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RUSSELL v. COMMONWEALTH



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RUSSELL

v.

COMMONWEALTH


OCTOBER 24, 2000

Record No. 2530-99-3

Present: Judges Coleman, Willis and Elder

Argued at Salem, Virginia

DONALD LLOYD RUSSELL, JR.

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG

Mosby G. Perrow, III, Judge


OPINION BY JUDGE LARRY G. ELDER

Joseph A. Sanzone (Sanzone & Baker, P.C.,
on brief), for appellant.

Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

Donald Lloyd Russell, Jr., (appellant) appeals
from his bench trial conviction for possession of cocaine with
intent to distribute in violation of Code ? 18.2-248. On
appeal, he contends the trial court erroneously (1) denied his
motion to suppress and (2) found the evidence sufficient to prove
he constructively possessed the cocaine. We hold, under the
totality of the circumstances, that the police lacked probable
cause to arrest appellant or search his car and, therefore, that
the trial court erroneously denied appellant’s motion to suppress
the evidence seized from his person, car and residence.
Accordingly, we reverse appellant’s conviction and remand for
further proceedings if the Commonwealth be so advised.

I.

BACKGROUND[1]

At about 5:00 a.m. on February 3, 1999,
Lynchburg Narcotics Investigator Duff had a face-to-face meeting
with an informant with whom he had not previously met or had any
dealings. In the hope of gaining "[c]onsideration on an
outstanding charge," the nature of which does not appear in
the record, the informant advised Duff that an African-American
male named Troy, who was from New York City, would deliver a
large quantity of cocaine to a specified residence in the
Lynchburg College area at 7:30 a.m. that same morning. Duff
refused to testify to the actual address of the residence because
it was "extremely specific as to the identity of the
informant." The informant reported that Troy lived near
Burrus Lumber Company off Campbell Avenue and that he drove a
blue or green rented Ford Taurus. Although the informant did not
know Troy’s full name, he described two previous shooting
incidents in which Troy had been involved.

Because Duff had not previously worked with
this informant, he conducted "an in-depth interview with
[him] to establish credibility and reliability . . . as
to his knowledge of the drug trade." Duff reported his
personal belief that "one of the most important ingredients
in reliability is [the informant's] knowledge of the drug
trade," saying that he "value[d] that very
highly." The informant admitted he was "involve[d] in
the drug trade" as a seller and user of crack and powder
cocaine and accurately described to Duff the process of making
crack cocaine. He also gave Duff specific information about other
people involved in the drug trade in the area, which coincided
with information Duff had received from other informants Duff
knew to be reliable.

With the specific information the informant had
provided about "Troy," Duff was able to determine Troy
was the alias of Donald Russell. Russell resided directly across
the street from Burrus Lumber Company, and Duff observed a dark
blue Ford Taurus in the driveway of the residence. Duff showed
the informant a picture of Russell, and the informant confirmed
Russell and Troy were the same person. Duff admitted that most of
the verifiable information provided by the informant–appellant’s
name, city of origin, prior involvement in two specific
shootings, and current residence–was public knowledge.

Duff opted not to apply for a search warrant at
that time because he "wanted to verify more of this activity
that was going to occur." He admitted he could have applied
for an anticipatory search warrant conditioned upon appellant’s
arrival at the house specified by the informant.

At about 6:00 a.m., Duff began surveillance on
appellant’s residence. At about 7:10 a.m., appellant exited the
house and entered the Taurus. He stopped the car briefly to put
something in a mailbox and then drove to Route 29 North heading
away from the city. Duff opted not to continue surveillance at
that time and drove instead to the Lynchburg College area, where
the informant reported appellant would deliver cocaine at 7:30
a.m. Appellant was out of Duff’s view for about fifteen minutes.
At precisely 7:30 a.m., Duff observed appellant drive into the
Lynchburg College area. Appellant drove past the street on which
the informant said he would stop, and Duff radioed to other
officers, who stopped appellant’s vehicle within one or two
blocks of the residence specified for the drug transaction. Duff
admitted appellant’s vehicle was headed away from the specified
residence at the time the officers stopped him but said
"[t]here are different ways to get to that place" and
"[i]t’s not uncommon for somebody to circle an area before
they make a cocaine drop."

Appellant was arrested, and the vehicle and
appellant’s person were searched. Using the evidence seized in
that search, the police also obtained a warrant to search
appellant’s residence.

Appellant sought to suppress the fruits of
those searches. The trial court denied the motion, noting that,
"although we don’t know the basis of the informant’s
information," "under the totality of the circumstance
test I think there’s enough."

II.

ANALYSIS

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. See 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. See 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. See 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] See
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. See
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).

When the informer is a "criminal"
rather than a "disinterested citizen" victim or
eyewitness and the tip is conveyed in the form of a police
officer’s hearsay testimony, the reliability of the tip may be
established in many different ways, including by showing that:

(1) the informer has previously given reliable
information; (2) the informer previously has worked with the
police and has made controlled buys or worked in narcotic
surveillance or other law enforcement efforts; (3) the informer
provided detailed information that only a person who had actually
observed the criminal activity would know; or (4) the informer
has made a declaration against his penal interest.

Polston v. Commonwealth, 24 Va. App.
738, 745, 485 S.E.2d 632, 635 (1997), aff’d on other
grounds, 255 Va. 500, 498 S.E.2d 924 (1998); see also
Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996)
(noting that statement against penal interest, without more, will
not raise an informant’s tip to probable cause). Also, knowledge
of a particular area’s "drug culture" is an appropriate
factor for consideration in assessing an informant’s credibility.
See Polston, 24 Va. App. at 749, 485 S.E.2d at 637;
see also United States v. Wilhelm, 80 F.3d
116, 121 (4th Cir. 1996) (noting that this factor should be
considered carefully because "anyone who occasionally
watches the evening news can make generalizations about what
marijuana looks like and how it is packaged and sold").

We applied these principles to the issuance of
a search warrant in Boyd v. Commonwealth, 12 Va. App. 179,
402 S.E.2d 914 (1991). The informer indicated that he was
familiar with cocaine and its packaging through personal use and
that, within the previous seventy-two hours, he "had
personally observed cocaine packaged for distribution, and scales
used for such purpose, at [Boyd's] residence." Id. at
182-83, 402 S.E.2d at 916-17. He described Boyd, his house and
his car, recited his address, and gave the name of Boyd’s
girlfriend, whom he said resided at the same address. See id.
The investigating officer was able to confirm the wholly innocent
portions of the tip, and the magistrate issued a search warrant
for Boyd’s residence. See id. at 182-83, 402 S.E.2d
at 916-17.

On appeal of the denial of Boyd’s motion to
suppress, we noted that verification of innocent details,
although not dispositive, "establish[ed] that the informer
at least had a limited personal familiarity with the
suspect" and that verification was a circumstance to be
considered in determining the credibility and reliability of the
tip. Id. at 189, 402 S.E.2d at 920. We held,

[b]ased upon the personal data furnished about
the informer, the disclosure that the informer had provided the
officer sufficient personal information from which he could be
identified, the allegation that the informer had personally
observed the drugs and criminal activity, and the allegation that
the officers had verified the accuracy of the informer’s
information concerning the suspect’s activities and his living
arrangements, . . . that a substantial basis existed
for the magistrate to have found probable cause to issue the
[search] warrant.

Id. at 191, 402 S.E.2d at 922.

Appellant’s case is similar to Boyd but
differs in material respects. In both cases the informant’s
identity was known or reasonably ascertainable, the informant had
not previously provided information to the police, the informant
made a statement which was arguably against penal interest by
admitting he had used illegal drugs, and the police were able to
verify innocent information concerning the suspect’s identity,
automobile and place of residence.

However, Boyd involved a warrant whereas
appellant’s case did not. Therefore, in Boyd, we deferred
to the magistrate’s probable cause determination, holding
"that a substantial basis existed for the
magistrate['s]" issuance of the warrant. Id. In
appellant’s case, by contrast, the police opted not to obtain an
anticipatory warrant, and we review the issue of probable cause de
novo, giving no deference to the probable cause
determination made by the officer. See supra note 2
and accompanying text.

Second, evidence of the basis of the
informant’s knowledge was much stronger in Boyd than in
appellant’s case. In Boyd, the informant indicated he had
personally observed cocaine being packaged and distributed in
Boyd’s residence within the previous seventy-two hours. In
appellant’s case, by contrast, the informant provided significant
general information about the Lynchburg drug trade and its
participants other than appellant, information which Officer Duff
was able to confirm through other informants known to be
reliable; but no evidence indicated the basis for the informant’s
specific claim that appellant would be delivering cocaine to a
specific location at a specific time.

Third, Boyd contained less information
tending to call the credibility of the informer into doubt. In Boyd,
although the tipster admitted to having used drugs in the past,
he was more of a "disinterested citizen" eyewitness
than a "criminal" informant because he was gainfully
employed and had no criminal record, and no evidence indicated
that he gave the information in the hope of gaining leniency on
an outstanding criminal charge. In appellant’s case, by contrast,
the evidence established that the informant provided the
information about appellant in the hope of gaining
"[c]onsideration on an outstanding [criminal] charge."

We next examine these latter two distinctions.

Here, the predictive nature of the informant’s
tip might have compensated for deficiencies in the basis of the
informant’s knowledge and provided probable cause for appellant’s
arrest if the tip had been more accurate. See Gates,
462 U.S. at 242-46, 103 S. Ct. at 2334-36 (predictive nature
of detailed tip, coupled with extensive police corroboration of
suspicious circumstances "ordinarily not easily
predicted," provided probable cause for search warrant for
car, despite anonymity of tipster). However, the tip did not
predict that appellant would drive north on Route 29 before
heading to the Lynchburg College area, and it specified that, at
7:30 a.m., appellant would drive to a particular residence near
the college, which residence was "extremely specific as to
the identity of the informant." Instead of driving to that
residence, appellant drove past the street on which the residence
was located and was headed away from it at the time the officers
executed the stop. If the evidence had established the
informant’s connection to that residence and appellant had, in
fact, stopped there at the time the informant predicted, these
events could have provided sufficient indirect evidence of the
basis of the informant’s knowledge. In the absence of such
events, however, we hold, as a matter of law, that the portions
of the tip the officers were able to corroborate were
insufficient to bolster the absence of evidence of the basis of
the informant’s knowledge.
[3] Alabama v. White, 496 U.S. 325, 330-32, 110
S. Ct. 2412, 2416-17, 110 L. Ed. 2d 301 (1990)
(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 a specified

highway in a green-and-white Chevrolet pickup
truck with Texas license plates and stop at a 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).

We also find that the portions of the tip that
were corroborated were insufficient to overcome the deficiencies
in the evidence concerning the informant’s credibility or
veracity. Although an informant’s statements against penal
interest may enhance his overall credibility and the likelihood
that a specific tip is reliable, see Polston, 24
Va. App. at 745, 485 S.E.2d at 635, the evidence established that
the informant provided the information about appellant in the
hope of obtaining "consideration on an outstanding
charge." Because the nature of this outstanding charge does
not appear in the record, we are unable to conclude that the
informant’s admission to being a drug user and seller
sufficiently established his overall credibility or the
reliability of his allegations about appellant.
"[A]dmissions of crime do not always lend credibility to
contemporaneous or later accusations of another [crime]." United
States v. Harris
, 403 U.S. 573, 584, 91 S. Ct. 2075,
2082, 29 L. Ed. 2d 723 (1971) (plurality opinion). As
Professor LaFave has recognized, "Courts . . .
should not utilize the admission-against-penal-interest concept
in a blunderbuss fashion, but instead should assess in a more
careful fashion, preferably upon a full disclosure by the police
of all relevant circumstances, what the significance of that
admission is in the context of the particular case." 2 Wayne
R. LaFave, Search and Seizure ? 3.3(c), at 124-25
(3d ed. 1996). This is so because "these individuals
typically provide information after they have been apprehended by
the police and after it is apparent to them that the police
already know of their own involvement in the serious
offense." Id. ? 3.3(c), at 128.

Under the facts of this case, given the absence
of evidence concerning the nature of the charges pending against
the informant, we cannot ascertain whether his general admission
to being a user and seller of drugs was a statement against penal
interest tending to establish or enhance his credibility and the
reliability of his tip or merely an admission of behavior in
which he had already been caught red-handed. Compare Harris,
403 U.S. at 584, 91 S. Ct. at 2082 (plurality opinion)
(where opinion showed no outstanding charges against informant
and informant gave "sworn verbal statement" that he had
been purchasing illicit whiskey from premises to be searched for
over two years, statement provided probable cause for issuance of
search warrant for premises); Polston, 24 Va. App. at
741-43, 485 S.E.2d at 633-34 (although charges of an unknown
nature were outstanding, no evidence indicated informant gave tip
in express hope of obtaining consideration for outstanding
charge, and informant testified before magistrate, under penalty
of perjury, that he had used drugs at least once a week for
several years and that he personally had seen drugs on premises
to be searched within the previous seventy-two hours).

Further, we are unable to conclude that the
content of the informant’s tip gave him any reason to fear
prosecution for giving false information if the tip failed to
prove completely accurate. First, the bulk of the information the
police corroborated was not predictive and was generally known or
ascertainable to the public. Any failure of the predictive
portions of the tip to come true would not likely have resulted
in the informant’s prosecution for giving false information. The
failure of appellant to leave his own residence that morning, to
arrive at the specified residence at the specified time, or to
have cocaine in his possession when he did could have been
explained by any number of factors, such as appellant’s becoming
sick, simply changing his plans, receiving a tip about the
surveillance or becoming suspicious of the vehicle following him.
Second, the record fails to establish that the content of the tip
was based on the informant’s first-hand knowledge rather than on
hearsay received from a third party. Under either of these
circumstances, the informant could easily conclude that he would
not be held responsible if the tip did not prove wholly accurate.

Had the evidence established the informant’s
connection to the specific residence at which the sale was to
take place or had the police actually observed appellant’s
arrival there at the specified time, the totality of the
circumstances likely would have established probable cause for
appellant’s arrest under our de novo standard of
review. However, given appellant’s failure to stop at or even
drive directly by the specified residence, absent additional
circumstances, the informant’s tip could have been based on
nothing more than the informant’s knowledge of appellant’s usual
route to work or his weekly racquetball game, and his general
knowledge that appellant used or sold drugs.

For these reasons, we hold that the evidence
was insufficient to provide probable cause for appellant’s
warrantless arrest and, therefore, that the trial court
erroneously denied the motion to suppress the evidence seized
from appellant’s person, car and residence.
[4] We reverse
appellant’s conviction and remand for further proceedings if the
Commonwealth be so advised.

Reversed and remanded.

FOOTNOTES:

[1] In ruling on a motion to
suppress, we consider the evidence adduced at both the
suppression hearing and the trial. See DePriest v.
Commonwealth
, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43
(1987).

[2] 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). Even if the
warrant is ultimately found to be unsupported by probable cause,
evidence seized pursuant to that warrant may nevertheless be
admissible if the officer is found to have relied on the warrant
in good faith. See Polston v. Commonwealth, 255 Va.
500, 503-04, 498 S.E.2d 924, 925-26 (1998). In the absence of a
warrant, however, we review the issue of probable cause de
novo, giving no deference to the officer’s legal
determination. See Ornelas, 517 U.S. at 699, 116
S. Ct. at 1663. It may also be that "’in a doubtful or
marginal case a search under a warrant may be sustained where
without one it would [fall].’" 2 Wayne R. LaFave, Search
and Seizure
? 3.1(c), at 14 (3d ed. 1996) (quoting United
States v. Ventresca
, 380 U.S. 102, 106, 85 S. Ct. 741,
744, 13 L. Ed. 2d 684 (1965)).

[3] We also note that additional
facts not revealed about how the informant knew appellant was to
deliver cocaine to the specified residence at 7:30 a.m. that day
most likely did not protect the informant if he was truthful,
because the time-specific information most likely made his
identity apparent to appellant. Only if the informant was lying
was the non-disclosure of the basis of knowledge likely to
protect him.

[4] Although the facts may have been sufficient to permit
an investigatory stop, see White, 496 U.S. at
330-32, 110 S. Ct. at 2416-17, the Commonwealth makes no
claim that the police made any observations after the stop but
preceding the arrest and search which would have elevated their
suspicions to probable cause, and we glean no facts from the
record which would support such a conclusion.

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