COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia
JOHNNY T. GILES, JR.
OPINION BY
v. Record No. 2903-98-2 JUDGE JERE M. H. WILLIS, JR.
MAY 30, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
Ernest P. Gates, Sr., Judge Designate
Denis C. Englisby (Margaret Ann Englisby;
Englisby & Englisby, on brief), for
appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his conviction of driving while under the
influence of alcohol, in violation of Code § 18.2-266, Johnny T.
Giles, Jr., contends that the trial court erred in denying his
motion to suppress evidence obtained pursuant to the stop of his
vehicle 1 . Because we find that, based upon articulable facts,
the arresting officer had reasonable suspicion of Giles'
1
Giles was also convicted of refusal to take a breath or
blood test, in violation of Code § 18.2-268.2. However, as this
Court does not have jurisdiction over an appeal from a
conviction of refusal to take a breath or blood test, see
Commonwealth v. Rafferty, 241 Va. 319, 402 S.E.2d 17 (1991), the
appeal of that conviction is transferred to the Supreme Court of
Virginia pursuant to Code § 8.01-677.1.
involvement in unlawful activity, the stop of Giles' vehicle was
lawful. Accordingly, we affirm the judgment of the trial court.
On appeal of a ruling on a motion to suppress evidence, the
appellant has the burden to demonstrate that, in the context of
viewing the evidence in the light most favorable to the
Commonwealth, the trial court's ruling was reversible error.
See Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729,
731 (1980). We review determinations of reasonable suspicion
and probable cause de novo. However, we review the trial
court's findings of historical fact only for clear error and
grant deference to inferences reasonably drawn from those facts
by resident judges and local law enforcement officials. See
James v. Commonwealth, 22 Va. App. 740, 743, 473 S.E.2d 90, 91
(1996) (citing Ornelas v. United States, 517 U.S. 690, 699
(1996)).
On September 20, 1998, Colonial Heights Police Officer
Allen Devoti was approached by two women, who told him that they
had just heard a man say that he had a gun and was "looking to
hurt someone" and that they then saw him get into his car. The
women identified the car, which was then exiting a restaurant
parking lot across the street. Giles was the driver and only
occupant. Calling for assistance, Officer Devoti followed and
stopped Giles' vehicle.
Officer Devoti had Giles exit the vehicle. No weapon was
found on Giles, but Officer Devoti observed that Giles was
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intoxicated. Officer Devoti charged Giles with operating a
motor vehicle while under the influence of alcohol, in violation
of Code § 18.2-266, and, based on further proceedings, charged
him with refusal to submit to a breath or blood test, in
violation of Code § 18.2-268.2. Giles was convicted of both
charges.
Giles contends that Officer Devoti lacked reasonable
suspicion of criminal activity justifying the stop and that the
trial court erred in refusing to suppress evidence derived from
the stop. He argues that the information given to Officer
Devoti by the two unidentified women was a mere anonymous tip
and was insufficient to create a "reasonable, articulable
suspicion" of his involvement in criminal activity. See Terry
v. Ohio, 392 U.S. 1, 20-22 (1968).
For [constitutional] purposes, when
police stop an automobile and detain its
occupant, this constitutes a "seizure" of
the person, even though the purpose of the
stop is limited and the detention brief. As
relevant to these facts, a suspect may be
detained briefly for questioning by an
officer who has "a reasonable suspicion,
based on objective facts, that the
individual is involved in criminal
activity." The test is less stringent than
probable cause.
In order to determine what cause is
sufficient to authorize police to stop a
person, cognizance must be taken of the
"totality of the circumstances -- the whole
picture." Assessing that whole picture,
"the detaining officers must have a
particularized and objective basis for
suspecting the particular person stopped of
criminal activity."
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Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630,
631 (1991) (citing Leeth v. Commonwealth, 223 Va. 335, 340, 288
S.E.2d 475, 478 (1982)).
An anonymous tip, standing on its own, is insufficient to
support a "reasonable, articulable suspicion." See Florida v.
J. L., ___ U.S. ___, ___ (2000). To provide reasonable
suspicion, either the informant or the information given must
exhibit "sufficient indicia of reliability." Alabama v. White,
496 U.S. 325, 326-27 (1990). The circumstances surrounding the
tip must be considered to determine whether the tip was
reliable. See id. at 328-29.
"[An anonymous tip] that has been sufficiently corroborated
may furnish reasonable suspicion justifying an investigative
stop. . . . Significant aspects of the informer's information
must be independently corroborated, however, to give 'some
degree of reliability to the other allegation' of the
informant." Bulatko v. Commonwealth, 16 Va. App. 135, 137, 428
S.E.2d 306, 307 (1993). Giles argues that the two women were
anonymous informants and that in order to act on their report,
Officer Devoti was required to corroborate their information
independently.
Although Officer Devoti did not obtain the women's names or
addresses, their reports were not an anonymous tip. He stood
face to face with them and listened to their accounts. He was
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able to assess their credibility and the reliability of their
information. While this can be difficult to do with informants
who offer information over the telephone, Officer Devoti was
able to view the women as they made their reports and to
identify Giles as he was leaving the parking lot.
Furthermore, the reports given by the two women were, in
fact, corroborated by the circumstances.
The reports of the two women corroborated each other. Each
based her report on what she personally had seen and heard.
Officer Devoti was able to observe the two women and their
demeanor. He testified that they were in their twenties or
thirties, showed no sign of being under the influence of alcohol
or of any drug, were visibly frightened, and presented their
reports cogently.
The two women explained the source of their information.
Although neither had seen a gun, each had heard Giles say that
he had a gun and intended to harm someone.
Both women specifically identified Giles and his
automobile.
Moreover, the nature of the women's reports suggested the
imminence of serious and perhaps lethal danger. Giles was
leaving the scene, and Officer Devoti was required to act
quickly and without hesitation. See Adams v. Williams, 407 U.S.
143, 147 (1972); Beckner v. Commonwealth, 15 Va. App. 533,
537-39, 425 S.E.2d 530, 533-34 (1993). When Officer Devoti
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turned on his lights to stop the car, Giles did not stop
immediately. This circumstance, while not conclusive in itself,
served to corroborate Officer Devoti's reasonably held
suspicion.
The judgment of the trial court is affirmed.
Affirmed.
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