COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Clements
Argued by teleconference
COMMONWEALTH OF VIRGINIA/
COUNTY OF BOTETOURT
MEMORANDUM OPINION * BY
v. Record No. 1889-01-3 JUDGE JAMES W. BENTON, JR.
JANUARY 4, 2002
CHRIS MARK GRADY
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellant.
David A. Downes for appellee.
The trial judge granted Chris Mark Grady's motion to suppress
evidence discovered during Grady's detention and his arrest. The
Commonwealth contends the trial judge erred in ruling that no
probable cause existed to arrest Grady and to search his vehicle.
We affirm the trial judge's ruling.
I.
On an appeal by the Commonwealth from the trial judge's
granting of a motion to suppress, we view the evidence in the
light most favorable to the accused, who prevailed on the motion,
and we grant all reasonable inferences fairly deducible from that
evidence. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
S.E.2d 47, 48 (1991). The record established, that for the
limited purpose of portraying the police conduct in response to a
citizen's complaint, see Upchurch v. Commonwealth, 220 Va. 408,
258 S.E.2d 506 (1979), Detective John Mandeville testified
concerning a report he received from Roberta Hipes on March 28,
2001. She said two men arrived at her home the previous day in a
"maroon . . . brownish type vehicle" and offered to pave her
driveway. The men informed Hipes they were in the area working,
had some extra paver, and offered to give her "a good deal" on her
driveway. When she asked the cost, the men said they could not
tell the cost until they finished. Hipes agreed to the offer.
Two more men arrived in a blue pickup truck and put material on
Hipes's driveway. After the work was completed, the men told
Hipes the cost was $2,400. When Hipes said she did not have that
amount, the men asked for $1,800. After Hipes said she also did
not have that amount, one of the men left. Another man entered
and said if she would pay $900 he would pay the balance, otherwise
he would lose his job. Hipes wrote a check for $900, pre-dated
it, and gave it to the man who said he would pay the balance.
The day after Hipes contacted the police, two men in a blue
pickup truck attempted to negotiate the check. The bank refused
payment and alerted a deputy sheriff, who detained the men until
the detective arrived. After speaking to the men, the detective
learned that they were Milton Dorr and Belcher Grady and that Dorr
possessed the check Hipes had written. Dorr informed the
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detective that he worked for two other men, who had been driving
ahead of Dorr when the deputy sheriff stopped Dorr. Although Dorr
identified the other vehicle as a "maroon burgundy Chevy Suburban
. . . with Maryland tags," no evidence indicated the officers who
initially detained Dorr saw such a vehicle. Dorr also said that
he helped spray the material on Hipes's driveway and that "if [the
work] had been done correct its three to four hundred dollars."
With Dorr in his vehicle, the detective searched for a
"maroon Suburban" vehicle. While the detective was driving, he
learned from his dispatcher that no permit to solicit work had
been issued in Botetourt County for Milton Dorr or Belcher Grady.
When the detective drove past a maroon vehicle, Dorr said "they
are right there." The detective and another deputy followed the
vehicle and arrested the two occupants, Kevin Connell and
appellee, for soliciting in Botetourt County without a permit, a
misdemeanor. The deputy sheriff searched appellee incident to the
arrest and found a bottle containing pills. He also searched
appellee's vehicle and found another bottle of pills inside the
vehicle. Later, at the sheriff's office, the officers charged
appellee with two felonies, obtaining property or money by false
pretenses with intent to defraud in violation of Code § 18.2-178
and possession with intent to distribute a controlled substance in
violation of Code § 18.2-248.
After considering the testimony of the detective and the
deputy sheriff who arrested and searched appellee, the trial judge
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issued a letter opinion, which contained findings of fact and
concluded that the officers lacked probable cause to arrest
appellee. Thus, the trial judge suppressed the arrest and the
seized items.
II.
The Commonwealth contends the trial judge erred in finding
that, when the officers arrested appellee, the officers had
insufficient probable cause to believe he had committed a felony.
The Commonwealth argues that the information available to the
officers was sufficient for them to believe appellee "had intended
to defraud [Hipes], that he had in fact effected the fraud, that
he had used false pretense to do so and that [Hipes] had relied
upon that pretense."
On appeal from a ruling on a motion to suppress, the burden
is upon the appellant, in this case the Commonwealth, to show the
trial judge's ruling constituted reversible error. Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1989). The
principle is well established that "[w]hether [a warrantless]
arrest was 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). In other words,
the issue is "whether at that moment [of arrest] the facts and
circumstances within [the officers'] knowledge and of which they
had reasonably trustworthy information were sufficient to warrant
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a prudent man in believing that the petitioner had committed or
was committing an offense." Id.
We review de novo the trial judge's application of the legal
standard of probable cause to the particular facts of the case.
McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261
(1997) (en banc). In our review, however, "we are bound by the
trial [judge's] findings of historical fact unless 'plainly wrong'
or without evidence to support them." Id. The trial judge's
findings included the following:
No warrant or summons had been issued at
the time of the arrest for the misdemeanor
for which the [appellee] was arrested. If
there was probable cause to arrest upon
suspicion of a felony, no such arrest was
made at the scene of the stop, nor at any
other time in evidence, until after the
magistrate had issued a felony warrant.
It is also noteworthy that neither the
name of the [appellee] was known to the
officer(s) nor did they have a detailed
description of him. Further, the officer(s)
did not identify the [appellee] or his
vehicle, but relied upon the representations
of Dorr who was then under arrest, in
possession of the check and being
interrogated. Dorr's identification of the
vehicle cannot be fairly said to be
inculpatory under such circumstances.
* * * * * * *
The arrest of the [appellee] lacked
probable cause. The [appellee] had
committed no offense in the officer(s)
presence. While [Hipes] had made,
indirectly, a complaint of wrongdoing, she
had not identified the [appellee]. No
warrant or other indicia of formal arrest
was outstanding. The check was in the
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possession of, and payable to Dorr. The
only identification of the [appellee] was
made by Dorr whose veracity and reliability
was unknown to the officer(s).
The record clearly establishes that the officers knew very
little about appellee when they arrested him. Hipes had given a
general description of four "white males" but had not given any
distinguishing physical characteristics except that one had dark
hair and was cleanly dressed. She said the other three were
dirtier with tar on them. No testimony further identified the
men, indicated which man made particular statements to Hipes, or
established who was present when various statements were made.
The officers had no basis to know whether the two men who
arrived later and performed the work were aware of the financial
arrangements or Hipes's expectation of receiving asphalt and not
sealant. The only indication that appellee was one of the two
individuals who solicited the work from Hipes was Dorr's
statements.
When the police act upon the tip of an informant to make an
arrest, the informant's veracity and reliability must be
established. Russell v. Commonwealth, 33 Va. App. 604, 610, 535
S.E.2d 699, 702 (2000). The officer had no basis, however, to
assume Dorr was credible or reliable. Although Dorr possessed
Hipes's check and apparently was aware of the transaction with
Hipes, those facts are not sufficient to establish Dorr's
reliability and truthfulness regarding the events. This was the
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first encounter between Dorr and the officers. "Although [Dorr]
was not anonymous, . . . he does not have as much indicia of
reliability as a known informant who has given previous
information." Beckner v. Commonwealth, 15 Va. App. 533, 538,
425 S.E.2d 530, 533 (1993). His self-serving statement that he
had only worked on the driveway was not particularly
inculpatory. As we have noted, informants "'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.'" Russell, 33 Va.
App. at 616, 535 S.E.2d at 705 (citation omitted). See also Lee
v. Illinois, 476 U.S. 530, 545 (1986) (holding that "a
codefendant's confession is presumptively unreliable as to the
passages detailing the defendant's conduct or culpability
because those passages may well be the product of the
codefendant's desire to shift or spread blame, curry favor,
avenge himself, or divert attention to another").
As the trial judge found, Dorr's "veracity and reliability
[were] unknown" to the officer when he stopped appellee. The
record clearly supports the finding that upon the totality of
the circumstances the officers had no basis to believe Dorr was
reliable or credible before detaining appellee. Accordingly, we
hold that the trial judge's determination that Dorr's veracity
and reliability were not established was neither plainly wrong
nor unsupported by the evidence.
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III.
Although the Commonwealth also contended on brief that the
trial judge erred in applying Code § 19.2-81 and suppressing
evidence discovered by the officers when they arrested appellee
for a misdemeanor not committed in their presence, that issue
was abandoned and not pursued on appeal. Accordingly, we affirm
the order suppressing the evidence and the arrest.
Affirmed.
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Commonwealth/Botetourt Co. v. Chris Mark Grady
Combined Opinion