Gregory v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia

DYWARD JEAN GREGORY

v. Record No. 2083-94-2 OPINION BY
JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA MARCH 19, 1996

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Jose R. Davila, Jr., Judge
Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on
briefs), for appellant.

Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Dyward J. Gregory was convicted in a bench trial of

possession of cocaine with intent to distribute, a second or

subsequent offense, in violation of Code § 18.2-248(C). Gregory

contends that the trial court erred by denying his motion to

suppress the evidence seized from him and that the evidence is

insufficient to prove he intended to distribute cocaine. We hold

that the trial court did not err and affirm the defendant's

conviction.

At approximately 1:56 a.m. on April 9, 1994, Officer Ronald

McClaren, Jr. received a radio dispatch that an anonymous caller

reported that an individual "was standing out in the roadway [at

the 1700 block of Carlyle Avenue in Richmond] flagging motorists

down to ask them if they wanted to buy drugs." The caller

described the individual as a black male wearing a green sweat
jacket with a green hooded jacket underneath, a pair of dark

jeans, and tennis shoes. The caller also provided information

about the color, make, and "other identifying characteristics" of

the automobile from which "the individual was supposedly dealing

in drugs."

About two minutes after receiving the dispatch, Officer

McClaren approached the 1700 block of Carlyle Avenue. He

observed the defendant in a vehicle matching the description

given by the anonymous tipster. The defendant was dressed in the

manner described by the caller.
As McClaren approached the defendant's vehicle, the

defendant looked in McClaren's direction and began to walk away

from the vehicle. He proceeded down Carlyle Avenue and looked

over his shoulder toward McClaren as he walked. Officer McClaren

drove his patrol car beside the defendant and stopped. Because

McClaren could not see one of the defendant's hands, McClaren

told the defendant to show the other hand. The defendant did not

show both hands until McClaren exited his patrol car and drew his

weapon. After the defendant showed both hands, McClaren

reholstered his weapon.

McClaren explained to the defendant that he was responding

to a call that an individual was seen selling drugs and that he

was going to check to determine whether the defendant had

outstanding arrest warrants. McClaren informed the defendant

that he would be free to go if there were no problems. The

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defendant replied, "it's not me. It wasn't me." McClaren then

conducted a pat-down search of the defendant and felt objects,

including a hard object, in the defendant's pocket. When

McClaren asked the defendant what was in the pocket, he replied,

"[p]lease mister, please don't put anything in my pocket."

McClaren asked the defendant again what was in the pocket and the

defendant replied, "I don't know." McClaren then asked the

defendant if he had "permission to go into [the defendant's]

pocket," and the defendant replied, "[s]ure, you do." McClaren

found seven individual bags of crack cocaine in the defendant's

pocket.
Based on the foregoing evidence, the trial court overruled

the defendant's motion to suppress the cocaine.

At trial, McClaren testified that he had recovered seven

baggies containing 3.4 grams of cocaine from the defendant and

that the packaging and quantity of the cocaine were consistent

with distribution. The trial court found the defendant guilty of

possession of cocaine with intent to distribute, a second or

subsequent conviction.

A police officer may lawfully stop and frisk an individual

if the officer possesses a reasonable suspicion, based on

articulable facts, that the individual is or is about to be

engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 30

(1968). The standard for conducting such a detention is less

than probable cause, but more than an "inchoate and

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unparticularized suspicion or `hunch.'" Moss v. Commonwealth, 7

Va. App. 305, 308, 373 S.E.2d 170, 172 (1988) (quoting Terry, 392

U.S. at 27). "Once the police officer has properly detained a

suspect for questioning, he may conduct a limited pat-down search

of the suspect's outer clothing to search for weapons if the

officer reasonably believes, based on specific and articulable

facts, that the suspect might be armed and dangerous." Phillips

v. Commonwealth, 17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993).
In considering whether facts based on an anonymous tip are

sufficient to provide a police officer a reason to suspect

criminal activity, the United States Supreme Court has stated

that "anonymous [information that has] been sufficiently

corroborated [may] furnish reasonable suspicion . . . [justifying

an] investigative stop." Alabama v. White, 496 U.S. 325, 331

(1990). Applying Alabama v. White, we have held that although

the police do not have to verify every detail provided by an

anonymous tipster, "[s]ignificant aspects of the informer's

information must be independently corroborated." Bulatko v.

Commonwealth, 16 Va. App. 135, 137, 428 S.E.2d 306, 307 (1993).

See also Johnson v. Commonwealth, 20 Va. App. 49, 54, 455 S.E.2d

261, 264 (1995) (holding that Terry stop was valid because known

reliable "informants provided detailed, predictive information

that the officers were able to corroborate").

Here, the tipster provided a detailed description of the

individual, the car, the location, and the nature of the illegal

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activity in which the individual was engaged. Although Officer

McClaren did not observe the defendant engaged in illegal

activity, McClaren verified certain details of what the tipster

observed within moments after receiving the detailed account.

McClaren verified that the defendant matched the physical

description, wore clothes, and occupied a vehicle matching the

description given by the tipster.

Admittedly, the facts as related by the caller could have

been "easily obtained" by a casual observer. Alabama v. White,

496 U.S. at 332; see Hardy v. Commonwealth, 11 Va. App. 433, 436,

399 S.E.2d 27, 29 (1990) (holding that verification of "innocent"

behavior is not sufficient to establish probable cause). In that

vein, the Supreme Court noted in Alabama v. White that in

evaluating the informer's reliability that "the anonymous [tip]

contained a range of details relating not just to easily obtained

facts and conditions existing at the time of the tip, but to

future actions of third parties ordinarily not easily predicted."
Alabama v. White, 496 U.S. at 332 (quoting Illinois v. Gates,

462 U.S. 213, 245 (1983)). The Court noted, however, that

reasonable suspicion depends upon "the content of information

possessed by [the] police" as well as its reliability. Id. at

330. Accordingly, a detailed description, like that given here,

by a caller who appears to have been a concerned citizen who

recently observed a person hailing motorists to sell drugs,

together with immediate verification of aspects of the

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description are important factors to consider in determining

whether the officer had reasonable suspicion, even when the

description contains facts that are "easily obtained." See

Draper v. United States, 358 U.S. 307 (1959).

This Court has held that Alabama v. White does not preclude

a finding of reasonable suspicion when the anonymous tipster does

"not provid[e] the government with information that predicts the

future actions of the [defendant], if some other indicia of

reliability of the informant exists." Beckner v. Commonwealth,

15 Va. App. 533, 535, 425 S.E.2d 530, 531 (1993).

It is well established that whether reasonable suspicion

"exists to warrant an investigatory stop is determined by the

totality of the circumstances." Smith v. Commonwealth, 12 Va.

App. 1100, 1103, 407 S.E.2d 49, 51 (1991).
The circumstances we may consider include "the
`characteristics of the area' where the stop occurs,
the time of the stop, whether late at night or not, as
well as any suspicious conduct of the person accosted
such as an obvious attempt to avoid officers or any
nervous conduct on the discovery of their presence."

Id., 407 S.E.2d at 51-52 (quoting Williams v. Commonwealth, 4 Va.

App. 53, 67, 354 S.E.2d 79, 87 (1987) (quoting United States v.

Bull, 565 F.2d 869, 870-71 (4th Cir. 1977), cert. denied, 435

U.S. 946 (1978))). These circumstances are also relevant in

determining the reliability of an anonymous informant.

In the present case, Officer McClaren found the defendant

alone around 2:00 a.m. McClaren testified that "we always

receive complaints of drug dealing in the area of [the 1700 block

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of] Carlyle Avenue." He also observed further suspicious

behavior by the defendant. McClaren testified that "when [the

defendant] looked in my direction and saw me he immediately began

walking away from the vehicle and began walking down Carlyle

Avenue." The defendant walked away from McClaren and looked over

his shoulder. When McClaren pulled his patrol car along side the

defendant and said, "good morning," the defendant replied,

"what," and according to McClaren, seemed "slightly agitated."

The defendant had one of his hands slightly behind his back, and

McClaren commanded him to "[s]how me the other hand." The

defendant refused to show his hands until McClaren exited his

patrol car and drew his weapon.
In Smith v. Commonwealth, the police officer saw Smith

shortly after 10:00 p.m. on a playground that had a reputation as

a place where drugs were prevalent. When Smith looked in the

officer's direction, Smith suddenly placed something in his front

pants pocket. We held that the officer's observations were

insufficient to warrant an investigatory stop. Smith, 12 Va.

App. at 1104, 407 S.E.2d at 52; see also Goodwin v. Commonwealth,

11 Va. App. 363, 367, 398 S.E.2d 690, 692 (1990); Moss, 7 Va.

App. at 308, 373 S.E.2d at 172.

In the present case, however, Officer McClaren observed the

defendant at 2:00 a.m., in a known drug area, walking away from a

car he had previously occupied. As he walked away, he looked

over his shoulder repeatedly at Officer McClaren. Although

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McClaren did not observe the defendant flagging down cars or

engaging in other activity consistent with drug distribution, the

fact that the defendant exited his car and acted nervously upon

noticing the police tends to add credence to the officer's

suspicion that the defendant was the person the tipster had

described as flagging down vehicles and offering to sell the

occupants drugs. The defendant's behavior thus tended to support

the informer's report. Based upon the details of the informer's

tip concerning the defendant's conduct in hailing motorists

offering to sell drugs, the detailed description of the

defendant, and Officer McClaren's independent observations and

partial verification, McClaren had reason to suspect that the

defendant was engaged in selling drugs. See Draper, 358 U.S.

307. Therefore, when McClaren stopped the defendant he had

reason to detain the defendant temporarily in order to inquire

about his activities and to investigate whether defendant was

engaged in criminal activity.

Officer McClaren stated during cross-examination that he

requested and was granted permission to search the defendant's

pockets. The trial court found that the defendant granted "clear

permission . . . for entry into [his] pockets." "The test of a

valid consent search is whether it was `freely and voluntarily

given.'" Deer v. Commonwealth, 17 Va. App. 730, 734, 441 S.E.2d

33, 36 (1994) (quoting Bumper v. North Carolina, 391 U.S. 543,

548 (1968)). The Commonwealth must demonstrate that the consent

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was not the product of duress, and "[t]he question of whether a

particular `consent to a search was in fact voluntary or was the

product of duress or coercion, express or implied, is a question

of fact to be determined from the totality of all the

circumstances.'" Id. at 735, 441 S.E.2d at 36 (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).

Here, Officer McClaren conducted a valid Terry stop.

Although he drew his weapon when the defendant did not show both

hands, he reholstered the gun before asking for permission to

search the defendant's pockets. McClaren informed the defendant

that he was investigating a report of drug dealing and that the

defendant would be free to go if there were no problems. On

these facts, the trial court's finding that the defendant

voluntarily consented to the search of his pockets was not

"clearly erroneous." Limonja v. Commonwealth, 8 Va. App. 532,

540, 383 S.E.2d 476, 481 (1989) (en banc), cert. denied, 495 U.S.

905 (1990).

The defendant also contends that the evidence was

insufficient to prove that he intended to distribute the cocaine

seized from him. On appeal, the evidence is "viewed in the light

most favorable to the Commonwealth, and given all reasonable

inferences fairly deducible therefrom." Albert v. Commonwealth,

2 Va. App. 734, 741-42, 347 S.E.2d 534, 538 (1986). This Court

will not disturb the trial judge's verdict "unless it is plainly

wrong or without evidence to support it." Id. at 742, 347 S.E.2d

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at 538-39.

"When the proof of intent to distribute narcotics rests upon

circumstantial evidence, the quantity which the defendant

possesses may indicate the purpose for which it is possessed.

Possession of a quantity greater than that ordinarily possessed

for one's personal use may be sufficient to establish an intent

to distribute it." Iglesias v. Commonwealth, 7 Va. App. 93, 110,

372 S.E.2d 170, 180 (1988) (en banc) (citations omitted). At

trial, Officer McClaren testified that, based upon his training

and experience, he believed that possession of 3.4 grams of

cocaine was consistent with distribution, not personal use.

Moreover, McClaren also testified that the method of packaging of

the cocaine seized from the defendant was consistent with

distribution. See Early v. Commonwealth, 10 Va. App. 219, 222,

391 S.E.2d 340, 341-42 (1990). Although Officer McClaren

testified on cross-examination that it was conceivable that an

individual with "a serious addiction" could consume around three

grams of cocaine in two days, we hold that his testimony, viewed

in the light most favorable to the Commonwealth, was sufficient

to prove intent to distribute.

In addition to testifying that the amount of cocaine seized

and the method of packaging were consistent with distribution,

McClaren also testified that the tipster reported that an

individual was "standing in the street waving down motorists

[and] asking them if they wanted to purchase drugs." Although

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the tipster's statement was inadmissible hearsay, see Arnold v.

Commonwealth, 4 Va. App. 275, 279-80, 356 S.E.2d 847, 850 (1987),

the defendant failed to object to the statement at the time it

was offered into evidence. See Burns v. Board of Supervisors,

227 Va. 354, 363, 315 S.E.2d 856, 862 (1984) (holding that

failure to object to the admission of the statement constitutes a

waiver of the hearsay objection). Therefore, the statement was

properly before the trial court and was relevant to prove the

defendant's guilt.
Because the anonymous tip was sufficiently corroborated,

Officer McClaren had reasonable suspicion to conduct a Terry

investigatory stop. The seizure of the cocaine was valid because

the defendant voluntarily consented to the search of his pockets.

Therefore, the trial court did not err by overruling the

defendant's motion to suppress the cocaine. Moreover, the

evidence was sufficient to prove that the defendant intended to

distribute the cocaine seized from him. Accordingly, we affirm

the defendant's conviction.
Affirmed.

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BENTON, J., dissenting.

The evidence proved that the police dispatcher relayed an

anonymous telephone tip to the officer. The officer acted on the

tip and stopped Gregory. However, the officer did not know the

tipster and had no basis to believe the tipster was honest or

reliable. The evidence failed to establish that the anonymous

tipster was reliable. Thus, the evidence failed to prove that

the officer had a reasonable articulable suspicion to support a

Terry stop.

The principle is well established that "[t]he informant must

provide some basis for his knowledge before the police officer

relies upon it as being reliable enough to support an

investigatory stop." Beckner v. Commonwealth, 15 Va. App. 533,

537, 425 S.E.2d 530, 533 (1993). In a case involving an

anonymous tip, the Supreme Court ruled as follows in upholding a

Terry stop:
[T]he independent corroboration by the police
of significant aspects of the informer's
predictions imparted some degree of
reliability to the other allegations made by
the caller.

[It is] also important that, as in
[Illinois v. Gates, 462 U.S. 213 (1983)],
"the anonymous [tip] contained a range of
details relating not just to easily obtained
facts and conditions existing at the time of
the tip, but to future actions of third
parties ordinarily not easily predicted."
Id., at 245. . . . What was important was
the caller's ability to predict respondent's
future behavior, because it demonstrated
inside information - a special familiarity
with respondent's affairs.

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Alabama v. White, 496 U.S. 325, 332 (1990). Despite the

predictive nature of the tip and the corroboration, the Court

nonetheless concluded that "it [was] a close case." Id.

Although this Court, in dicta, has stated that reasonable

suspicion may exist even if the anonymous tipster does not

"provid[e] the government with information that predicts the

future actions of the [defendant]," that statement was premised

upon proof in the record that "some other indicia of reliability

of the informant exists." Beckner, 15 Va. App. at 535, 425

S.E.2d at 531. In the absence of predictive information, the

ingredient that allowed the Supreme Court in White to infer that

the content of the information "demonstrated [the tipster had]

. . . a special familiarity with the [suspect's] affairs," 496

U.S. at 332, the Commonwealth must prove that the tipster had a

special familiarity with the details of Gregory's affairs. Only

then will the evidence support the anonymous tipster's

reliability through other "indicia." See id. at 329-32.

The tip that the officer acted upon when he stopped Gregory

"'provide[d] virtually nothing from which one might conclude that

[the tipster was] either honest or his information reliable.'"

496 U.S. at 329. Nothing intrinsic to the tip reasonably allowed

the officer to draw conclusions of honesty or reliability. The

tip did not contain any information that indicated the tipster

had a familiarity with Gregory's affairs. The tip neither

predicted his future behavior nor contained "a range of details

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relating not just to easily obtained facts and conditions

existing at the time of the tip." White, 496 U.S. at 332.

The substance of the tip might support an inference that the

tipster saw Gregory in the vicinity. However, the tip did not

convey any other information upon which an inference of guilt

could have been made. The tipster might have been someone who

merely bore a grudge against Gregory, or a practical joker, or

another suspicious police officer. The record does not disclose

any information concerning the tipster and contains no basis upon

which to conclude that the tipster "appears to have been a

concerned citizen." Precisely because someone can easily harass

another person, the Supreme Court has stated that "if a tip has a

relatively low degree of reliability, more information will be

required to establish the requisite quantum of suspicion than

would be required if the tip were more reliable." White, 496

U.S. at 330.

To guard against that same mischief, this Court barred Terry

stops based on tips that reflected no more than a suspicion or a

hunch of criminal activity.
The facts that the police rely upon must
amount to more than an "inchoate and
unparticularized suspicion or 'hunch.'"
Here, the informant's tip did not provide a
range of detail that would elevate what may
have been a mere "hunch" to a reasonable
suspicion. If a hunch is not enough for a
police officer to effectuate a stop, it
follows that the hunch of an unnamed
informant, albeit an informant with some
indicia of personal reliability, is also not
sufficient. The fact that the informant's
hunch is conveyed to the police officer does

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 not raise the hunch to the level of
reasonable suspicion. "Manifestly, this
conduct falls below activity necessary to
justify a reasonable suspicion that a
violation of law had occurred or was
occurring."

Beckner, 15 Va. App. at 537, 425 S.E.2d at 533 (citations

omitted). The tip in this case neither established that the

caller was "honest [nor] his information reliable," White, 496

U.S. at 329, nor negated the hypothesis that the tip was based

solely on the observer's hunch. Beckner, 15 Va. App. at 537, 425

S.E.2d at 533. "[S]omething more" than the tip was necessary to

establish reasonable suspicion in this case. White, 496 U.S. at

329 (quoting Illinois v. Gates, 462 U.S. 213, 227 (1983)).

The Commonwealth attempted to establish the tipster's

reliability by showing that the officer corroborated aspects of

the tip by the officer's independent observations. Although the

officer testified that he observed facts reported by the tipster,

he observed nothing more than any uninformed tipster might have

seen. The criminal conduct that the tipster reported, which may

have been embellished because of a hunch, was not observed by the

officer.

The record established that the anonymous tipster described

a person to the police dispatcher and informed the dispatcher

that the person was "standing out in the roadway flagging

motorists down to ask them if they wanted to buy drugs." When

the officer arrived at the particular street, he saw a man

sitting in a vehicle and dressed as described by the tipster.

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The officer saw no criminal or unusual activity. Thus, the

officer did not corroborate in any manner the tipster's report of

illegal conduct. The Commonwealth's assertion that "[c]learly

the officer reasonably inferred that the [tipster] had observed

[Gregory] in the act of selling drugs" is baseless. This record

provides no foundation from which any such inference could have

been drawn. Before the officer stopped Gregory, the officer

observed "nothing more than innocent details which any casual

observer could have given. . . . Anyone who saw [Gregory] . . .

that day could have given the same description of him." Hardy v.

Commonwealth, 11 Va. App. 433, 435, 399 S.E.2d 27, 28 (1990).

The corroboration the Commonwealth relies upon consists of

wholly innocent activity that would normally not command the

attention of the police. These facts do not provide a basis to

conclude that the tipster was reliable and certainly do not

negate the hypothesis that the tipster's report was any more than

a hunch of criminal activity. See Beckner, 15 Va. App. at 537,

425 S.E.2d at 533. The only reasonable inference to draw from

these facts is that the tipster saw Gregory in the area, nothing

more. Conceding that the officer did not observe Gregory

approaching passing vehicles or engaging in other activity

consistent with drug distribution, the majority concludes that

Gregory's departure from his car and "nervous" demeanor added

credence to the tipster's report that a similarly dressed person

had been offering to sell drugs. I fail to see the connection.

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Nothing that the officer observed in Gregory's behavior supported

the tipster's report. When Gregory walked away from his vehicle

and watched the police vehicle, he was engaged in perfectly

lawful activity. We have no idea why Gregory acted as he did.

However, he had a right to walk away from a police officer unless

the police officer had grounds to detain him. The circular

nature of the majority's reasoning is obvious. If you walk away

from a police officer, you can't be stopped except upon

reasonable suspicion, but if you walk away, ipse dixit, you have

given the officer reasonable suspicion.

In Smith v. Commonwealth, 12 Va. App. 1100, 407 S.E.2d 49

(1991), a police officer saw Smith shortly after 10:00 p.m. on a

playground that had a reputation as a place where drugs were

prevalent. When Smith looked in the officer's direction, Smith

suddenly placed something in his pants pocket. This Court held

that the officer's observations of "suspicious" activity were not

sufficient to warrant an investigatory stop. 12 Va. App. at

1104, 407 S.E.2d at 52. See also Goodwin v. Commonwealth, 11 Va.

App. 363, 367, 398 S.E.2d 690, 692 (1990); Moss v. Commonwealth,

7 Va. App. 305, 308, 373 S.E.2d 170, 172 (1988). Likewise, the

evidence in this record does not support the trial judge's

finding that Gregory was lawfully stopped. I would hold that the

trial judge erred in refusing to suppress the evidence.

Furthermore, the evidence in this case failed to prove

beyond a reasonable doubt that Gregory intended to distribute the

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cocaine that was seized. The Commonwealth's proof of intent to

distribute was based primarily upon the following testimony of

the arresting officer:
Q Seven individual baggies with how much
weight?

A 3.4 grams.

Q Based upon your training and experience,
is that method of packaging with that weight,
is that consistent with personal use or
distribution?

A Distribution.
Q You base that on your years of working in
the property section and your training and
experience as a police officer?

A Yes, sir.

The officer admitted, however, that a user of cocaine could

personally consume three grams of cocaine in two days. On cross-

examination, the officer was unable to testify as to the usage of

a typical addicted person.
Q Officer, based on your training and
experience, how much crack cocaine could an
individual smoke in a day if they're an
addict?

A If they're an addict?

Q Yes.

A Well, I couldn't really go into as far as
what personal consumption would be for an
individual.

The relatively small quantity of cocaine warrants the

inference that Gregory possessed it for his personal use. See

Dukes v. Commonwealth, 227 Va. 119, 122-23, 313 S.E.2d 382, 384

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(1984). Moreover, no other evidence indicated an intent to

distribute. The individual packages of cocaine were not unique.

"The mode of packaging and the way the packages were hidden are

as consistent with possession for personal use as they are with

intent to distribute." Id. at 123, 313 S.E.2d at 384.

For these reasons, I would also hold that the evidence

failed to prove beyond a reasonable doubt that Gregory possessed

the cocaine with intent to distribute. Thus, I would reverse the

conviction.

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