COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Senior Judge Coleman
Argued at Chesapeake, Virginia
ANTIONETTE ROBINSON, S/K/A
ANTOINETTE ROBINSON
OPINION BY
v. Record No. 2427-07-1 JUDGE RANDOLPH A. BEALES
APRIL 14, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
H. Vincent Conway, Jr., Judge
Peter S. Economou (Office of the Public Defender, on brief), for
appellant.
Gregory W. Franklin, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Antoinette Robinson (appellant) was convicted of possession of cocaine, in violation of
Code § 18.2-250. On appeal, appellant argues that the trial court erred in ruling that the police
had probable cause to arrest her and, therefore, erred in denying her motion to suppress drug
evidence seized from her person incident to the arrest. Finding no error, we affirm.
I. BACKGROUND
At approximately 11:10 p.m. on February 20, 2007, City of Newport News Police Officer
Carlos Nunez received information from a confidential informant (“CI”) concerning an imminent
drug transaction. The CI was registered with the Newport News police and had been referred to
Officer Nunez by a detective in the vice division. The CI began working with Officer Nunez at
the beginning of 2007. Prior to the night of February 20, the CI had provided Officer Nunez
with information leading to three arrests, and it was the officer’s understanding that the CI had
provided information to other officers leading to five additional arrests. 1
During the conversation on the night of February 20, 2007, the CI informed Officer
Nunez that
[a] black female named Antoinette . . . was in possession of
cocaine. That informant also advised me that this female was
going to be driving a gray Crown Victoria bearing Virginia license
plate No. JXX 4383 and that this female was driving to the WaWa
gas station at the intersection of Beechmont and Warwick and this
female was going to meet a person who she was going to go and
sell narcotics to.
In addition, the CI informed Officer Nunez that he or she had personally observed “Antoinette”
possess cocaine on that night.
After receiving the tip from the CI, Officer Nunez promptly contacted Officer Howser to
assist in surveillance of the WaWa gas station mentioned by the CI. Working in tandem, the two
officers observed both sides of the gas station. Officer Nunez observed the Beechmont Avenue
side, and Officer Howser observed the Warwick Boulevard side, which included the parking lot.
Officer Howser selected a spot approximately 100 yards away from the gas station. His view
was aided by binoculars and by the lighting from the WaWa station. The officers communicated
by radio and agreed to wait until a drug transaction occurred before arresting any suspects. The
surveillance was set up by 11:25 p.m., fifteen minutes after the CI contacted Officer Nunez.
Shortly after the officers positioned themselves, according to Officer Nunez, a “gray
colored Ford Crown Victoria bearing Virginia license plate JXX 4383” pulled into the gas
station. The driver (who was the only occupant of the car) was later identified as appellant.
1
At the suppression hearing, the prosecutor did not ask Officer Nunez on direct
examination whether the CI had ever provided false information, and appellant’s counsel made
no such inquiries on cross-examination.
-2-
Officer Howser observed the following from his surveillance post. Appellant parked by a
gas pump, exited the vehicle, and looked to the left and to the right as she walked into the
WaWa’s convenience store (“the store”). Appellant walked around the store for a minute. Then
appellant met a man inside the store. Officer Howser lost sight of appellant and the man as they
walked to the back of the store. Appellant exited the store one minute later, walked back to
appellant’s car, and sat in the car for another minute. The man then exited the store. After
walking approximately ten feet past the Crown Victoria, the man turned around and walked back
to the car. The man bent down, placed his left shoulder against the driver’s side door, and placed
his hand inside the door. The man held this position for about ten seconds and then walked away
from the car. Officer Howser did not observe a hand-to-hand exchange between appellant and
the unknown man, but the officer did observe that appellant drove away in the Crown Victoria
without ever pumping any gas despite parking next to the pump.
After learning what Officer Howser had observed, Officer Nunez initiated a traffic stop
of the Crown Victoria and arrested appellant. During a search incident to appellant’s arrest, a
plastic bag of crack cocaine was found in her jacket pocket.
Appellant moved to suppress the drug evidence on the grounds that the officers lacked
probable cause to arrest her and, therefore, the search incident to arrest was unlawful. Appellant
contended that the CI’s reliability was unproven when Officer Nunez received the tip.
Furthermore, appellant contended that the CI’s tip was never corroborated because Officer
Howser testified that he did not actually observe appellant engage in a drug transaction. The trial
court disagreed, finding that probable cause to arrest was established based on the CI’s
predictions concerning appellant’s identity and her car’s model type and license plate number, as
well as the suspicious behavior exhibited by appellant and the other man. In addition, the trial
-3-
court remarked, “I don’t think [the CI] has to know specifically she’s distributing drugs. I think
it’s sufficient to know that she is involved in drugs.” This appeal followed.
II. ANALYSIS
The existence of probable cause in a particular case is “a mixed
question of law and fact.” Ornelas v. United States, 517 U.S. 690,
696, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996). Accordingly, “we
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). However, we review the “ultimate questions” of
probable cause to make a warrantless search or arrest de novo. See
Ornelas, 517 U.S. at 691.
Byrd v. Commonwealth, 50 Va. App. 542, 551, 651 S.E.2d 414, 418-19 (2007) (footnote
omitted).
An officer making a warrantless arrest may rely upon information received through an
informant if the officer has reasonable grounds to believe the informant’s statement is true. Id. at
551, 651 S.E.2d at 419. When the basis for the probable cause determination rests upon a tip,
“there are two considerations that are particularly relevant to our analysis: (1) the veracity or
reliability of the informant and (2) the informant’s basis of knowledge.” Id. (citing Illinois v.
Gates, 462 U.S. 213, 230 (1983)). The reliability and basis of knowledge of an informant are not
independent elements that must be proved in order to find probable cause, Polston v.
Commonwealth, 24 Va. App. 738, 744, 485 S.E.2d 632, 635 (1997), but instead “‘are better
understood as relevant considerations in the totality-of-the-circumstances analysis that
traditionally has guided probable-cause determinations: a deficiency in one 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.’” Byrd, 50 Va. App. at 552, 651 S.E.2d at 419 (quoting Gates, 462
U.S. at 233).
-4-
Appellant argues that the Commonwealth failed to establish the reliability of the CI in
this case because the CI had worked with the officer for at most two months and had provided
the officer information leading to only three arrests. 2 By contrast, appellant contends, the
informant in Askew v. Commonwealth, 38 Va. App. 718, 568 S.E.2d 403 (2002), had worked
with the police for three years, providing information leading to over 200 arrests without ever
providing unreliable information. Id. at 720, 568 S.E.2d at 404-05. However, appellant’s
counsel acknowledged at oral argument that neither Askew nor any other controlling case law
sets a technical standard concerning informant reliability. Rather, our appellate review of the
totality of the circumstances “permits a balanced assessment of the relative weights of all the
various indicia of reliability (and unreliability) attending” the informant’s tip. Gates, 462 U.S. at
234. Therefore, “even if we [were to] entertain some doubt as to an informant’s motives, his
explicit and detailed description of alleged wrongdoing, along with a statement that the event
was observed firsthand, entitles his tip to greater weight than might otherwise be the case.” Id.
Nevertheless, appellant argues that the Commonwealth also inadequately established the
basis of the CI’s knowledge supporting the tip to Officer Nunez on February 20, 2007, leaving
the officers without probable cause to arrest. Appellant’s argument focuses on whether the tip
was sufficiently corroborated. She claims that “the key allegation that the informant made, that
the defendant would be selling drugs at the WaWa, was not verified,” because Officer Howser
testified he did not actually observe appellant engage in a drug transaction. We disagree.
The basis of an informant’s tip must be “something more
substantial than a casual rumor circulating in the underworld or an
accusation based merely on an individual’s general reputation.”
Spinelli v. United States, 393 U.S. 410, 416, 89 S. Ct. 584, 21
2
Appellant references only to the amount of time the CI here had worked with Officer
Nunez specifically and disregards the officer’s testimony, admitted by the trial court over
appellant’s hearsay objection, that the CI had provided other officers with information leading to
an additional five arrests.
-5-
L. Ed. 2d 637 (1969). For example, a confidential informant may
provide the basis of his knowledge by claiming that he personally
observed the crime that he is reporting. See e.g., Askew, 38
Va. App. at 720, 568 S.E.2d at 405 (confidential informant
personally observed the defendant in possession of narcotics);
Lester v. Commonwealth, 30 Va. App. 495, 501-02, 518 S.E.2d
318, 321 (1999) (confidential informant personally observed the
defendant in possession of stolen property); Boyd v.
Commonwealth, 12 Va. App. 179, 182, 402 S.E.2d 914, 916
(1991) (anonymous informant had personally observed the
defendant in possession of cocaine). In other cases, although the
informant does not explicitly claim personal knowledge, his tip
may be “so detailed as to raise an inference either of personal
observation or of acquisition of the information in a reliable way.”
McGuire, 31 Va. App. at 595, 525 S.E.2d at 49.
Byrd, 50 Va. App. at 552-53, 651 S.E.2d at 419-20.
Here, the CI claimed that he or she personally observed appellant in possession of
narcotics and supported this claim with detailed information provided to Officer Nunez. The
level of detail included appellant’s gender, race, and name; the color, make, model, and license
plate number of her car; and appellant’s specific destination, the WaWa gas station at Beechmont
Avenue and Warwick Boulevard. The CI correctly predicted that appellant was en route to the
WaWa station. In addition, the CI correctly predicted that appellant would meet a man there,
which she indeed did under suspicious circumstances. While Officer Howser did not actually
see appellant engage in a drug transaction with the unknown man at the WaWa station, this fact,
however, is but one circumstance to consider in the totality of the circumstances. As the trial
court found, the specific details the CI provided concerning appellant’s identity, automobile, and
destination – as well as the man she would meet at the WaWa station – are significant facts in
our analysis here.
Like the informant in Draper v. United States, 358 U.S. 307 (1959), the CI here “could
not have made such accurate and detailed predictions of future events without personal or
‘inside’ knowledge of the suspect’s activities.” Byrd, 50 Va. App. at 554, 651 S.E.2d at 420. As
-6-
in Draper, the fact that the officers “personally verified every facet of the information” given by
the CI “except whether [appellant] had accomplished [her] mission” did not leave the officers
without probable cause to arrest. See Draper, 358 U.S. at 313. Therefore, the fact that Officer
Howser never actually observed a drug transaction between appellant and the unknown man did
not in itself render the CI’s tip unreliable and did not leave the officers without probable cause to
arrest appellant.
Our analysis here is reinforced by the fact that Officers Nunez and Howser did not arrest
appellant at the moment she pulled into the WaWa station consistent with the CI’s tip. Instead,
the officers set up surveillance posts on either side of the WaWa station and observed the
suspicious movements of appellant and the unknown man. Therefore, the CI’s tip did not
comprise the entirety of the basis for probable cause here. Contra Byrd, 50 Va. App. at 547, 651
S.E.2d at 417 (recounting that the insufficient probable cause showing was based entirely on the
informant’s tip). Instead, the officers here arrested appellant not only on the basis of the CI’s
reliable tip, but also after observing appellant’s suspicious behavior and interactions with the
unknown man at the WaWa station.
As the Virginia Supreme Court recently noted in Buhrman v. Commonwealth, 275 Va.
501, 659 S.E.2d 325 (2008):
In Taylor v. Commonwealth, 222 Va. 816, 284 S.E.2d 833
(1981), we held that “probable cause exists when the facts and
circumstances within the officer’s knowledge, and of which he has
reasonably trustworthy information, alone are sufficient to warrant
a person of reasonable caution to believe that an offense has been
or is being committed.” Id. at 820, 284 S.E.2d at 836 (citations
omitted). Therefore, in determining whether an officer had
sufficient probable cause to make an arrest, courts should focus
upon “what the totality of the circumstances meant to police
officers trained in analyzing the observed conduct for purposes of
crime control.” Hollis v. Commonwealth, 216 Va. 874, 877, 223
S.E.2d 887, 889 (1976).
Id. at 505, 659 S.E.2d at 327.
-7-
Here, Officer Howser observed appellant pull into the WaWa gas station as predicted by
the CI. The officer observed appellant meet the unknown man inside the store and walk to the
back of the store with him. The officer observed that appellant and the unknown man left the
store at different times, that the man initially walked past appellant’s car before walking back to
the car, and that the man placed his hand inside the driver’s side door for ten seconds before
leaving. Furthermore, Officer Howser observed that appellant never pumped any gas despite
parking right next to a gas pump. Viewing the totality of the circumstances in this case, it was
not unreasonable for a trained officer to believe that appellant went to the WaWa station for a
criminal purpose. Therefore, Officer Howser’s observations, when considered in the context of
the reasonably trustworthy information provided by the CI to Officer Nunez, were sufficient to
warrant a person of reasonable caution to believe that an offense had been committed. See
Taylor, 222 Va. at 820, 284 S.E.2d at 836.
Consequently, we hold that probable cause existed to arrest appellant. The trial court’s
denial of appellant’s motion to suppress the drug evidence seized during the search incident to
the arrest of appellant, therefore, was proper.
III. CONCLUSION
For the foregoing reasons, we affirm appellant’s conviction for possession of cocaine.
Affirmed.
-8-