COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Elder
Argued at Salem, Virginia
DONALD LLOYD RUSSELL, JR.
OPINION BY
v. Record No. 2530-99-3 JUDGE LARRY G. ELDER
OCTOBER 24, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Joseph A. Sanzone (Sanzone & Baker, P.C., on
brief), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Donald Lloyd Russell, Jr., (appellant) appeals from his
bench trial conviction for possession of cocaine with intent to
distribute in violation of Code § 18.2-248. On appeal, he
contends the trial court erroneously (1) denied his motion to
suppress and (2) found the evidence sufficient to prove he
constructively possessed the cocaine. We hold, under the
totality of the circumstances, that the police lacked probable
cause to arrest appellant or search his car and, therefore, that
the trial court erroneously denied appellant's motion to
suppress the evidence seized from his person, car and residence.
Accordingly, we reverse appellant's conviction and remand for
further proceedings if the Commonwealth be so advised.
I.
BACKGROUND 1
At about 5:00 a.m. on February 3, 1999, Lynchburg Narcotics
Investigator Duff had a face-to-face meeting with an informant
with whom he had not previously met or had any dealings. In the
hope of gaining "[c]onsideration on an outstanding charge," the
nature of which does not appear in the record, the informant
advised Duff that an African-American male named Troy, who was
from New York City, would deliver a large quantity of cocaine to
a specified residence in the Lynchburg College area at 7:30 a.m.
that same morning. Duff refused to testify to the actual
address of the residence because it was "extremely specific as
to the identity of the informant." The informant reported that
Troy lived near Burrus Lumber Company off Campbell Avenue and
that he drove a blue or green rented Ford Taurus. Although the
informant did not know Troy's full name, he described two
previous shooting incidents in which Troy had been involved.
Because Duff had not previously worked with this informant,
he conducted "an in-depth interview with [him] to establish
credibility and reliability . . . as to his knowledge of the
drug trade." Duff reported his personal belief that "one of the
most important ingredients in reliability is [the informant's]
1
In ruling on a motion to suppress, we consider the
evidence adduced at both the suppression hearing and the trial.
See DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d
540, 542-43 (1987).
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knowledge of the drug trade," saying that he "value[d] that very
highly." The informant admitted he was "involve[d] in the drug
trade" as a seller and user of crack and powder cocaine and
accurately described to Duff the process of making crack
cocaine. He also gave Duff specific information about other
people involved in the drug trade in the area, which coincided
with information Duff had received from other informants Duff
knew to be reliable.
With the specific information the informant had provided
about "Troy," Duff was able to determine Troy was the alias of
Donald Russell. Russell resided directly across the street from
Burrus Lumber Company, and Duff observed a dark blue Ford Taurus
in the driveway of the residence. Duff showed the informant a
picture of Russell, and the informant confirmed Russell and Troy
were the same person. Duff admitted that most of the verifiable
information provided by the informant--appellant's name, city of
origin, prior involvement in two specific shootings, and current
residence--was public knowledge.
Duff opted not to apply for a search warrant at that time
because he "wanted to verify more of this activity that was
going to occur." He admitted he could have applied for an
anticipatory search warrant conditioned upon appellant's arrival
at the house specified by the informant.
At about 6:00 a.m., Duff began surveillance on appellant's
residence. At about 7:10 a.m., appellant exited the house and
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entered the Taurus. He stopped the car briefly to put something
in a mailbox and then drove to Route 29 North heading away from
the city. Duff opted not to continue surveillance at that time
and drove instead to the Lynchburg College area, where the
informant reported appellant would deliver cocaine at 7:30 a.m.
Appellant was out of Duff's view for about fifteen minutes. At
precisely 7:30 a.m., Duff observed appellant drive into the
Lynchburg College area. Appellant drove past the street on
which the informant said he would stop, and Duff radioed to
other officers, who stopped appellant's vehicle within one or
two blocks of the residence specified for the drug transaction.
Duff admitted appellant's vehicle was headed away from the
specified residence at the time the officers stopped him but
said "[t]here are different ways to get to that place" and
"[i]t's not uncommon for somebody to circle an area before they
make a cocaine drop."
Appellant was arrested, and the vehicle and appellant's
person were searched. Using the evidence seized in that search,
the police also obtained a warrant to search appellant's
residence.
Appellant sought to suppress the fruits of those searches.
The trial court denied the motion, noting that, "although we
don't know the basis of the informant's information," "under the
totality of the circumstance test I think there's enough."
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II.
ANALYSIS
At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving the challenged action did
not violate the defendant's constitutional rights. See Simmons
v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989).
"[T]he test of constitutional validity [of a warrantless arrest]
is whether at the moment of arrest the arresting officer had
knowledge of sufficient facts and circumstances to warrant a
reasonable man in believing that an offense has been committed."
Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250
(1970). Probable cause to arrest must exist exclusive of the
incident search. See Carter v. Commonwealth, 9 Va. App. 310,
312, 387 S.E.2d 505, 506 (1990).
On appeal, we view the evidence in the light most favorable
to the prevailing party, here the Commonwealth, granting to it
all reasonable inferences fairly deducible therefrom. See
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991). "[W]e are bound by the trial court's findings of
historical fact unless 'plainly wrong' or without evidence to
support them[,] and we give due weight to the inferences drawn
from those facts by resident judges and local law enforcement
officers." McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United
States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d
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911 (1996)). However, we review de novo the trial court's
application of defined legal standards such as probable cause to
the particular facts of the case. 2 See Ornelas, 517 U.S. at 699,
116 S. Ct. at 1663.
When the factual basis for probable cause is provided by an
informer, the informer's (1) veracity, (2) reliability, and (3)
basis of knowledge are "highly relevant" factors in the overall
totality-of-the-circumstances probable cause analysis. See
Illinois v. Gates, 462 U.S. 213, 230, 233, 103 S. Ct. 2317,
2328, 2329, 76 L. Ed. 2d 527 (1983).
[A] deficiency in [either veracity or basis
of knowledge] may be compensated for, in
determining the overall reliability of a
tip, by a strong showing as to the other, or
by some other indicia of reliability. If,
for example, a particular informant is known
2
This is higher than the standard we apply in reviewing the
existence of probable cause to support the issuance of a
warrant. Appellate review of a magistrate's probable cause
determination is deferential in nature, and the reviewing court
determines whether the evidence, viewed as a whole, provided the
magistrate with a substantial basis for concluding that probable
cause existed to issue the warrant. See Illinois v. Gates, 462
U.S. 213, 238-39, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527
(1983). Even if the warrant is ultimately found to be
unsupported by probable cause, evidence seized pursuant to that
warrant may nevertheless be admissible if the officer is found
to have relied on the warrant in good faith. See Polston v.
Commonwealth, 255 Va. 500, 503-04, 498 S.E.2d 924, 925-26
(1998). In the absence of a warrant, however, we review the
issue of probable cause de novo, giving no deference to the
officer's legal determination. See Ornelas, 517 U.S. at 699,
116 S. Ct. at 1663. It may also be that "'in a doubtful or
marginal case a search under a warrant may be sustained where
without one it would [fall].'" 2 Wayne R. LaFave, Search and
Seizure § 3.1(c), at 14 (3d ed. 1996) (quoting United States v.
Ventresca, 380 U.S. 102, 106, 85 S. Ct. 741, 744, 13 L. Ed. 2d
684 (1965)).
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for the unusual reliability of his
predictions of certain types of criminal
activities in a locality, his failure, in a
particular case, to thoroughly set forth the
basis of his knowledge surely should not
serve as an absolute bar to a finding of
probable cause based on his tip. Likewise,
if an unquestionably honest citizen comes
forward with a report of criminal activity
--which if fabricated would subject him to
criminal liability--we have found rigorous
scrutiny of the basis of his knowledge
unnecessary. Conversely, even if we
entertain some doubt as to the informant's
motives, his explicit and detailed
description of alleged wrongdoing, along
with a statement that the event was observed
first-hand, entitles his tip to greater
weight than might otherwise be the case.
Id. at 233-34, 103 S. Ct. at 2329-30 (citations and footnote
omitted).
When the informer is a "criminal" rather than a
"disinterested citizen" victim or eyewitness and the tip is
conveyed in the form of a police officer's hearsay testimony,
the reliability of the tip may be established in many different
ways, including by showing that:
(1) the informer has previously given
reliable information; (2) the informer
previously has worked with the police and
has made controlled buys or worked in
narcotic surveillance or other law
enforcement efforts; (3) the informer
provided detailed information that only a
person who had actually observed the
criminal activity would know; or (4) the
informer has made a declaration against his
penal interest.
Polston v. Commonwealth, 24 Va. App. 738, 745, 485 S.E.2d 632,
635 (1997), aff'd on other grounds, 255 Va. 500, 498 S.E.2d 924
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(1998); see also Ortega v. Christian, 85 F.3d 1521, 1525 (11th
Cir. 1996) (noting that statement against penal interest,
without more, will not raise an informant's tip to probable
cause). Also, knowledge of a particular area's "drug culture"
is an appropriate factor for consideration in assessing an
informant's credibility. See Polston, 24 Va. App. at 749, 485
S.E.2d at 637; see also United States v. Wilhelm, 80 F.3d 116,
121 (4th Cir. 1996) (noting that this factor should be
considered carefully because "anyone who occasionally watches
the evening news can make generalizations about what marijuana
looks like and how it is packaged and sold").
We applied these principles to the issuance of a search
warrant in Boyd v. Commonwealth, 12 Va. App. 179, 402 S.E.2d 914
(1991). The informer indicated that he was familiar with
cocaine and its packaging through personal use and that, within
the previous seventy-two hours, he "had personally observed
cocaine packaged for distribution, and scales used for such
purpose, at [Boyd's] residence." Id. at 182-83, 402 S.E.2d at
916-17. He described Boyd, his house and his car, recited his
address, and gave the name of Boyd's girlfriend, whom he said
resided at the same address. See id. The investigating officer
was able to confirm the wholly innocent portions of the tip, and
the magistrate issued a search warrant for Boyd's residence.
See id. at 182-83, 402 S.E.2d at 916-17.
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On appeal of the denial of Boyd's motion to suppress, we
noted that verification of innocent details, although not
dispositive, "establish[ed] that the informer at least had a
limited personal familiarity with the suspect" and that
verification was a circumstance to be considered in determining
the credibility and reliability of the tip. Id. at 189, 402
S.E.2d at 920. We held,
[b]ased upon the personal data furnished
about the informer, the disclosure that the
informer had provided the officer sufficient
personal information from which he could be
identified, the allegation that the informer
had personally observed the drugs and
criminal activity, and the allegation that
the officers had verified the accuracy of
the informer's information concerning the
suspect's activities and his living
arrangements, . . . that a substantial basis
existed for the magistrate to have found
probable cause to issue the [search]
warrant.
Id. at 191, 402 S.E.2d at 922.
Appellant's case is similar to Boyd but differs in material
respects. In both cases the informant's identity was known or
reasonably ascertainable, the informant had not previously
provided information to the police, the informant made a
statement which was arguably against penal interest by admitting
he had used illegal drugs, and the police were able to verify
innocent information concerning the suspect's identity,
automobile and place of residence.
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However, Boyd involved a warrant whereas appellant's case
did not. Therefore, in Boyd, we deferred to the magistrate's
probable cause determination, holding "that a substantial basis
existed for the magistrate['s]" issuance of the warrant. Id.
In appellant's case, by contrast, the police opted not to obtain
an anticipatory warrant, and we review the issue of probable
cause de novo, giving no deference to the probable cause
determination made by the officer. See supra note 2 and
accompanying text.
Second, evidence of the basis of the informant's knowledge
was much stronger in Boyd than in appellant's case. In Boyd,
the informant indicated he had personally observed cocaine being
packaged and distributed in Boyd's residence within the previous
seventy-two hours. In appellant's case, by contrast, the
informant provided significant general information about the
Lynchburg drug trade and its participants other than appellant,
information which Officer Duff was able to confirm through other
informants known to be reliable; but no evidence indicated the
basis for the informant's specific claim that appellant would be
delivering cocaine to a specific location at a specific time.
Third, Boyd contained less information tending to call the
credibility of the informer into doubt. In Boyd, although the
tipster admitted to having used drugs in the past, he was more
of a "disinterested citizen" eyewitness than a "criminal"
informant because he was gainfully employed and had no criminal
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record, and no evidence indicated that he gave the information
in the hope of gaining leniency on an outstanding criminal
charge. In appellant's case, by contrast, the evidence
established that the informant provided the information about
appellant in the hope of gaining "[c]onsideration on an
outstanding [criminal] charge."
We next examine these latter two distinctions.
Here, the predictive nature of the informant's tip might
have compensated for deficiencies in the basis of the
informant's knowledge and provided probable cause for
appellant's arrest if the tip had been more accurate. See
Gates, 462 U.S. at 242-46, 103 S. Ct. at 2334-36 (predictive
nature of detailed tip, coupled with extensive police
corroboration of suspicious circumstances "ordinarily not easily
predicted," provided probable cause for search warrant for car,
despite anonymity of tipster). However, the tip did not predict
that appellant would drive north on Route 29 before heading to
the Lynchburg College area, and it specified that, at 7:30 a.m.,
appellant would drive to a particular residence near the
college, which residence was "extremely specific as to the
identity of the informant." Instead of driving to that
residence, appellant drove past the street on which the
residence was located and was headed away from it at the time
the officers executed the stop. If the evidence had established
the informant's connection to that residence and appellant had,
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in fact, stopped there at the time the informant predicted,
these events could have provided sufficient indirect evidence of
the basis of the informant's knowledge. In the absence of such
events, however, we hold, as a matter of law, that the portions
of the tip the officers were able to corroborate were
insufficient to bolster the absence of evidence of the basis of
the informant's knowledge. 3 Alabama v. White, 496 U.S. 325,
330-32, 110 S. Ct. 2412, 2416-17, 110 L. Ed. 2d 301 (1990)
(where anonymous tip predicted that defendant would leave
apartment in described car at specific time and drive with brown
attaché case containing cocaine to nearby motel and police
confirmed activities except for defendant's name and possession
of attaché case and cocaine and stopped defendant "just short of
[the specified] [m]otel," case was "close" but provided
reasonable suspicion for a Terry stop); United States v.
Campbell, 920 F.2d 793, 794-97 (11th Cir. 1991) (holding, under
Gates, where reliability of confidential informant not
established independently, that mere confirmation of tip that
woman with whom informant allegedly had been working would
arrive in Montgomery with three Mexican males via a specified
3
We also note that additional facts not revealed about how
the informant knew appellant was to deliver cocaine to the
specified residence at 7:30 a.m. that day most likely did not
protect the informant if he was truthful, because the
time-specific information most likely made his identity apparent
to appellant. Only if the informant was lying was the
non-disclosure of the basis of knowledge likely to protect him.
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highway in a green-and-white Chevrolet pickup truck with Texas
license plates and stop at a specified truck stop between
11:30 p.m. and 1:00 a.m. may have provided reasonable suspicion
for investigatory stop but did not provide probable cause for
arrest or search).
We also find that the portions of the tip that were
corroborated were insufficient to overcome the deficiencies in
the evidence concerning the informant's credibility or veracity.
Although an informant's statements against penal interest may
enhance his overall credibility and the likelihood that a
specific tip is reliable, see Polston, 24 Va. App. at 745, 485
S.E.2d at 635, the evidence established that the informant
provided the information about appellant in the hope of
obtaining "consideration on an outstanding charge." Because the
nature of this outstanding charge does not appear in the record,
we are unable to conclude that the informant's admission to
being a drug user and seller sufficiently established his
overall credibility or the reliability of his allegations about
appellant. "[A]dmissions of crime do not always lend
credibility to contemporaneous or later accusations of another
[crime]." United States v. Harris, 403 U.S. 573, 584, 91 S. Ct.
2075, 2082, 29 L. Ed. 2d 723 (1971) (plurality opinion). As
Professor LaFave has recognized, "Courts . . . should not
utilize the admission-against-penal-interest concept in a
blunderbuss fashion, but instead should assess in a more careful
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fashion, preferably upon a full disclosure by the police of all
relevant circumstances, what the significance of that admission
is in the context of the particular case." 2 Wayne R. LaFave,
Search and Seizure § 3.3(c), at 124-25 (3d ed. 1996). This is
so because "these individuals typically provide information
after they have been apprehended by the police and after it is
apparent to them that the police already know of their own
involvement in the serious offense." Id. § 3.3(c), at 128.
Under the facts of this case, given the absence of evidence
concerning the nature of the charges pending against the
informant, we cannot ascertain whether his general admission to
being a user and seller of drugs was a statement against penal
interest tending to establish or enhance his credibility and the
reliability of his tip or merely an admission of behavior in
which he had already been caught red-handed. Compare Harris,
403 U.S. at 584, 91 S. Ct. at 2082 (plurality opinion) (where
opinion showed no outstanding charges against informant and
informant gave "sworn verbal statement" that he had been
purchasing illicit whiskey from premises to be searched for over
two years, statement provided probable cause for issuance of
search warrant for premises); Polston, 24 Va. App. at 741-43,
485 S.E.2d at 633-34 (although charges of an unknown nature were
outstanding, no evidence indicated informant gave tip in express
hope of obtaining consideration for outstanding charge, and
informant testified before magistrate, under penalty of perjury,
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that he had used drugs at least once a week for several years
and that he personally had seen drugs on premises to be searched
within the previous seventy-two hours).
Further, we are unable to conclude that the content of the
informant's tip gave him any reason to fear prosecution for
giving false information if the tip failed to prove completely
accurate. First, the bulk of the information the police
corroborated was not predictive and was generally known or
ascertainable to the public. Any failure of the predictive
portions of the tip to come true would not likely have resulted
in the informant's prosecution for giving false information.
The failure of appellant to leave his own residence that
morning, to arrive at the specified residence at the specified
time, or to have cocaine in his possession when he did could
have been explained by any number of factors, such as
appellant's becoming sick, simply changing his plans, receiving
a tip about the surveillance or becoming suspicious of the
vehicle following him. Second, the record fails to establish
that the content of the tip was based on the informant's
first-hand knowledge rather than on hearsay received from a
third party. Under either of these circumstances, the informant
could easily conclude that he would not be held responsible if
the tip did not prove wholly accurate.
Had the evidence established the informant's connection to
the specific residence at which the sale was to take place or
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had the police actually observed appellant's arrival there at
the specified time, the totality of the circumstances likely
would have established probable cause for appellant's arrest
under our de novo standard of review. However, given
appellant's failure to stop at or even drive directly by the
specified residence, absent additional circumstances, the
informant's tip could have been based on nothing more than the
informant's knowledge of appellant's usual route to work or his
weekly racquetball game, and his general knowledge that
appellant used or sold drugs.
For these reasons, we hold that the evidence was
insufficient to provide probable cause for appellant's
warrantless arrest and, therefore, that the trial court
erroneously denied the motion to suppress the evidence seized
from appellant's person, car and residence. 4 We reverse
appellant's conviction and remand for further proceedings if the
Commonwealth be so advised.
Reversed and remanded.
4
Although the facts may have been sufficient to permit an
investigatory stop, see White, 496 U.S. at 330-32, 110 S. Ct. at
2416-17, the Commonwealth makes no claim that the police made
any observations after the stop but preceding the arrest and
search which would have elevated their suspicions to probable
cause, and we glean no facts from the record which would support
such a conclusion.
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