COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Benton and
Retired Judge Trabue *
Argued at Richmond, Virginia
WILLIE WINFIELD SCOTT
v. Record No. 2417-93-2 OPINION BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA AUGUST 29, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James M. Lumpkin, Judge Designate
Cheryl Jakim Frydrychowski, Assistant Public Defender
(David J. Johnson, Public Defender, on brief), for
appellant.
Eugene Murphy, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for
appellee.
Willie Winfield Scott was convicted of possession of a
firearm while possessing cocaine, possession of cocaine and
obstruction of a police officer. On appeal he contends that the
charges of possessing cocaine and possessing a firearm while
possessing cocaine should be dismissed because the police officer
violated his constitutional rights when the officer seized and
frisked him on the basis of a general description provided by an
anonymous phone caller. Scott further contends that because the
officer's seizure of him was unreasonable, his conviction of
obstructing the officer should also be reversed. We affirm the
trial court's decision because the police officer had a
reasonable suspicion based on articulable facts that Scott was,
*
Retired Judge Kenneth E. Trabue took part in consideration
of this case by designation pursuant to Code § 17-116.01.
or had been, engaged in criminal activity. We need not address
the issue of obstruction because Scott failed to raise the issue
at trial as it is now presented on appeal. See Rule 5A:18. Even
if we were to address the issue as presented, because we hold the
officer had probable cause to conduct the pat down search of
Scott we would not reverse the conviction of obstruction.
A City of Richmond police officer responded to a dispatch
that a light-complexioned black man wearing a white t-shirt,
black shorts, and Nike tennis shoes with no socks was brandishing
a gun in a laundromat. The patrolman was only a block away from
the laundromat when he received the call and reached the
laundromat about one minute later. He saw Scott, who fit the
description in the dispatch, leaving the laundromat.
The officer commanded Scott to "freeze" and to put his hands
on the wall. Scott complied and the officer patted him down,
felt a hard object in Scott's waistband, and removed a .38
caliber revolver. The officer then told Scott that he was under
arrest for carrying a concealed weapon. The officer asked Scott
to put his hands behind him to be cuffed, but Scott started to
resist and to struggle. The officer put Scott's gun a few feet
away and the two struggled. During the struggle, Scott was
trying to get away from the officer and at one time lunged in the
direction of the gun. Scott was finally subdued when a second
officer came on the scene. When that officer searched Scott, he
found cocaine.
To justify a pat down under Terry v. Ohio, 392 U.S. 1
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(1968), the stop and frisk must be based upon a reasonable belief
that the person is armed and presently dangerous. Yabara v.
Illinois, 444 U.S. 85, 93-94 (1979). Reasonableness is judged
from the perspective of a reasonable officer on the scene
allowing for the need of split-second decisions and without
regard to the officer's intent or motivation. Graham v. Conner,
490 U.S. 386, 396-97 (1985). "Anonymous information that has
been sufficiently corroborated may furnish reasonable suspicion
justifying an investigative stop." Alabama v. White, 496 U.S.
325, 331 (1990).
The Commonwealth maintains that because the dispatch
mentioned a gun, public safety warranted an immediate
investigation. Scott argues that the anonymous tip in this case,
standing alone, did not warrant a man of reasonable caution in
belief that a stop was appropriate.
In the past, we have recognized a line of cases where courts
have found reasonable suspicion for an investigatory stop when
the public is in imminent danger, despite the fact that the stop
is based on information provided by an anonymous informant who
has not provided any basis of knowledge. See Beckner v.
Commonwealth, 15 Va. App. 533, 538, 425 S.E.2d 530, 533-34
(1993); see also Johnson v. State, 50 Md. App. 584, 439 A.2d 607
(1982); Williams v. State, 629 S.W.2d 146 (Tex. Ct. App. 1982);
Groves v. United States, 504 A.2d 602 (D.C. 1986); State v.
Franklin, 41 Wash. App. 409, 704 P.2d 666 (1985). "The courts'
reasoning in these cases," we said, "is that the imminent public
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danger involved warrants immediate investigation." Beckner, 15
Va. App at 538, 425 S.E.2d at 534. However, in Beckner, because
the appropriate circumstances did not exist, we never reached the
question of whether a stop would have been justified if the
anonymous informant had advised the officer that a suspect was
engaged in dangerous activity that might cause immediate harm to
the public. Id. at 538-39, 425 S.E.2d 534.
In answering this question, the case of State v. Franklin,
41 Wash. App. 409, 704 P.2d 666 (1985), is both instructive and
persuasive. In that case, the Court of Appeals of Washington
held that an anonymous informant's report to a police officer
that he had seen a man in a public restroom in possession of a
gun, which report included a description of the suspect's attire,
was sufficiently reliable and contained sufficient objective
facts to justify the officer's investigatory detention of the
suspect, after verifying the suspect's location and appearance.
Id. at 413, 704 P.2d at 669.
The anonymity of an informant does not necessarily make
an investigatory stop improper, especially when the
informant's information indicates that a violent crime
may occur. . . .
[T]he unidentified citizen informant in the present
case observed a person in public with a firearm and
reported his observations almost contemporaneously with
their occurrence. The informant specified the public
location of the suspect and gave a description of the
suspect's attire. In these unique and potentially
dangerous circumstances, such a tip is sufficiently
reliable to support an investigatory detention if the
police immediately verify the accuracy of the
description and location of the suspect. Immediate
police verification of the tip's innocuous details
supports reasonable inferences that the anonymous
informant's information is based on eyewitness
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observation, and that the unverified portion of the tip
[possession of a firearm] may also be accurate.
Id. at 412-13, 704 P.2d 669.
Other courts have also recognized the need for an immediate
investigatory stop when an anonymous informant of undetermined
reliability states that he or she observed a suspect carrying or
displaying a gun in a public place. See State v. Kuahuia, 62
Haw. 464, 616 P.2d 1374 (1980) (where unidentified informant's
tip was specific as to time and place, police officers
immediately drove to place in question and their observations
there tended to verify information received, and firearms were
allegedly involved, police were justified in making temporary
investigative stop of defendant's automobile); see also State v.
Hasenback, 425 A.2d 1330 (Me. 1981) (telephone informant saw man
on street with gun in his left rear pocket); State v. Bolden, 380
So. 2d 40 (La.) (unidentified citizen informant walked up to
officer and stated that man in nearby nightclub had sawed-off
shotgun in his pants), cert. denied, 449 U.S. 856 (1980); State
ex rel. H.B., 381 A.2d 759 (N.J. 1977) (anonymous tip describing
man in restaurant with gun in his possession).
We hold that, under the circumstances of this case, the
officer's pat down search of Scott for a firearm was warranted
for the officer's protection and the protection of the public.
See State ex rel. H.B., 381 A.2d at 763. The police officer had
been provided with Scott's description and the information that
Scott was brandishing a firearm in a public place. The
information from the anonymous source was reported to the officer
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almost contemporaneously with the happening of the event. The
informant specified the public location of Scott and gave a
detailed description of his attire. Thus, when the officer
arrived at the scene only one minute later and saw Scott, who
matched the suspect's description, the officer was able to verify
the accuracy of the description and location of the reported
suspect. Under these circumstances, the tip was sufficiently
reliable to support the officer's investigatory detention and pat
down search of Scott.
For all of the above-stated reasons, we affirm Scott's
convictions.
Affirmed.
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BENTON, J., dissenting.
In a case in which an anonymous tip conveyed detailed
information to the police that a person was engaged in criminal
activity, the Supreme Court of the United States declared it "a
close case" and ruled as follows:
[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."
Alabama v. White, 496 U.S. 325, 332 (1990).
In Adams v. Williams, 407 U.S. 143 (1972), where the
informant was known and "came forward personally to give
information," id. at 146, the Supreme Court specifically noted
that "[t]his is a stronger case than obtains in the case of an
anonymous telephone tip." Id. Indeed, the personal
identification and, thus, the apparent reliability that flows
from an informant's actual presence or disclosure of identity
remains an essential means of accountability that could support a
determination that the police officer had specific, articulable
facts that would warrant a Terry stop for further investigation.
See Terry v. Ohio, 392 U.S. 1, 21 (1968). In Johnson v. State,
439 A.2d 607, 608 (Md. App. 1982), Williams v. State, 629 S.W.2d
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146, 147 (Tex. Ct. App. 1982), and State v. Franklin, 704 P.2d
666, 668 (Wash. App. 1985), the informants personally gave
information to the police officers. In Groves v. United States,
504 A.2d 602, 602 (D.C. 1986), the informant identified himself
to the police. In none of these cases did the informant remain
anonymous.
Furthermore, this Court's decision in Beckner v.
Commonwealth, 15 Va. App. 533, 425 S.E.2d 530 (1993), from which
the majority invokes an "imminent danger" doctrine, did not
involve a report of a weapon and no doctrine of "imminent danger"
was invoked to decide that case. That case concerned a traffic
stop based on a report that the driver was unlicensed. Id. at
534, 425 S.E.2d at 531. Furthermore, the informant in Beckner
actually presented himself to the officer when he made the
report. Id. Although the record did not disclose the name of
the informant in Beckner, the personally reported tip imparted to
the informant a degree of reliability that would not have existed
had the informant remained invisible and unknown, as in this
case.
The record in this case contains no basis upon which anyone
could have determined that the invisible, unknown informant was
reliable or had a basis to know anything other than the presence
of the defendant, or someone similarly dressed, in the
laundromat. See White, 496 U.S. at 328. Absent evidence that
the informant was reliable or had a basis to know the reputed
information, the record contains insufficient evidence to support
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the police officer's obligation "to point to specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion." Terry, 392
U.S. at 21.
In another case in which a police officer stopped and
searched a person based on an anonymous tip that the person had a
gun, this Court ruled that the search was unlawful and stated as
follows:
"[T]he test of constitutional validity [of a
warrantless search] is whether at the moment
of arrest the arresting officer had knowledge
of sufficient facts and circumstances to
warrant a reasonable man in believing that an
offense has been committed." An important
element in establishing the reliability of an
anonymous tip is the predictive nature of the
information. The information provided by the
informant must describe not just easily
obtained facts, but future third party
actions not easily predicted. Probable cause
to arrest must exist exclusive of the
incident search.
Hardy v. Commonwealth, 11 Va. App. 433, 434-35, 399 S.E.2d 27, 28
(1990) (citations omitted).
For these reasons, I would hold that the officer lacked a
lawful basis to conduct a Terry stop. Accordingly, I would
reverse the convictions.
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