Byrd v. Commonwealth of Va..

57 Va.App. 589

704 S.E.2d 597

Malachi Antonio BYRD

v.COMMONWEALTH of Virginia.

Record No. 2197–08–1.

Court of Appeals of Virginia, Richmond.

Feb. 1, 2011.

T. Gregory Evans (Office of the Public Defender, on brief), for appellant.Jennifer C. Williamson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES, POWELL and ALSTON, JJ.

UPON A REHEARING EN BANC

McCLANAHAN, Judge.

The trial court found Malachi Antonio Byrd guilty of possession of cocaine and possession of a firearm by a convicted felon. On appeal, Byrd argues the trial court erred in denying his motion to suppress evidence of these crimes because the police, acting on information from a confidential informant, lacked probable cause to stop and search his vehicle, in violation of his Fourth Amendment rights. A panel majority of this Court agreed with Byrd and reversed the decision of the trial court. Byrd v. Commonwealth, 55 Va.App. 742, 759, 689 S.E.2d 769, 777 (2010). We granted the Commonwealth's petition for rehearing en banc and stayed the mandate of the panel decision. ¹ Upon rehearing en banc, we affirm the trial court.

I.

“ ‘In reviewing the denial of a motion to suppress based on the alleged violation of an individual's Fourth Amendment rights, we consider the facts in the light most favorable to the Commonwealth.’ ” Lawson v. Commonwealth, 55 Va.App. 549, 552, 687 S.E.2d 94, 95 (2010) (quoting Ward v. Commonwealth, 273 Va. 211, 218, 639 S.E.2d 269, 271 (2007)). That includes evidence from both the suppression hearing and the trial. Emerson v. Commonwealth, 43 Va.App. 263, 272, 597 S.E.2d 242, 247 (2004).

Virginia Beach Police Officer William Canada testified that at approximately 1:00 a.m., he received a tip from a known reliable informant that a drug transaction involving crack cocaine was going to take place within the next thirty minutes in the parking lot of the Harris Teeter grocery store located at 29th and Arctic Boulevard in Virginia Beach. Identifying two of the subjects, the informant told Canada that a black male and a black female would be pulling into the parking lot in a green four-door vehicle. The informant also told Canada that the female would be driving the vehicle and that the male passenger would be armed with a firearm. The grocery store, according to Canada, was located in what was known to be a high drug crime area where numerous narcotics arrests had been made.

Canada testified that he had worked with the informant for approximately eighteen months. The informant had been a “confidential informant” for six months prior to the incident at issue; but he had also been “a source of information” for a year prior to completing the process of becoming a confidential informant. Canada stated that during that time the informant had “provided very reliable information,” which generally involved narcotics-related criminal activity. This information “result[ed] in over twelve search warrants, seizures of large quantities of money, drugs [and] firearms,” along with a number of arrests. Furthermore, Canada indicated that all of the information he had received from the informant over the eighteen-month period had proven to be true.

Accordingly, Canada explained, based on the informant's latest tip, he and two other police officers proceeded immediately to conduct surveillance on the Harris Teeter parking lot. Consistent with the tip, the officers observed a green four-door vehicle pull into the Harris Teeter parking lot at 1:35 a.m. A black female was driving the vehicle, and a black male, later identified as Byrd, was in the passenger seat. The driver parked the car and, approximately a minute later, the officers saw Byrd exit the vehicle and enter the grocery store—in variance with what the informant had expected, having indicated that a drug transaction would take place in the parking lot. Less than two minutes later, however, Byrd exited the store empty-handed. He then returned to the waiting vehicle, and the two suspects drove out of the parking lot.

Shortly thereafter, the officers stopped and searched the vehicle in which Byrd was a passenger and recovered a loaded nine-millimeter handgun from the glove compartment, leading to Byrd's arrest for possession of a firearm as a convicted felon. Then at the police station, one of the officers discovered that Byrd was carrying a bag of cocaine on his person, resulting in his drug charge.

In a pretrial motion, Byrd moved to suppress evidence of the firearm and the cocaine. Byrd argued the police did not have probable cause to stop and search his vehicle because the confidential informant's tip was not reliable. After hearing the testimony of Officer Canada, and the corroborating testimony of Officer Jason Gregory, one of the other officers at the scene, the trial court denied Byrd's motion. The court concluded that the police had probable cause to stop and search Byrd's vehicle in light of the “totality of the circumstances.” The court specifically pointed to both the informant's history of providing reliable information to the police and the details of the informant's accurate predictions of Byrd's future conduct on the night in question.

II.

When this Court reviews a trial court's denial of a motion to suppress, the burden is upon the defendant to show that the ruling constituted reversible error. Jones v. Commonwealth, 277 Va. 171, 177–78, 670 S.E.2d 727, 731 (2009); McGee v. Commonwealth, 25 Va.App. 193, 197, 487 S.E.2d 259, 261 (1997) ( en banc ). The ultimate question of probable cause in a Fourth Amendment challenge, as here presented, involves issues of both law and fact. Id. at 197–98, 487 S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996)). Thus, “we give deference to the factual findings of the trial court but independently decide whether, under the applicable law, the manner in which the challenged evidence was obtained satisfies constitutional requirements.” Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004) (citation omitted).

Probable cause, as the term implies, “ ‘exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place,’ ” Jones, 277 Va. at 178, 670 S.E.2d at 731 (quoting United States v. Grubbs, 547 U.S. 90, 95, 126 S.Ct. 1494, 1499, 164 L.Ed.2d 195 (2006)) (internal quotation marks omitted), as determined from the totality of the circumstances, Barnes v. Commonwealth, 279 Va. 22, 34, 688 S.E.2d 210, 217 (2010) (citations and internal quotation marks omitted). This means the probable cause standard “does not ‘demand any showing’ ” that a police officer's belief regarding criminal activity be “ ‘correct or more likely true than false.’ ” Slayton v. Commonwealth, 41 Va.App. 101, 106, 582 S.E.2d 448, 450 (2003) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983)). An informant's information thus may provide probable cause for an arrest or a search “ ‘so long as the officer has reasonable grounds to believe the [information] is true.’ ” McGuire v. Commonwealth, 31 Va.App. 584, 594–95, 525 S.E.2d 43, 48 (2000) (quoting Illinois v. Gates, 462 U.S. 213, 242, 103 S.Ct. 2317, 2334, 76 L.Ed.2d 527 (1983)). See United States v. Humphries, 372 F.3d 653, 659 (4th Cir.2004) ( “quantum of facts required” for establishing probable cause is same for arrest or search (citing 2 Wayne R. LaFave, Search & Seizure § 3.1(b) (3d ed.1996))).

In Gates, the United States Supreme Court adopted a totality-of-the-circumstances analysis for assessing an informant's information, consistent with the analysis that “traditionally has guided probable-cause determinations.” Gates, 462 U.S. at 233, 103 S.Ct. at 2329. Gates directs courts to assess whether officers acting on an informant's tip had probable cause “by examining all of the facts known to officers leading up to the arrest [or search], and then asking ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer,’ amount to probable cause.” United States v.White, 549 F.3d 946, 950 (4th Cir.2008) (quoting Ornelas, 517 U.S. at 696, 116 S.Ct. at 1661–62). In other words, the facts “must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” Gates, 462 U.S. at 232, 103 S.Ct. at 2329. Under this standard, courts recognize that “a police officer may draw inferences based on his own experience in deciding whether probable cause exists,” Ornelas, 517 U.S. at 700, 116 S.Ct. at 1663, including inferences “that might well elude an untrained person,” United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).

The Gates Court adopted this totality-of-the-circumstances approach to analyzing an informant's tip as it abandoned the “ ‘two-pronged test’ ” derived from its decisions in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), which “direct[ed] analysis into two largely independent channels—the informant's ‘veracity’ or ‘reliability’ and his ‘basis of knowledge.’ ” Gates, 462 U.S. at 228–34, 103 S.Ct. at 2326–30. As the Gates Court explained, a totality-of-the-circumstances analysis “permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip,” whereas the “ ‘two-pronged test’ [had] encouraged an excessively technical dissection of informants' tips.” Id. at 234, 103 S.Ct. at 2330.

From a practical standpoint, the Court reasoned:

[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of...