COURT OF APPEALS OF VIRGINIA
Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia
MART T. HARRIS
OPINION BY
v. Record No. 0814-99-1 JUDGE ROBERT J. HUMPHREYS
AUGUST 29, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
E. Everett Bagnell, Judge
Barrett R. Richardson (Richardson &
Rosenberg, L.L.C., on brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Appellant was convicted in a bench trial of possession of
marijuana with the intent to distribute and possession of a
firearm after having been convicted of a felony. 1 On appeal, he
contends the trial court erred in denying his motion to suppress
because the police lacked a reasonable, articulable suspicion to
conduct a pat-down search. We disagree and affirm his
conviction of possession of marijuana with intent to distribute.
1
Appellant was not granted a delayed appeal with regard to
his conviction of possession of a firearm after conviction of a
felony. Accordingly, our opinion only addresses appellant's
conviction of possession of marijuana with intent to distribute.
I. BACKGROUND
Officers J. M. Whitehead and T. B. Shelton testified that
they received a radio dispatch relaying information from an
unnamed caller that a black male by the name of Mart Harris was
selling drugs near the corner of Davis Boulevard and the private
road leading into the Cogic Square Apartments, a public housing
complex. The caller also advised that this man was wearing blue
jeans, a white T-shirt and a checkered jacket, and that he had a
gun.
Upon arriving at the Cogic Square Apartments, the officers
observed three men including appellant sitting on a bench and
observed that he matched the description and was dressed as
described in the dispatch. Near the bench, there was a bus stop
sign and also a sign reading, "No trespassing, No loitering, No
drinking." Officer Whitehead testified that the bench and bus
stop were located on a private road belonging to Cogic Square
Apartments.
Officer Shelton testified that he approached appellant and
asked him his name. After learning appellant's identity, as a
precaution for Shelton's own safety, Shelton patted down
appellant because the dispatch mentioned that the suspect was
armed and appellant's jacket was loose fitting. During the
pat-down search, Shelton seized a handgun from appellant's left
hip area. Shelton testified that the gun was not visible to
common observation. He also testified that he had worked for
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two and one-half years in a drug elimination program at the
Cogic Square Apartments, that he knew the residents, and that he
had never before seen appellant. Shelton further testified that
notwithstanding the bus stop sign, public bus service no longer
served the complex.
Appellant testified that he was visiting two friends while
at the bus stop and that he was not there to catch a bus.
Appellant also testified that he did not know if his friends
lived in the apartment complex, and that he did not feel that
the "No trespassing" sign applied to him because he had never
been banned from the property.
Appellant was placed under arrest for carrying a concealed
weapon and trespassing. Appellant was searched incident to his
arrest and 3.29 ounces of marijuana were seized from his person.
Prior to trial, appellant made a motion to suppress the
evidence against him claiming that it was obtained pursuant to
an illegal detention and search. The Commonwealth argued that
the stop and search were legal for two reasons. First, before
detaining appellant, the officers had obtained and sufficiently
corroborated information regarding appellant and his illegal
activity from an anonymous informant. Second, the officers
reasonably believed appellant was engaging in the criminal
activity of trespassing prior to detaining him.
The trial court denied appellant's motion finding that
since the officers had confirmed at least two of the four facts
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they were given by the informant (appellant's location and his
dress) by their own observation before detaining appellant, the
officers' detention and search of appellant was proper.
II. ANALYSIS
When we review a trial court's denial of a suppression
motion, "[w]e review the evidence in a light most favorable to
. . . the prevailing party below, and we grant all reasonable
inferences fairly deducible from that evidence." Commonwealth
v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)
(citation omitted). In our review, "we are bound by the trial
court's findings of historical fact unless 'plainly wrong' or
without evidence to support them." McGee v. Commonwealth, 25
Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing
Ornelas v. United States, 517 U.S. 690, 699 (1996)). However,
we consider de novo whether those facts implicate the Fourth
Amendment and, if so, whether the officers unlawfully infringed
upon an area protected by the Fourth Amendment. See id.
The issue in this case is the validity of the initial stop
and accompanying pat-down, not the arrest or search incident
thereto.
Anonymous 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. See
Alabama v. White, 496 U.S. 325, 331 (1990). During the pendency
of this appeal, the United States Supreme Court reiterated the
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requirement that there be specific indicia of reliability in an
anonymous tip. See Florida v. J.L., 120 S. Ct. 1375, 1380
(2000). "The reasonableness of official suspicion must be
measured by what the officers knew before they conducted their
search." Id. at 1379 (emphasis added). Consistent with the
U.S. Supreme Court's holding in J.L., in 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" before a target can be detained.
Bulatko v. Commonwealth, 16 Va. App. 135, 137, 428 S.E.2d 306,
307 (1993).
Notably, in J.L., the 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." J.L., 120 S. Ct. at 1379.
Here, before detaining the appellant, the officers were
only able to determine that the appellant was wearing the
clothing described and was in the location given to the police
by the anonymous informant. The officers did not observe
appellant engaging in any activity that appeared to corroborate
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the tipster's assertion that the appellant was engaged in
selling drugs. Thus, under the holding of J.L. and our
application of Alabama v. White in Bulatko, we find that the
anonymous information communicated to the police officers by the
dispatcher was insufficient, standing alone, to provide
reasonable suspicion for an investigative detention.
However, we need not dispose of this case on this basis
alone. As noted above, the Commonwealth did not rely solely
upon the information given by the anonymous informant to support
the validity of the officers' detention and search of appellant.
The Commonwealth also argues that the evidence is sufficient to
support the officers' detention and subsequent search, based
upon their independent observation of appellant's criminal
activity.
We have held that, as long as the correct reason, along
with a factual basis to support it, is raised in the trial
court, "[a]n appellate court may affirm the judgment of a trial
court when it has reached the right result for the wrong reason."
Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312,
313-14 (1992).
When approached by the officers, appellant was standing on
the property of Cogic Square Apartments a short distance from a
"No trespassing" sign. Officer Shelton had reason to suspect
appellant was a trespasser because of his knowledge of the
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residents of the complex gained through two and one-half years
in a drug elimination program there.
Code § 18.2-119 provides, in pertinent part, that "[i]f any
person shall without authority of law go upon or remain upon the
lands, buildings, or premises of another, or any part, portion
or area thereof, after having been forbidden to do so . . . [or]
by a sign or signs posted . . . he shall be guilty of a
misdemeanor." (Emphasis added.)
Here, as we have noted above, under J.L., the tipster's
information could serve as no more than a basis to investigate
appellant's activities. There was no "indicia of reliability"
to lend the necessary credibility to the anonymous informant's
information which would substantiate more than a consensual
encounter. Furthermore, any investigation based solely upon the
anonymous tipster's information would have had to stop short of
any encounter implicating the Fourth Amendment. However, if an
investigation either 1) corroborated the anonymous information
with the "specific indicia of reliability" required by the
holding of J.L., or 2) provided independent "reasonable
suspicion supported by articulable facts that criminal activity
'may be afoot'", a detention for investigative purposes would
then be constitutionally authorized. See Reel v. Commonwealth,
31 Va. App. 262, 265, 522 S.E.2d 881, 882 (2000) (quoting United
States v. Sokolow, 490 U.S. 1, 7 (1989)).
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In either case, the officers' justification for
stopping appellant need not have risen to the level of probable
cause, but must have been based upon more than an "inchoate and
unparticularized suspicion or 'hunch.'" Terry v. Ohio, 392 U.S.
1, 27 (1968).
Officer Shelton knew that the appellant was not a resident
of the housing complex before approaching him. At that point,
he clearly had a reasonable basis to believe that appellant was
trespassing on private property. Thus, this information alone
was enough to provide the officers with "reasonable, articulable
suspicion the person seized was engaged in criminal activity."
Welshman v. Commonwealth, 28 Va. App. 20, 39-40, 502 S.E.2d 122,
127 (1998). Specifically, the crime of trespassing was
implicated. Accordingly, at that point in time the officers'
detention of appellant was constitutionally authorized.
"[W]hen 'evaluating whether an investigative detention is
unreasonable, common sense and ordinary human experience must
govern over rigid criteria.'" Washington v. Commonwealth, 29
Va. App. 5, 15, 509 S.E.2d 512, 517 (1999) (en banc) (citation
omitted). "The test is whether the police methods were
calculated to confirm or dispel the suspicion quickly and with
minimal intrusion upon the person detained." Id. (citation
omitted).
Immediately prior to and following a protective frisk of
appellant, both officers continued to question appellant about
his status as a resident or guest in the housing complex. They
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conducted themselves in a manner logically designed to quickly
confirm or dispel their suspicions, which we find to be
reasonable, that appellant was a trespasser.
Although the authority to conduct a pat-down search does
not follow automatically from the authority to effect an
investigative stop, "[w]here the officer can 'point to
particular facts from which he reasonably inferred that the
individual was armed and dangerous' [he is] justified in
searching for weapons." Williams v. Commonwealth, 4 Va. App.
53, 66, 66-67 354 S.E.2d 79, 86 (1987) (quoting Sibron v. New
York, 392 U.S. 40, 64 (1968)).
The anonymous information transmitted to the officers
through the police dispatcher included an assertion that the
individual identified as Mart Harris was armed with a gun. In
addition, the clothing worn by the appellant could have easily
concealed a handgun from common observation.
While, as we have held above, the anonymous tipster's
information, standing alone, did not support an investigative
detention, the officers were not obligated to ignore that
information after the appellant had been detained on a basis
completely independent of that information. Accordingly, we
find that the information concerning the presence of a weapon,
when coupled with the corroboration provided by the officers'
observation of the other descriptive information conveyed by the
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tipster, constituted sufficient reason to suspect that appellant
might be armed and justified a pat-down search for weapons.
While reinforcing the requirement of specific indicia of
reliability of anonymous information as the basis for reasonable
suspicion, the J.L. Court specifically noted that this
requirement "in no way diminishes a police officer's
prerogative, in accord with Terry, to conduct a protective
search of a person who has already been legitimately stopped."
J.L., 120 S. Ct. at 1380.
For the above-stated reasons, we affirm appellant's
conviction.
Affirmed.
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