COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia
DEMOND ALLEN RAMEY
OPINION BY
v. Record No. 1280-00-3 JUDGE G. STEVEN AGEE
JUNE 19, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge
John P. Varney (Office of the Public
Defender, on brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Demond Allen Ramey (Ramey) was indicted for possession of
cocaine with intent to distribute, in violation of Code
§ 18.2-248, and possession of a firearm while possessing cocaine
with intent to distribute, in violation of Code § 18.2-308.4(B).
Prior to trial, Ramey moved to suppress the evidence of drugs
and the firearm alleging those items had been gathered in
violation of the Fourth Amendment. Following a hearing on the
motion, the Circuit Court of the City of Roanoke denied the
motion. Ramey then entered a conditional plea of guilty to the
charges, reserving the right to appeal the trial court's denial
of the motion to suppress. The trial court sentenced Ramey to
serve a total of fifteen years incarceration, with ten years
suspended, and levied a fine of $500.
Ramey now appeals his conditional plea pursuant to Code
§ 19.2-254 to this Court averring the trial court erred in
denying his motion to suppress. Ramey argues the motion should
have been granted because the arresting officer lacked a
reasonable, articulable suspicion to detain him, and, in the
alternative, the continued detention by the officer after his
suspicions were dispelled was unlawful. We hold that the
officer lacked reasonable suspicion for the detention and,
therefore, reverse the trial court's decision.
Background
On August 21, 1999, at approximately 2:09 p.m., Officer
Vineyard of the Roanoke City Police Department received a
transmission from police dispatch alerting officers to be on the
lookout for a vehicle with a white female driver and a black
male passenger. The alert provided a description of the car,
its license number, and the last known geographic location of
the vehicle. The dispatch indicated that the black male was
"somehow" involved in a fatal gang shooting the previous day,
but relayed no further information as to the source of the
report or in what capacity the black male was involved in the
shooting.
Officer Vineyard knew of the shooting and subsequent
retaliatory events taking place in Roanoke. In addition,
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Officer Vineyard knew that an individual named Timothy Buford
and a juvenile were two suspects in the fatal shooting.
Immediately after the dispatch, Officer Vineyard spotted a
vehicle and its occupants, which matched the given description
and was in the named geographic area. The vehicle soon
voluntarily stopped at a laundromat, and Officer Vineyard pulled
in behind the vehicle while calling for assistance. Two other
police vehicles promptly arrived and blocked the suspect
vehicle.
Officer Vineyard approached the vehicle and asked the
passenger, Ramey, for identification. Upon viewing Ramey's
valid driver's license, Officer Vineyard concluded that Ramey
was neither Timothy Buford nor the juvenile sought. However,
the officer still did not know whether Ramey or the vehicle was
involved in the fatal shooting.
Officer Vineyard, pursuant to standard police department
procedure, kept Ramey's driver's license and ran a computer
check on the information. The background check, which took
about five minutes, informed the officer there was an
outstanding warrant for Ramey's arrest unrelated to the previous
day's shooting. Officer Vineyard asked Ramey to exit the
vehicle. Ramey grew "wild," resisted, wedged himself into the
car, reached toward his back and threw a bag between the front
two seats. Witnessing the behavior, the officers feared for
their safety. The officers removed Ramey from the vehicle, and
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Officer Vineyard observed the weapon and drug contraband that
served as the basis for the possession and gun charges.
Analysis
"At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
or seizure did not violate the defendant's Fourth Amendment
rights." Reel v. Commonwealth, 31 Va. App. 262, 265, 522 S.E.2d
881, 882 (2000). "It[, however,] is well established that, on
appeal, appellant carries the burden to show, considering the
evidence in the light most favorable to the Commonwealth, that
the denial of a motion to suppress constitutes reversible
error." Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437
S.E.2d 232, 233 (1993). "Ultimate questions of reasonable
suspicion and probable cause . . . involve questions of both law
and fact and are reviewed de novo on appeal. This Court is
bound by the trial court's findings of historical fact unless
plainly wrong or without evidence to support them and we give
due weight to the inferences drawn from those facts by resident
judges and local law enforcement officers." Neal v.
Commonwealth, 27 Va. App. 233, 237, 498 S.E.2d 422, 424 (1998)
(citations omitted).
Ramey advances two arguments to support his suppression
motion. First, he claims the officers lacked reasonable
suspicion to make the initial investigatory stop because the
language in the dispatch lacked sufficient indicia of
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reliability and, therefore, Officer Vineyard lacked reasonable,
articulable suspicion of criminal activity sufficient to justify
a stop or seizure of Ramey's vehicle. Alternatively, Ramey
claims that if the initial stop was valid, once the officers
determined that he was neither of the sought suspects, the
continued detention of Ramey was unlawful. Because we conclude
that the officers lacked the requisite reasonable suspicion to
conduct the initial investigatory stop, we do not address
Ramey's second assignment of error.
The stop of a vehicle and detention of the driver
constitute a seizure within the meaning of the Fourth Amendment
to the United States Constitution, even though the stop is
limited and the detention brief. See Deer v. Commonwealth, 17
Va. App. 730, 732, 441 S.E.2d 33, 35 (1994) (citing Castaneda v.
Commonwealth, 7 Va. App. 574, 579, 376 S.E.2d 82, 84-85 (1989)
(en banc)). The Fourth Amendment provides that "[t]he right of
the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated." U.S. Const. amend. IV. 1
1
The Fourth Amendment does not, however, require a police
officer to "simply shrug his shoulders and allow a crime to
occur or a criminal to escape. A brief stop of a suspicious
individual in order to determine his identity or to maintain the
status quo momentarily while obtaining more information, may be
most reasonable in light of the facts known to the officer at
the time." Adams v. White, 407 U.S. 143, 145-46 (1972).
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A police officer may stop and question a person only if the
officer has reasonable, articulable suspicion to believe the
person may be involved in criminal activity. See Terry v. Ohio,
392 U.S. 1, 30 (1968). Reasonable suspicion, while not as
stringent a test as probable cause, requires at least an
objective justification for making the stop. See United States
v. Sokolow, 490 U.S. 1, 7 (1989). A stop must be based on
something more than the officer's "inchoate and unparticularized
suspicion or 'hunch.'" Terry, 392 U.S. at 27. "At the time of
the stop, the officer must be able to point to specific and
articulable facts, which taken together with rational inferences
from those facts, objectively warrant a reasonable person with
the knowledge and experience of the officer to believe that
criminal activity is afoot." Id. at 21-22. In determining
whether a police officer had a particularized and objective
basis for an investigatory stop, a court must consider the
totality of the circumstances. See United States v. Cortez, 449
U.S. 411, 417-18 (1981).
Officer Vineyard stopped (and for Fourth Amendment purposes
"seized") Ramey's vehicle based on the police dispatch's
broadcast that "the black male in the vehicle . . . was somehow
involved" in the previous night's fatal shooting. Officer
Vineyard knew nothing more about the vehicle, its occupants or
what "somehow involved" in the shooting meant. The police
dispatch was essentially the totality of the circumstances known
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to Officer Vineyard at the time of the stop. The Commonwealth
presented no evidence concerning the source of the dispatch.
Accordingly, as the Commonwealth conceded on brief and at oral
argument, our analysis of the legality of the initial stop must
proceed as if the dispatch information originated from an
anonymous source.
In Alabama v. White, 496 U.S. 325 (1990), the United States
Supreme Court held that an anonymous tip could furnish
reasonable suspicion for a stop, but only under certain
conditions:
"[T]he 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."
The fact that the officers found a car
precisely matching the caller's description
in front of the 235 building is an example
of the former. Anyone could have
"predicted" that fact because it was a
condition presumably existing at the time of
the call. 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. The general
public would have had no way of knowing that
respondent would shortly leave the building,
get in the described car, and drive the most
direct route to Dobey's Motel. Because only
a small number of people are generally privy
to an individual's itinerary, it is
reasonable for police to believe that a
person with access to such information is
likely to also have access to reliable
information about that individual's illegal
activities. When significant aspects of the
caller's predictions were verified, there
was reason to believe not only that the
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caller was honest but also that he was well
informed, at least well enough to justify
the stop.
Although it is a close case, we conclude
that under the totality of the circumstances
the anonymous tip, as corroborated,
exhibited sufficient indicia of reliability
to justify the investigatory stop of
respondent's car.
Id. at 332 (citations omitted).
White holds that when the police receive a tip from an
unidentifiable informant, the tip nonetheless may be deemed
reliable if it contains "inside information" or a similar
verifiable explanation of how the informant came to know of the
information in the tip, which the police in turn independently
corroborate. See Beckner v. Commonwealth, 15 Va. App. 533, 425
S.E.2d 530 (1993). Accord Giles v. Commonwealth, 32 Va. App.
519, 529 S.E.2d 327 (2000).
The United States Supreme Court revisited the use of an
anonymous tip as the basis for a Terry stop in Florida v. J.L.,
529 U.S. 266 (2000). In J.L., the police received an anonymous
telephone call reporting "that a young black male standing at a
particular bus stop and wearing a plaid shirt was carrying a
gun." Id. at 678. The police had no audio recording of the
call, nor did they know anything about the informant. Id.
Nonetheless, based on the allegation and information in the tip,
two officers proceeded to the bus stop, located a black male
wearing a plaid shirt, and, without independently observing any
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suspicious behavior, initiated an investigative stop of that
person. Id. As a result of this stop, the police discovered
that the suspect was carrying a concealed weapon without a
license and while under the age of eighteen, in violation of
Florida law. Id. at 268-69. The suspect later moved to
suppress evidence of the gun, arguing that the police discovered
it as a result of an unconstitutional stop.
The Supreme Court ruled that the stop violated the Fourth
Amendment. Id. at 274. The Court explained that this case
involved an anonymous tip and, therefore, under White, the
police were required to corroborate the tip. Id. However, to
corroborate a tip the police must do more than verify easily
obtainable information that tends to indicate the informant's
basis of knowledge about the suspect's alleged illegal activity.
Id. at 271-72. In J.L., the Court noted the anonymous tip did
not contain any information, such as a prediction regarding the
suspect's future behavior, which, if corroborated, would
indicate that the informant was both honest and well informed.
Id. at 271. Rather, "[a]ll the police had to go on in [J.L.]
was the bare report of an unknown, unaccountable informant . . .
[with no] basis for believing he had inside information about
[the suspect]." Id. Thus, the Court concluded that the tip
failed under the White analysis. Id.
Based on the record before us, we conclude the anonymous
tip did not have the indicia of reliability sufficient to
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justify the initial stop of Ramey's vehicle. We reach this
conclusion because the record is devoid of any basis by which to
credit the dispatch. While the dispatch (or tip) accurately
described the vehicle, the occupants and their location, that
information was "readily observable" to anyone as the Supreme
Court noted in J.L. The tip/dispatch disclosed no knowledge of
"concealed criminal activity" or "ability to predict
respondent's future behavior."
With no basis in the record upon which to judge the
reliability of the tip/dispatch, we hold that it fails scrutiny
under the Fourth Amendment for lack of any indicia of
reliability and, therefore, is insufficient justification for
the initial detention.
The Commonwealth asserts, however, that the initial stop
should be upheld because the police were acting in a situation
of "imminent public danger." The Commonwealth argues there were
exigent circumstances representing great public danger present
at the time of Ramey's stop, i.e. retaliatory gang shootings
taking place in Roanoke. This danger, the Commonwealth
contends, should overcome the deficient tip/dispatch so as to
legitimize the initial stop. We disagree.
While we agree there may be cases where an otherwise
deficient anonymous tip of significant and imminent danger
outweighs Fourth Amendment concerns, this is not such a case.
Exigent circumstances exist where there is a compelling need for
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immediate official action and a risk that any delay will present
a substantial threat of imminent danger to life or public
safety. See Beckner, 15 Va. App. 533, 425 S.E.2d 530.
The Supreme Court in J.L., in dicta, provides us with
guidance on the use of an "imminent danger" exception in the
context of Fourth Amendment considerations. Such an exception
could apply in imperative situations, such as where there is "a
report of a person carrying a bomb." 529 U.S. at 273-74. In
such a situation, the report "need [not] bear the indicia of
reliability we demand for a report of a person carrying a
firearm before the police can constitutionally conduct a frisk."
Id.
We have applied an imminent danger standard in reviewing
the sufficiency of an anonymous tip where there is a
contemporaneous description of dangerous criminal activity such
as brandishing a firearm in a public place. Scott v.
Commonwealth, 20 Va. App. 725, 460 S.E.2d 610 (1995). However,
neither the tip in J.L. nor in the case at bar contained a
specific description of dangerous criminal conduct either under
way or likely to occur.
Here, the criminal activity had already taken place, and
the police could only speculate that a retaliatory shooting
might occur. In addition, the police had no reason to believe
Ramey was at that time involved in any criminal activity that
posed an imminent harm to the public.
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The Commonwealth cites no case law to justify application
of an "imminent danger" exception based on the evidence in the
record before us. There must be sufficient evidence in the
record of a true "imminent" and significant danger before we
could apply the exception. Reports of criminal activity, not
specific to the individual, do not establish such a danger.
We hold the police lacked a reasonable and articulable
suspicion of criminal activity to make the initial stop of Ramey
based on the police dispatch. Accordingly, the trial court
erred in not granting the motion to suppress. The evidence
seized in the stop was, therefore, inadmissible. Ramey's
convictions are reversed, and the case remanded for such further
proceedings as the Commonwealth be advised to take.
Reversed and remanded.
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