COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Elder,
Annunziata, Bumgardner, Frank, Humphreys, Clements,
Felton and Kelsey
Argued at Richmond, Virginia
JERALD LORENZO JACKSON
OPINION BY
v. Record No. 3238-01-1 JUDGE D. ARTHUR KELSEY
JULY 29, 2003
COMMONWEALTH OF VIRGINIA
UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Mark L. Williams for appellant.
Susan M. Harris, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on brief),
for appellee.
The trial court found the appellant, Jerald Lorenzo
Jackson, guilty of possession of cocaine (Code § 18.2-250),
possession of a concealed weapon (Code § 18.2-308), and
possession of a firearm while simultaneously possessing illegal
drugs (Code § 18.2-308.4(A)). On appeal, Jackson challenges
only the trial court's denial of his pretrial suppression
motion. A divided panel of the Court affirmed the conviction.
Jackson v. Commonwealth, 39 Va. App. 624, 576 S.E.2d 206 (2003).
Upon rehearing the matter en banc, we likewise affirm the trial
court, finding no error in either its analysis or conclusion.
I.
On appeal from a denial of a suppression motion, we must
review the evidence in the light most favorable to the
Commonwealth, giving it the benefit of any reasonable
inferences. Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d
921, 924 (2000); Sabo v. Commonwealth, 38 Va. App. 63, 69, 561
S.E.2d 761, 764 (2002).
At 2:10 a.m. on June 17, 2001, the Newport News Police
Department dispatched Officer M.A. Cook to a street corner next
to a "small bar" to investigate an anonymous complaint. The
caller reported (and the dispatcher advised the responding
officers) that "three black males" were acting disorderly and
"at least one of them had a firearm and was brandishing it."
The caller also stated that the three "were getting into a car
and leaving." The caller described the vehicle as a "white
Honda." Sending backup, the police interpreted the report as "a
high risk situation with a gun possibly involved."
Three to five minutes later, Cook and other officers
arrived at the scene and observed a white Honda leaving the
area. They saw no other white vehicles of any type. The white
Honda "pulled out right in front" of Cook, permitting the
headlights of his police cruiser to shine directly into the
vehicle. Cook clearly saw three black males in the white Honda.
On the basis of the brandishing tip, the officers followed the
vehicle and stopped it several blocks away.
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Cook approached the car and explained the reason for the
stop. Sergeant James Hogan went to the passenger side of the
vehicle and shined a light into the car. Jackson sat in the
front passenger seat with his arms folded across his stomach.
Hogan noted an unusual bulge underneath Jackson's shirt, which
the officer suspected to be a firearm. The bulge, Hogan
concluded, "obviously was not part of his body" and was "too
big" to be anything other than a handgun.
Hogan asked Jackson if he had a gun on him. Jackson said
no. Hogan then said, "Could you pull your shirt up so that I
can be comfortable with us talking, because I believe you have a
firearm?" In response, Jackson pulled his shirt "a couple
inches and put it back" and then "crossed his arms back across
his stomach."
Fearing for his safety, Hogan unholstered his sidearm and
ordered Jackson out of the car. After Jackson got out of the
vehicle, Officer B.D. Bartley immediately conducted a weapons
search and removed a Glock, .40 caliber, semiautomatic handgun
from Jackson in the exact area of the previously noticed bulge.
The officers then handcuffed Jackson and placed him under
arrest. In a search incident to his arrest, the officers also
found crack cocaine in Jackson's pants pocket.
II.
At trial, Jackson moved to suppress the evidence, claiming
that the police officers (i) lacked a sufficient basis to stop
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the white Honda and to question its occupants, and (ii) had
equally insubstantial grounds for searching him for weapons or
drugs. Both events, Jackson contended, violated search and
seizure principles protected by Virginia law and the United
States Constitution. 1
The trial court denied the motion, stating that the
officers had "an obligation to protect the citizens of this
community" and would have been "derelict in their duty" had they
not acted as they did. The procedures they followed, the trial
judge concluded, were "strictly by the book." For the following
reasons, we agree with the trial court and affirm its decision.
A.
Though the ultimate question whether the officers violated
the Fourth Amendment triggers de novo scrutiny, we defer to the
trial court's findings of "historical fact" and give "due weight
to the inferences drawn from those facts by resident judges and
local law enforcement officers." Davis v. Commonwealth, 37
Va. App. 421, 429, 559 S.E.2d 374, 378 (2002) (citing Neal v.
1
See generally Code § 19.2-60 ("A person aggrieved by an
allegedly unlawful search or seizure may move the court . . . to
suppress it for use as evidence."). To the extent Jackson
invokes constitutional guarantees arising under Article I,
§ 10 of the Virginia Constitution, the state law analysis tracks
the federal law interpreting the Fourth Amendment of the United
States Constitution. See Henry v. Commonwealth, 32 Va. App.
547, 551, 529 S.E.2d 796, 798 (2000). "Our courts have
consistently held that the protections afforded under the
Virginia Constitution are co-extensive with those in the United
States Constitution." Sabo, 38 Va. App. at 77, 561 S.E.2d at
768 (citation omitted); see also Bennefield v. Commonwealth, 21
Va. App. 729, 739-40, 467 S.E.2d 306, 311 (1996).
- 4 -
Commonwealth, 27 Va. App. 233, 237, 498 S.E.2d 422, 424 (1998)).
Viewing the case through this evidentiary prism, we examine the
trial court's factual findings to determine if they are plainly
wrong or devoid of supporting evidence. See Mier v.
Commonwealth, 12 Va. App. 827, 828, 407 S.E.2d 342, 343 (1991).
The appellant must shoulder the "burden" of showing that the
trial court's decision "constituted reversible error." McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (citations omitted); see also Davis, 37 Va. App. at
429, 559 S.E.2d at 378.
B.
The Fourth Amendment "does not proscribe all seizures, only
those that are 'unreasonable.'" Hodnett v. Commonwealth, 32
Va. App. 684, 690, 530 S.E.2d 433, 436 (2000) (quoting Welshman
v. Commonwealth, 28 Va. App. 20, 30, 502 S.E.2d 122, 126-27
(1998) (en banc)); see also Hamlin v. Commonwealth, 33 Va. App.
494, 499, 534 S.E.2d 363, 365 (2000). The Constitution simply
"does not proscribe reasonable searches and seizures." Barkley
v. Commonwealth, 39 Va. App. 682, 691, 576 S.E.2d 234, 238
(2003). The text of the Fourth Amendment draws the line there;
so too must the courts.
In this context, reasonableness depends on the extent of
the individual's loss of freedom caused by the seizure and the
objective reason for it. A full custodial arrest requires a
showing of probable cause. When police officers merely stop an
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automobile, however, they need only have a reasonable,
articulable suspicion that the driver is unlicensed, the
automobile unregistered, or the "person stopped may be involved
in criminal activity." Bass, 259 Va. at 474-75, 525 S.E.2d at
923-24 (citations omitted). 2 Actual proof that "criminal
activity is afoot is not necessary," only that it "may be
afoot." Harmon v. Commonwealth, 15 Va. App. 440, 444, 425
S.E.2d 77, 79 (1992); see also United States v. Arvizu, 534 U.S.
266, 273 (2002); Hamlin, 33 Va. App. at 501, 534 S.E.2d at 366.
Though an officer's reliance on a mere hunch cannot justify a
stop, "the likelihood of criminal activity need not rise to the
level required for probable cause, and it falls considerably
short of satisfying a preponderance of the evidence standard."
Arvizu, 534 U.S. at 274. 3
2
When police officers "'stop a motor vehicle and detain an
occupant, this constitutes a seizure of the person for Fourth
Amendment purposes.'" Logan v. Commonwealth, 19 Va. App. 437,
441, 452 S.E.2d 364, 367 (1994) (quoting Zimmerman v.
Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709 (1988)).
After making a lawful stop of a vehicle and questioning its
occupants, an officer may order a passenger out of the vehicle.
See Maryland v. Wilson, 519 U.S. 408, 415 (1997); Harris v.
Commonwealth, 27 Va. App. 554, 561-63, 500 S.E.2d 257, 260-61
(1998); Welshman, 28 Va. App. at 31-32, 502 S.E.2d at 127-28;
Hatcher v. Commonwealth, 14 Va. App. 487, 491-92, 419 S.E.2d
256, 258-59 (1992).
3
See also Parker v. Commonwealth, 255 Va. 96, 104, 496
S.E.2d 47, 51-52 (1998) (recognizing that an investigatory
detention may take place "even though there is no probable cause
to make an arrest," citing Terry v. Ohio, 392 U.S. 1, 22
(1968)); Clarke v. Commonwealth, 32 Va. App. 286, 295, 527
S.E.2d 484, 488 (2000) (noting that the test for reasonable
suspicion is "less stringent than the test for probable cause").
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Under equally settled principles, "anonymous information
that has been sufficiently corroborated may furnish reasonable
suspicion justifying an investigative stop." Bulatko v.
Commonwealth, 16 Va. App. 135, 137, 428 S.E.2d 306, 307 (1993)
(citing Alabama v. White, 496 U.S. 325, 331 (1990)). "An
informant's tip can provide the justification for a Terry stop
even if the informant's reliability is unknown and certainly can
do so if, as here, the information is corroborated." Washington
v. Commonwealth, 29 Va. App. 5, 11, 509 S.E.2d 512, 515 (1999)
(en banc) (citation omitted). "Anonymous information
sufficiently corroborated may give reasonable suspicion for an
investigative stop although the unverified tip by itself would
not justify a forcible stop." Washington, 29 Va. App. at 12,
509 S.E.2d at 515.
Described as "the classic case on the value of
corroborative efforts of police officials," Illinois v. Gates,
462 U.S. 213, 242 (1983), the United States Supreme Court
decision in Draper v. United States, 358 U.S. 307 (1959),
involved a known informant who reported that the suspect would
be arriving on a particular train, wearing certain kinds of
clothes, carrying particular pieces of luggage, would walk
briskly, and "would be carrying a quantity of heroin." Gates,
462 U.S. at 242. The informant "gave no indication of the basis
for his information." Id. The police verified all of these
details except the allegation that the suspect had "heroin on
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his person or in his bag." Gates, 462 U.S. at 243. By itself,
however, this omission did not invalidate the reliability of the
tip. As the Supreme Court explained,
with every other bit of [the informant's]
information being thus personally verified,
[the officer] had "reasonable grounds" to
believe that the remaining unverified bit of
[the informant's] information —— that [the
suspect] would have the heroin with him ——
was likewise true.
Id. (quoting Draper, 358 U.S. at 313); see also Boyd v.
Commonwealth, 12 Va. App. 179, 189, 402 S.E.2d 914, 920 (1991)
("The verification of the personal information becomes, then,
but another circumstance the [officer] may consider in
determining whether the informer is to be believed. It is a
factor which reduced the chances that [the informer's report
was] a reckless or prevaricating tale." (citing Gates, 462 U.S.
at 244-45) (internal quotations omitted)).
The Fourth Amendment has never required that the same
inflexible rule of reliability be applied to all cases involving
informants. "Rigid legal rules are ill-suited to an area of
such diversity. 'One simple rule will not cover every
situation.'" Gates, 462 U.S. at 232 (quoting Adams v. Williams,
407 U.S. 143, 147 (1972)). Even the reasonable suspicion
standard itself, a "somewhat abstract" and "'elusive concept,'"
cannot be reduced to a "'"neat set of legal rules."'" Arvizu,
534 U.S. at 274 (quoting Ornelas v. United States, 517 U.S. 690,
695-96 (1996), and Gates, 462 U.S. at 232 (additional citation
- 8 -
omitted)). Given the flexibility inherent in the concept of
reasonableness, the level of corroboration required by the
Fourth Amendment depends on commonsense principles. In this
case, three such principles stand out.
First, citizens who witness a crime in progress are
presumed personally reliable, and thus, courts do "not apply to
citizen informers the same standard of reliability as is
applicable when police act on tips from professional informers
or those who seek immunity for themselves . . . ." Guzewicz v.
Commonwealth, 212 Va. 730, 735-36, 187 S.E.2d 144, 148 (1972).
Information from a "disinterested citizen" who claims to be an
eyewitness of a crime may be given more weight than "information
from a 'criminal' informer, whose motives are less likely to be
pure." Reed v. Commonwealth, 36 Va. App. 260, 267-68, 549
S.E.2d 616, 619-20 (2001); see also McCreary v. Sigler, 406 F.2d
1264, 1269 (8th Cir. 1969) ("Probable cause for an arrest may
exist where an unknown citizen makes complaints, as a victim or
eyewitness to a crime, where the underlying circumstances
demonstrate his first-hand personal knowledge.").
Put another way, a call from a concerned citizen who
witnesses a crime requires not so much "personal reliability" of
the observer, but "observational reliability" of his
observations. State v. Walshire, 634 N.W.2d 625, 629 (Iowa
2001); see also State v. Williams, 623 N.W.2d 106, 115 (Wis.),
cert. denied, 534 U.S. 949 (2001). Observational reliability
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exists where the police can corroborate significant details, the
corroboration takes place soon after the alleged observation,
and the eyewitness report is something that could have been seen
had it happened as described. 4 As we said in Beckner v.
Commonwealth, 15 Va. App. 533, 537, 425 S.E.2d 530, 533 (1993),
albeit in dicta, an anonymous report that a suspect is
"displaying a gun" implies a "personal basis of knowledge" upon
which reasonable officers may rely.
Second, the Fourth Amendment requirement of corroboration
also takes into account whether the alleged illegality involves
a concealed crime or an open and obvious crime. It matters a
great deal if the illegality alleged in the tip "'did not
involve a concealed crime —— a possessory offense.'" United
States v. Wheat, 278 F.3d 722, 734 (8th Cir. 2001) (quoting
State v. Boyea, 765 A.2d 862, 875 (Vt. 2000) (Skoglund, J.,
concurring)), cert. denied, 533 U.S. 917 (2002). If what was
"described in the police dispatch to the arresting officer was a
crime in progress, carried out in public, identifiable and
observable by anyone," the anonymous tip may not need the same
4
See, e.g., Gregory v. Commonwealth, 22 Va. App. 100, 107,
468 S.E.2d 117, 121 (1996) ("Accordingly, a detailed
description, like that given here, by a caller who appears to
have been a concerned citizen who recently observed a person
hailing motorists to sell drugs, together with immediate
verification of aspects of the description are important factors
to consider in determining whether the officer had reasonable
suspicion, even when the description contains facts that are
'easily obtained.'").
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species of corroboration required for reports of concealed
crimes. Id.
In other words, what may be reasonable corroboration for
tips alleging an open and obvious crime (particularly from a
caller claiming to be an eyewitness) may be unsatisfactory for
those asserting a concealed crime. For concealed crimes, the
tip may need some insider information capable of predicting the
suspect's actions. This conclusion stems from the truism, noted
in White, 496 U.S. at 332, that when a tipster has knowledge of
information about the suspect which the "general public would
have no way of knowing," then it can be reasonably inferred that
the tipster "is likely to also have access to reliable
information about that individual's illegal activities." In
such cases, the tip becomes more reliable to the extent it
reveals "inside information" demonstrating a "special
familiarity" with the suspect's affairs. Id.
When an anonymous caller reports an open and obvious crime
(like when a suspect brandishes a weapon or, for that matter,
shoots someone), the Fourth Amendment may require no showing
that the caller have inside information about the suspect
capable of predicting his future conduct. 5 A "careful reading"
5
We made a similar point in response to an appellant who
argued that White established an inflexible rule that
"information supplied to the government by an unidentified
informant may not establish reasonable suspicion to effect an
investigative stop, unless the information predicts the future
actions of the individual stopped." Beckner, 15 Va. App. at
535, 425 S.E.2d at 531. Our response was unequivocal: "We
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of the United States Supreme Court's cases shows that the
"emphasis on the predictive aspects of an anonymous tip may be
less applicable to tips purporting to describe contemporaneous,
readily observable criminal actions . . . ." Wheat, 278 F.3d at
734. In such cases, the duty to corroborate focuses mainly on
whether the tipster has accurately identified the suspect and
described the illegality. "Almost always, it comes from his
eyewitness observations, and there is no need to verify that he
possesses inside information." Id.
Third, the reasonable corroboration standard also takes
into account the seriousness of the danger posed by the alleged
illegality. On several occasions "we have recognized a line of
cases where courts have found reasonable suspicion for an
investigatory stop when the public is in imminent danger,
despite the fact that the stop is based on information provided
by an anonymous informant who has not provided any basis of
knowledge." Scott v. Commonwealth, 20 Va. App. 725, 728, 460
S.E.2d 610, 612 (1995) (citations omitted); see also Ramey v.
Commonwealth, 35 Va. App. 624, 633, 547 S.E.2d 519, 524 (2001)
("We have applied an imminent danger standard in reviewing the
sufficiency of an anonymous tip where there is a contemporaneous
disagree with the appellant on this point. We believe that a
finding of reasonable suspicion may be warranted in some
circumstances, despite the unidentified informant not providing
the government with information that predicts the future actions
of the subject, if some other indicia of reliability of the
informant exists." Id.
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description of dangerous criminal activity such as brandishing a
firearm in a public place."). In such cases, the "imminent
public danger" may provide ample justification for an "immediate
investigation." Beckner, 15 Va. App. at 538, 425 S.E.2d at 534;
cf. Giles v. Commonwealth, 32 Va. App. 519, 524-25, 529 S.E.2d
327, 330 (2000) (considering the "imminence of serious and
perhaps lethal danger" as a factor in Terry stop analysis).
C.
In light of these principles, we reject Jackson's argument
that the police had no authority to stop the white Honda and to
question its occupants. The officers received a dispatch
stating that three black males in a white Honda had been
observed acting disorderly and one had been seen "brandishing" a
firearm. On its face, the report alleged open and obvious
criminal behavior. Brandishing a firearm means displaying it
"in such manner as to reasonably induce fear in the mind of
another or hold[ing] a firearm in a public place in such a
manner as to reasonably induce fear in the mind of another of
being shot or injured." Code § 18.2-282(A). The ordinary
meaning of the word tracks its statutory definition.
Brandishing a firearm means to "wave, shake, or exhibit in a
menacing, challenging, or exultant way." Webster's New World
Dictionary 170 (3d college ed. 1988).
That leaves only one issue: Did the officers sufficiently
corroborate the information in the call? The trial court
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correctly found that they did. The caller reported six
significant details: the make of the vehicle (Honda), its color
(white), its location (leaving the bar), the number of the
occupants in the car (three), the race of each of the occupants
(black), and the gender of each of the occupants (males).
Having corroborated each of these details, within minutes of the
original report, the police had an objectively reasonable belief
that the remaining portion of the tip —— that one of the
suspects had brandished a firearm only moments before —— was
likewise true. It is hardly unreasonable to believe that
because an informant is "right about some things, he is more
probably right about other facts," including the assertion that
the suspect is engaged in "illegal activity." Gates, 462 U.S.
at 244 (quoting Spinelli v. United States, 393 U.S. 410, 427
(1969) (White, J., concurring)).
Although the information came from a concerned citizen
making an anonymous call to the police, this fact strengthens,
not weakens, the reliability of the tip. No information
suggests the unknown caller was a paid informant or a known
criminal tipster. More important, the caller claimed he
observed one of the disorderly suspects "brandishing" the weapon
and then "getting into a car and leaving." The caller described
the events in the first person, reporting his personal
observations about events then occurring. The tip in our case,
moreover, involved an open and obvious illegality. By
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definition, brandishing must be visible. Thus, anyone outside
the bar (or inside the bar looking out the window) could have
seen it. 6
Jackson's argument to the contrary fails to calibrate his
disagreement at the relevant level of persuasion. For a mere
investigatory detention, the Fourth Amendment does not require a
showing that the suspicion of illegality be more likely true
than not. Arvizu, 534 U.S. at 273-74. Nor, for that matter,
need there be even the lesser showing that probable cause exists
for such a belief. Id. There simply must be a reasonable
suspicion, not one based on a mere guess or instinctual hunch.
The sufficiency of the corroboration, therefore, need only be
great enough to elevate the suspicion from an unfounded
supposition to a reasonable one.
Jackson contends our reasoning has been undermined by
Florida v. J.L., 529 U.S. 266 (2000). We disagree. The only
"question presented" in that case —— according to the United
6
For these reasons, we do not see any favorable comparison
between this case and Ramey, 35 Va. App. at 627, 547 S.E.2d at
521, where the anonymous tip did not involve either a
contemporaneous or an eyewitness report. Instead, the tip in
Ramey simply stated that a "black male was 'somehow' involved in
a fatal gang shooting the previous day, but relayed no further
information as to the source of the report or in what capacity
the black male was involved in the shooting." Id. We found
this tip legally insufficient for fairly obvious reasons. An
anonymous tip claiming a suspect had "somehow" committed a crime
"the previous day," however, is quite different from an
eyewitness report that a suspect is committing a crime at that
very moment —— particularly when the police provide near
immediate corroboration of a half-dozen observational details
contained in the report.
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States Supreme Court —— was "whether an anonymous tip that a
person is carrying a gun is, without more, sufficient to justify
a police officer's stop and frisk of that person." Id. at 268
(emphasis added); see also Commonwealth v. Hill, 264 Va. 541,
545, 570 S.E.2d 805, 807 (2002). The anonymous call reported
only "that a young black male standing at a particular bus stop
and wearing a plaid shirt was carrying a gun." J.L., 529 U.S.
at 268. As J.L. correctly put it, the "tipster did not even
allege that a crime was being committed." Brief for Respondent,
Florida v. J.L., 1998 U.S. Briefs LEXIS 1993 at *4 (Jan. 25,
2000).
In other words, the tip in J.L. did not contain "a specific
description of dangerous criminal conduct either under way or
likely to occur." Ramey, 35 Va. App. at 633, 547 S.E.2d at 524
(describing the deficiency in the J.L. tip). Reasonable
suspicion "requires that a tip be reliable in its assertion of
illegality," not just in its ability to identify a particular
suspect. Hill, 264 Va. at 545, 570 S.E.2d at 807 (quoting J.L.,
529 U.S. at 272). The holding of J.L. turns on this very point:
An accurate description of a subject's
readily observable location and appearance
is of course reliable in this limited sense:
It will help the police correctly identify
the person whom the tipster means to accuse.
Such a tip, however, does not show that the
tipster has knowledge of concealed criminal
activity. The reasonable suspicion here at
issue requires that a tip be reliable in its
assertion of illegality, not just in its
tendency to identify a determinate person.
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J.L., 529 U.S. at 272 (emphasis added). J.L. cited with
approval a leading text that distinguishes "reliability as to
identification, which is often important in other criminal law
contexts, from reliability as to the likelihood of criminal
activity, which is central in anonymous-tip cases." Id.
(summarizing 4 W. LaFave, Search and Seizure § 9.4(h), at 213
(3d ed. 1996)).
This fact alone distinguishes J.L. from our case. Absent
some disqualifying status (being a felon, juvenile, or drug
possessor) or situs (being in a place where weapons are
forbidden), it is not a crime to possess a weapon. The tipster
in J.L., therefore, made no reliable assertion of illegality. 7
On the other hand, no matter one's status or situs, it is a
crime to brandish a firearm in a public place. And that is
exactly what the tipster in our case asserted in a
contemporaneous, eyewitness report. We thus see a substantial
7
The officers in J.L. did not discover the illegality of
J.L. "carrying a gun" until after they detained J.L. and
determined he was a juvenile and, in any event, did not possess
a concealed weapon permit.
That the allegation about the gun turned out
to be correct does not suggest that the
officers, prior to the frisks, had a
reasonable basis for suspecting J.L. of
engaging in unlawful conduct: The
reasonableness of official suspicion must be
measured by what the officers knew before
they conducted their search.
J.L., 529 U.S. at 271.
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difference between the tip in J.L. (a man is carrying a gun) and
the tip in our case (a man is pointing a gun at people). 8
The "carrying a gun" shorthand expression in J.L.,
moreover, should not be mistakenly interpreted as "brandishing"
a gun. The Florida Supreme Court, affirmed by the United States
Supreme Court, made clear that the officers "received an
anonymous tip that a young man was carrying a concealed weapon."
J.L. v. Florida, 727 So. 2d 204, 207 (Fla. 1998) (emphasis
added). The Florida Court of Appeals also confirmed that the
"police received an anonymous complaint that a concealed weapon
violation was taking place." Florida v. J.L., 689 So. 2d 1116,
1117 (Fla. Dist. Ct. App. 1997) (emphasis added). The United
States Supreme Court granted certiorari on a single question
presented, whether a tip alleging "a person is carrying a
concealed firearm" passed the reliability test. Brief for
Petitioner, Florida v. J.L., 1998 U.S. Briefs LEXIS 1993 at *i
(Dec. 23, 1999) (emphasis added). Not one time in any of the
judicial opinions or legal briefs accompanying J.L. to the
8
The reason J.L. nevertheless engaged the reliability
analysis was because reasonable suspicion, under the totality of
the circumstances test, requires that both "quantity and
quality" factors be considered, allowing for the "requisite
quantum" of one to affect necessarily the other. White, 496
U.S. at 330. A footnote in J.L. notes that the "mere fact that
a tip, if true, would describe illegal activity does not mean
that the police may make a Terry stop without meeting the
reliability requirement." J.L., 529 U.S. at 273 n.*. This
unremarkable proposition simply means that an anonymous tip must
allege some illegality and be sufficiently reliable. The tip in
J.L. satisfied neither of the two requirements, and the tip in
our case satisfies both.
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United States Supreme Court did anyone assert that the tip in
J.L. involved a complaint of brandishing.
In addition to alleging a specific illegality, the
brandishing tip in our case has another characteristic that
distinguishes it from J.L. Even if the J.L. tip had alleged a
specific illegality (like, for example, if the tip had said the
suspect had both a weapon and illegal drugs on him at that bus
stop), 9 the illegality would have been concealed. In contrast,
the tip in our case involved an open and obvious illegality.
Anyone watching the suspect could have seen him brandishing the
firearm. It matters not that the anonymous caller did not have
predictive information about the suspect. He was simply
reporting what he saw. The United States Supreme Court in White
"did not create a rule requiring that a tip predict future
action, and neither did J.L." Wheat, 278 F.3d at 734 (citation
omitted). Nor do we. The consequences of such an inflexible
rule would be unwise at best and dangerous at worse.
If we were to adopt such a rule, it would preclude a police
officer from stopping a shooting suspect who is fleeing the
scene of an alleged crime simply because the anonymous tip
(reported by an alleged eyewitness providing a
near-contemporaneous description of the suspect and the offense)
did not recite any predictive information about the shooter. In
9
Simultaneously possessing both a firearm and illegal drugs
violates Code § 18.2-308.4(A).
- 19 -
such a case, what would matter to any reasonable officer (and,
under the law, what should matter to any reasonable court) is
whether the caller actually saw the shooter and the shooting,
not whether the caller knows some intimate details of the
shooter's personal life. To reject this commonsense distinction
between a concealed crime (which may require some showing of
predictive quality to the tip) and an open and obvious crime
(which focuses only on observational reliability), as Jackson
urges us to do, would hardly be in keeping with the rule of
reason animating the Fourth Amendment.
An equally dispositive distinction between the J.L. tip and
the tip in our case is that the brandishing tip in our case came
from a caller making a contemporaneous report of observable
events as an eyewitness. The tipster in J.L. did not state that
he observed J.L. with the firearm. The fact is, the tip did not
express or imply any first-person, present-tense observation of
the reported facts. Like the officers in J.L., we are left to
wonder whether the tipster saw anything himself or whether he
simply made a wild (albeit accurate) guess that J.L. was
carrying a gun. 10
10
We do not consider Harris v. Commonwealth, 262 Va. 407,
551 S.E.2d 606 (2001), to be inconsistent with our analysis. In
that case, the Commonwealth stipulated that the anonymous tip
(alleging a suspected drug dealer was "armed") was insufficient
to justify a Terry stop, thus rendering the J.L. issue moot.
Recognizing this, the Virginia Supreme Court stated:
"Accordingly, we need not address that aspect of the Court of
Appeals opinion." Harris, 262 Va. at 414, 551 S.E.2d at 609.
From there, Harris went on to address only the question whether
- 20 -
Finally, we find the corroboration sufficient in light of
the imminent danger to the public raised by the anonymous
brandishing tip. In Scott, 20 Va. App. at 727, 460 S.E.2d at
611, an anonymous caller reported that he saw a man "brandishing
a gun" in a laundromat. The caller gave a specific description
of the man's appearance. The police found the man a block away
and took a firearm from him during a pat-down search. We held
that the "imminent danger" posed by a suspect brandishing a
firearm in a public place warranted the stop because of the
enormous risk that, if the tip were true, innocent lives might
be placed in immediate peril. Scott, 20 Va. App. at 728-29, 460
S.E.2d at 612-13.
The same conclusion reached in Scott must be reached here,
a case where police officers received information from a
concerned citizen about a suspect brandishing a firearm outside
the police officer had a reasonable suspicion that the suspect
was trespassing. On that narrow issue, Harris held that the
Commonwealth could not use a concededly invalid tip (concerning
an "armed" drug dealer) to rehabilitate a Terry stop (based
solely on a trespassing hunch) which itself lacked any
reasonable suspicion of illegality. Nothing in the Virginia
Supreme Court's opinion in Harris, therefore, deals with the
question whether the tip did or did not satisfy the J.L.
standard. Our panel decision, Harris v. Commonwealth, 33
Va. App. 325, 533 S.E.2d 18 (2000), which was reversed on other
grounds, found the tip in violation of J.L. This finding,
however, does not contradict our analysis. The tip in Harris
did not provide a reasonable basis for an officer to conclude
that the tipster was an eyewitness reporting contemporaneous
events, or that the suspect's use of the weapon involved an open
and obvious illegality, or that the conduct presented an
imminent danger to public safety.
- 21 -
a bar at about 2:00 a.m. For the police not to act in such
circumstances, the trial judge correctly observed, would have
been a dereliction of duty. Whatever the appropriate level of
Fourth Amendment scrutiny, it should not permit (much less
encourage) a law enforcement officer "'to simply shrug his
shoulders and allow a crime to occur or a criminal to escape.'"
United States v. Montoya de Hernandez, 473 U.S. 531, 544 (1985)
(quoting Williams, 407 U.S. at 145); see also Simmons v.
Commonwealth, 217 Va. 552, 554, 231 S.E.2d 218, 220 (1977);
Christian v. Commonwealth, 33 Va. App. 704, 713, 536 S.E.2d 477,
482 (2000) (en banc).
For the same reasons we find unpersuasive the analogy
between J.L. and the present case, we find it equally
unconvincing as a basis for overruling Scott. Unlike Scott, the
tip in J.L. did not involve a contemporaneous, eyewitness
account, but rather a vague report providing absolutely no basis
for the officers to discern the possible source of the caller's
information or its timeliness. Also unlike Scott, the tip in
J.L. did not describe an open and obvious crime involving an
imminent danger to public safety, but rather a concealed one
(assuming any alleged illegality at all) implicating no
immediate peril.
In sum, we find the brandishing tip in our case "reliable
in its assertion of illegality," J.L., 529 U.S. at 272, because
this tip —— unlike the "carrying a gun" tip in J.L. —— provided
- 22 -
information permitting the officers reasonably to infer that it
(i) came from a concerned citizen making a contemporaneous,
eyewitness report, (ii) involved an open and obvious crime
rather than mere concealed illegality, and (iii) described
criminality posing an imminent danger to the public. After
corroborating a half-dozen specific details within minutes of
the tip, the officers correctly concluded the totality of the
circumstances raised a "reasonable suspicion to believe that
criminal activity 'may be afoot.'" Arvizu, 534 U.S. at 273
(citations and quotation marks omitted).
In so holding, we find our views consistent with other
appellate courts that have addressed specifically the
distinguishing characteristics of the unreliable tip in J.L.
See, e.g., Walshire, 634 N.W.2d at 627-28, 630 ("This case is
different from J.L. in several respects, one of which is
particularly important: the information provided here did not
concern concealed criminal activity, but rather illegality open
to public observation."); Williams, 623 N.W.2d at 114 ("Quite
simply, in contrast to the tipster in Florida v. J.L., the
tipster here has made plain that she is an eyewitness."); State
v. Rutzinski, 623 N.W.2d 516, 526 (Wis. 2001) ("[U]nlike the
caller in J.L., the informant in this case . . . was making
personal observations of Rutzinski's contemporaneous actions.");
Boyea, 765 A.2d at 868 (distinguishing the tip in J.L. from
tips asserting contemporaneous, eyewitness reports of open and
- 23 -
obvious illegality); see also Wheat, 278 F.3d at 729-37
(surveying and concurring with cases that find J.L.
distinguishable from cases involving eyewitness tips alleging
contemporaneous and openly dangerous illegality).
D.
Even assuming the legality of the vehicle stop, Jackson
still contends that no additional grounds existed for his
warrantless search and detention. "When a police encounter goes
beyond an investigatory detention," Jackson argues, it "becomes
a 'seizure' of the suspect" and "full probable cause is required
for the seizure, not a mere showing of articulable suspicion."
In making this argument, Jackson views being questioned, ordered
out of the vehicle (albeit at gunpoint), and frisked as an
arrest. He also assumes that, under Fourth Amendment
principles, all seizures must be arrests for purposes of
triggering the probable cause requirement. We find merit in
neither argument.
Investigatory detentions and arrests both involve Fourth
Amendment seizures. 11 They are quite dissimilar, however, in
actual practice and in legal principle. In an investigatory
detention, an officer seeks to determine whether a crime has
11
The Fourth Amendment "applies to all seizures of the
person, including seizures that involve only a brief detention
short of traditional arrest." Brown v. Texas, 443 U.S. 47, 50
(1979) (citations omitted); Wechsler v. Commonwealth, 20
Va. App. 162, 170, 455 S.E.2d 744, 748 (1995).
- 24 -
been, or is about to be, committed. The suspect's freedom to
leave is impaired, but only temporarily. If the officer's
suspicions do not ripen into probable cause, the suspect must be
promptly released once the purpose for the stop has been
fulfilled. In contrast, an arrest is "'the initial stage of a
criminal prosecution.'" Hill, 264 Va. at 547, 570 S.E.2d at 808
(quoting Terry v. Ohio, 392 U.S. 1, 26 (1968)). "After an
arrest, a citizen's liberty is completely constrained, at a
minimum, until a judicial officer has determined the issue of
bail." Id. Thus, the "different consequences that attend an
arrest and an investigative detention are manifest." Id.
During an investigatory stop, the officer may conduct a
pat-down search for his own safety if he has a reasonable belief
that the person may be armed and dangerous. See Ybarra v.
Illinois, 444 U.S. 85, 93-94 (1979). The officer need not be
"absolutely certain that the person is armed." Simmons, 217 Va.
at 556, 231 S.E.2d at 221. "If he reasonably believes that the
individual might be armed, the search is warranted to protect
himself or others who may be in danger." Id. (emphasis added).
In assessing whether a suspect may be armed and dangerous,
an officer may consider "characteristics of the area surrounding
the stop, the time of the stop, the specific conduct of the
suspect individual, the character of the offense under
suspicion, and the unique perspective of a police officer
trained and experienced in the detection of crime." Christian,
- 25 -
33 Va. App. at 714, 536 S.E.2d at 482 (footnote omitted).
Courts assess reasonableness from the perspective of a
reasonable officer on the scene, making allowance for the
necessity of split-second decisions. See Graham v. Connor, 490
U.S. 386, 396-97 (1989). 12
In Scott, we approved a pat-down search of a suspect who
had reportedly brandished a firearm in a public place. The
report came from an anonymous source which identified only the
suspect's appearance and location. The weapons frisk was
nonetheless "warranted for the officer's protection and the
protection of the public" given the immediate and potentially
deadly risk the suspect posed. Scott, 20 Va. App. at 729-30,
460 S.E.2d at 613.
Here, a contemporaneous report by a concerned citizen said
three black males in the white Honda had been disorderly and one
of them had brandished a firearm. When questioned directly
about having a gun, Jackson conspicuously attempted to hide
under his crossed arms a bulge that a trained officer
immediately believed to be a weapon. The officers, therefore,
12
Simply viewing a bulge, without any other indicia of
dangerousness, does not permit the officer to conduct a weapons
frisk. See Stanley v. Commonwealth, 16 Va. App. 873, 877, 433
S.E.2d 512, 514-15 (1993). But if other suspicious conduct
exists, such as the suspect's attempt to conceal the bulge or
similar circumstances suggesting danger, the officer may perform
a weapons frisk. See Troncoso v. Commonwealth, 12 Va. App. 942,
945, 407 S.E.2d 349, 350-51 (1991).
- 26 -
did not act unreasonably by suspecting the bulge "might be" a
firearm. Simmons, 217 Va. at 556, 231 S.E.2d at 221.
We also reject Jackson's argument that the investigatory
detention and weapons frisk amounted to a full custodial arrest.
To protect themselves during a valid Terry stop, police officers
have a right to draw their weapons, to handcuff a suspect, or
even to threaten to use force if the circumstances reasonably
warrant it. See generally Thomas v. Commonwealth, 16 Va. App.
851, 857, 434 S.E.2d 319, 323 (1993), aff'd en banc, 18 Va. App.
454, 444 S.E.2d 275 (1994). A Terry stop involves "a police
investigation 'at close range,' when the officer remains
particularly vulnerable in part because a full custodial arrest
has not been effected, and the officer must make 'a quick
decision as to how to protect himself and others from possible
danger.'" Servis v. Commonwealth, 6 Va. App. 507, 519, 371
S.E.2d 156, 162 (1988) (quoting Michigan v. Long, 463 U.S. 1032,
1053 (1983)) (emphasis in original). If a suspect is dangerous,
"he is no less dangerous simply because he is not arrested."
Id. (internal quotations and brackets omitted).
Coercive measures, therefore, do not "convert a stop and
frisk into an arrest so long as the methods of restraint used
are reasonable to the circumstances." Johnson v. Commonwealth,
20 Va. App. 49, 55, 455 S.E.2d 261, 264-65 (1995); see also
Harris v. Commonwealth, 27 Va. App. 554, 566, 500 S.E.2d 257,
263 (1998). Police officers exceed their authority under Terry
- 27 -
only when their methods go beyond that reasonably needed to
"confirm or dispel" their suspicions. Hamlin, 33 Va. App. at
501-02, 534 S.E.2d at 366. Questions of scope, whether in terms
of duration or the extent of coercion, must be referred back to
the basic reasonableness standard. When "'evaluating whether an
investigative detention is unreasonable, common sense and
ordinary human experience must govern over rigid criteria.'"
Washington, 29 Va. App. at 15, 509 S.E.2d at 517 (quoting United
States v. Sharpe, 470 U.S. 675, 685 (1985)).
In this case, the officers ordered Jackson out of the car
to frisk him only after they came to the reasonable conclusion
that he was hiding a weapon —— likely the very one that had been
brandished earlier. The only way to confirm or dispel that
suspicion was to conduct a limited weapons search. Given the
circumstances they faced at that time of night, we find nothing
unreasonable about the officers unholstering their weapons
during the frisk and ordering Jackson out of the car. Thus, we
reject Jackson's contention that the officers went beyond the
boundaries of Terry during their detention and weapons frisk of
Jackson.
Having found the weapon, the officers had probable cause to
believe Jackson was the black male who had reportedly brandished
a firearm outside the bar. By placing him under arrest at that
time, the officers gained the corollary authority to conduct a
search incident to that arrest. United States v. Robinson, 414
- 28 -
U.S. 218, 224 (1973) ("It is well settled that a search incident
to a lawful arrest is a traditional exception to the warrant
requirement of the Fourth Amendment."). For these reasons, the
trial court correctly refused to suppress either the weapon
found during the pat down or the crack cocaine found during the
search incident to arrest.
III.
Neither the initial stop of the white Honda, the
investigatory detention and weapons frisk of Jackson, nor the
search incident to Jackson's arrest constitutes a violation of
the Fourth Amendment's proscription against "unreasonable
searches and seizures." The trial court, therefore, did not err
in denying Jackson's suppression motion.
Affirmed.
- 29 -
Benton, J., with whom Fitzpatrick, C.J., Elder and
Annunziata, JJ., join, dissenting.
The United States Supreme Court's recent decision in
Florida v. J.L., 529 U.S. 266 (2000), could not be clearer.
Without a dissent, the Court "h[e]ld that an anonymous tip
lacking indicia of reliability . . . does not justify a stop and
frisk whenever and however it alleges the illegal possession of
a firearm." Id. at 274.
Rarely are the facts of two cases as congruent as the facts
in J.L. and this case. As in J.L., the officer in this case
received information from his dispatcher concerning a report
from an anonymous person. As in J.L., "[s]o far as the record
reveals, there is no audio recording of the tip, and nothing is
known about the informant." 529 U.S. at 268. As in J.L., the
testimony indicates an anonymous informant said that a man
brandished a firearm in a public place. See 529 U.S. at 268
(noting that an anonymous caller reported that a young man "was
carrying a gun"). As in J.L., the testimony indicates the
anonymous informant described the gender, race, and location of
the accused, but did not explain "how he knew about the gun."
529 U.S. at 271. As in J.L., the officer did not see a gun
before detaining the man. Finally, as in J.L., the
circumstances surrounding the anonymous informant's tip were not
sufficient to negate the substantial risk of fabrication.
The similarities between J.L. and this case extend beyond
the basic facts. Indeed, the present case presents the same
- 30 -
Fourth Amendment concerns that troubled the Supreme Court. As
in J.L., the officers' suspicion that Jackson was unlawfully
carrying a weapon arose solely from a call made from an unknown
location by an unknown caller. Thus, I believe the majority
misreads the import of J.L. when concluding that the decision
turned upon a finding that the informant had not relayed to the
police information about criminal conduct. 13 Answering "[t]he
question . . . whether an anonymous tip that a person is
carrying a gun, is without more, sufficient to justify a police
officer's stop and frisk of that person," 529 U.S. at 268, the
Supreme Court expressly relied upon its prior decisions and held
that, "[u]nlike a tip from a known informant whose reputation
can be assessed and who can be held responsible if her
allegations turn out to be fabricated, . . . 'an anonymous tip
alone seldom demonstrates the informant's basis of knowledge or
veracity.'" Id. at 270 (quoting Alabama v. White, 496 U.S. 325,
13
Significantly, the majority opinion recognizes that it is
not a crime to possess a gun in Virginia. No statute prohibits
an adult who is not a felon from openly displaying a gun.
Moreover, Virginia decisions arguably suggest that the
informant's tip in this case made no reliable assertion of
illegality because the mere report that a person "brandished" a
gun is not sufficient to allege the person has committed a
criminal offense under Code § 18.2-282. "The gravamen of the
offense [under Code § 18.2-282] is the inducement of fear in
another." Kelsoe v. Commonwealth, 226 Va. 197, 199, 308 S.E.2d
104, 104 (1983). See also Bailey v. Commonwealth, 5 Va. App.
331, 335 n.1, 362 S.E.2d 750, 751 n.1 (1987) (noting that Code
§ 18.2-282 is not implicated if a weapon is brandished and
"there is no evidence that fear by the victim was intended or
resulted"). Thus, "pointing or brandishing a firearm" is only
one of two elements of the offense. Kelsoe, 226 Va. at 198, 308
S.E.2d at 104.
- 31 -
329 (1990)). Thus, on facts virtually identical to this case,
the Court concluded the informant's tip was not proved to be
reliable and held that the tip's allegation of an illegal
possession of a gun did "not justify a stop and frisk." J.L.,
529 U.S. at 274.
If, as the majority opinion here suggests, the issue in
J.L. concerned the failure of the informant's tip to convey
evidence of criminal conduct, the resolution of that case would
not have required any discussion about the informant's
reliability. In that circumstance, regardless of the
informant's reliability, the officer would not have had a
reasonable suspicion that criminal activity was occurring and
would not have had a basis to detain J.L. See Terry v. Ohio,
392 U.S. 1, 27 (1968) (holding that a police officer may not
detain a person for investigative purposes based on "his
inchoate and unparticularized suspicion or 'hunch'" that
criminal activity may be occurring). See also Brown v. Texas,
443 U.S. 47 (1979). Significantly, the Supreme Court's decision
in J.L. notes that "[a]part from the tip, the officers had no
reason to suspect any of the three [men] of illegal conduct."
529 U.S. at 268 (emphasis added). Therefore, the majority
opinion's assertion that the tip in J.L. failed to convey
information about criminal conduct is simply wrong.
- 32 -
Explaining further the deficiency in the proof of the
reliability of the informant's tip, the Supreme Court noted the
following:
The tip in the instant case lacked the
moderate indicia of reliability present in
White and essential to the Court's decision
in that case. . . . All the police had to
go on in this case was the bare report of an
unknown, unaccountable informant who neither
explained how he knew about the gun nor
supplied any basis for believing he had
inside information about J. L. If White was
a close case on the reliability of anonymous
tips, this one surely falls on the other
side of the line.
J.L., 529 U.S. at 271. Indeed, the Supreme Court engaged in an
extended discussion of the anonymous informant's reliability in
J.L. precisely because the tip disclosed criminal conduct and
might have supported a detention if the informant was proved to
be reliable. See Adams v. Williams, 407 U.S. 143, 146-47
(1972).
Although all nine justices joined the J.L. opinion, see 529
U.S. at 274 (Kennedy, J., and Rehnquist, C.J. concurring, and
noting "I join in the opinion in all respects"), the concurring
opinion also refutes the interpretation the majority opinion in
this case gives to J.L. Specifically, the concurring opinion
posits as follows:
An anonymous telephone tip without more is
different, however, for even if the
officer's testimony about receipt of the tip
is found credible, there is a second layer
of inquiry respecting the reliability of the
informant that cannot be pursued. If the
telephone call is truly anonymous, the
- 33 -
informant has not placed his credibility at
risk and can lie with impunity. The
reviewing court cannot judge the credibility
of the informant and the risk of fabrication
becomes unacceptable.
On this record, then, the Court is correct
in holding that the telephone tip did not
justify the arresting officer's immediate
stop and frisk of respondent. There was
testimony that an anonymous tip came in by a
telephone call and nothing more. The record
does not show whether some notation or other
documentation of the call was made either by
a voice recording or tracing the call to a
telephone number. The prosecution recounted
just the tip itself and the later
verification of the presence of the three
young men in the circumstances the Court
describes.
529 U.S. at 275.
In addition, the notion that the police could "infer that
[the tip] . . . came from a concerned citizen making a
contemporaneous, eyewitness report" merely because the tip
alleges "an open and obvious crime" is precisely the type of
analysis that J.L. rejects. Nothing about such a tip provides a
basis upon which anyone might conclude that the anonymous
informant was honest or provided reliable information or was an
eyewitness to the events or, for that matter, was a "concerned
citizen." See Corey v. Commonwealth, 8 Va. App. 281, 288, 381
S.E.2d 19, 22 (1989) (noting that "[w]here courts have found a
citizen-informant credible, he or she has usually been described
with some particularity, such as 'known by the affiant for many
years,' . . . '[having] no known criminal record, a mature
person, regularly employed, a college student in good standing
- 34 -
[who] demonstrated truthful demeanor,' . . . 'a mature person,
regularly employed and absen[t] of any motivations to falsify,'
. . . or a 'law-abiding citizen, a respected businessman in the
community, and one who, in the past, had demonstrated a truthful
demeanor'"). A plain reading of J.L. discloses that the Supreme
Court, in a footnote, summarily disposed of the thesis advanced
by the majority opinion in this case when the Court ruled that
"[t]he mere fact that a tip, if true, would describe illegal
activity does not mean that the police may make a Terry stop
without meeting the reliability requirement." J.L., 529 U.S. at
273 n.*. As in J.L., the tip in the present case lacks indicia
of reliability.
The majority in this case accepts the Commonwealth's
suggestion to disregard J.L. and to rely on this Court's
decision in Scott v. Commonwealth, 20 Va. App. 725, 460 S.E.2d
610 (1995), to create some type of exception for guns. I
believe that decision is not supportable. First, Scott was, in
my view, wrongly decided, see 20 Va. App. at 730-32, 460 S.E.2d
at 613-14 (Benton, J., dissenting and noting that "[t]he record
in [Scott] contains no basis upon which anyone could have
determined that the invisible, unknown informant was reliable or
had a basis to know anything other than the presence of the
defendant, or someone similarly dressed, in the laundromat").
Second, Scott was decided in 1995, five years before its similar
facts were presented to the Supreme Court in J.L.. Third, in
- 35 -
cases involving the application of constitutional principles,
the Supremacy Clause, U.S. Const. Art. VI, cl.2, does not allow
state court decisions to trump decisions of the United States
Supreme Court. Reynoldsville Casket Co. v. Hyde, 514 U.S. 749,
750-51 (1995); Harper v. Virginia Dep't of Taxation, 509 U.S.
86, 100 (1993); Kessler v. Department of Public Safety, 369 U.S.
153, 172 (1962).
I would also note that the Commonwealth pursued, and the
Supreme Court of Virginia rejected, an argument similar to that
advanced in this case. See Harris v. Commonwealth, 262 Va. 407,
551 S.E.2d 606 (2001). There, as here, "the Commonwealth does
not expressly concede the applicability of the holding in J.L.
to the facts of this case." Id. at 414, 551 S.E.2d at 609.
There, as here, the Commonwealth argued that the anonymous
informant's tip about a gun provided a heightened justification
to support a detention. Id. at 416, 551 S.E.2d at 611.
Rejecting this Court's decision that the officer could use the
tip as a basis for conducting a frisk for the officer's safety,
see Harris v. Commonwealth, 33 Va. App. 325, 334, 533 S.E.2d 18,
22 (2000), the Supreme Court reversed the conviction. The Court
noted that the officer's detention of Harris was contrary to the
ruling in J.L. and rejected the Commonwealth's argument as one
that "bootstraps the legitimate concern for law enforcement
officers' safety, which permits a protective search of a legally
- 36 -
detained suspect, to serve as the basis for detaining the
suspect." Harris, 262 Va. at 416, 547 S.E.2d at 611.
The United States Supreme Court has specifically rejected
the type of firearm exception that the Commonwealth argued in
Harris, and now in this case, and that the majority opinion
resurrects from Scott. The Court unambiguously held as follows:
[A]n automatic firearm exception to our
established reliability analysis would rove
too far. Such an exception would enable any
person seeking to harass another to set in
motion an intrusive, embarrassing police
search of the targeted person simply by
placing an anonymous call falsely reporting
the target's unlawful carriage of a gun.
. . . If police officers may properly
conduct Terry frisks on the basis of
bare-boned tips about guns, it would be
reasonable to maintain under the above-cited
decisions that the police should similarly
have discretion to frisk based on bare-boned
tips about narcotics. As we clarified when
we made indicia of reliability critical in
Adams and White, the Fourth Amendment is not
so easily satisfied.
J.L., 529 U.S. at 272-73 (citations omitted). These principles
are equally applicable to a circumstance in which an anonymous
informant says he observed the commission of an "open and
obvious illegality." Even in that circumstance, "[i]f the
telephone call is truly anonymous, the informant has not placed
his credibility at risk and can lie with impunity." Id. at 275
(Kennedy, J., and Rehnquist, C.J., concurring). In the absence
of a "verifiable explanation of how the informant came to know
of the information in the tip," Ramey v. Commonwealth, 35
Va. App. 624, 631, 547 S.E.2d 519, 523 (2001), there still
- 37 -
remains "a second layer of inquiry respecting the reliability of
the informant that cannot be pursued." J.L., 529 U.S. at 275
(Kennedy, J., and Rehnquist, C.J., concurring).
The Commonwealth's reliance on cases from other
jurisdictions to support its notion that the tip was reliable is
equally unpersuasive. First, the informants in the two
Wisconsin cases, State v. Williams, 623 N.W.2d 106 (Wis. 2001),
and State v. Rutzinski, 623 N.W.2d 516, 526 (Wis. 2001), were
not anonymous and were eyewitnesses. "[I]n stark contrast to
Florida v. J.L., where nothing was known about the informant[,]
. . . the informant [in Williams] identified her location . . .
[as] 4261 North Teutonia." 623 N.W.2d at 114. Indeed, the
Supreme Court of Wisconsin noted that the informant "more than
merely identif[ied] her location, she repeatedly identified it
as her home: 'my house,' 'my apartment building,' 'our
apartment.' She also described the immediate surroundings: the
alley, the parking lot on the side of her apartment building."
Id. Hence, the court concluded that "[e]ven though the caller
did not identify herself, she did provide self-identifying
information, that is, her address," id., and she "made plain [by
words and conduct] that she is an eyewitness." Id. The court
further noted that "[a]lthough the caller said that she did not
'want to get involved,' by providing self-identifying
information, she risked that her identity would be discovered.
Consequently, the 9-1-1 caller put her anonymity at risk." Id.
- 38 -
For these reasons, the court agreed with the concurrence in J.L.
that if "an informant places his [or her] anonymity at risk, a
court can consider this factor in weighing the reliability of
the tip." Williams, 623 N.W.2d at 114.
Similarly, the Supreme Court of Wisconsin held that the
informant in Ruzinski "exposed him or herself to being
identified" by "indicat[ing] to the police prior to the stop
that he or she was in the vehicle in front of [the accused's]
pickup." 623 N.W.2d at 525. Based upon the informant's call to
the dispatcher, the investigating officer waited in the
informant's direction of travel and saw both vehicles pass his
location. Id. at 519. The court concluded that because "the
informant understood that the police could discover his or her
identity by tracing the . . . license plates or directing the
vehicle to the side of the road . . . [and the informant] knew
that he or she potentially could be arrested if the tip proved
to be fabricated . . . , this threat of arrest could lead a
reasonable police officer to conclude that the informant is
being truthful." Id. at 525-26. Furthermore, the record in
Ruzinski established that the informant stopped when the officer
stopped the accused, and the informant spoke with the officer's
supervisor. Id. at 519. In addition, the record in Ruzinski
makes abundantly clear the informant was an eyewitness to the
events.
- 39 -
In the present case, unlike the Wisconsin cases, the
informant did not reveal his or her location or give information
likely to disclose his identity. Thus, without the risk of
potential arrest, the informant provided a tip precisely like
the tip in J.L. -- patently unreliable.
Second, as in Ruzinski, the courts in the three other
jurisdictions the Commonwealth relies upon ruled that "in
contrast to the report of an individual in possession of a gun,
an anonymous report of an erratic or drunk driver on the highway
presents a qualitatively different level of danger, and
concomitantly greater urgency for prompt action." State v.
Boyea, 765 A.2d 862, 867 (Vt. 2000). See also United States v.
Wheat, 278 F.3d 722, 729 (8th Cir. 2001) (same); State v.
Walshire, 634 N.W.2d 625, 629 (Iowa 2001) (same). Thus, these
cases present an issue of suspicion of drunken driving, which is
not present in the case before us. In particular, Wheat
identified the "qualitative" difference between reports of
erratic driving and reports of gun possession as the opportunity
for the police to "quietly observe the suspect 'for a reasonable
period of time without running the risk of death or injury with
every passing moment.'" 278 F.3d at 729-30 (citation omitted).
See also Boyea, 765 A.2d at 864 n.2. Even assuming the validity
of a distinction for anonymous reports of "drunk driving," that
circumstance is absent in the present case. Indeed, this
absence of imminent danger in cases involving firearms is the
- 40 -
precise reason the Supreme Court in J.L. refused to carve out a
firearm exception. See 529 U.S. at 274. Cf. Boyea, 765 A.2d at
867 (holding that "a drunk driver[, contrary to someone
possessing a gun,] is not at all unlike a 'bomb'"). The Supreme
Court of Vermont, therefore, was careful to recognize in the
following passage that the United States Supreme Court left no
room to quibble about the lack of a gun exception:
While acknowledging that guns are dangerous,
the [United States Supreme] Court analogized
the situation to one involving an anonymous
tip concerning possession of narcotics. In
either case the contraband could pose a
potential public risk, but in neither is the
danger particularly imminent. Thus, the
Court rejected a rule that would have
dispensed with the requirement of
reliability "whenever and however" the
information involved a gun. J.L., [529 U.S.
at 274]. At the same time, however, the
Court carefully limited its holding to the
facts, declining to "speculate" about
situations involving other types of dangers,
such as a report of a person carrying a
bomb. Id.
Boyea, 765 A.2d at 867.
In summary, I would hold that the United States Supreme
Court has unanimously rejected the Commonwealth's hypothesis
that there exists an "imminent danger" exception for firearms,
and the Court "demand[s]" an "indicia of reliability . . . for a
report of a person carrying a firearm." J.L., 529 U.S. at 274
(emphasis added). Because this case is clearly controlled by
the Supreme Court's decision in J.L., I would reverse the
conviction. Therefore, I dissent.
- 41 -
Tuesday 11th
March, 2003.
Jerald Lorenzo Jackson, Appellant,
against Record No. 3238-01-1
Circuit Court No. 47010-01
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On February 19, 2003 came the appellant, by
court-appointed counsel, and filed a petition praying that the
Court set aside the judgment rendered herein on February 4,
2003, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing
en banc is granted, the mandate entered herein on February 4,
2003 is stayed pending the decision of the Court en banc, and
the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule
5A:35. The appellant shall attach as an addendum to the opening
brief upon rehearing en banc a copy of the opinion previously
rendered by the Court in this matter. It is further ordered that
- 42 -
the appellant shall file with the clerk of this Court twelve
additional copies of the appendix previously filed in this case.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
- 43 -
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Kelsey
Argued at Chesapeake, Virginia
JERALD LORENZO JACKSON
OPINION BY
v. Record No. 3238-01-1 JUDGE D. ARTHUR KELSEY
FEBRUARY 4, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Mark L. Williams for appellant.
Susan M. Harris, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on brief),
for appellee.
The trial court found the appellant, Jerald Lorenzo
Jackson, guilty of possession of cocaine (Code § 18.2-250),
possession of a concealed weapon (Code § 18.2-308), and
possession of a firearm while simultaneously possessing illegal
drugs (Code § 18.2-308.4(A)). On appeal, Jackson challenges
only the trial court's denial of his pretrial suppression
motion. We affirm the trial court on this issue, finding no
error in either its analysis or conclusion.
I.
On appeal from a denial of a suppression motion, we must
review the evidence in the light most favorable to the
Commonwealth, giving it the benefit of any reasonable
inferences. Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d
- 44 -
921, 924 (2000); Sabo v. Commonwealth, 38 Va. App. 63, 69, 561
S.E.2d 761, 764 (2002).
At 2:10 a.m. on June 17, 2001, the Newport News Police
Department dispatched Officer M.A. Cook to a street corner next
to a "small bar" to investigate an anonymous complaint. The
caller reported (and the dispatcher advised the responding
officers) that "three black males" were acting disorderly and
"at least one of them had a firearm and was brandishing it."
The caller also stated that the three "were getting into a car
and leaving." The caller described the vehicle as a "white
Honda." Sending backup, the police interpreted the report as "a
high risk situation with a gun possibly involved."
Three to five minutes later, Cook and other officers
arrived at the scene and observed a white Honda leaving the
area. They saw no other white vehicles of any type. The white
Honda "pulled out right in front" of Cook, permitting the
headlights of his police cruiser to shine directly into the
vehicle. Cook clearly saw three black males in the white Honda.
On the basis of the brandishing tip, the officers followed the
vehicle and stopped it several blocks away.
Cook approached the car and explained the reason for the
stop. Sergeant James Hogan went to the passenger side of the
vehicle and shined a light into the car. Jackson sat in the
front passenger seat with his arms folded across his stomach.
Hogan noted an unusual bulge underneath Jackson's shirt, which
- 45 -
the officer suspected to be a firearm. The bulge, Hogan
concluded, "obviously was not part of his body" and was "too
big" to be anything other than a handgun.
Hogan asked Jackson if he had a gun on him. Jackson said
no. Hogan then said, "Could you pull your shirt up so that I
can be comfortable with us talking, because I believe you have a
firearm?" In response, Jackson pulled his shirt "a couple
inches and put it back" and then "crossed his arms back across
his stomach."
Fearing for his safety, Hogan unholstered his sidearm and
ordered Jackson out of the car. After Jackson got out of the
vehicle, Officer B.D. Bartley immediately conducted a weapons
search and removed a Glock, .40 caliber, semiautomatic handgun
from Jackson in the exact area of the previously noticed bulge.
The officers then handcuffed Jackson and placed him under
arrest. In a search incident to his arrest, the officers also
found crack cocaine in Jackson's pants pocket.
II.
At trial, Jackson moved to suppress the evidence, claiming
that the police officers (i) lacked a sufficient basis to stop
the white Honda and to question its occupants, and (ii) had
equally insubstantial grounds for searching him for weapons or
drugs. Both events, Jackson contended, violated search and
- 46 -
seizure principles protected by Virginia law and the United
States Constitution. 14
The trial court denied the motion, stating that the
officers had "an obligation to protect the citizens of this
community" and would have been "derelict in their duty" had they
not acted as they did. The procedures they followed, the trial
judge concluded, were "strictly by the book." For the following
reasons, we agree with the trial court and affirm its decision.
A.
Though the ultimate question whether the officers violated
the Fourth Amendment triggers de novo scrutiny, we defer to the
trial court's findings of "historical fact" and give "due weight
to the inferences drawn from those facts by resident judges and
local law enforcement officers." Davis v. Commonwealth, 37
Va. App. 421, 429, 559 S.E.2d 374, 378 (2002) (citing Neal v.
Commonwealth, 27 Va. App. 233, 237, 498 S.E.2d 422, 424 (1998)).
Viewing the case through this evidentiary prism, we examine the
14
See generally Code § 19.2-60 ("A person aggrieved by an
allegedly unlawful search or seizure may move the court . . . to
suppress it for use as evidence."). To the extent Jackson
invokes constitutional guarantees arising under Article I, § 10
of the Virginia Constitution, the state law analysis tracks the
federal law interpreting the Fourth Amendment of the United
States Constitution. See Henry v. Commonwealth, 32 Va. App.
547, 551, 529 S.E.2d 796, 798 (2000). "Our courts have
consistently held that the protections afforded under the
Virginia Constitution are co-extensive with those in the United
States Constitution." Sabo, 38 Va. App. at 77, 561 S.E.2d at
768 (citation omitted); see also Bennefield v. Commonwealth, 21
Va. App. 729, 739-40, 467 S.E.2d 306, 311 (1996).
- 47 -
trial court's factual findings to determine if they are plainly
wrong or devoid of supporting evidence. See Mier v.
Commonwealth, 12 Va. App. 827, 828, 407 S.E.2d 342, 343 (1991).
The appellant must shoulder the "burden" of showing that the
trial court's decision "constituted reversible error." McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (citations omitted); see also Davis, 37 Va. App. at
429-30, 559 S.E.2d at 378.
B.
The Fourth Amendment "does not proscribe all seizures, only
those that are 'unreasonable.'" Hodnett v. Commonwealth, 32
Va. App. 684, 690, 530 S.E.2d 433, 436 (2000) (quoting Welshman
v. Commonwealth, 28 Va. App. 20, 30, 502 S.E.2d 122, 126-27
(1998) (en banc)); Hamlin v. Commonwealth, 33 Va. App. 494, 499,
534 S.E.2d 363, 365 (2000) (citation omitted). The Constitution
simply "does not proscribe reasonable searches and seizures."
Murphy v. Commonwealth, 37 Va. App. 556, 564, 559 S.E.2d 890,
893 (2002). The text of the Fourth Amendment draws the line
there; so too must the courts.
In this context, reasonableness depends on the extent of
the individual's loss of freedom caused by the seizure and the
objective reason for it. A full custodial arrest requires a
showing of probable cause. When police officers merely stop an
automobile, however, they need only have a reasonable,
articulable suspicion that the driver is unlicensed, the
- 48 -
automobile unregistered, or the "person stopped may be involved
in criminal activity." Bass, 259 Va. at 474-75, 525 S.E.2d at
923-24 (citations omitted). 15 Actual proof that "criminal
activity is afoot is not necessary," only that it "may be
afoot." Harmon v. Commonwealth, 15 Va. App. 440, 444, 425
S.E.2d 77, 79 (1992); see also United States v. Arvizu, 534 U.S.
266, 273 (2002); Hamlin, 33 Va. App. at 501, 534 S.E.2d at 366.
Though an officer's reliance on a mere hunch cannot justify a
stop, "the likelihood of criminal activity need not rise to the
level required for probable cause, and it falls considerably
short of satisfying a preponderance of the evidence standard."
Arvizu, 534 U.S. at 274. 16
15
When police officers "'stop a motor vehicle and detain an
occupant, this constitutes a seizure of the person for Fourth
Amendment purposes.'" Logan v. Commonwealth, 19 Va. App. 437,
441, 452 S.E.2d 364, 367 (1994) (quoting Zimmerman v.
Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709 (1988)).
After making a lawful stop of a vehicle and questioning its
occupants, an officer may order a passenger out of the vehicle.
See Maryland v. Wilson, 519 U.S. 408, 415 (1997); Harris v.
Commonwealth, 27 Va. App. 554, 561-63, 500 S.E.2d 257, 260-61
(1998); Welshman, 28 Va. App. at 31-33, 502 S.E.2d at 127-28;
Hatcher v. Commonwealth, 14 Va. App. 487, 491-92, 419 S.E.2d
256, 258-59 (1992).
16
See also Parker v. Commonwealth, 255 Va. 96, 104, 496
S.E.2d 47, 51-52 (1998) (an investigatory detention may take
place "even though there is no probable cause to make an arrest"
(citing Terry v. Ohio, 392 U.S. 1, 22 (1968))); Clarke v.
Commonwealth, 32 Va. App. 286, 295, 527 S.E.2d 484, 488 (2000)
(the test for reasonable suspicion is "less stringent than the
test for probable cause").
- 49 -
Under equally settled principles, "anonymous information
that has been sufficiently corroborated may furnish reasonable
suspicion justifying an investigative stop." Bulatko v.
Commonwealth, 16 Va. App. 135, 137, 428 S.E.2d 306, 307 (1993)
(citing Alabama v. White, 496 U.S. 325, 331 (1990)). "An
informant's tip can provide the justification for a Terry stop
even if the informant's reliability is unknown and certainly can
do so if, as here, the information is corroborated." Washington
v. Commonwealth, 29 Va. App. 5, 11, 509 S.E.2d 512, 515 (1999)
(en banc) (citation omitted). "Anonymous information
sufficiently corroborated may give reasonable suspicion for an
investigative stop although the unverified tip by itself would
not justify a forcible stop." Washington, 29 Va. App. at 12,
509 S.E.2d at 515.
Described as "the classic case on the value of
corroborative efforts of police officials," Illinois v. Gates,
462 U.S. 213, 242 (1983), the United States Supreme Court
decision in Draper v. United States, 358 U.S. 307 (1959),
involved a known informant who reported that the suspect would
be arriving on a particular train, wearing certain kinds of
clothes, carrying particular pieces of luggage, would walk
briskly, and "would be carrying a quantity of heroin." Gates,
462 U.S. at 242. The informant "gave no indication of the basis
for his information." Id. The police verified all of these
details except the allegation that the suspect had "heroin on
- 50 -
his person or in his bag." Gates, 462 U.S. at 243. By itself,
however, this omission did not invalidate the reliability of the
tip. As the Supreme Court explained,
with every other bit of [the informant's]
information being thus personally verified,
[the officer] had "reasonable grounds" to
believe that the remaining unverified bit of
[the informant's] information —— that [the
suspect] would have the heroin with him ——
was likewise true.
Id. (quoting Draper, 358 U.S. at 313); see also Boyd v.
Commonwealth, 12 Va. App. 179, 189, 402 S.E.2d 914, 920 (1991)
("The verification of the personal information becomes, then,
but another circumstance the [officer] may consider in
determining whether the informer is to be believed. It is a
factor which reduced the chances that [the informer's report
was] a reckless or prevaricating tale." (citing Gates, 462 U.S.
at 244-45) (internal quotations omitted)).
The Fourth Amendment has never required that the same
inflexible rule of reliability be applied to all cases involving
informants. "Rigid legal rules are ill-suited to an area of
such diversity. 'One simple rule will not cover every
situation.'" Gates, 462 U.S. at 232 (quoting Adams v. Williams,
407 U.S. 143, 147 (1972)). Even the reasonable suspicion
standard itself, a "somewhat abstract" and "'elusive concept,'"
cannot be reduced to a "'"neat set of legal rules."'" Arvizu,
534 U.S. at 274 (quoting Ornelas v. United States, 517 U.S. 690,
695-96 (1996), and Gates, 462 U.S. at 232 (additional citation
- 51 -
omitted)). Given the flexibility inherent in the concept of
reasonableness, the level of corroboration required by the
Fourth Amendment depends on commonsense principles. In this
case, three such principles stand out.
First, citizens who witness a crime in progress are
presumed personally reliable, and thus, courts do not "not apply
to citizen informers the same standard of reliability as is
applicable when police act on tips from professional informers
or those who seek immunity for themselves . . . ." Guzewicz v.
Commonwealth, 212 Va. 730, 735-36, 187 S.E.2d 144, 148 (1972).
Information from a "disinterested citizen" who claims to be an
eyewitness of a crime may be given more weight than "information
from a 'criminal' informer, whose motives are less likely to be
pure." Reed v. Commonwealth, 36 Va. App. 260, 267-68, 549
S.E.2d 616, 619-20 (2001); see also McCreary v. Sigler, 406 F.2d
1264, 1269 (8th Cir. 1969) ("Probable cause for an arrest may
exist where an unknown citizen makes complaints, as a victim or
eyewitness to a crime, where the underlying circumstances
demonstrate his first-hand personal knowledge.").
Put another way, a call from a concerned citizen who
witnesses a crime requires not so much "personal reliability" of
the observer, but "observational reliability" of his
observations. State v. Walshire, 634 N.W.2d 625, 629 (Iowa
2001); see also State v. Williams, 623 N.W.2d 106, 115 (Wis.),
cert. denied, 122 S. Ct. 343 (2001). Observational reliability
- 52 -
exists where the police can corroborate significant details, the
corroboration takes place soon after the alleged observation,
and the eyewitness report is something that could have been seen
had it happened as described. 17 As we said in Beckner v.
Commonwealth, 15 Va. App. 533, 537, 425 S.E.2d 530, 533 (1993),
albeit in dicta, an anonymous report that a suspect is
"displaying a gun" implies a "personal basis of knowledge" upon
which reasonable officers may rely.
Second, the Fourth Amendment requirement of corroboration
also takes into account whether the alleged illegality involves
a concealed crime or an open and obvious crime. It matters a
great deal if the illegality alleged in the tip "'did not
involve a concealed crime —— a possessory offense.'" United
States v. Wheat, 278 F.3d 722, 734 (8th Cir. 2001) (quoting
State v. Boyea, 765 A.2d 862, 875 (Vt. 2000) (Skoglund, J.,
concurring)), cert. denied, 123 S. Ct. 194 (2002). If what was
"described in the police dispatch to the arresting officer was a
crime in progress, carried out in public, identifiable and
observable by anyone," the anonymous tip may not need the same
17
See, e.g., Gregory v. Commonwealth, 22 Va. App. 100, 107,
468 S.E.2d 117, 121 (1996) ("Accordingly, a detailed
description, like that given here, by a caller who appears to
have been a concerned citizen who recently observed a person
hailing motorists to sell drugs, together with immediate
verification of aspects of the description are important factors
to consider in determining whether the officer had reasonable
suspicion, even when the description contains facts that are
'easily obtained.'").
- 53 -
species of corroboration required for reports of concealed
crimes. Id.
In other words, what may be reasonable corroboration for
tips alleging an open and obvious crime (particularly from a
caller claiming to be an eyewitness) may be unsatisfactory for
those asserting a concealed crime. For concealed crimes, the
tip may need some insider information capable of predicting the
suspect's actions. This conclusion stems from the truism, noted
in White, 496 U.S. at 332, that when a tipster has knowledge of
information about the suspect which the "general public would
have no way of knowing," then it can be reasonably inferred that
the tipster "is likely to also have access to reliable
information about that individual's illegal activities." In
such cases, the tip becomes more reliable to the extent it
reveals "inside information" demonstrating a "special
familiarity" with the suspect's affairs. Id.
When an anonymous caller reports an open and obvious crime
(like when a suspect brandishes a weapon or, for that matter,
shoots someone), the Fourth Amendment may require no showing
that the caller have inside information about the suspect
capable of predicting his future conduct. 18 A "careful reading"
of the United States Supreme Court's cases shows that the
18
We made a similar point in response to an appellant who
argued that White established an inflexible rule that
"information supplied to the government by an unidentified
informant may not establish reasonable suspicion to effect an
- 54 -
"emphasis on the predictive aspects of an anonymous tip may be
less applicable to tips purporting to describe contemporaneous,
readily observable criminal actions . . . ." Wheat, 278 F.3d at
734. In such cases, the duty to corroborate focuses mainly on
whether the tipster has accurately identified the suspect and
described the illegality. "Almost always, it comes from his
eyewitness observations, and there is no need to verify that he
possesses inside information." Id.
Third, the reasonable corroboration standard also takes
into account the seriousness of the danger posed by the alleged
illegality. On several occasions "we have recognized a line of
cases where courts have found reasonable suspicion for an
investigatory stop when the public is in imminent danger,
despite the fact that the stop is based on information provided
by an anonymous informant who has not provided any basis of
knowledge." Scott v. Commonwealth, 20 Va. App. 725, 728, 460
S.E.2d 610, 612 (1995) (citations omitted); see also Ramey v.
Commonwealth, 35 Va. App. 624, 633, 547 S.E.2d 519, 524 (2001)
("We have applied an imminent danger standard in reviewing the
sufficiency of an anonymous tip where there is a contemporaneous
investigative stop, unless the information predicts the future
actions of the individual stopped." Beckner, 15 Va. App. at
535, 425 S.E.2d at 531. Our response was unequivocal: "We
disagree with the appellant on this point. We believe that a
finding of reasonable suspicion may be warranted in some
circumstances, despite the unidentified informant not providing
the government with information that predicts the future actions
of the subject, if some other indicia of reliability of the
informant exists." Id.
- 55 -
description of dangerous criminal activity such as brandishing a
firearm in a public place."). In such cases, the "imminent
public danger" may provide ample justification for an "immediate
investigation." Beckner, 15 Va. App. at 538, 425 S.E.2d at 534;
cf. Giles v. Commonwealth, 32 Va. App. 519, 524-25, 529 S.E.2d
327, 330 (2000) (considering the "imminence of serious and
perhaps lethal danger" as a factor in Terry stop analysis).
C.
In light of these principles, we reject Jackson's argument
that the police had no authority to stop the white Honda and to
question its occupants. The officers received a dispatch
stating that three black males in a white Honda had been
observed acting disorderly and one had been seen "brandishing" a
firearm. On its face, the report alleged open and obvious
criminal behavior. Brandishing a firearm means using it "in
such manner as to reasonably induce fear in the mind of another
or holding a firearm in a public place in such a manner as to
reasonably induce fear in the mind of another of being shot or
injured." Code § 18.2-282(A). The ordinary meaning of the word
tracks its statutory definition. Brandishing a firearm means to
"wave, shake, or exhibit in a menacing, challenging, or exultant
way." Webster's New World Dictionary 170 (3d college ed. 1988).
That leaves only one issue: Did the officers sufficiently
corroborate the information in the call? The trial court
correctly found that they did. The caller reported six
- 56 -
significant details: the make of the vehicle (Honda), its color
(white), its location (leaving the bar), the number of the
occupants in the car (three), the race of each of the occupants
(black), and the gender of each of the occupants (males).
Having corroborated each of these details, within minutes of the
original report, the police had an objectively reasonable belief
that the remaining portion of the tip —— that one of the
suspects had brandished a firearm only moments before —— was
likewise true. It is hardly unreasonable to believe that
"'because an informant is right about some things, he is more
probably right about other facts' . . . including the claim
regarding the [the suspect's] illegal activity." Gates, 462
U.S. at 244 (quoting Spinelli v. United States, 393 U.S. 410,
427 (1969) (White, J., concurring)).
Although the information came from a concerned citizen
making an anonymous call to the police, this fact strengthens,
not weakens, the reliability of the tip. No information
suggests the unknown caller was a paid informant or a known
criminal tipster. More important, the caller claimed he
observed one of the disorderly suspects "brandishing" the weapon
and then "getting into a car and leaving." The caller described
the events in the first person, reporting his personal
observations about events then occurring. The tip in our case,
moreover, involved an open and obvious illegality. By
definition, brandishing must be visible. Thus, anyone outside
- 57 -
the bar (or inside the bar looking out the window) could have
seen it. 19
Jackson's argument to the contrary fails to calibrate his
disagreement at the relevant level of persuasion. For a mere
investigatory detention, the Fourth Amendment does not require a
showing that the suspicion of illegality be more likely true
than not. Arvizu, 534 U.S. at 273-74. Nor, for that matter,
need there be even the lesser showing that probable cause exists
for such a belief. Id. There simply must be a reasonable
suspicion, not one based on a mere guess or instinctual hunch.
The sufficiency of the corroboration, therefore, need only be
great enough to elevate the suspicion from an unfounded
supposition to a reasonable one.
Jackson contends our reasoning has been undermined by
Florida v. J.L., 529 U.S. 266 (2000). We disagree. The only
"question presented" in that case —— according to the United
States Supreme Court —— was "whether an anonymous tip that a
19
For these reasons, we do not see any favorable comparison
between this case and Ramey, 35 Va. App. at 627, 547 S.E.2d at
521, where the anonymous tip did not involve either a
contemporaneous or an eyewitness report. Instead, the tip in
Ramey simply stated that a "black male was 'somehow' involved in
a fatal gang shooting the previous day, but relayed no further
information as to the source of the report or in what capacity
the black male was involved in the shooting." Id. We found
this tip legally insufficient for fairly obvious reasons. An
anonymous tip claiming a suspect had "somehow" committed a crime
"the previous day," however, is quite different from an
eyewitness report that a suspect is committing a crime at that
very moment —— particularly when the police provide near
- 58 -
person is carrying a gun is, without more, sufficient to justify
a police officer's stop and frisk of that person." Id. at 268
(emphasis added); see also Commonwealth v. Hill, 264 Va. 541,
545, 570 S.E.2d 805, 807 (2002). The anonymous call reported
only "that a young black male standing at a particular bus stop
and wearing a plaid shirt was carrying a gun." J.L., 529 U.S.
at 268. As J.L. correctly put it, the "tipster did not even
allege that a crime was being committed." Brief of Respondent,
Florida v. J.L., 1998 U.S. Briefs LEXIS 1993 at *4 (Jan. 25,
2000).
In other words, the tip in J.L. did not contain "a specific
description of dangerous criminal conduct either under way or
likely to occur." Ramey, 35 Va. App. at 633, 547 S.E.2d at 524
(describing the deficiency in the J.L. tip). Reasonable
suspicion "requires that a tip be reliable in its assertion of
illegality," not just in its ability to identify a particular
suspect. Hill, 264 Va. at 545, 570 S.E.2d at 807 (quoting J.L.,
529 U.S. at 272). The holding of J.L. turns on this very point:
An accurate description of a subject's
readily observable location and appearance
is of course reliable in this limited sense:
It will help the police correctly identify
the person whom the tipster means to accuse.
Such a tip, however, does not show that the
tipster has knowledge of concealed criminal
activity. The reasonable suspicion here at
issue requires that a tip be reliable in its
immediate corroboration of a half-dozen observational details
contained in the report.
- 59 -
assertion of illegality, not just in its
tendency to identify a determinate person.
J.L., 529 U.S. at 272 (emphasis added). J.L. cited with
approval a leading text that distinguishes "reliability as to
identification, which is often important in other criminal law
contexts, from reliability as to the likelihood of criminal
activity, which is central in anonymous-tip cases." Id.
(summarizing 4 W. LaFave, Search and Seizure § 9.4(h), at 213
(3d ed. 1996)).
This fact alone distinguishes J.L. from our case. Absent
some disqualifying status (being a felon, juvenile, or drug
possessor) or situs (being in a place where weapons are
forbidden), it is not a crime to possess a weapon. The tipster
in J.L., therefore, made no reliable assertion of illegality. 20
On the other hand, no matter one's status or situs, it is a
crime to brandish a firearm in a public place. And that is
20
The officers in J.L. did not discover the illegality of
J.L. "carrying a gun" until after they detained J.L. and
determined he was a juvenile and, in any event, did not possess
a concealed weapon permit.
That the allegation about the gun turned out
to be correct does not suggest that the
officers, prior to the frisks, had a
reasonable basis for suspecting J.L. of
engaging in unlawful conduct: The
reasonableness of official suspicion must be
measured by what the officers knew before
they conducted their search.
J.L., 529 U.S. at 271.
- 60 -
exactly what the tipster in our case asserted in a
contemporaneous, eyewitness report. We thus see a substantial
difference between the tip in J.L. (a man is carrying a gun) and
the tip in our case (a man is pointing a gun at people). 21
The "carrying a gun" shorthand expression in J.L.,
moreover, should not be mistakenly interpreted as "brandishing"
a gun. The Florida Supreme Court, affirmed by the United States
Supreme Court, made clear that the officers "received an
anonymous tip that a young man was carrying a concealed weapon."
J.L. v. Florida, 727 So. 2d 204, 207 (Fla. 1998) (emphasis
added). The Florida Court of Appeals also confirmed that the
"police received an anonymous complaint that a concealed weapon
violation was taking place." Florida v. J.L., 689 So. 2d 1116,
1117 (Fla. Dist. Ct. App. 1997) (emphasis added). The United
States Supreme Court granted certiorari on a single question
presented, whether a tip alleging "a person is carrying a
concealed firearm" passed the reliability test. Brief of
Petitioner, Florida v. J.L., 1998 U.S. Briefs LEXIS 1993 at *i
21
The reason J.L. nevertheless engaged the reliability
analysis was because reasonable suspicion, under the totality of
the circumstances test, requires that both "quantity and
quality" factors be considered, allowing for the "requisite
quantum" of one to affect necessarily the other. White, 496
U.S. at 330. A footnote in J.L. notes that the "mere fact that
a tip, if true, would describe illegal activity does not mean
that the police may make a Terry stop without meeting the
reliability requirement." J.L., 529 U.S. at 273 n.*. This
unremarkable proposition simply means that an anonymous tip must
allege some illegality and be sufficiently reliable. The tip in
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(Dec. 23, 1999) (emphasis added). Not one time in any of the
judicial opinions or legal briefs accompanying J.L. to the
United States Supreme Court did anyone assert that the tip in
J.L. involved a complaint of brandishing.
In addition to alleging a specific illegality, the
brandishing tip in our case has another characteristic that
distinguishes it from J.L. Even if the J.L. tip had alleged a
specific illegality (like, for example, if the tip had said the
suspect had both a weapon and illegal drugs on him at that bus
stop), 22 the illegality would have been concealed. In contrast,
the tip in our case involved an open and obvious illegality.
Anyone watching the suspect could have seen him brandishing the
firearm. It matters not that the anonymous caller did not have
predictive information about the suspect. He was simply
reporting what he saw. The United States Supreme Court in White
"did not create a rule requiring that a tip predict future
action, and neither did J.L." Wheat, 278 F.3d at 734 (citation
omitted). Nor do we. The consequences of such an inflexible
rule would be unwise at best and dangerous at worse.
If we were to adopt such a rule, it would preclude an
officer from stopping a shooting suspect while fleeing the scene
J.L. satisfied neither of the two requirements, and the tip in
our case satisfies both.
22
Simultaneously possessing both a firearm and illegal
drugs violates Code § 18.2-308.4(A).
- 62 -
of an alleged crime simply because the anonymous tip (reported
by an alleged eyewitness providing a near-contemporaneous
description of the suspect and the offense) did not recite any
predictive information about the shooter. In such a case, what
would matter to any reasonable officer (and, under the law, what
should matter to any reasonable court) is whether the caller
actually saw the shooter and the shooting, not whether the
caller knows some intimate details of the shooter's personal
life. To reject this commonsense distinction between a
concealed crime (which may require some showing of predictive
quality to the tip) and an open and obvious crime (which focuses
only on observational reliability), as Jackson urges us to do,
would hardly be in keeping with the rule of reason animating the
Fourth Amendment.
An equally dispositive distinction between the J.L. tip and
the tip in our case is that the brandishing tip in our case came
from a caller making a contemporaneous report of observable
events as an eyewitness. The tipster in J.L. did not state that
he observed J.L. with the firearm. The fact is, the tip did not
express or imply any first-person, present-tense observation of
the reported facts. Like the officers in J.L., we are left to
wonder whether the tipster saw anything himself or whether he
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simply made a wild (albeit accurate) guess that J.L. was
carrying a gun. 23
Finally, we find the corroboration sufficient in light of
the imminent danger to the public raised by the anonymous
brandishing tip. In Scott, 20 Va. App. at 727, 460 S.E.2d at
611, an anonymous caller reported that he saw a man "brandishing
a gun" in a laundromat. The caller gave a specific description
of the man's appearance. The police found the man a block away
and took a firearm from him during a pat-down search. We held
that the "imminent danger" posed by a suspect brandishing a
firearm in a public place warranted the stop because of the
enormous risk that, if the tip were true, innocent lives might
be placed in immediate peril. Scott, 20 Va. App. at 728-29, 460
S.E.2d at 612-13.
The same conclusion reached in Scott must be reached here,
a case where police officers received information from a
23
We do not consider Harris v. Commonwealth, 262 Va. 407,
551 S.E.2d 606 (2001), to be at cross purposes with our
analysis. In that case, the Commonwealth stipulated that the
anonymous tip (alleging a suspected drug dealer was "armed") was
insufficient to justify a Terry stop, thus rendering the J.L.
issue moot. Recognizing this, the Virginia Supreme Court
stated: "Accordingly, we need not address that aspect of the
Court of Appeals opinion." Harris, 262 Va. at 414, 551 S.E.2d
at 609. From there, Harris went on to address only the question
whether the police officer had a reasonable suspicion that the
suspect was trespassing. On that narrow issue, Harris held that
the Commonwealth could not use a concededly invalid tip
(concerning an "armed" drug dealer) to rehabilitate a Terry stop
(based solely on a trespassing hunch) which itself lacked any
reasonable suspicion of illegality. Nothing in Harris,
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concerned citizen about a suspect brandishing a firearm outside
a bar at about 2:00 a.m. For the police not to act in such
circumstances, the trial judge correctly observed, would have
been a dereliction of duty. Whatever the appropriate level of
Fourth Amendment scrutiny, it should not permit (much less
encourage) a law enforcement officer "'to simply shrug his
shoulders and allow a crime to occur or a criminal to escape.'"
United States v. Montoya de Hernandez, 473 U.S. 531, 544 (1985)
(quoting Williams, 407 U.S. at 145); see also Simmons v.
Commonwealth, 217 Va. 552, 554, 231 S.E.2d 218, 220 (1977);
Christian v. Commonwealth, 33 Va. App. 704, 713, 536 S.E.2d 477,
482 (2000) (en banc).
For the same reasons we find unpersuasive the analogy
between J.L. and the present case, we find it equally
unconvincing as a basis for overruling Scott. Unlike Scott, the
tip in J.L. did not involve a contemporaneous, eyewitness
account, but rather a vague report providing absolutely no basis
for the officers to discern the possible source of the caller's
information or its timeliness. Also unlike Scott, the tip in
J.L. did not describe an open and obvious crime involving an
imminent danger to public safety, but rather a concealed one
(assuming any alleged illegality at all) implicating no
immediate peril.
therefore, deals with the question whether the tip did or did
not satisfy the J.L. standard.
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In sum, we find the brandishing tip in our case "reliable
in its assertion of illegality," J.L., 529 U.S. at 272, because
this tip —— unlike the "carrying a gun" tip in J.L. —— provided
information permitting the officers reasonably to infer that it
(i) came from a concerned citizen making a contemporaneous,
eyewitness report, (ii) involved an open and obvious crime
rather than mere concealed illegality, and (iii) described
criminality posing an imminent danger to the public. After
corroborating a half-dozen specific details within minutes of
the tip, the officers correctly concluded the totality of the
circumstances raised a "reasonable suspicion to believe that
criminal activity 'may be afoot.'" Arvizu, 534 U.S. at 273
(citations and quotation marks omitted).
D.
Even assuming the legality of the vehicle stop, Jackson
still contends that no additional grounds existed for his
warrantless search and detention. "When a police encounter goes
beyond an investigatory detention," Jackson argues, it "becomes
a 'seizure' of the suspect" and "full probable cause is required
for the seizure, not a mere showing of articulable suspicion."
In making this argument, Jackson views being questioned, ordered
out of the vehicle (albeit at gunpoint), and frisked as an
arrest. He also assumes that, under Fourth Amendment
principles, all seizures must be arrests for purposes of
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triggering the probable cause requirement. We find merit in
neither argument.
Investigatory detentions and arrests both involve Fourth
Amendment seizures. 24 They are quite dissimilar, however, in
actual practice and in legal principle. In an investigatory
detention, an officer seeks to determine whether a crime has
been, or is about to be, committed. The suspect's freedom to
leave is impaired, but only temporarily. If the officer's
suspicions do not ripen into probable cause, the suspect must be
promptly released once the purpose for the stop has been
fulfilled. In contrast, an arrest is "'the initial stage of a
criminal prosecution.'" Hill, 264 Va. at 547, 570 S.E.2d at 808
(quoting Terry v. Ohio, 392 U.S. 1, 26 (1968)). "After an
arrest, a citizen's liberty is completely constrained, at a
minimum, until a judicial officer has determined the issue of
bail." Id. Thus, the "different consequences that attend an
arrest and an investigative detention are manifest." Id.
During an investigatory stop, the officer may conduct a
pat-down search for his own safety if he has a reasonable belief
that the person may be armed and dangerous. See Ybarra v.
Illinois, 444 U.S. 85, 93-94 (1979). The officer need not be
"absolutely certain that the person is armed." Simmons, 217 Va.
24
The Fourth Amendment "applies to all seizures of the
person, including seizures that involve only a brief detention
short of traditional arrest." Brown v. Texas, 443 U.S. 47, 50
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at 556, 231 S.E.2d at 221. "If he reasonably believes that the
individual might be armed, the search is warranted to protect
himself or others who may be in danger." Id. (emphasis added).
In assessing whether a suspect may be armed and dangerous,
an officer may consider "characteristics of the area surrounding
the stop, the time of the stop, the specific conduct of the
suspect individual, the character of the offense under
suspicion, and the unique perspective of a police officer
trained and experienced in the detection of crime." Christian,
33 Va. App. at 714, 536 S.E.2d at 482 (footnote omitted).
Courts assess reasonableness from the perspective of a
reasonable officer on the scene, making allowance for the
necessity of split-second decisions. See Graham v. Connor, 490
U.S. 386, 396-97 (1989). 25
In Scott, we approved a pat-down search of a suspect who
had reportedly brandished a firearm in a public place. The
report came from an anonymous source which identified only the
(1979) (citations omitted); Wechsler v. Commonwealth, 20
Va. App. 162, 170, 455 S.E.2d 744, 748 (1995).
25
Simply viewing a bulge, without any other indicia of
dangerousness, does not permit the officer to conduct a weapons
frisk. See Stanley v. Commonwealth, 16 Va. App. 873, 877, 433
S.E.2d 512, 514-15 (1993). But if other suspicious conduct
exists, such as the suspect's attempt to conceal the bulge or
similar circumstances suggesting danger, the officer may perform
a weapons frisk. See Troncoso v. Commonwealth, 12 Va. App. 942,
945, 407 S.E.2d 349, 350-51 (1991).
- 68 -
suspect's appearance and location. The weapons frisk was
nonetheless "warranted for the officer's protection and the
protection of the public" given the immediate and potentially
deadly risk the suspect posed. Scott, 20 Va. App. at 729-30,
460 S.E.2d at 613.
Here, a contemporaneous report by a concerned citizen said
three black males in the white Honda had been disorderly and one
of them had brandished a firearm. When questioned directly
about having a gun, Jackson conspicuously attempted to hide
under his crossed arms a bulge that a trained officer
immediately believed to be a weapon. The officers, therefore,
did not act unreasonably by suspecting the bulge "might be" a
firearm. Simmons, 217 Va. at 556, 231 S.E.2d at 221.
We also reject Jackson's argument that the investigatory
detention and weapons frisk amounted to a full custodial arrest.
To protect themselves during a valid Terry stop, police officers
have a right to draw their weapons, to handcuff a suspect, or
even to threaten to use force if the circumstances reasonably
warrant it. See generally Thomas v. Commonwealth, 16 Va. App.
851, 857, 434 S.E.2d 319, 323 (1993), aff'd en banc, 18 Va. App.
454, 444 S.E.2d 275 (1994). A Terry stop involves
"a police investigation 'at close range,'
when the officer remains particularly
vulnerable in part because a full custodial
arrest has not been effected, and the
officer must make 'a quick decision as to
how to protect himself and others from
possible danger.'"
- 69 -
Servis v. Commonwealth, 6 Va. App. 507, 519, 371 S.E.2d 156, 162
(1988) (quoting Michigan v. Long, 463 U.S. 1032, 1053 (1983))
(emphasis in original). If a suspect is dangerous, "he is no
less dangerous simply because he is not arrested." Id.
Coercive measures, therefore, do not "convert a stop and
frisk into an arrest so long as the methods of restraint used
are reasonable to the circumstances." Johnson v. Commonwealth,
20 Va. App. 49, 55, 455 S.E.2d 261, 264 (1995); see also Harris
v. Commonwealth, 27 Va. App. 554, 566, 500 S.E.2d 257, 263
(1998). Police officers exceed their authority under Terry only
when their methods go beyond that reasonably needed to "confirm
or dispel" their suspicions. Hamlin, 33 Va. App. at 501-02, 534
S.E.2d at 366. Questions of scope, whether in terms of duration
or the extent of coercion, must be referred back to the basic
reasonableness standard. When "'evaluating whether an
investigative detention is unreasonable, common sense and
ordinary human experience must govern over rigid criteria.'"
Washington, 29 Va. App. at 15, 509 S.E.2d at 517 (quoting United
States v. Sharpe, 470 U.S. 675, 685 (1985)).
In this case, the officers ordered Jackson out of the car
to frisk him only after they came to the reasonable conclusion
that he was hiding a weapon —— likely the very one that had been
brandished earlier. The only way to confirm or dispel that
suspicion was to conduct a limited weapons search. Given the
circumstances they faced at that time of night, we find nothing
- 70 -
unreasonable about the officers unholstering their weapons
during the frisk and ordering Jackson out of the car. Thus, we
reject Jackson's contention that the officers went beyond the
boundaries of Terry during their detention and weapons frisk of
Jackson.
Having found the weapon, the officers had probable cause to
believe Jackson was the black male who had reportedly brandished
a firearm outside the bar. By placing him under arrest at that
time, the officers gained the corollary authority to conduct a
search incident to that arrest. United States v. Robinson, 414
U.S. 218, 224 (1973) ("It is well settled that a search incident
to a lawful arrest is a traditional exception to the warrant
requirement of the Fourth Amendment."). For these reasons, the
trial court correctly refused to suppress either the weapon
found during the pat down or the crack cocaine found during the
search incident to arrest.
III.
Neither the initial stop of the white Honda, the
investigatory detention and weapons frisk of Jackson, nor the
search incident to Jackson's arrest constitutes a violation of
the Fourth Amendment's proscription against "unreasonable
searches and seizures." The trial court, therefore, did not err
in denying Jackson's suppression motion.
Affirmed.
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Benton, J., dissenting.
The United States Supreme Court's recent decision in
Florida v. J.L., 529 U.S. 266 (2000), could not be clearer.
Without a dissent, the Court "h[e]ld that an anonymous tip
lacking indicia of reliability . . . does not justify a stop and
frisk whenever and however it alleges the illegal possession of
a firearm." Id. at 274.
I believe the majority misreads the import of J.L. when
concluding that the decision turned upon a finding that the
informant had not relayed to the police information about
criminal conduct. Answering "[t]he question . . . whether an
anonymous tip that a person is carrying a gun, is without more,
sufficient to justify a police officer's stop and frisk of that
person," 529 U.S. at 268, the Supreme Court noted that "'an
anonymous tip alone seldom demonstrates the informant's basis of
knowledge or veracity.'" Id. at 270 (quoting Alabama v. White,
496 U.S. 325, 329 (1990)). On facts virtually identical to this
case, the Court concluded the informant's tip was not proved
reliable and reached the holding recited above.
If, as the majority opinion here suggests, the issue in
J.L. concerned the failure of the informant's tip to convey
evidence of criminal conduct, the resolution of that case would
not have required any discussion about the informant's
reliability. In that circumstance, regardless of the
informant's reliability, the officer would have been operating
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only on a bare suspicion and would not have had a basis to
detain J.L. See Terry v. Ohio, 392 U.S. 1, 27 (1968) (holding
that a police officer may not detain a person for investigative
purposes based on "his inchoate and unparticularized suspicion
or 'hunch'" that criminal activity may be occurring). See also
Brown v. Texas, 443 U.S. 47 (1979). Significantly, the Supreme
Court's decision in J.L. notes that "[a]part from the tip, the
officers had no reason to suspect any of the three [men] of
illegal conduct." Id. at 268 (emphasis added). Therefore, the
majority opinion's assertion that the tip in J.L. failed to
convey information about criminal conduct is simply wrong.
Explaining further the deficiency in the proof of the
reliability of the informant's tip, the Supreme Court noted the
following:
The tip in the instant case lacked the
moderate indicia of reliability present in
White and essential to the Court's decision
in that case. . . . All the police had to
go on in this case was the bare report of an
unknown, unaccountable informant who neither
explained how he knew about the gun nor
supplied any basis for believing he had
inside information about J. L. If White was
a close case on the reliability of anonymous
tips, this one surely falls on the other
side of the line.
J.L., 529 U.S. at 271. Indeed, the Supreme Court engaged in an
extended discussion of the anonymous informant's reliability in
J.L. precisely because the tip disclosed criminal conduct and
might have supported a detention if the informant was proved to
- 73 -
be reliable. See Adams v. Williams, 407 U.S. 143, 146-47
(1972).
Although all nine justices joined the J.L. opinion, see 529
U.S. at 274 (Kennedy, J., and Rehnquist, C.J. concurring, and
noting "I join in the opinion in all respects"), the concurring
opinion also refutes the interpretation the majority opinion in
this case gives to J.L. Specifically, the concurring opinion
posits as follows:
An anonymous telephone tip without more is
different, however, for even if the
officer's testimony about receipt of the tip
is found credible, there is a second layer
of inquiry respecting the reliability of the
informant that cannot be pursued. If the
telephone call is truly anonymous, the
informant has not placed his credibility at
risk and can lie with impunity. The
reviewing court cannot judge the credibility
of the informant and the risk of fabrication
becomes unacceptable.
On this record, then, the Court is
correct in holding that the telephone tip
did not justify the arresting officer's
immediate stop and frisk of respondent.
There was testimony that an anonymous tip
came in by a telephone call and nothing
more. The record does not show whether some
notation or other documentation of the call
was made either by a voice recording or
tracing the call to a telephone number. The
prosecution recounted just the tip itself
and the later verification of the presence
of the three young men in the circumstances
the Court describes.
529 U.S. at 275.
Rarely are the facts of two cases as congruent as the facts
in J.L. and this case. As in J.L., the officer in this case
- 74 -
received information from his dispatcher concerning a report
from an anonymous person. As in J.L., the testimony indicates
an anonymous informant said that a man brandished a firearm in a
public place. See 529 U.S. at 268 (noting that an anonymous
caller reported that a young man "was carrying a gun"). As in
J.L., the testimony indicates the anonymous informant described
the gender, race, and location of the accused. As in J.L., the
officer did not see a gun before detaining the man. Finally, as
in J.L., the circumstances surrounding the anonymous informant's
tip were not sufficient to negate the substantial risk of
fabrication.
The similarities between J.L. and this case extend beyond
the basic facts. Indeed, the two cases present the same Fourth
Amendment concerns that troubled the Supreme Court. As in
J.L., the officers' suspicion that Jackson was unlawfully
carrying a weapon arose solely from a call made from an unknown
location by an unknown caller. "Unlike a tip from a known
informant whose reputation can be assessed and who can be held
responsible if her allegations turn out to be fabricated, . . .
'an anonymous tip alone seldom demonstrates the informant's
basis of knowledge or veracity.'" 529 U.S. at 270 (citation
omitted).
The notion that the police could "infer that [the tip]
. . . came from a concerned citizen making a contemporaneous,
eyewitness report" merely because the tip alleges "an open and
- 75 -
obvious crime" is precisely the type of analysis that J.L.
rejects. Nothing about such a tip provides a basis upon which
anyone might conclude that the anonymous informant is either
honest or providing reliable information. A plain reading of
J.L. discloses that the Supreme Court, in a footnote, summarily
disposed of the thesis advanced by the majority opinion in this
case when the Court ruled that "[t]he mere fact that a tip, if
true, would describe illegal activity does not mean that the
police may make a Terry stop without meeting the reliability
requirement." J.L., 529 U.S. at 273 n.*. As in J.L., the tip
in the present case lacks indicia of reliability.
The majority in this case accepts the Commonwealth's
suggestion to disregard J.L. and to rely on this Court's
decision in Scott v. Commonwealth, 20 Va. App. 725, 460 S.E.2d
610 (1995), to create some type of exception for guns. I
believe that decision is not supportable. First, Scott was, in
my view, wrongly decided, see 20 Va. App. at 730-32, 460 S.E.2d
at 613-14 (Benton, J., dissenting and noting that "[t]he record
in this case contains no basis upon which anyone could have
determined that the invisible, unknown informant was reliable or
had a basis to know anything other than the presence of the
defendant, or someone similarly dressed, in the laundromat").
Second, Scott was decided in 1995, five years before its similar
facts were presented to the Supreme Court in J.L.. Third, in
cases involving the application of constitutional principles,
- 76 -
the Supremacy Clause, U.S. Const. Art. VI, cl.2, does not allow
state court decisions to trump decisions of the United States
Supreme Court. Reynoldsville Casket Co. v. Hyde, 514 U.S. 749,
750-51 (1995); Harper v. Virginia Dep't of Taxation, 509 U.S.
86, 100 (1993); Kessler v. Department of Public Safety, 369 U.S.
153, 172 (1962).
I would also note that the Commonwealth pursued, and the
Supreme Court of Virginia rejected, an argument similar to that
advanced in this case. See Harris v. Commonwealth, 262 Va. 407,
551 S.E.2d 606 (2001). There, as here, "the Commonwealth does
not expressly concede the applicability of the holding in J.L.
to the facts of this case." Id. at 414, 551 S.E.2d at 609.
There, as here, the Commonwealth argued that the anonymous
informant's tip about a gun provided a heightened justification
to support a detention. Id. at 416, 551 S.E.2d at 611.
Rejecting this Court's decision that the officer could use the
tip as a basis for conducting a frisk for the officer's safety,
see Harris v. Commonwealth, 33 Va. App. 325, 334, 533 S.E.2d 18,
22 (2000), the Supreme Court reversed the conviction. The Court
noted that the officer's detention of Harris was contrary to the
ruling in J.L. and rejected the Commonwealth's argument as one
that "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 detaining the
suspect." Harris, 262 Va. at 416, 547 S.E.2d at 611.
- 77 -
The United States Supreme Court specifically rejected the
type of firearm exception that the Commonwealth argued in Harris
and in this case and that the majority opinion now resurrects
from Scott. The Court unambiguously held as follows:
[A]n automatic firearm exception to our
established reliability analysis would rove
too far. Such an exception would enable any
person seeking to harass another to set in
motion an intrusive, embarrassing police
search of the targeted person simply by
placing an anonymous call falsely reporting
the target's unlawful carriage of a gun.
. . . If police officers may properly
conduct Terry frisks on the basis of
bare-boned tips about guns, it would be
reasonable to maintain under the above-cited
decisions that the police should similarly
have discretion to frisk based on bare-boned
tips about narcotics. As we clarified when
we made indicia of reliability critical in
Adams and White, the Fourth Amendment is not
so easily satisfied.
J.L., 529 U.S. at 272-73 (citations omitted). These principles
are equally applicable to a circumstance in which an anonymous
informant says he observed the commission of an "open and
obvious illegality." Even in that circumstance, "[i]f the
telephone call is truly anonymous, the informant has not placed
his credibility at risk and can lie with impunity." Id. at 275
(Kennedy, J., and Rehnquist, C.J., concurring). In the absence
of a "verifiable explanation of how the informant came to know
of the information in the tip," Ramey v. Commonwealth, 35
Va. App. 624, 631, 547 S.E.2d 519, 523 (2001), there still
remains "a second layer of inquiry respecting the reliability of
- 78 -
the informant that cannot be pursued." J.L., 529 U.S. at 275
(Kennedy, J., and Rehnquist, C.J., concurring).
The Supreme Court has unanimously rejected the
Commonwealth's "imminent danger" exception for firearms, and the
Court "demand[s]" an "indicia of reliability . . . for a report
of a person carrying a firearm." Id. at 274 (emphasis added).
Because this case is clearly controlled by the Supreme Court's
decision in J.L., I would reverse the conviction. Therefore, I
dissent.
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