GARY v. COMMONWEALTH




NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.


GARY

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Clements and Felton

Argued at Chesapeake, Virginia

Record No. 0432-03-1

GENEARL MELVIN GARY

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]BY
JUDGE LARRY G. ELDER

DECEMBER 2, 2003

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Thomas S. Shadrick, Judge

Melinda R. Glaubke (Slipow, Robusto & Kellam, P.C., on
brief), for

appellant.

Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore,

Attorney General; Josephine F. Whalen, Assistant Attorney
General,

on brief), for appellee.

Genearl Melvin Gary (appellant) appeals from his bench trial
convictions for armed

statutory burglary, wearing a mask in public, two counts of
robbery, two counts of abduction

with intent to gain pecuniary benefit, and four counts of use of
a firearm in the commission of

the abductions and robberies. On appeal, he contends his arrest
was not supported by probable

cause and, thus, that the trial court erroneously denied his
motion to suppress statements he made

to police following that arrest. He also contests the
sufficiency of the evidence to prove

abduction for pecuniary benefit. Finally, he contends that using
a firearm in the commission of

abduction for pecuniary benefit is not an offense proscribed by
Code ? 18.2-53.1 and that his

convictions for two such offenses must be reversed.

We hold that appellant’s arrest was not supported by probable
cause. Thus, we reverse

the trial court’s denial of appellant’s motion to suppress
his statements. Without reaching

appellant’s other assignments of error, we remand for further
proceedings consistent with this

opinion if the Commonwealth be so advised.

At a hearing on a defendant’s motion to suppress, the
Commonwealth has the burden of

proving the challenged action did not violate the defendant’s
constitutional rights. Simmons v.

Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989).
"[T]he test of constitutional

validity [of a warrantless arrest] is whether at the moment of
arrest the arresting officer had

knowledge of sufficient facts and circumstances to warrant a
reasonable man in believing that an

offense has been committed." Bryson v. Commonwealth, 211
Va. 85, 86-87, 175 S.E.2d 248,

250 (1970). 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).

On appeal, we view the evidence in the light most favorable to
the prevailing party, here

the Commonwealth, 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, 116

S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996)). However, we review
de novo the trial court’s

application of defined legal standards such as probable cause to
the particular facts of the case.[2]

Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.

When the factual basis for probable cause is provided by an
informer, the informer’s (1)

veracity, (2) reliability, and (3) basis of knowledge are
"highly relevant" factors in the overall

totality-of-the-circumstances probable cause analysis. Illinois
v. Gates, 462 U.S. 213, 230, 233,

103 S. Ct. 2317, 2328, 2329, 76 L. Ed. 2d 527 (1983).

[A] deficiency in [either veracity or basis of knowledge] may be

compensated for, in determining the overall reliability of a
tip, by a

strong showing as to the other, or by some other indicia of

reliability. If, for example, a particular informant is known
for the

unusual reliability of his predictions of certain types of
criminal

activities in a locality, his failure, in a particular case, to

thoroughly set forth the basis of his knowledge surely should
not

serve as an absolute bar to a finding of probable cause based on
his

tip. Likewise, if an unquestionably honest citizen comes forward

with a report of criminal activity–which if fabricated would

subject him to criminal liability–we have found rigorous
scrutiny

of the basis of his knowledge unnecessary. Conversely, even 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.

Id. at 233-34, 103 S. Ct. at 2329-30 (citations and footnote
omitted).

"Unlike a tip from a known informant whose reputation can
be assessed and who can be

held responsible if her allegations turn out to be fabricated,
‘an anonymous tip alone seldom

demonstrates the informant’s basis of knowledge or veracity.’"
Florida v. J.L., 529 U.S. 266,

270, 120 S. Ct. 1375, 1378, 146 L. Ed. 2d 254 (2000) (quoting
Alabama v. White, 496 U.S. 325,

329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301 (1990)) (citation
omitted). Nevertheless,

situations exist "in which an anonymous tip, suitably
corroborated, exhibits ‘sufficient indicia of

reliability to provide [(1)] reasonable suspicion to make an
investigatory stop,’ [White,] 496 U.S.

at 327[, 110 S. Ct. at 2414]," id., or (2) probable cause
for an arrest or search, Gates, 462 U.S. at

242-46, 103 S. Ct. at 2334-36. The corroboration may be of
innocent behavior or details, id. at

243 n.13, 103 S. Ct. at 2335 n.13, but innocent information must
be sufficiently predictive so as

to establish "the informer’s knowledge or
credibility," J.L., 529 U.S. at 271, 120 S. Ct. at 1379.

Compare Gates, 462 U.S. at 242-46, 103 S. Ct. at 2334-36
(holding that predictive nature of

detailed tip regarding defendants’ travel plans, coupled with
extensive police corroboration of

suspicious circumstances "ordinarily not easily
predicted," provided probable cause for search

warrant for car, despite anonymity of tipster), with White, 496
U.S. at 330-32, 110 S. Ct. at

2416-17 (where anonymous tip predicted that defendant would
leave apartment in described car

at specific time and drive with brown attach? case containing
cocaine to nearby motel and police

confirmed activities except for defendant’s name and
possession of attach? case and cocaine and

stopped defendant "just short of [the specified] [m]otel," case was "close" but provided

reasonable suspicion for a Terry stop); United States v.
Campbell, 920 F.2d 793, 794-97 (11th

Cir. 1991) (holding, under Gates, where reliability of
confidential informant not established

independently, that mere confirmation of tip that woman with
whom informant allegedly had

been working would arrive in Montgomery with three Mexican males
via specified highway in

green-and-white Chevrolet pickup truck with Texas license plates
and stop at specified truck stop

between 11:30 p.m. and 1:00 a.m. may have provided reasonable
suspicion for investigatory stop

but did not provide probable cause for arrest or search).

Here, the anonymous tipster’s basis of knowledge was clear
from the tip. He or she

reported having been present when appellant, Travis Saunders,
and two other men named Jameel

and Danton viewed a news report regarding the crimes and
admitted their involvement. See,

e.g., State v. Smith, 777 A.2d 182, 188 (Conn. 2001) (noting
that "informant’s overhearing of the

defendant planning or admitting criminal activity constitute[s] a type of firsthand knowledge . . .

‘highly relevant’ under Gates"). However, this
information, standing alone, was insufficient to

provide probable cause for arrest. "The mere fact that a
tip, if true, would describe illegal

activity does not mean that the police may make a Terry stop [or
an arrest] without meeting the

reliability requirement . . . ." J.L., 529 U.S. at 273 n.*,
120 S. Ct. at 1380 n.*.

Here, the anonymous informant’s tip was not predictive, and to
the extent the record

established partial corroboration of the tip, we hold this
corroboration was insufficient to provide

probable cause for appellant’s warrantless arrest. The
informer accurately described appellant.

He also accurately indicated appellant lived on Bridle Creek
Boulevard, a fact corroborated by

the police information system, Pistol, and brief surveillance of
appellant. Finally, he reported

appellant had been present at a particular address on Halter
Drive and claimed that, on that

occasion, appellant and several others–including Travis
Saunders and two men with the first

names Jameel and Danton–admitted their involvement in the
robbery at issue.

Police surveilled the Halter Road address and confirmed
appellant’s presence there on a

subsequent occasion. Police learned that Tiffany Saunders, aunt
of Travis Saunders and

appellant, resided at that address.[3]Police
also obtained partial corroboration from Steven Rivera,

who was under arrest for driving one of the "get-away"
cars at the time the tip was received.[4]

Rivera said that Travis Saunders, Jameel Cross and three of
their associates had committed the

robbery. The victims also reported the perpetrators were five
masked men of a specified race,

one of whom carried a small silver .32 caliber handgun, a shell
from which was found at the

scene, and a gun matching that description was found in Rivera’s
truck when he was arrested.

Thus, Rivera’s statement and the anonymous tip corroborated
each other with respect to the

involvement of Travis Saunders and Jameel Cross in the robbery.

However, only the anonymous tipster named appellant as a
participant in the crimes, and

no other evidence sufficiently linked appellant to the events at
issue. At least one of the victims

testified she could identify the masked men by their hairstyles
and skin color, but the record

contains no indication that she described their hairstyles to
Detective Primeaux or that Primeaux

confirmed appellant’s hairstyle matched that of one of the
perpetrators before Primeaux arrested

appellant. Further, although two cars were seen leaving the
scene of the robbery, no evidence in

the record indicates their make, model or color.[5]
Thus, no evidence in the record links the green

Mitsubishi Mirage or black Honda Accord that appellant drove
with some regularity to either of

the cars associated with the robbery.

In the absence of such evidence, the minimal corroboration for
the anonymous tip that

appellant admitted participating in the robbery was insufficient
to provide probable cause for

appellant’s warrantless arrest and provided, at most,
reasonable suspicion to detain him for

questioning. Compare United States v. Procopio, 88 F.3d 21,
25-26 (1st Cir. 1996) (finding

probable cause supporting issuance of warrant where one
informant of unknown veracity said

defendants had committed certain robbery of armored truck, but
"information from three other

informants . . . tend[ed] to corroborate" first informant’s
story and defendants were known to

have "beg[u]n spending large sums of cash" in months
following robbery), with State v. Walker,

584 N.W.2d 763, 768-69 (Minn. 1998) (holding detailed account in
anonymous letter of named

persons’ involvement in murder–corroborated only by police
investigation showing these were

"actual persons" and that address given for one of
them, an "easily ascertainable fact," was

correct–was insufficient to provide probable cause).

For these reasons, we hold appellant’s arrest was not
supported by probable cause. Thus,

we reverse the trial court’s denial of appellant’s motion to
suppress his statements. Without

reaching appellant’s other assignments of error, we remand for
further proceedings consistent

with this opinion if the Commonwealth be so advised.

Reversed and remanded.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]As we have
noted previously:

This is higher than the standard we apply in reviewing the

existence of probable cause to support the issuance of a
warrant.

Appellate review of a magistrate’s probable cause
determination is

deferential in nature, and the reviewing court determines
whether

the evidence, viewed as a whole, provided the magistrate with a

substantial basis for concluding that probable cause existed to
issue

the warrant. See Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.
Ct.

2317, 2332, 76 L. Ed. 2d 527 (1983).

Russell v. Commonwealth, 33 Va. App. 604, 610 n.2, 535 S.E.2d
699, 702 n.2 (2000).

 

[3]Detective
Primeaux also learned that Michael Cuffee was a participant in the robbery

and that Cuffee was the father of Tiffany Saunders’ baby.
However, no evidence established

whether Primeaux learned these things before or after he
arrested appellant.

 

[4]We assume
without deciding that Rivera’s information naming Travis Saunders and

Jameel Cross was credible. We note, however, that Rivera had
already been arrested for his

participation in the offenses when he named Saunders and Cross
as participants. The reliability

afforded statements against penal interest may be diminished
when such statements are made

after one has been "‘apprehended by the police’"
and "‘it has become apparent to them that the

police already know of their own involvement in the serious
offense.’" Russell, 33 Va. App. at

615-16, 535 S.E.2d at 704-05 (quoting 2 Wayne R. LaFave, Search
and Seizure ? 3.3(c), at

124-25, 128 (3d ed. 1996)).

 

[5]At the
suppression hearing, Detective Primeaux testified merely that his investigation

revealed "two vehicles [were] involved." No evidence
at the suppression hearing established the

color of those two vehicles or any other vehicles seen at or
near the scene. Thus, in ruling on the

suppression motion, the trial court mistakenly concluded that,
when "[t]he robbery occurred[,]

there were two cars, one of [which] was green."

At trial, when Detective Primeaux recounted the details of his
interrogation of appellant,

he testified merely that he told appellant a
"green-and-black, four-door car" and a black car were

spotted at or near the scene of the robbery. Detective Primeaux
never testified and no

substantive evidence in the record indicated that witnesses saw
cars matching these descriptions

at the scene.


Scroll To Top