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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