McGuire v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia

IVAN EUGENE McGUIRE
OPINION BY
v. Record No. 1860-98-2 JUDGE MARVIN F. COLE
FEBRUARY 22, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge

Carl C. Muzi for appellant.

Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

In a bench trial, appellant, Ivan Eugene McGuire, was found

guilty of possessing cocaine. On appeal, appellant contends (1)

the trial court erred in denying his motion to suppress; (2)

erred when admitting a certificate of analysis pertaining to

cocaine purchased by an informant three days before the charged

offense; and (3) the evidence was insufficient to sustain his

conviction. Finding no error, we affirm.

FACTS

"On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'" Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).
 Detective Easton of the Chesterfield County police

testified that a confidential informant contacted him about

providing information concerning drug transactions. The

informant, a former drug user, said he had completed a drug

rehabilitation program and had remained "clean" until September

19, 1997, when he encountered appellant and purchased cocaine

from him. The informant said he previously had purchased crack

cocaine from appellant approximately 100 times. The informant

described appellant as a black male in his early twenties with a

goatee, a thin build, and about five-feet six-inches tall. The

informant said appellant drove a brownish-silver Honda with a

model year between 1990 and 1993.

On September 23, 1997, Easton arranged for the informant to

make a controlled purchase of drugs at a Wendy's parking lot.

Easton searched the informant and his vehicle before the

transaction and found no drugs. Easton provided the informant

with money to make the purchase. From his vantage point fifty

yards away, Easton saw the informant meet a black male who was

driving a brownish-silver Honda. The license plate of the Honda

was registered to appellant. After the transaction, Easton

followed the Honda to Chesterfield Village Apartments where

appellant resided. The informant returned to Easton and gave

the officer a substance, which tested to be cocaine.

In coordination with the police on September 26, 1997, the

informant telephoned appellant at 7:25 p.m. and ordered two "8

- 2 -
balls" of crack cocaine. Appellant was to deliver the drugs at

the same Wendy's parking lot where the informant had purchased

cocaine on September 23, 1997. Police officers conducting

surveillance of appellant's apartment observed him leave his

home at 7:30 p.m., get into the Honda registered to him, and

drive away.

About one minute later, police officers stopped appellant's

vehicle and ordered him from the car. The officers immediately

handcuffed appellant, frisked him for weapons, and asked if he

had any drugs. Appellant said he did not. A drug dog at the

scene alerted on both appellant and his vehicle, indicating that

drugs had been present "at some time."

At about 7:35 p.m., the police officers conducted a more

thorough search of appellant's person but found no controlled

substances. The officers took appellant to the breezeway of a

nearby apartment building and searched him once more at

7:40 p.m. Officer Nash and Sergeant Herring remained with

appellant while Easton returned to supervise the search of

appellant's vehicle, which was being conducted by other

officers. 1

Nash testified that, about five minutes after Easton left

him with appellant, appellant appeared to be sick. Appellant

was shaking uncontrollably, had the dry heaves, and was

1
No drugs were found either on appellant's person or in his
car.

- 3 -
complaining of a very upset stomach. Herring testified that

appellant's pupils were extremely dilated and unresponsive to

light, that appellant's pulse rate was shallow, and that his

respirations were rapid and shallow. Testifying as a narcotics

expert who previously had observed suspects who had ingested

potentially lethal quantities of drugs, Herring stated that he

believed appellant's condition was due to cocaine overdose.

Herring believed appellant could die if he did not receive

medical treatment. Easton returned to appellant and asked if he

had ingested cocaine, but appellant denied having done so.

The officers called the rescue squad, which arrived on the

scene at 8:05 p.m. Appellant was transported to the hospital

for medical treatment. Appellant was given a fluid containing

cola and charcoal to neutralize the suspected cocaine in his

system, and his condition stabilized at about 9:00 p.m. Easton

then advised appellant of his rights under Miranda v. Arizona,

384 U.S. 436 (1966). Appellant stated that the only drugs the

police would find was some marijuana which he had at his

apartment.

Based upon appellant's statement, the police obtained a

search warrant for appellant's apartment. In appellant's home

the police found .011 grams of cocaine and some marijuana.

- 4 -
 DISCUSSION

I.

A. WARRANTLESS ARREST

Appellant contends the "search and seizure were illegal and

not permissible under the circumstances." He argues that "[t]he

reasonableness of the stop became unreasonable when the officers

detained [him] for 90 minutes and did not find any contraband on

his person or in his automobile."

"In reviewing a trial court's denial of a motion to

suppress, '[t]he burden is upon [the defendant] to show that

th[e] ruling, when the evidence is considered most favorably to

the Commonwealth, constituted reversible error.'" McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc) (citation omitted). While we are bound to review de

novo the ultimate questions of reasonable suspicion and probable

cause, we "review findings of historical fact only for clear

error 2 and . . . give due weight to inferences drawn from those

facts by resident judges and law enforcement officers." Ornelas

v. United States, 517 U.S. 690, 699 (1996) (footnote added).

Although appellant asserts in his brief that "[t]he

officers lack[ed] probable cause and articulable suspicion to

continue to detain" him, we characterize his seizure as an

2
"In Virginia, questions of fact are binding on appeal
unless 'plainly wrong.'" McGee, 25 Va. App. at 198 n.1, 487
S.E.2d at 261 n.1 (citations omitted).

- 5 -
arrest rather than a Terry stop, and analyze it under the law of

warrantless arrests. "Whether [a warrantless] arrest [i]s

constitutionally valid depends . . . upon whether, at the moment

the arrest was made, the officers had probable cause to make it

. . . ." Beck v. Ohio, 379 U.S. 89, 91 (1964); see also United

States v. Watson, 423 U.S. 411, 423 (1976); Carter v.

Commonwealth, 9 Va. App. 310, 312, 387 S.E.2d 505, 506 (1990).

"Probable cause exists where 'the facts and circumstances

within [the arresting officers'] knowledge and of which they had

reasonably trustworthy information [are] sufficient in

themselves to warrant a man of reasonable caution in the belief

that' an offense has been or is being committed." Brinegar v.

United States, 338 U.S. 160, 175-76 (1949) (citation omitted).

See also Parker v. Commonwealth, 255 Va. 96, 106, 496 S.E.2d 47,

53 (1998); Taylor v. Commonwealth, 222 Va. 816, 820-21, 284

S.E.2d 833, 836 (1981).

"'In assessing an officer's probable cause for making a

warrantless arrest, no less strict standards may be applied than

are applicable to a magistrate's determination that an arrest

warrant should issue.'" DePriest v. Commonwealth, 4 Va. App.

577, 584, 359 S.E.2d 540, 543 (1987) (quoting Washington v.

Commonwealth, 219 Va. 857, 862, 252 S.E.2d 326, 329 (1979)).

The existence of probable cause is determined by examining the

"totality-of-the-circumstances." See Illinois v. Gates, 462

U.S. 213, 238 (1983); Miles v. Commonwealth, 13 Va. App. 64, 68,

- 6 -
408 S.E.2d 602, 604 (1991), aff'd on reh'g en banc, 14 Va. App.

82, 414 S.E.2d 619 (1992). In determining probable cause, we

test the totality of circumstances as they would be viewed by

"'police officers trained in analyzing the observed conduct for

purposes of crime control.'" DePriest, 4 Va. App. at 584, 359

S.E.2d at 543.

B. INFORMANT INFORMATION AND PROBABLE CAUSE

Where the basis for concluding that
probable cause exists rests upon information
provided by an informer, one focus of the
inquiry must be upon whether [a] magistrate
could determine the informer's honesty,
veracity, and basis of knowledge. Probable
cause to issue a search warrant will be
found lacking where the affidavit fails to
establish reasonably and objectively that
the informer is to be believed.
The United States Supreme Court has made
clear that the rigid two-step analysis known
as the Aguilar-Spinelli test is no longer
required when deciding whether information
provided by an informer establishes probable
cause; rather, courts should utilize the
more "fluid" totality-of-the-circumstances
approach. The Aguilar-Spinelli approach had
courts analyzing separately and
independently the questions whether the
informer was a person worthy of belief and
whether the basis for his or her knowledge
was reliable. The Gates approach, instead,
requires that an issuing magistrate consider
all factors and their interrelation to one
another in deciding whether there is a fair
probability that contraband or evidence of a
crime will be found.

Boyd v. Commonwealth, 12 Va. App. 179, 186-87, 402 S.E.2d 914,

919 (1991) (citations omitted).

- 7 -
 Thus,

"[a]n informant's 'veracity,' 'reliability,'
and 'basis of knowledge' are all highly
relevant in determining the value of his
report . . . [but] should [not] be
understood as entirely separate and
independent requirements to be rigidly
exacted in every case . . . . Rather . . .
they should be understood simply as closely
intertwined issues that may usefully
illuminate the commonsense, practical
question whether there is 'probable cause'
to believe that contraband or evidence is
located in a particular place."

Id. at 187, 402 S.E.2d at 919 (quoting Gates, 462 U.S. at 230).

When reviewing an officer's determination of probable cause

based upon information provided by an informant, a court should

conduct a "balanced assessment of the relative weights of all

the various indicia of reliability (and unreliability) attending

[the] informant's tip." Gates, 462 U.S. at 234. The

credibility of an informer is based upon both his basis of

knowledge and his reliability, and "a deficiency in one may be

compensated for . . . by a strong showing as to the other." Id.

at 233. In "applying the totality-of-the-circumstances

analysis," the Supreme Court has "consistently recognized the

value of corroboration of details of an informant's tip by

independent police work." Gates, 462 U.S. at 241. When making

a warrantless arrest, an officer "'may rely upon information

received through an informant, rather than upon direct

observations,'" so long as the officer has reasonable grounds to

believe the informant's statement is true. Id. at 242 (citation

- 8 -
omitted). "Gates open[ed] the door for police officers to

establish the credibility of an informer in a variety of ways

. . . ." Polston v. Commonwealth, 24 Va. App. 738, 747, 485

S.E.2d 632, 636 (1997), aff'd, 255 Va. 500, 498 S.E.2d 924

(1998).

"When an officer receives from a known reliable informant a

report that a felony is being committed that is so detailed as

to raise an inference either of personal observation or of

acquisition of the information in a reliable way then the

officer has probable cause to arrest." McKoy v. Commonwealth,

212 Va. 224, 227, 183 S.E.2d 153, 156 (1971). Generally, the

two elements of particular significance in cases involving

informant information are: (1) the reliability of the

informant, and (2) the inherent reliability of the informant's

information as determined by the nature and detail of the

circumstances described and any independent corroboration of

those circumstances. See id.; Gates, 462 U.S. at 233-35,

241-43.

C. ANALYSIS

The police officers here possessed probable cause to

arrest appellant when they stopped his vehicle. A few minutes

before the stop, the informant had arranged to meet with

appellant at a particular location for a cocaine transaction.

Immediately after their conversation, appellant left his home in

his car. The fact that appellant left his apartment apparently

- 9 -
in reaction to his conversation with the informant supported the

informant's credibility. See United States v. Miller, 925 F.2d

695, 700 (4th Cir. 1991) (holding that when police officer saw

events at bus station that corroborated most of informant's tip,

it was reasonable for officer to believe unverified portion of

tip was correct, namely, that defendant was transporting drugs).

The informant's reliability was further supported by his

prior purchase of cocaine from a man driving appellant's

vehicle. Easton saw the informant make an exchange with a black

male, and the informant previously had identified appellant as a

black male. Although Easton could not see the face of the

person who sold cocaine to the informant on September 23, 1997,

the circumstantial evidence clearly indicated that it was

appellant.

Ordinarily, an informant's controlled buy may constitute

probable cause sufficient for a magistrate judge to issue a

warrant. See United States v. Clyburn, 24 F.3d 613, 618 (4th

Cir. 1994); Tamburino v. Commonwealth, 218 Va. 821, 825, 241

S.E.2d 762, 765 (1978). In fact, the circumstances in Tamburino

are similar to the facts of this case. In Tamburino, an

informant approached the police with information about the

illegal possession and distribution of drugs. See id. at 822,

241 S.E.2d at 763. A police officer completed an affidavit and

obtained a search warrant for Tamburino's residence after

witnessing a controlled purchase of drugs by the unidentified

- 10 -
informant from "'a subject.'" See id. at 823, 241 S.E.2d at

763. Applying the more stringent Aguilar-Spinelli test, see id.

at 823-24, 241 S.E.2d at 764, the Supreme Court upheld the

affidavit, holding it provided "a sufficient basis for the

magistrate's finding of probable cause." Id. at 826, 241 S.E.2d

at 765.

Under the totality of the circumstances, at the time the

police officers stopped appellant, they had probable cause to

believe that appellant possessed cocaine. Therefore, they were

entitled to arrest him for that offense and to search him and

his vehicle incident to that arrest. See New York v. Belton,

453 U.S. 454, 460 (1981); Taylor v. Commonwealth, 28 Va. App.

638, 642, 507 S.E.2d 661, 663 (1998). Additionally, the drug

dog's alert on both appellant and his vehicle provided a further

basis for the search of appellant and the car. See Alvarez v.

Commonwealth, 24 Va. App. 768, 775, 485 S.E.2d 646, 650 (1997).

Furthermore, apart from probable cause to believe appellant

possessed drugs with intent to make another distribution to the

informant, the prior sale of cocaine to the informant provided

the police with sufficient probable cause to arrest appellant on

that charge. See Golden v. Commonwealth, 30 Va. App. 618, 625,

519 S.E.2d 378, 381 (1999) (holding that the absence of probable

cause to believe person committed particular crime for which the

person is arrested does not invalidate arrest if police have

sufficient information to support arrest on different charge).

- 11 -
 Appellant contends he was unlawfully detained after the

police searched him and his vehicle and found no contraband.

"[A] policeman's on-the-scene assessment of probable cause

provides legal justification for arresting a person suspected of

crime, and for a brief period of detention to take the

administrative steps incident to arrest." Gerstein v. Pugh, 420

U.S. 103, 113-14 (1975). The evidence demonstrated that, as the

police were concluding their searches of appellant's person and

vehicle, appellant appeared seriously ill. Herring testified

that, in his experience, appellant's condition appeared

consistent with the ingestion of a potentially fatal dose of

cocaine. The officer believed appellant's life was in danger.

Under the circumstances, it was reasonable for the officers to

have appellant, a suspect detained upon probable cause of

possessing cocaine, transported to the hospital for medical

treatment.

The Fourth Amendment requires "a fair and reliable

determination of probable cause as a condition for any

significant pretrial restraint of liberty, and this

determination must be made by a judicial officer either before

or promptly after arrest." Gerstein, 420 U.S. at 125. "[A]

jurisdiction that provides judicial determinations of probable

cause within 48 hours of arrest will, as a general matter,

comply with the promptness requirement of Gerstein." County of

Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).

- 12 -
 Immediately after appellant's condition had stabilized,

appellant was advised of his Miranda rights. Appellant made a

statement to the police, leading to the issuance of a valid

search warrant for his apartment and the discovery of drugs. 3

Considering all of the facts and circumstances, the trial court

did not err in finding that appellant had suffered no violation

of his Fourth Amendment rights and in denying the motion to

suppress.

II.

Before trial, the trial court ordered the Commonwealth to

comply within ten days of the trial date with the requests made

in appellant's motion for discovery. Appellant had requested

the Commonwealth "to produce and make available for the

defendant's trial or trials copies and inspection of" scientific

reports either known to the Commonwealth or within its

possession. The Commonwealth provided appellant with the

certificate of analysis pertaining to the drugs found in

appellant's apartment on September 26, 1997, but not the

certificate of analysis connected with the controlled purchase

of drugs by the informant on September 23, 1997.

On May 14, 1998, the trial court conducted a hearing on

appellant's motion to suppress. During the suppression hearing,

3
On appeal, appellant challenges neither the voluntariness
of his statement nor the validity of the search warrant.
Accordingly, we do not address these questions.

- 13 -
the Commonwealth offered into evidence as Commonwealth's Exhibit

3, the certificate of analysis pertaining to the cocaine

purchased by the informant on September 23, 1997. The

prosecutor stated that the purpose of Commonwealth's Exhibit 3

was to support the reliability of the informant. The trial

court overruled appellant's objection that the Commonwealth had

not provided Commonwealth's Exhibit 3 to him in discovery prior

to the hearing. Although the evidence adduced at the

suppression hearing was later introduced at trial, the trial

court admitted Commonwealth's Exhibit 3 for purposes of the

suppression motion only.

In Coleman v. Commonwealth, 27 Va. App. 768, 501 S.E.2d 461

(1998), the defendant filed a discovery motion requesting, among

other things, scientific reports in the possession, custody, or

control of the Commonwealth. The discovery order, to which the

defendant agreed, permitted the defendant to inspect and copy

the requested documents at the prosecutor's office during

specified hours until ten days before the scheduled trial. The

defendant did not avail himself of the opportunity to copy the

documents at the prosecutor's office. At trial, he objected to

the introduction of a certificate of analysis. See id. at 771,

501 S.E.2d at 462. On appeal, we concluded that the prosecutor

"reasonably could rely upon [the agreed discovery order] as

controlling all requests made in the motion for discovery,

including the request for any certificate of analysis." Id. at

- 14 -
774, 501 S.E.2d at 464. The defendant, having chosen to

"intermingle Code § 19.2-187 and Rule 3A:11," was bound by the

terms of the discovery order for all matters of discovery. Id.

at 775, 501 S.E.2d at 464.

Appellant's discovery request, which the trial court

granted, required the Commonwealth to "produce and make

available" certain documents and information "for [appellant's]

trial," not his suppression hearing. Commonwealth's Exhibit 3

was not relevant to appellant's guilt or innocence of possessing

cocaine three days later. See Hanson v. Commonwealth, 29 Va.

App. 69, 78, 509 S.E.2d 543, 547 (1999) (finding that under Rule

3A:11, a defendant's statements about an unrelated crime were

not "relevant," and the Commonwealth was not required to produce

them). In fact, the trial court admitted Commonwealth's Exhibit

3 at the suppression hearing only for the certificate's

potential to establish the reliability of the informant. As the

record contains no evidence to the contrary, we presume that the

trial court considered Commonwealth's Exhibit 3 only for this

limited purpose. See Hall v. Commonwealth, 14 Va. App. 892,

902, 421 S.E.2d 455, 462 (1992) (en banc). Accordingly, the

trial court did not err in admitting the certificate into

evidence at the suppression hearing.

III.

In challenging the sufficiency of the evidence, appellant

contends only that if the trial court had granted the motion to

- 15 -
suppress, the evidence would not have proven that he possessed

the drugs. As noted above, however, the trial court did not err

in denying the motion to suppress. The evidence was

uncontroverted that appellant told the police they would find

drugs in his apartment, which the officers subsequently did.

Accordingly, the evidence was sufficient to prove beyond a

reasonable doubt that appellant was guilty of the charged

offense.

For the foregoing reasons, appellant's conviction is

affirmed.

Affirmed.

- 16 -