Harris v. Commonwealth

Present: All the Justices

MART T. HARRIS
OPINION BY
v. Record No. 002337 JUSTICE LAWRENCE L. KOONTZ, JR.
September 14, 2001
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether a law enforcement

officer had a reasonable belief that an individual was

trespassing on private property providing a sufficient basis for

the officer to detain and conduct a “pat-down” search of the

individual.

BACKGROUND

On the afternoon of March 20, 1997, Officers J.M. Whitehead

and T.B. Shelton of the City of Suffolk Police Department

received a radio dispatch relaying information or a “tip” from

an anonymous telephone caller that a black male was selling

drugs near the corner of Davis Boulevard and the private road

leading into the Cogic Square Apartments, a public housing

development. The anonymous tipster had identified the

individual as “Mart Harris” and had indicated that Harris was

wearing jeans, a white T-shirt, and a checkered jacket. The

tipster had further stated that Harris was armed.

Upon arriving at Cogic Square, Whitehead and Shelton

observed three men on the property of the housing development at
the location indicated by the anonymous tipster. One of the men

was a black male dressed in jeans, a white T-shirt, and a

checkered jacket. The three men were standing near a bench that

formerly had been used as a bus stop. A short distance away

there was a “no trespassing” sign posted on one of the buildings

of the housing development.

Shelton had worked for two and one-half years in a drug

elimination program at Cogic Square, was familiar with most of

the residents and their regular visitors, and had never before

seen any of the three men at the housing development. Shelton

subsequently testified that for these reasons he formed the

opinion that the three men were possibly trespassing. Neither

Shelton nor Whitehead observed any activity consistent with the

anonymous tipster’s assertion that drugs were being sold. The

man fitting the description given by the tipster did not readily

appear to be armed and there were no visible bulges in his

clothing that might have contained a concealed weapon.

Shelton approached the man wearing the checkered jacket.

At that time, Shelton did not question the man to ascertain his

identity or whether he was a visitor at the housing development.

Rather, based upon the information from the anonymous tip that

this man was armed and because this man’s jacket was loose

fitting, Shelton decided to conduct a pat-down search for

weapons as a precaution for the officers’ safety. During the

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pat-down search, Shelton seized a handgun concealed under this

man’s jacket near his left hip.

Following the seizure of the handgun and in response to

Shelton’s questions, the man admitted that he was Mart Harris.

Shelton then determined that none of the three men was a

resident of Cogic Square. He charged the other two men with

trespassing and arrested Harris for trespassing and possession

of a concealed weapon. Shelton performed a search of Harris

incident to the arrest on the trespassing and firearm charges

and seized a clear, zip-lock, plastic bag containing a substance

later determined to be 3.29 ounces of marijuana. Subsequently,

Harris was indicted for possession of marijuana with intent to

distribute, Code § 18.2-248.1, and possession of a firearm after

having been convicted of a felony, Code § 18.2-308.2.

Immediately prior to trial, Harris moved to suppress the

evidence seized during the protective search and the subsequent

search incident to arrest. The Commonwealth contended that the

initial stop and search were permissible because the officers

had corroborated sufficient information from the anonymous tip

regarding Harris and his illegal activity and also that Shelton

reasonably believed Harris was trespassing prior to detaining

him.

The trial court denied Harris’ motion to suppress, finding

that Shelton’s corroboration of the appearance of the individual

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described by the anonymous tipster coupled with his own

observations and knowledge of the area provided Shelton with an

adequate basis to temporarily detain Harris. The trial court

further found that the protective search was warranted by the

tipster’s assertion that Harris was armed. The trial court

convicted Harris on both charges, sentencing him to five years’

imprisonment, with three years suspended, for possession of

marijuana with intent to distribute and five years’

imprisonment, with four years suspended, for possession of a

firearm after having been convicted of a felony. The sentences

were imposed to run consecutively. 1

Harris’ initial appeal of these convictions to the Court of

Appeals of Virginia was dismissed for failure to file a timely

notice of appeal. By an order dated March 2, 1999, this Court

granted Harris’ subsequent petition for a writ of habeas corpus

and permitted him to seek a delayed appeal in the Court of

Appeals. Harris contended in his petition for appeal in the

Court of Appeals that the anonymous tip lacked sufficient

indicia of credibility to provide the police with a reasonable,

articulable suspicion that Harris was involved in criminal

1
Additionally, Harris was convicted of trespassing and
carrying a concealed weapon, both misdemeanors. Harris did not
challenge these convictions on appeal.

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activity. By order dated December 13, 1999, the Court of

Appeals granted Harris’ petition for appeal.

Before the argument of Harris’ appeal in the Court of

Appeals, the United States Supreme Court released its opinion in

Florida v. J.L., 529 U.S. 266 (2000), holding that an anonymous

tip identifying a person by location and appearance and

asserting that the person is armed is not sufficient to justify

the temporary detention of a person matching the description

given by the tipster in order to conduct a pat-down search where

the law enforcement officers responding to the tip did not also

corroborate the tipster’s assertions that the individual was

involved in illegal activity. Id. at 268. Applying J.L., the

Court of Appeals determined that the anonymous tip received by

the police in the present case did not provide an adequate basis

for initially detaining Harris because the officers’

observations of Harris, and the other two men, did not

“corroborate the tipster’s assertion that [Harris] was engaged

in selling drugs.” 2 Harris v. Commonwealth, 33 Va. App. 325,

332, 533 S.E.2d 18, 20 (2000).

2
The Court of Appeals erroneously recites in its opinion
that Shelton identified Harris by name before conducting the
pat-down. Although the testimony concerning the sequence of
events which preceded the pat-down is somewhat confused, when
Shelton was asked on cross-examination if he had identified
Harris “by name” prior to the pat-down, Shelton replied, “No,
sir.” We note, however, that even if Shelton had identified
Harris by confirming his name prior to conducting the pat-down,

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 The Court of Appeals reasoned, however, that the police

were not prohibited from unobtrusively observing the activities

of a person identified by an anonymous tipster as possibly being

involved in criminal activity in order to “corroborate[] the

anonymous information with the specific indicia of reliability

required by the holding of J.L., or . . . provide[] independent

reasonable suspicion supported by articulable facts that

criminal activity may be afoot.” Harris, 33 Va. App. at 333,

533 S.E.2d at 21 (internal quotation marks omitted)(emphasis

added). The Court of Appeals concluded that, in light of his

familiarity with the residents of Cogic Square and their regular

visitors, Shelton had “a reasonable basis to believe that

[Harris] was trespassing on private property” and that this

justified the initial detention of Harris. Id., 533 S.E.2d at

22.

The Court of Appeals properly recognized that “the

authority to conduct a pat-down search does not follow

automatically from the authority to effect an investigative

stop.” Id. at 334, 533 S.E.2d at 22. Relying on the language

in J.L. to the effect that the need to confirm the reliability

of an anonymous tip “in no way diminishes a police officer’s

prerogative . . . to conduct a protective search of a person who

this still would not have corroborated the tipster’s allegations
of criminal wrongdoing.

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has already been legitimately stopped,” J.L., 529 U.S. at 274,

the Court of Appeals concluded that Shelton could rely on “the

information concerning the presence of a weapon” in the tip as

the basis for conducting a protective pat-down search once

Harris was otherwise lawfully detained. Harris, 33 Va. App. at

334, 533 S.E.2d at 22. Accordingly, the Court of Appeals

affirmed the judgment of the trial court. We awarded Harris

this appeal.

DISCUSSION

Before addressing the substantive issue raised by this

appeal, we must first consider the procedural posture of Harris’

conviction for possession of a firearm after having been

convicted of a felony. This Court’s order granting Harris’

petition for a writ of habeas corpus and awarding him a delayed

appeal references the trial court’s record numbers for his

convictions for possession of marijuana with intent to

distribute and possession of a firearm after having been

convicted of a felony, but identifies only the drug-related

conviction by express reference to the offense by name. The

notice of appeal filed pursuant to that order also identifies

both convictions by those record numbers, and Harris sought

reversal of both convictions in his petition for appeal in the

Court of Appeals.

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 Although some of the Court of Appeals’ records reference

both of the trial court’s record numbers, the Court of Appeals

affirmed Harris’ drug-related conviction, but concluded that a

delayed appeal had not been awarded with respect to the firearm

conviction. Harris, 33 Va. App. at 329 n.1, 533 S.E.2d at 19

n.1. This conclusion was erroneous.

An appellate court may take judicial notice of its own

records. Cunningham v. Hayes, 204 Va. 851, 857, 134 S.E.2d 271,

275, cert. denied, 376 U.S. 973 (1964). Reading our March 2,

1999 order in its entirety, it is clear that we intended Harris

to have the right to seek an appeal of both convictions.

Because the issue raised in the appeal necessarily applies to

the suppression of all the evidence seized from Harris, the

Court of Appeals’ erroneous interpretation of our order does not

undermine the arguments made by the parties, nor will it affect

our analysis. Indeed, the Court of Appeals recognized that

“[t]he issue in this case is the validity of the initial stop

and accompanying pat-down, not the arrest or search incident

thereto.” Harris, 33 Va. App. at 331, 533 S.E.2d at 20. That

same issue is dispositive in both of the appealed convictions.

Accordingly, we hold that Harris’ delayed appeal relates to both

convictions, the Court of Appeals’ order awarding that appeal

brought both convictions before that Court, and Harris’ appeal

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from the judgment of that Court brings both convictions before

us in this appeal.

We now turn to the substantive issue raised by this appeal.

Although the Commonwealth does not expressly concede the

applicability of the holding in J.L. to the facts of this case,

it does not contend that the Court of Appeals erred in holding

that the anonymous tip received by the police, coupled with

their corroboration of innocuous information asserted in the

tip, was insufficient to support the initial detention of

Harris. Accordingly, we need not address that aspect of the

Court of Appeals opinion. Rather, the dispositive issue is

whether the Court of Appeals properly concluded under the

particular facts of this case that Shelton had the requisite

reasonable, articulable suspicion that Harris may have been

engaged in criminal wrongdoing sufficient to warrant the initial

detention of Harris consistent with his rights under the Fourth

Amendment to the Constitution of the United States. See

generally Terry v. Ohio, 392 U.S. 1 (1968).

It is undisputed that the officer did not observe any

conduct that would support a reasonable belief that Harris was

selling drugs or that he was unlawfully in possession of a

concealed weapon. Thus, our focus is upon whether Harris’

conduct reasonably suggested that he was trespassing. We are of

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opinion that our decision in Ewell v. Commonwealth, 254 Va. 214,

491 S.E.2d 721 (1997), controls our analysis.

In Ewell, we held that an off-duty police officer working

as a security guard in an apartment complex was not justified in

stopping a vehicle leaving the complex’s parking lot and

detaining the operator based on the officer’s suspicion that the

operator was trespassing because the officer was unfamiliar with

the vehicle and its operator. Id. at 217, 491 S.E.2d at 723.

In that case, the record showed that the officer “was employed

primarily to enforce the complex’s policy against trespassing.

The complex’s parking lot had only one access, and it was posted

with a ten-by-five foot, lighted sign, stating ‘no

trespassing.’ ” Id. at 215, 491 S.E.2d at 722. The officer

testified that “he was familiar with most of the complex’s

residents and their automobiles” and “was concerned because it

was very early [in the morning] and the car was parked in an

area suspected of ‘high narcotics’ trafficking.” Id. at 216,

491 S.E.2d at 722.

The Commonwealth contends that Ewell may be distinguished

on several grounds. The Commonwealth first contends that the

officer in Ewell was familiar with the apartment complex only

through his part-time employment as a security guard, whereas

Shelton’s knowledge of Cogic Square through his two-and-a-half

years of work in the drug elimination program provided him with

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a greater familiarity with the residents and their guests than

was evident in Ewell. We disagree.

There is nothing in Ewell to indicate the length of time

the officer had been employed as a security guard by the

apartment complex; thus, we cannot say that Shelton’s asserted

familiarity with the residents and visitors of Cogic Square was

quantitatively greater than that of the officer in Ewell.

Moreover, the officer in Ewell “was employed primarily to

enforce the complex’s policy against trespassing” and it follows

logically that his familiarity with the complex, its residents,

and their guests would be naturally heightened with respect to

enforcing that policy. By way of contrast, on the record before

us we cannot say that Shelton’s duties under the drug

elimination program focused primarily on, or even necessarily

included, regularly enforcing Cogic Square’s no trespassing

policy.

The Commonwealth next contends that Shelton’s testimony

that he participated in the drug elimination program at Cogic

Square creates a heightened expectation that drug trafficking

was occurring at Cogic Square and that Harris and the other two

men were thus more likely to be trespassers involved in that

criminal activity. We see no distinction between the assertion

in Ewell that it was “suspected” that drug trafficking was

taking place in the parking lot and the “reasonable inference”

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the Commonwealth asks this Court to draw in this case that an

ongoing drug elimination program establishes that the particular

location where Harris was standing was known for drug

trafficking.

To the contrary, unlike the officer’s assertion in Ewell

that the specific area where he first observed the defendant in

her car was suspected as a drug market, Shelton testified only

that Cogic Square as a whole was the subject of the drug

elimination program. Moreover, it does not necessarily follow

that a long-term drug elimination program supports the inference

that drug trafficking continued to occur, for it might be

equally true that the program was successful and that Cogic

Square was being maintained in the program in order to assure

that it remained drug-free.

Finally, the Commonwealth contends that while “there was

nothing unusual about [Ewell] leaving an apartment complex in

her automobile” near midnight, Harris and the other two men “had

no apparent reason to be standing on [a] private street corner.”

The evidence, however, was that the three men were standing and

conversing near a former and, by appearance, possibly still

functioning bus stop immediately adjoining a public street.

Certainly, three persons standing and conversing near an

apparent bus stop adjoining a public street at midday is no more

unusual than a person driving away from a parking lot at

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midnight. Moreover, although the prominence of the “no

trespassing” sign posted on one of the buildings at Cogic Square

is not clear from the record, there is nothing in the record to

suggest that this sign was any more prominent than a ten-by-five

foot, lighted sign posted at the single entrance to the property

as in Ewell. Thus, just as in Ewell, the officer observed an

individual on private property that was posted “no trespassing,”

but otherwise “act[ing] as any other person might have acted

under similar circumstances.” Id. at 217, 491 S.E.2d at 723.

In each case, the officers’ subjective knowledge that the

area was known for drug trafficking did not attach with any

particularity to the observed activity or the individual. Each

officer had no more than an “unparticularized suspicion or

‘hunch’ ” that criminal activity was afoot. See Terry, 392 U.S.

at 27. As such, each officer’s subjective belief that the

individual might be a trespasser was not sufficient to warrant a

non-consensual investigatory detention.

The Commonwealth relies upon the information of the

anonymous tipster that Harris was armed as justification for

heightening Shelton’s inchoate “hunch” that Harris was

trespassing to the level of a reasonable, articulable suspicion.

In doing so, the Commonwealth bootstraps the legitimate concern

for law enforcement officers’ safety, which permits a protective

search of a legally detained suspect, to serve as the basis for

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detaining the suspect. However, the issue before this Court is

not whether Shelton could, based on the information in the tip

that Harris was armed, conduct the protective pat-down had

Harris been otherwise lawfully detained, but whether Shelton had

a reasonable, articulable suspicion to warrant detaining Harris

in the first place.

As we have noted, nothing in the behavior observed by the

officers corroborated the tipster’s allegation that Harris was

armed. Nor did the tipster assert that Harris was trespassing,

and nothing in the information supplied suggests that the

tipster would have a reason to know whether Harris was lawfully

on the property of Cogic Square. The mere presence of an

unknown individual on the property of a large housing

development does not create a reasonable suspicion that such an

individual is engaged in trespassing or some other criminal

activity. Thus, the uncorroborated tip in no way elevates

Shelton’s inchoate hunch that Harris was trespassing, an offense

not generally associated with the wrongdoer being armed, to a

reasonable, articulable suspicion of criminal wrongdoing to

warrant detaining Harris in order to conduct a protective pat-

down search based upon that same information.

Accordingly, we hold that, at the time Shelton detained

Harris, Shelton lacked a sufficient reasonable, articulable

suspicion that Harris was engaged in any criminal activity and,

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thus, the initial seizure of Harris was in violation of his

Fourth Amendment rights. Consequently, the evidence obtained as

a result of that seizure and in the search incident to Harris’

arrest was tainted.

CONCLUSION

For these reasons, we hold that the trial court erred in

failing to suppress the evidence obtained as a result of the

initial seizure of Harris and in the subsequent search of Harris

incident to his arrest, and the Court of Appeals erred in

affirming the trial court’s judgment. Accordingly, we will

reverse the judgment of the Court of Appeals, enter final

judgment vacating Harris’ convictions for possession of

marijuana with intent to distribute and possession of a firearm

after having been convicted of a felony, and dismiss the

indictments against him.

Reversed and final judgment.

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