Tommy D. Martin, s/k/a Tommy D. Martin, Jr. v. CW

                    COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Overton and Bumgardner
Argued at Salem, Virginia


TOMMY DEWEY MARTIN, S/K/A
 TOMMY DEWEY MARTIN, JR.
                                         MEMORANDUM OPINION * BY
v.          Record No. 1676-97-3        JUDGE NELSON T. OVERTON
                                             MAY 12, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
                       Charles M. Stone, Judge
            Elwood Earl Sanders, Jr., Director
            Capital/Appellate Services (Public Defender
            Commission, on briefs), for appellant.

            Jeffrey S. Shapiro, Assistant Attorney
            General (Mark L. Earley, Attorney General;
            John H. McLees, Jr., Assistant Attorney
            General, on brief), for appellee.



     Tommy Dewey Martin, Jr. (defendant) appeals his convictions

for possession of a firearm by a convicted felon, in violation of

Code § 18.2-308.2, possession of cocaine with intent to

distribute, in violation of Code § 18.2-248, and possession of a

firearm while in possession of cocaine, in violation of Code

§ 18.2-308.4.   He contends on appeal that the police lacked

probable cause because it was based solely on information

provided by an unreliable informant.   His arrest, therefore,

would have violated the Fourth Amendment to the United States

Constitution and the subsequent search of his vehicle was

unlawful.   Because we find the informant was reliable, we affirm.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
        The facts are not in dispute.    On July 24, 1996 at

approximately 5:00 p.m., an unidentified informant called the

City of Martinsville Police Department and informed them

defendant would shortly deliver cocaine to the Patrick Henry

Mall.    The informant told police that defendant would drive a

blue Honda Accord with tinted windows and chrome wheels bearing

license plate number ACL-1864.    While the police would not reveal

the informant's identity, several officers testified the

informant had been reliable in the past and his information had

led to six search warrants, twelve arrests and convictions, and

the capture of two fugitives.    The informant had never provided

false information.
        The Martinsville police staked out the mall and at

approximately 6:00 p.m., defendant arrived.      He was driving a car

matching the description given including the license plate

number.    He pulled up to a waiting pedestrian who entered the

car, and then drove to an unoccupied part of the mall's parking

lot.    After sitting for several minutes, the passenger exited the

car and defendant began to drive away.      It was at that moment

police closed in and stopped defendant.      The passenger escaped on

foot.    Police arrested defendant and searched his car, finding a

.22 caliber handgun, a shotgun and 13 grams of cocaine.

        "The warrantless search of an automobile, 'where there are

both probable cause to believe the car contains evidence of crime

and exigent circumstances,' is a well established exception to




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the warrant requirement."   Jackson v. Commonwealth, 22 Va. App.

347, 355, 470 S.E.2d 138, 143 (1996) (quoting McCary v.

Commonwealth, 228 Va. 219, 227, 321 S.E.2d 637, 641 (1984)).

Defendant concedes that the ambulatory nature of the vehicle and

the short time frame involved constitute exigent circumstances.

Therefore, the only issue presented is whether the informant's

tip rose to the level of probable cause.

     "[T]he test for 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).   The existence of probable cause is determined by

examining a "totality of the circumstances."   Miles v.

Commonwealth, 13 Va. App. 64, 68, 408 S.E.2d 602, 604 (1991).

When the information comes from an informant, these circumstances

include the "veracity, reliability, and basis of knowledge" of

the tipster.   See Polston v. Commonwealth, 24 Va. App. 738, 744,

485 S.E.2d 632, 635 (1997) (quoting Illinois v. Gates, 462 U.S.

213, 230 (1983)).   Yet none of these factors are dispositive.   A

deficiency in one may be compensated by an abundance in another.

 See id.; Beckner v. Commonwealth, 15 Va. App. 533, 535, 425

S.E.2d 530, 531 (1993).

     The facts proven at trial clearly support probable cause.

The unidentified, but not anonymous, informant gave detailed




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information regarding the time, place and identity of a drug

transaction.   The informant had been used extensively and with

great success in the past.   While the informant's basis of

knowledge was not shown, police officers testified he was both

reliable and accurate.   Such testimony was sufficient to support

the trial court's conclusion that the informant was reliable.

See Draper v. United States, 358 U.S. 307, 311-12 (1959) (holding

hearsay statements presented through police officers' testimony

were cognizable for probable cause analysis purposes).
     Because the information gleaned from the unidentified

informant was sufficient to provide probable cause to arrest and

search defendant, the evidence seized pursuant to the search was

properly admitted against him at trial.   Accordingly, his

convictions are affirmed.

                                                   Affirmed.




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