Tipster’s information supplied reasonable suspicion to search

Where police received reliable information from a confidential informant that appellant was selling drugs, and described appellant’s clothing and his location in an area known for drug activity, this provided a reasonable suspicion to detain appellant.

Drugs found on appellant’s person during a search after a police dog alerted to “the odor of narcotics” are admissible evidence. The trial court properly denied appellant’s motion to suppress.

Reasonable suspicion

“Detective Poerstel testified that he had previously worked with and received information from the confidential informant for over a year. The detective had used the informant to make controlled purchases of illegal narcotics and had obtained search warrants based on information provided by him.

“Historically, the informant had provided Poerstel with accurate information. An informant’s past reliability in providing information regarding crimes is a factor supporting a finding of the even higher standard of probable cause. …

“The facts regarding the instant informant’s two pending criminal charges also were relevant to the trial court’s evaluation of the reliability of the information he provided to police. Poerstel told the informant that he ‘would speak to the prosecutors’ on his or her behalf in light of the information provided. …

“These factors were for the trial court to consider in conjunction with the other circumstances surrounding the stop and detention.

“The detectives observed the appellant in real time at the identified intersection wearing an outfit described by the informant. … They approached the appellant in an area known for drug distribution, the offense alleged by the informant. …When the detectives approached the appellant, they saw a second man walk away from him with currency in his hand. …

“Based on these circumstances, articulable facts supported a reasonable suspicion to briefly investigate whether the appellant had illegal narcotics with the intent to distribute them or was engaged in selling illegal narcotics as described by the informant. …

“The facts and circumstances apparent to the detectives at the time of the stop ‘were such as to create in the mind of … reasonable officer[s] in the same position a suspicion that a violation of the law [had occurred,] was occurring[,] or was about to occur.’ …

“Consequently, the circumstances permitted the detectives to lawfully seize and detain the appellant briefly to determine whether he possessed illegal drugs with the intent to sell them.”

Level of detention

“The appellant alternatively contends that the level of detention, including surrounding him, placing him in handcuffs, and patting him down, constituted an arrest and was not supported by probable cause. …

“The detectives’ actions in surrounding the appellant, handcuffing him, and patting him down for weapons were objectively reasonable on the facts of the case, viewed in the light most favorable to the Commonwealth.

“During the course of the encounter, the detectives gathered information adding to a reasonable belief that the appellant possessed a controlled substance with the intent to distribute it. …

“As the detectives spoke with the appellant, Poerstel noticed him frequently looking in both directions and moving his hands around a fanny pack that was attached to his waist. Poerstel knew that firearms are often associated with drug distribution and specifically that ‘fanny packs’ are used to carry firearms. …

“As a result, he asked the appellant to stop reaching around the fanny pack. Despite the demand, the appellant repeatedly continued to move his hand around the bag. Consequently, Poerstel told Detectives Alston and Fernandez to handcuff appellant and conduct a pat down for weapons. …

“The fact that three armed detectives were present may have reduced but did not remove the threat that the appellant’s possession of a weapon could have presented. …

“These circumstances support the conclusion that surrounding the appellant, handcuffing him, and frisking him were reasonable actions under the Fourth Amendment. … Because these methods of restraint were reasonable, the encounter remained an investigative detention at the time of the challenged pat down and did not amount to an arrest.

“Therefore, we hold that the degree of restraint and pat down were proper.” The trial court correctly denied the motion to suppress.

Affirmed.

Clark v. Commonwealth, Record No. 0824-20-2, Nov. 3, 2021. CAV (Decker) from Richmond City Circuit Court (Snukals). Matthew T. Paulk for appellant, Matthew P. Dullaghan for appellee. VLW 021-7-151, 11 pp. Unpublished.