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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Felton
Argued at Chesapeake, Virginia
Record No. 0432-03-1
GENEARL MELVIN GARY
COMMONWEALTH OF VIRGINIA
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
Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore,
Attorney General; Josephine F. Whalen, Assistant Attorney
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.
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
unusual reliability of his predictions of certain types of
activities in a locality, his failure, in a particular case, to
thoroughly set forth the basis of his knowledge surely should
serve as an absolute bar to a finding of probable cause based on
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
of the basis of his knowledge unnecessary. Conversely, even if
entertain some doubt as to the informant’s motives, his
detailed description of alleged wrongdoing, along with a
that the event was observed first-hand, entitles his tip to
weight than might otherwise be the case.
Id. at 233-34, 103 S. Ct. at 2329-30 (citations and footnote
"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
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.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.
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.
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.
Code ? 17.1-413, this opinion is not designated for publication.
As we have
This is higher than the standard we apply in reviewing the
existence of probable cause to support the issuance of a
Appellate review of a magistrate’s probable cause
deferential in nature, and the reviewing court determines
the evidence, viewed as a whole, provided the magistrate with a
substantial basis for concluding that probable cause existed to
the warrant. See Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.
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).
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
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)).
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.