Reed v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Humphreys
Argued By teleconference

BRENT JEROME REED
OPINION BY
v. Record No. 2210-00-2 JUDGE ROBERT J. HUMPHREYS
JULY 24, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge

Patricia P. Nagel, Assistant Public Defender
(Gregory W. Franklin, Assistant Public
Defender; Office of the Public Defender, on
brief), for appellant.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Brent Jerome Reed (appellant) appeals his convictions, after

a bench trial, for petit larceny and possession of cocaine.

Appellant contends the trial court erroneously denied his motion

to suppress evidence, which he argues was obtained as a result of

an illegal detention. Appellant also contends the trial court

erroneously found the evidence sufficient to convict him of petit

larceny and possession of cocaine. 1

1
The appellant was also charged with misdemeanor tampering
and felony destruction of property. The petit larceny charge
was initially charged as a felony. Appellant apparently pled
guilty to the misdemeanor tampering charge in a separate
proceeding, which was held in general district court. The
felony destruction of property charge, which was heard in
conjunction with the case at issue, was dismissed by the trial
 I. BACKGROUND

The evidence presented at trial established that Richmond

Police Officer William L. Hewlett received a radio dispatch

concerning a reported larceny in progress during his routine

patrol on March 15, 2000. Officer Hewlett was informed that the

dispatcher was on the line with a citizen who was on a cellular

telephone. The dispatcher stated that the citizen reported

having witnessed a break-in and theft from an automobile parked

at Allen and Main Streets and gave a description of the

perpetrator. The perpetrator then walked back toward Allen and

Cary Streets, and the citizen followed on foot while still on

the telephone with, and describing the activities for, the

dispatcher. Officer Hewlett remained in contact with the

dispatcher and traveled to the area where the reported incident

had occurred in order to look for the suspect. Hewlett had

another unit go to the scene of the reported break-in.

As Officer Hewlett approached the area, he observed

appellant, who matched the description provided by the witness,

walking along the sidewalk with a female companion. At or

before that time, Hewlett received confirmation from the other

police unit that the window of a car parked near the

intersection of Allen and Main Streets had, in fact, been

court at the close of the evidence. At that point, the trial
court also reduced the felony petit larceny charge to
misdemeanor petit larceny.

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broken. Hewlett had not yet spoken personally with the citizen

witness, but Hewlett knew the witness was still on the phone

with the dispatcher and the witness had reported that he was

following the suspect from the opposite side of the street. 2

Hewlett stopped his patrol car and called appellant over to

his vehicle. Hewlett informed appellant "of the reason why [he]

stopped [appellant], that he fit the description of a person

that was seen breaking into someone's car." Hewlett asked

appellant, "just for identification purposes, if he didn't mind

being identified and if he wasn't [the perpetrator,] then he

would be free to go on his way."

At that point, the citizen witness, who was still talking

on his cell phone with the dispatcher, "got around the corner,"

approached Officer Hewlett and identified appellant as the

person he had observed breaking into the car. Officer Hewlett

then arrested appellant. A search incident to appellant's

arrest revealed two cartons of cigarettes and a "crack pipe" on

his person. Appellant claimed someone had given the cigarettes

to him and his companion.

2
The record does not establish whether Officer Hewlett
personally observed the witness before Hewlett initiated an
encounter with the suspect. Although Hewlett referred to the
witness as being on the opposite side of the street from the
suspect, he did not state whether he observed the witness there
before stopping the suspect or whether the witness, through the
dispatcher, simply reported his location.

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 Hewlett submitted the pipe to the state laboratory for

testing. The resulting certificate of analysis stated that

Hewlett had submitted "Item 1[:] One (1) sealed plastic bag

containing one (1) silver metal tube smoking device with

residue." The results stated: "Item 1 Cocaine (Schedule II)

residue."

Sandra Champion Johnson testified that she and her husband

jointly owned a 1997 Dodge Neon, which she had driven to Panache

Hair Studio, located at West Main Street, on March 15, 2000.

She had parked the car "at the corner on the side street" and

left it for approximately two hours while she was in the salon.

When she returned to the car, she found that the right passenger

window had been broken and the door was dented. She also found

that a carton of cigarettes was missing from the front passenger

seat of the car. Officer Hewlett had attached a business card

to the steering wheel of the car informing Johnson of the

break-in and asking her to contact him.

Prior to trial, appellant moved to suppress the evidence,

contending that his detention was illegal because Officer Hewlett

based the detention on an unknown informant's statement and

otherwise had observed no criminal activity by appellant. The

trial court denied the motion, finding that the information

provided by the informant was sufficiently reliable to support the

detention. Appellant renewed his suppression motion at trial.

This motion was likewise denied.

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 During trial, appellant moved to strike the Commonwealth's

evidence, arguing that the Commonwealth had failed to prove

larceny because there was no evidence to establish that the items

recovered from appellant were identified by the owner. Appellant

also contended that because the lab report pertaining to the

cocaine listed a plastic bag as well as a metal pipe, but did not

state which item tested positive for cocaine residue, there was

insufficient evidence to prove that appellant possessed the

cocaine. The trial court found the evidence sufficient and

overruled these motions.

II. ANALYSIS

Although we are bound to review de novo the ultimate

question of reasonable suspicion, "fact[ual findings] are

binding on appeal unless 'plainly wrong.'" McGee v.

Commonwealth, 25 Va. App. 193, 198 n.1, 487 S.E.2d 259, 261 n.1

(1997) (en banc) (citations omitted). When we review the trial

judge's refusal to suppress evidence, we consider the "evidence

adduced at both the trial and suppression hearing." Greene v.

Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994).

Further, "[o]n appeal, the burden is upon the appellant to show

that the denial of the motion to suppress constitutes reversible

error." Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d

729, 731 (1980).

We hold that appellant was seized when Officer Hewlett told

him he matched the description of a person seen breaking into a

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car and that he would be free to leave if it was determined he

was not that person. McGee, 25 Va. App. at 200-01, 487 S.E.2d

at 262-63. We also hold that the seizure did not violate the

Fourth Amendment because Hewlett had reasonable suspicion to

believe appellant was, in fact, the perpetrator. In developing

this reasonable suspicion, Officer Hewlett was entitled to rely

on information communicated to him by his fellow law enforcement

officers. See United States v. Hensley, 469 U.S. 221, 232-33

(1985).

Appellant correctly states that "[a]nonymous tips are

generally less reliable than tips from known informants and can

form the basis for reasonable suspicion only if accompanied by

specific indicia of reliability." Harris v. Commonwealth, 33

Va. App. 325, 331, 533 S.E.2d 18, 20 (2000). Appellant also

correctly points out that

the [United States Supreme] Court
specifically held that an anonymous
tipster's "accurate description of a
subject's readily available location and
appearance" is not enough to establish that
the tipster had knowledge of the target's
criminal activity. The police officers must
investigate and determine, before detaining
the target, whether the tip is "reliable in
its assertion of illegality, not just its
tendency to identify a determinate person."

Id. at 331, 533 S.E.2d at 21 (quoting Florida v. J.L., 529 U.S.

266, 271-72 (2000)). By contrast, "a tip from a known informant

whose reputation can be assessed and who can be held responsible

if [his] allegations turn out to be fabricated" may, standing

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alone, provide sufficient indicia of reliability to provide an

officer with reasonable suspicion to make an investigatory stop.

J.L., 529 U.S. at 270 (citing Adams v. Williams, 407 U.S. 143,

146-47 (1972)); see also Johnson v. Commonwealth, 20 Va. App.

49, 54-55, 455 S.E.2d 261, 264 (1995).

Whether reasonable suspicion exists ultimately depends upon

the totality of the circumstances. Parker v. Commonwealth, 255

Va. 96, 104, 496 S.E.2d 47, 52 (1998). A court must consider

both "the veracity of the informant and the basis of his or her

knowledge regarding a particular tip," Jefferson v.

Commonwealth, 27 Va. App. 1, 13, 497 S.E.2d 474, 480 (1998),

"taking into account the facts known to the officers from

personal observation," Alabama v. White, 496 U.S. 325, 330-31

(1990). If a tip has a relatively low degree of reliability

because it is from an anonymous informer, more information will

be required to establish the "requisite quantum of suspicion,"

such as "independent corroboration of significant aspects of the

tip." Id. at 332. Less verification is necessary when the

police are familiar with the informant. Id. Also, if the

informer is a disinterested citizen who is either a victim of or

eyewitness to, a crime, police properly may give more weight to

the informer's information than they would to information from a

"criminal" informer, whose motives are less likely to be pure.

Cf. Russell v. Commonwealth, 33 Va. App. 604, 613-14, 535 S.E.2d

699, 704 (2000) (in examining probable cause for warrantless

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arrest, noting tip less reliable because criminal informant

provided information in hope of obtaining consideration on

outstanding criminal charge); Polston v. Commonwealth, 24 Va.

App. 738, 745, 485 S.E.2d 632, 635 (1997) (analyzing probable

cause for issuance of search warrant by magistrate), aff'd on

other grounds, 255 Va. 500, 498 S.E.2d 924 (1998).

Here, the totality of the circumstances establishes the

reliability of the tip. We do not have a wholly "anonymous

tipster" as that term is contemplated by the Supreme Court in

J.L. or by this Court in Harris, and the evidence partially

corroborated the tipster's report that a crime had occurred.

The informant in this case was a disinterested citizen who had

just witnessed a crime. The informant contacted the police

dispatcher by way of his cellular phone, and while the record is

silent as to whether the caller immediately provided his

identity to the dispatcher, he stayed on the line as he followed

appellant and provided the dispatcher with updates on the

location of appellant and his companion. The caller also stayed

in communication with the dispatcher as the dispatcher relayed

his report to Officer Hewlett and as Officer Hewlett approached

appellant. Moreover, Officer Hewlett testified that another

police unit had been dispatched to the scene of the alleged

break-in and that, by the time he approached the suspect, he had

received confirmation that the window of the car parked at the

intersection of Allen and Main Streets had, in fact, been

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broken. Thus, the evidence established the tip was "'reliable

in its assertion of illegality, not just its tendency to

identify a determinant person.'" Harris, 33 Va. App. at 331,

533 S.E.2d at 21 (quoting J.L., 529 U.S. at 272).

Accordingly, the information known to Officer Hewlett at

that time provided him with reasonable suspicion for the stop.

Based on reports from the dispatcher that the witness was still

on the phone with her and still following the suspect, Officer

Hewlett reasonably believed the witness was nearby, intended to

stand by his report, and would arrive momentarily to confirm or

dispel Hewlett's reasonable suspicion that appellant was the

perpetrator, thereby limiting the duration of the intrusion. As

soon as Officer Hewlett stopped appellant, the informant crossed

the street, approached Hewlett and appellant, and identified the

individual he had observed breaking into Johnson's car, thereby

providing probable cause for appellant's arrest. The

informant's information, coupled with his continuing assistance

in locating appellant, which confirmed his proximity to the

scene of the stop, and the officers' partial corroboration that

a crime had occurred, provided reasonable suspicion for the

stop. Thus, we hold that the trial court did not err in denying

the motion to suppress.

Likewise, on review of the sufficiency of the evidence,

"[w]e must examine the evidence in the light most favorable to

the Commonwealth, the prevailing party at trial, and we will not

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disturb the trial court's judgment unless it is plainly wrong or

without evidence to support it." Goins v. Commonwealth, 251 Va.

442, 466, 470 S.E.2d 114, 130 (1996). Here, appellant argues

the Commonwealth failed to demonstrate that the items in his

possession were taken from Johnson's vehicle. However, when

arrested minutes after a citizen observed him commit the crime,

appellant was found to have two cartons of cigarettes on his

person. We find the evidence sufficient to support the trial

court's verdict that the appellant is guilty of petit larceny. 3

Finally, appellant argues that because the certificate of

analysis lists both a "plastic bag" as well as a "silver metal

tube smoking device" as having been submitted, but does not

state which item contained the cocaine residue, the evidence was

insufficient to convict appellant of possession of cocaine. We

disagree with appellant's characterization of the evidence. In

fact, the certificate of analysis states that the following was

submitted: "Item 1[:] One (1) sealed plastic bag containing

one (1) silver metal tube smoking device with residue." Thus,

the only item that was submitted that contained residue of any

type was the smoking device. That residue tested positive for

3
Appellant also argues that because the Commonwealth listed
Earl Johnson (presumably Sandra Johnson's husband), instead of
Sandra Johnson, on the indictment, the indictment contained a
fatal variance from the evidence submitted during trial.
However, the appellant raised no objection to the indictment
during the trial court proceedings. Accordingly, we do not
consider this argument on appeal. See Rule 5A:18.

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cocaine. Accordingly, we also find the evidence sufficient to

support the verdict on this offense and affirm the judgment of

the trial court.

Affirmed.

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