the passengers to be Wilbert Corsey, a
person whom she knew to have been involved in drug activities.
Based upon the caller's tip and after observing the
foregoing events, the officers stopped the vehicle. Officer Webb
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frisked the occupants for weapons as they exited the vehicle.
Because Officer Webb is a female, she did not, however,
thoroughly pat down the male suspects. Upon exiting the vehicle,
some of the suspects asked to use the bathroom. Deputy Carmel, a
male, escorted the suspects to the nearby woods for that purpose.
Deputy Carmel testified that because of his concern for his own
safety and because Officer Webb told him that she only cursorily
frisked the appellant for weapons, he decided to frisk the
appellant a second time. When the appellant raised his arms,
Officer Carmel observed a plastic "baggie" protruding from the
appellant's waistband. Deputy Carmel removed the "baggie," which
contained thirty-three packets of cocaine rocks. The trial court
overruled the appellant's motion to suppress the cocaine as
having been illegally seized.
When reviewing the denial of a motion to suppress evidence,
we view the evidence in the light most favorable to the
Commonwealth, and the appellant has the burden of showing that
the judge's ruling is plainly wrong or without evidence to
support it. Lee v. Commonwealth, 18 Va. App. 235, 238, 443
S.E.2d 180, 181 (1994).
In order for a police officer to lawfully stop the occupants
of an automobile, the officer must have a reasonable articulable
suspicion that a crime has been or is about to be committed.
Quigley v. Commonwealth, 14 Va. App. 28, 32, 414 S.E.2d 851,
853-54 (1992). The level of suspicion required to make an
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investigatory stop is less demanding than is required to search
or to arrest a person. Bulatko v. Commonwealth, 16 Va. App. 135,
136-37, 428 S.E.2d 306, 307 (1993). However, in order to make an
investigatory stop, a police officer must point to specific
objective facts that reasonably support a suspicion that criminal
activity may be afoot. Delaware v. Prouse, 440 U.S. 648, 663
(1975).
While an anonymous telephone tip may be insufficient to
justify an investigatory stop, see Beckner v. Commonwealth, 15
Va. App. 533, 425 S.E.530 (1993), anonymous information that has
been sufficiently corroborated may provide the reasonable
suspicion necessary to stop persons and inquire whether a crime
may be in progress. See Bulatko, 16 Va. App. at 137, 428 S.E.2d
at 307; see also Boyd v. Commonwealth, 12 Va. App. 179, 189-90,
402 S.E.2d 914, 921 (1991). The rationale for demanding
corroboration of information provided from an anonymous informant
is the need to have an objective basis for assessing the
reliability of the information. See Beckner, 15 Va. App. at
535-36, 425 S.E.2d at 532; and Bulatko, 16 Va. App. at 137, 428
S.E.2d at 307; see also Alabama v. White, 496 U.S. 325 (1990).
Every detail provided by an anonymous informant may not have to
be corroborated, provided significant aspects of the information
are independently corroborated. Bulatko, 16 Va. App. at 137, 428
S.E.2d at 307.
Officer Webb corroborated several significant aspects of the
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informant's call. The officers observed a small red car occupied
by five black males, which corresponded to the informant's
description of the vehicle and its occupants. The car had
Virginia license plate DIJ-163. Although the number did not
correspond to the number "OIG-163" provided by the dispatcher,
the identity of the last three digits, and the similarity in the
letters, when considered with the identity of the description of
the car and its occupants, was sufficient to give the officers
reasonable assurance that there had been a miscommunication in
the license number and that the vehicle and its occupants were
the same that the informant reported as possessing cocaine. The
car was in Weems, in close proximity to where the informant
reported its location. Although the car was not travelling in
the direction of West Point, which was its reported destination,
it was at a location that would have enabled it to return to West
Point by 3:30 p.m. The passengers kept looking at and watching
the officers following the car. The car travelled at a slow rate
of speed. Officer Webb recognized one of the occupants as being
a person she knew to have been previously involved in drug
activity.
The situation in the present case differs somewhat from the
situation in Bulatko which involved an anonymous informant.
Here, Officer Shirilla testified that he thought he recognized
the informant by his voice on the telephone. The person whom he
thought to be the informant had provided details of past drug
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transactions that had assisted the police. Officer Webb knew the
person whom Officer Shirilla thought to be the informant as a
person who had provided reliable information. Because the
investigating officer had information that persons in a
particular vehicle were in possession of cocaine, and because the
information was thought to have been from a person known to have
previously provided reliable information about drug transactions,
the officers had a reasonable suspicion that the occupants of the
car possessed cocaine. Moreover, the officers corroborated
significant aspects of the informant's tip, they observed furtive
conduct by the suspects, and one officer knew of one occupant's
prior involvement in drug activity. On these facts, the trial
judge did not err in finding that the officers had articulated
substantial valid reasons to suspect that the occupants of the
red car possessed cocaine, thereby justifying the officers in
making an investigatory stop of the vehicle and questioning of
its occupants. Accordingly, we affirm the trial court's ruling
denying the appellant's motion to suppress the seized cocaine
based on an unlawful stop.
The appellant next contends that a second weapons frisk by
Deputy Carmel, which disclosed the cocaine, exceeded the scope of
a constitutional stop and frisk.
The Fourth Amendment prohibits unreasonable searches and
seizures. Terry v. Ohio, 392 U.S. 1, 9 (1968). Two types of
seizures trigger Fourth Amendment protections—investigatory stops
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and arrests. Baldwin v. Commonwealth, 243 Va. 191, 195, 413
S.E.2d 645, 647 (1992). When conducting an investigatory stop,
an officer may take steps that are reasonably necessary to
protect his or her safety. See U.S. v. Hensley, 469 U.S. 221,
235 (1985).
When the suspects exited the vehicle, Officer Webb conducted
a cursory pat-down search of the suspects for weapons. She found
none. Some of the suspects then asked to use the restroom.
Because Officer Webb was female and the suspects were male, the
request required the officers to separate. The risk of harm to
each officer increased when they separated. Deputy Carmel
testified that the purpose of his frisking the suspects a second
time was to protect his safety while he was escorting the
suspects into the woods. Deputy Carmel was reasonably justified
in making a second and more thorough pat down of the appellant
for weapons in order to assure and to protect the officer's
safety. We, therefore, affirm the decisions of the trial court.
Affirmed.
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