Commonwealth of Virginia v. Edward Lee Douglas, Jr.

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bray
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0178-98-2 JUDGE LARRY G. ELDER
AUGUST 4, 1998
EDWARD LEE DOUGLAS, JR.
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
Christopher C. Booberg (Michael Morchower;
Morchower, Luxton and Whaley, on brief), for
appellee.
The Commonwealth appeals a pretrial order of the trial court
suppressing evidence obtained during a stop of a car driven by
Edward Lee Douglas, Jr. (defendant). It contends the trial court
erred when it concluded there were no exigent circumstances
justifying the stop and search of defendant's car without a
warrant. For the reasons that follow, we reverse and remand.
Defendant was indicted for possessing cocaine with intent to
distribute in violation of Code § 18.2-248. Prior to his
scheduled trial, he moved to suppress all of the evidence
obtained during a search of his car that occurred on April 4,
1997. Defendant argued that both the initial stop and subsequent
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
search of his car were conducted without probable cause.
Following a hearing, the trial court granted defendant's motion
to suppress, reasoning that "there are no exigent circumstances
in this case which brings into play any of the parameters of the
automobile stop cases . . . ."
Although the Fourth Amendment generally requires that
"searches be conducted pursuant to a warrant issued by an
independent judicial officer," one of the specifically
established and well-delineated exceptions to this requirement is
the so-called "automobile exception." California v. Carney, 471
U.S. 386, 390, 105 S. Ct. 2066, 2068, 85 L. Ed. 2d 406 (1985); see
also California v. Acevedo, 500 U.S. 565, 580, 111 S. Ct. 1982,
1991, 114 L. Ed. 2d 619 (1991). Under this exception, "a
warrantless search of an automobile, based upon probable cause to
believe that the vehicle contained evidence of crime in the light
of an exigency arising out of the likely disappearance of the
vehicle, [does] not contravene the Warrant Clause of the Fourth
Amendment." Acevedo, 500 U.S. at 569, 111 S. Ct. at 1986 (citing
Carroll v. United States, 267 U.S. 132, 158-59, 45 S. Ct. 280,
287, 69 L. Ed. 543 (1925)). The "ready mobility" of an automobile
provides all the exigent circumstances necessary to justify a
warrantless search of its interior, as long as there is probable
cause to search. The capacity of an automobile to be quickly
moved "'creates circumstances of such exigency that, as a
practical necessity, rigorous enforcement of the warrant
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requirement is impossible.'" Carney, 471 U.S. at 391, 105 S. Ct.
at 2069 (citation omitted). Thus, as the Supreme Court recently
emphasized, "[i]f a car is readily mobile and probable cause
exists to believe it contains contraband, the Fourth Amendment
thus permits police to search the vehicle without more."
Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487,
135 L. Ed. 2d 1031 (1996).
We hold that the trial court erred when it concluded there
were insufficient exigent circumstances to justify the search of
defendant's car under the automobile exception. The record
clearly indicates that defendant's brown Honda Accord was
operational at the time of the stop. See Acevedo, 500 U.S. at
569-70, 111 S. Ct. at 1986 (stating that "the existence of
exigent circumstances was to be determined at the time the
automobile is seized"). Because defendant's car was readily
mobile, the "exigent circumstances" prong of the automobile
exception was satisfied, regardless of whether the police had
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ample time to obtain a search warrant beforehand.
We next consider the legality of the stop of defendant and
the search of his car. Upon appeal from an order granting a
defendant's motion to suppress, the Commonwealth has the burden
1
Defendant does not argue that the officers in this case
were not faced with an exigency sufficient to trigger the
application of the automobile exception. Instead, he contends
only that the informant's tip was not sufficiently reliable to
provide the officers with probable cause to stop and search his
vehicle.
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to show that the trial court's decision was erroneous. See
Stanley v. Commonwealth, 16 Va. App. 873, 874, 433 S.E.2d 512,
513 (1993). We review the trial court's findings of historical
fact only for "clear error" and "give due weight to inferences
drawn from those facts by resident judges and local law
enforcement officers." Ornelas v. United States, 517 U.S. 690,
699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996). "[W]e review
de novo the trial court's application of defined legal standards
to the particular facts of a case," including determinations of
reasonable suspicion and probable cause. Jefferson v.
Commonwealth, 27 Va. App. 1, 11, 497 S.E.2d 474, 479 (1998)
(citing Ornelas, 517 U.S. at 699, 697-98, 116 S. Ct. at 1663,
1662). Because the record indicates the evidence regarding the
stop and search in this case was fully developed at the hearing
on defendant's motion and is essentially unconflicted 2 and that
the dispositive issues are purely legal ones that we ordinarily
review de novo, we may rule on defendant's motion to suppress
without remanding this case for further consideration by the
trial court.
"A police officer may stop the driver or occupants of an
automobile for investigatory purposes if the officer has 'a
reasonable articulable suspicion, based upon objective facts,
that the individual is involved in criminal activity.'" Freeman
2
The transcript of the trial court's ruling from the bench
indicates the court deemed credible the testimony of Detective
Orgon and Sergeant Herring.
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v. Commonwealth, 20 Va. App. 658, 660-61, 460 S.E.2d 261, 262
(1995) (citation omitted). To determine whether there was a
reasonable suspicion justifying an investigatory stop, we must
examine the totality of the circumstances from the perspective of
a "reasonable police officer with the knowledge, training, and
experience of the investigating officer." Murphy v.
Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128 (1989).
Information provided by an anonymous or known informant may
establish an articulable, reasonable suspicion for a police
officer to execute a Terry stop if the information possesses
"sufficient 'indicia of reliability.'" See Alabama v. White, 496
U.S. 325, 328-31, 110 S. Ct. 2412, 2415-16, 110 L. Ed. 2d 301(1990); Adams v. Williams, 407 U.S. 143, 146-47, 92 S. Ct. 1921,
1923-24, 32 L. Ed. 2d 612 (1972); Bulatko v. Commonwealth, 16 Va.
App. 135, 137, 428 S.E.2d 306, 307 (1993); Beckner v.
Commonwealth, 15 Va. App. 533, 535, 425 S.E.2d 530, 531 (1993).
Specifically, the officer must have some objective basis for
assessing both the informant's personal reliability and "the
reliability of the informant's knowledge of the information
contained in the report." Beckner, 15 Va. App. at 535-36, 425
S.E.2d at 532. The indicia of reliability required for an
informant's tip to provide reasonable suspicion to stop a suspect
is less than is required for such a tip to establish probable
cause to search or arrest. See White, 496 U.S. at 330, 110
S. Ct. at 2416. When determining whether an informant's tip
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possessed sufficient indicia of reliability to establish
articulable reasonable suspicion, a court must consider the
totality of the circumstances "taking into account the facts
known to the officers from personal observation, and giving
the . . . tip the weight it deserved in light of its indicia of
reliability . . . ." Id. at 330-31, 110 S. Ct. at 2416.
We hold that the stop of defendant in his car did not
violate the Fourth Amendment because the officers involved had a
reasonable articulable suspicion that defendant was in possession
of illegal drugs. In light of the informant's prior history of
providing reliable information to the police, her purchase of
cocaine from defendant on April 2, and the corroboration by the
police of portions of her tip prior to stopping defendant, we
conclude that the informant's tip contained sufficient indicia of
reliability to justify the officers' reasonable, articulable
suspicion that defendant was in possession of illegal drugs as he
drove into Chesterfield County. Also, based on the circumstances
regarding the informant's past reliability, defendant's pattern
of arriving at a designated location fifteen-to-twenty minutes
after being contacted, and the fact that defendant was seen
driving into Chesterfield County about fifteen minutes after
Detective Orgon last spoke with the informant, the officers'
conclusion that the informant did, in fact, contact defendant
about purchasing cocaine after Detective Orgon left her presence
was reasonable.
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We also hold that, at the scene of the stop, the officers
had probable cause to search defendant's car and were not
required to obtain a warrant before doing so. The record
established that, following the stop, defendant was removed from
his car and detained next to it. In "plain view" on the front
passenger seat or console was a small plastic "ziplock" bag that
appeared to contain cocaine. The observation of this item
provided the officers with probable cause to believe that illegal
drugs would be found inside defendant's vehicle. Because
defendant's car was readily mobile, the police were justified in
searching the car's interior without obtaining a search warrant.
For the foregoing reasons, we reverse the trial court's
order suppressing the evidence seized from defendant's car on
April 4, 1997 and remand for further proceedings consistent with
this opinion.
Reversed and remanded.
7
Benton, J., dissenting.
Counsel for Edward Lee Douglas, Jr. filed a motion to
suppress the evidence gained from a warrantless search of his
automobile. The motion alleged that "[t]he initial stop of the
motor vehicle was done without probable cause in violation of
Douglas' rights as guaranteed by the Constitutions of the United
States of America and the Commonwealth of Virginia." Following
the evidentiary hearing, the trial judge granted the motion to
suppress. On this appeal, the Commonwealth presents the issue
whether "[t]he trial court erred when it ruled that the officers
were required to have a warrant in order to stop and search the
defendant's vehicle."
"'Ultimate questions of . . . probable cause to make a
warrantless search' involve questions of both law and fact and
are reviewed de novo on appeal." McGee v. Commonwealth, 25 Va.
App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citation
omitted). However, in our review, "we are bound by the trial
[judge'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." Id. at
198, 487 S.E.2d at 261.
The evidence proved that when the police stopped the vehicle
they had no information that the informant had contacted Douglas
and arranged for a delivery of cocaine. Absent that information,
the police had no basis to believe that Douglas had cocaine in
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his vehicle. The trial judge ruled as follows:
THE COURT: Well, I'm finding as a matter of
law there was no exigent circumstances in
this case, nada, zip. This was not the
classic case. Telephone call comes in. CFI
or confidential informant says look, subject
is moving. He's got ten pounds of dope in
the trunk of his car. He is going to be
coming across the Martin Luther King Bridge
from Petersburg into Colonial Heights. The
vehicle will be coming in the next ten
minutes.
The police go into a flurry of activity.
Lo and behold, defendant's vehicle is seen as
described coming into the city and the stop
is met. Now, those are exigent
circumstances. You don't have that in this
case.
Although I believe the trial judge misspoke when he referred
to the lack of "exigent circumstances," the reasonable inference
to be drawn from his finding is that the police lacked knowledge
that the informant had made the telephone call to Douglas and,
thus, could not have entertained even a reasonable belief that
cocaine was in the vehicle. The evidence proved that the police
did not know whether the informant had contacted Douglas.
Therefore, the police could not have had a reasonable belief that
Douglas was responding to deliver cocaine. The police merely
acted upon a hunch. That hunch did not rise to the level of
reasonable suspicion that a violation of law was occurring. See
Zimmerman v. Commonwealth, 234 Va. 609, 612, 363 S.E.2d 708, 710
(1988).
For these reasons, I would affirm the order suppressing the
evidence.
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