Jackson v. Commonwealth

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

- 61 -
(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

- 63 -
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,

- 64 -
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.
- 65 -
 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

- 66 -
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

- 67 -
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.

- 71 -
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

- 72 -
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.

- 79 -