COURT OF APPEALS OF VIRGINIA<\/p>\n
Present: Judges Frank, Clements and Senior Judge Coleman
\nArgued at Richmond, Virginia<\/p>\n
JOSEPH A. MOSES HARRIS, JR.
\n MEMORANDUM OPINION* BY
\nv. Record No. 2320-06-2 JUDGE SAM W. COLEMAN III
\n FEBRUARY 5, 2008
\nCOMMONWEALTH OF VIRGINIA<\/p>\n
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
\nBradley B. Cavedo, Judge<\/p>\n
Karen L. Stallard, Supervising Appellate Defender (Office of the
\nPublic Defender, on briefs), for appellant.<\/p>\n
Eugene Murphy, Senior Assistant Attorney General (Robert F.
\nMcDonnell, Attorney General; Jonathan M. Larcomb, Assistant
\nAttorney General, on brief), for appellee.<\/p>\n
Joseph A. Moses Harris, Jr. appeals from his bench trial conviction for driving while
\nintoxicated after previously having been convicted of two like offenses. On appeal, he contends he
\nwas unlawfully stopped based on an anonymous tip that was not sufficiently corroborated and,
\nthus, that the trial court erroneously denied his motion to suppress. We hold the evidence
\nsupports the trial court?s ruling, and we affirm his conviction.
\nI. BACKGROUND<\/p>\n
Shortly before 6:30 a.m. on December 31, 2005, while it was still dark, ?a call was
\ndispatched from the department of communications [to Richmond Police Officer Claude Picard]\nthat there was a[n] intoxicated driver in the 3400 block of Meadowbridge Road,? that his name
\nwas ?Joseph Harris, and he was driving a[] [green] Altima headed south, towards the city,<\/p>\n
* Pursuant to Code ? 17.1-413, this opinion is not designated for publication.
\n – 2 –
\npossibly towards south side.? The dispatch included ?a partial tag? of ?Y8066? and information
\nthat ?the driver was wearing a striped shirt.? The dispatch stated the telephone call containing
\nthis information was received at 6:23 a.m., but it included nothing indicating who had made the
\ntelephone call or from what source that person had obtained the information reported.
\n While receiving the dispatch, Officer Picard turned onto Meadowbridge Road traveling in
\na northerly direction and soon saw a green Altima heading south, the direction reported by
\ndispatch, in the 3200 block of Meadowbridge Road. Officer Picard made a u-turn to follow the
\nvehicle. The vehicle?s license plate number, YAR-8046, ?was similar? to the partial plate
\nnumber of ?Y8066? Picard had received from dispatch.
\n As Officer Picard followed the Altima, it did not swerve or exceed the 25 mile-per-hour
\nspeed limit, but it braked in a manner that Officer Picard described as ?erratic.? It led him to
\nbelieve that the driver was intoxicated. As the Altima approached the ?uncontrolled?
\nintersection of Highland View and Meadowbridge Road at which ?[it] would not have had to
\nstop,? it ?started to stop with its brake lights activated as though [the driver] was coming to a
\nstop at that intersection,? but ?[it] didn?t fully stop and proceeded forward.? Next, as the vehicle
\napproached the traffic light at the intersection of Meadowbridge Road and Brookland Park
\nBoulevard, which was red, it braked ?50 feet prior to the intersection,? causing ?its rear brake
\nlight [to come] on,? but ?[i]t didn?t come to a complete stop.? The brake lights went out, the car
\n?just kept moving? ?forward,? and then the brake lights came on again ?when [the car] came to
\nthe stop bar? beneath the red light at Meadowbridge and Brookland Park.
\n When the traffic light turned green, the vehicle proceeded through the intersection and
\nthe driver then drove to the side of the road and stopped of his own accord. At that point, Officer
\nPicard had not determined whether the driver was male or was wearing a striped shirt as reported
\nby the caller, but after the vehicle had pulled over and stopped, Officer Picard ?went ahead and
\n – 3 –
\nactivated his emergency light equipment so the driver would know that I wasn?t going around
\nhim, that I was actually initiating a traffic stop.? The detention occurred at approximately
\n6:30 a.m., about seven minutes after the anonymous call was received.
\n Harris moved to suppress the evidence, arguing Officer Picard corroborated only the
\ninnocent details of the tip and lacked reasonable suspicion for the stop. The Commonwealth
\nmade three alternative arguments against suppression. It argued first that dicta involving drunk
\ndriving offenses in the decision of the Virginia Supreme Court in Jackson v. Commonwealth,
\n267 Va. 666, 594 S.E.2d 595 (2004), permitted a seizure of the driver reported to be intoxicated
\nwithout corroboration of the anonymous tip. It argued second that, even if corroboration of the
\ntip was required, Officer Picard had sufficient corroboration for the stop based on his
\nobservations of the vehicle?s erratic braking. It argued third that the vehicle?s erratic braking,
\nstanding alone, provided probable cause for a traffic stop for improper driving.
\n The trial court accepted the Commonwealth?s second argument and denied the motion to
\nsuppress based on its conclusion that Officer Picard?s observations of Harris?s driving
\nsufficiently corroborated the anonymous tip to provide reasonable suspicion for a stop. The trial
\ncourt found that because of the specificity of the details in the tip, it ?has the ring of reliability to
\nit.? It noted that Picard saw the same make and color of the reported car in the vicinity of
\nMeadowbridge Road with a license plate that ?was close? to the number reported by the
\nanonymous tipster, ?the tag being correct in at least three digits and a letter.? In commenting
\nupon Officer Picard?s observations that, in his view, established the reliability of the tip, the trial
\ncourt ruled:
\n[Picard] didn?t make the stop [when he first spotted the vehicle].
\nHe followed and observed to see if there was something else that
\ncould be detected that might justify reasonable and articulable
\nsuspicion to make a stop, and what he observed was the vehicle
\nslowing down, braking at intersections – – at an intersection at
\nwhich there was no obligation to do so, where there was no stop
\n – 4 –
\nsign or stoplight, and then braking at an intersection in which there
\nwas an obligation to do so, but doing so 50 feet or so short of the
\nstop bar at a red light, as I understand the testimony.
\n In my view, after observing those things and seeing the
\nother aspects of the tip or the call to police, confirmed by his own
\nobservation, except, of course the name of the driver, and I think
\nthe officer said he did not see whether he was wearing the correct
\nshirt or not at that point. I believe he had reasonable and
\narticulable suspicion to make the stop and investigat[e] a drunk
\ndriving dispatch or call or complaint, so I?m going to deny the
\nmotion to suppress.
\n Following a bench trial, Harris was convicted and sentenced, and he noted this appeal.
\nII. DISCUSSION
\n The sole issue on appeal is whether, based on the anonymous tip received from the
\ndispatcher and Officer Picard?s subsequent personal observations, Picard had reasonable
\nsuspicion to seize or detain Harris while he was parked on the side of the road.
\n On appeal of the denial of a motion to suppress, we consider the evidence adduced at
\nboth the suppression hearing and at trial, DePriest v. Commonwealth, 4 Va. App. 577, 583, 359
\nS.E.2d 540, 542-43 (1987), and we view
\nthe evidence and all reasonable inferences flowing from that
\nevidence in the light most favorable to the Commonwealth, the
\nprevailing party at trial. Since the constitutionality of a search and
\nseizure under the Fourth Amendment involves questions of law
\nand fact, we give deference to the factual findings of the trial court
\nbut independently decide whether, under the applicable law, the
\nmanner in which the challenged evidence was obtained satisfies
\nconstitutional requirements.
\nJackson, 267 Va. at 672, 594 S.E.2d at 598 (citation omitted).
\n An officer may conduct a brief investigatory stop of an individual if he becomes aware of
\nfacts that ?lead[] him reasonably to believe in light of his experience that criminal activity may
\nbe afoot? and that the person he detains is involved in it. Terry v. Ohio, 392 U.S. 1, 30 (1968).
\n?[T]he likelihood of criminal activity [required for a Terry stop] need not rise to the level
\n – 5 –
\nrequired for probable cause, and it falls considerably short of satisfying a preponderance of the
\nevidence standard.? United States v. Arvizu, 534 U.S. 266, 274 (2002). Nevertheless, an
\n?officer must be able to articulate more than an ?inchoate and unparticularized suspicion or
\n?hunch?? of criminal activity.? Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000) (quoting Terry,
\n392 U.S. at 27); see Arvizu, 534 U.S. at 274.
\nWhether an officer has reasonable suspicion for a Terry stop is based on an assessment of
\nthe totality of the circumstances, ?which includes ?the content of information possessed by police
\nand its degree of reliability,? i.e., ?quantity and quality.?? Jackson, 267 Va. at 673, 594 S.E.2d at
\n599 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)). When the factual basis for probable
\ncause or reasonable suspicion is provided by an informer, the informer?s (1) veracity,
\n(2) reliability, and (3) basis of knowledge are ?highly relevant? factors in the overall
\ntotality-of-the-circumstances analysis. Illinois v. Gates, 462 U.S. 213, 230 (1983); see White,
\n496 U.S. at 328-31. For example,
\n?[I]f a tip has a relatively low degree of reliability, more
\ninformation will be required to establish the requisite quantum of
\nsuspicion than would be required if the tip were more reliable.?
\n[White, 496 U.S. at 330]; see also [Gates], 462 U.S. [at 233] (?a
\ndeficiency in one[, the informant?s ?veracity? or ?reliability? and his
\nor her ?basis of knowledge,?] may be compensated for, in
\ndetermining the overall reliability of a tip, by a strong showing as
\nto the other, or by some other indicia of reliability?).
\nJackson, 267 Va. at 673, 594 S.E.2d at 599.
\n ?Unlike a tip from a known informant whose reputation can be assessed and who can be
\nheld responsible if her allegations turn out to be fabricated, ?an anonymous tip alone seldom
\ndemonstrates the informant?s basis of knowledge or veracity.?? Florida v. J.L., 529 U.S. 266,
\n270 (2000) (quoting White, 496 U.S. at 329). ?The fact that [an] informant provide[s] an
\naccurate description of an ?observable location and appearance? serve[s] only to ?help the police
\ncorrectly identify the person whom the tipster [means] to accuse.?? Jackson, 267 Va. at 676, 594
\n – 6 –
\nS.E.2d at 600 (quoting J.L., 529 U.S. at 272). Such information does little to establish ?whether
\nthe informant [is] reliable in the assertion of concealed criminal activity, ?not just in [the tip?s]\ntendency to identify a determinate person.?? Id. (quoting J.L., 529 U.S. at 272).
\n Nevertheless, situations exist ?in which an anonymous tip, suitably corroborated, exhibits
\n?sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop.??
\nJ.L., 529 U.S. at 270 (quoting White, 496 U.S. at 327).
\nReasonable suspicion is a less demanding standard than probable
\ncause not only in the sense that reasonable suspicion can be
\nestablished with information that is different in quantity or content
\nthan that required to establish probable cause, but also in the sense
\nthat reasonable suspicion can arise from information that is less
\nreliable than that required to show probable cause.
\nWhite, 496 U.S. at 330, quoted with approval in Jackson, 267 Va. at 673, 594 S.E.2d at 599.
\nCompare Gates, 462 U.S. at 242-46 (holding that the predictive nature of a detailed tip regarding
\nthe defendants? interstate travel plans, coupled with extensive police corroboration of suspicious
\ncircumstances ?ordinarily not easily predicted,? provided probable cause for a search warrant for
\ntheir car, despite the anonymity of the tipster), with White, 496 U.S. at 330-32 (where an
\nanonymous tip predicted that the defendant would leave a specified apartment in a particular car
\nat a designated time and drive with a brown attach? case containing cocaine to a nearby motel,
\nand police confirmed these activities, except for the defendant?s name and possession of the
\nattach? case and cocaine, and stopped the defendant ?just short of [the specified] [m]otel,? the
\ncase was ?close? but provided reasonable suspicion for a Terry stop), and United States v.
\nCampbell, 920 F.2d 793, 794-97 (11th Cir. 1991) (holding, under Gates, that where the reliability
\nof the confidential informant was not established independently, mere confirmation of the tip that
\na woman with whom the informant allegedly had been working would arrive in Montgomery
\nwith three Mexican males via a specified highway in a green-and-white Chevrolet pickup truck
\nwith Texas license plates and stop at a specified truck stop between 11:30 p.m. and 1:00 a.m.
\n – 7 –
\nmay have provided reasonable suspicion for an investigatory stop but did not provide probable
\ncause for an arrest or search).
\n The corroboration may be from innocent behavior or details, Gates, 462 U.S. at 243 n.13,
\nbut innocent information must be sufficiently predictive so as to establish ?the informer?s
\nknowledge or credibility,? J.L., 529 U.S. at 271; see Jackson, 267 Va. at 677-80, 594 S.E.2d at
\n601-03. ?[W]hen an informant reports open and obvious criminal conduct,? a lesser degree of
\ncorroborative information may be required to provide the tip with ?sufficient indicia of
\nreliability? to justify a Terry stop. Jackson, 267 Va. at 680, 594 S.E.2d at 603 (suggesting that
\n??the predictive aspects of an anonymous tip may be less applicable to tips purporting to describe
\ncontemporaneous, readily observable criminal actions as in the case of erratic driving witnessed
\nby another motorist?? (quoting United States v. Wheat, 278 F.3d 722, 734 (8th Cir. 2001))).
\n Here, the evidence, viewed in the light most favorable to the Commonwealth, supports
\nthe trial court?s conclusion that Officer Picard had reasonable suspicion to effect a brief detention
\nof Harris. Officer Picard not only confirmed numerous innocent details, such as the description
\nof the car, the direction it was traveling, and the fact that it bore a license plate very similar to the
\npartial plate number reported by the informant, but he also observed driving behavior
\ncorroborating the tipster?s allegation that the driver of the vehicle was intoxicated. Officer
\nPicard saw appellant apply his brakes in an ?erratic? fashion at least twice in a short period of
\ntime, which Picard testified ?led [him] to believe? Harris was, in fact, driving while intoxicated,
\nas the anonymous informant had reported. After proceeding through the controlled intersection,
\nHarris drove his car to the roadside and stopped of his own accord after Officer Picard had been
\nfollowing in his patrol car. We hold Officer Picard?s observations, combined with the
\nanonymous tip, provided reasonable suspicion for a brief investigatory detention of Harris, who
\n – 8 –
\nhad already voluntarily brought his car to rest on the side of the road before Officer Picard
\ninitiated the Terry stop.
\n The facts of this case as found by the trial court are clearly distinguishable from those in
\nJ.L., 529 U.S. 266, and Jackson, 267 Va. 666, 594 S.E.2d 595, two anonymous tipster cases
\nrelied upon by Harris to support a reversal of his conviction. In both J.L. and Jackson, each of
\nwhich involved a report of an individual brandishing a firearm or carrying one in a concealed
\nfashion, the investigating officers confirmed only the respective tipster?s ?description of [the
\nindividual?s] ?observable location and appearance,?? which, as set out above, ?served only to ?. . .
\nidentify the person whom the tipster [meant] to accuse?? and did not establish ?whether the
\ninformant was reliable in the assertion of concealed criminal activity.? Jackson, 267 Va. at 676,
\n594 S.E.2d at 600 (quoting J.L., 529 U.S. at 272). In neither J.L. nor Jackson were the officers
\nable to obtain, prior to effecting a Terry stop, any information corroborating the tipster?s report
\nthat the individual had brandished a firearm or was carrying one in a concealed fashion. See
\nJ.L., 529 U.S. at 268; Jackson, 267 Va. at 677, 594 S.E.2d at 601.
\n In Harris?s case, by contrast, Officer Picard testified that, after spotting a green Altima
\ntraveling in the direction reported by the tipster and bearing a license plate that partially matched
\nthe one reported, he also observed the driver intermittently braking in an ?erratic? manner and
\nslowing at inappropriate situations which he believed supported the tipster?s report that the driver
\nwas intoxicated. Officer Picard?s observations of Harris?s driving and the fact that Harris drove
\nto the roadside and stopped of his own accord after Officer Picard had followed in his patrol car
\nsupported the trial court?s finding that Officer Picard sufficiently corroborated the criminal
\ncomponent of the anonymous informant?s tip before he pulled in behind Harris?s already-stopped
\nvehicle and activated his flashing lights to investigate further. Under these circumstances it was
\nreasonable for Officer Picard to suspect that Harris was intoxicated thereby justifying the
\n – 9 –
\nminimally intrusive stop of activating his lights and siren after Harris had stopped of his own
\naccord.
\n Accordingly, we uphold the trial court?s denial of Harris?s motion to suppress and we
\naffirm the challenged conviction.
\nAffirmed.<\/p>\n","protected":false},"excerpt":{"rendered":"
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