Jackson v. Com.

594 S.E.2d 595

267 Va. 666

Jerald Lorenzo JACKSON v. COMMONWEALTH OF VIRGINIA.

Record No. 031867.

Supreme Court of Virginia.

April 23, 2004.

Mark L. Williams, for appellant.

Eugene Murphy, Asst. Atty. Gen. (Jerry W. Kilgore, Atty. Gen., on brief), for appellee.

Present: All the Justices.

CYNTHIA D. KINSER, Justice.

Relying on a tip from an anonymous informant, a police officer conducted an investigatory stop of an automobile in which the defendant was a passenger. The issue is whether the information from the anonymous caller, corroborated in part by police officers' observations, provided reasonable articulable suspicion to justify the investigative traffic stop. We conclude that it did not and that, therefore, evidence seized from the defendant during a subsequent search should have been suppressed by the trial court.

PRIOR RELEVANT PROCEEDINGS

The appellant, Jerald Lorenzo Jackson, was indicted in the Circuit Court for the City of Newport News for possession of cocaine in violation of Code § 18.2-250, and possession of a firearm while in possession of a controlled substance in violation of Code § 18.2-308.4(A). He was also charged with a misdemeanor, possession of a concealed weapon in violation of Code § 18.2-308.¹ Jackson filed a pretrial motion to suppress evidence, specifically a firearm and cocaine, seized during a warrantless search of his person. He asserted that the police did not have a reasonable articulable suspicion justifying the investigative traffic stop. The trial court denied the suppression motion and convicted Jackson of the charged offenses. Jackson appealed his convictions to the Court of Appeals of Virginia. That court affirmed the convictions and the judgment of the circuit court. Jackson v. Commonwealth, 39 Va.App. 624, 576 S.E.2d 206 (2003). Upon granting Jackson's petition for a rehearing en banc, Jackson v. Commonwealth, 40 Va.App. 88, 578 S.E.2d 51 (2003), the Court of Appeals again affirmed the convictions, Jackson v. Commonwealth, 41 Va. App. 211, 583 S.E.2d 780 (2003). We awarded Jackson this appeal limited to the question whether the circuit court erred in denying Jackson's pretrial motion to suppress.

RELEVANT FACTS

At approximately 2:10 a.m. on June 17, 2001, M.A. Cook, a police officer with the City of Newport News Police Department, received a dispatch, based on information from an anonymous caller, regarding a firearm. According to Officer Cook, "[u]nits were dispatched to 34th [Street] and Jefferson [Avenue]. . . . in reference to three black males in a white Honda that were disorderly and one of the subjects brandished a firearm." There was a small bar and a gasoline station situated at that location. As Officer Cook was approaching the specified intersection approximately five minutes after receiving the dispatch, he observed a white Honda automobile that was occupied by three black males. The vehicle was leaving the gasoline station and "pulled out right in front of Officer Cook, allowing the headlights of his vehicle to shine into the window of the Honda automobile. At that point, Officer Cook executed a "U-turn" and proceeded to follow the Honda automobile until other police units arrived. He then executed a traffic stop, causing the automobile to pull into the parking lot of a fast-food restaurant. Officer Cook approached the driver of the vehicle and explained the reason for the traffic stop. The defendant was sitting in the front passenger seat of the vehicle.

Sergeant James Hogan, another police officer who responded to the dispatch, assisted Officer Cook in the traffic stop. Sergeant Hogan approached the stopped Honda vehicle from the rear and moved up to the front door on the passenger side. He then shined his flashlight into the vehicle and spotted Jackson sitting in the front passenger seat.

The defendant had his arms folded across his stomach, but Sergeant Hogan noticed a bulge in Jackson's shirt under his arms just above the waistband of his pants. According to Sergeant Hogan, "[the] bulge . . . obviously was not part of [Jackson's] body[;] . . . it was too big" to be anything other than a firearm. Sergeant Hogan asked Jackson if he had a firearm, and Jackson responded, "No." Sergeant Hogan requested Jackson to move his hands, but Jackson just raised his hands and put them back on his stomach. Sergeant Hogan then asked Jackson to pull his shirt up, but Jackson merely pulled his shirt out a few inches and then put it back, placing his arms back across his stomach.

Due to Jackson's unwillingness to cooperate with Sergeant Hogan's requests, Sergeant Hogan pulled his firearm out of its holster, pointed it at Jackson, and directed him to get out of the vehicle. As Jackson was doing so, Officer Brendan D. Bartley, who was standing behind Sergeant Hogan, reached around Jackson and removed a firearm from the waistband of Jackson's pants. The firearm was underneath Jackson's shirt. Officer Bartley handcuffed Jackson and proceeded to search him subsequent to arrest. During that search, Officer Bartley found four, individually wrapped "rocks of cocaine" in the left pocket of Jackson's pants.

Officer Cook acknowledged that the driver of the Honda automobile was not violating any traffic laws and that he would not have stopped the vehicle except for the dispatch. He also did not have any information other than what was contained in the original dispatch to the police officers. Similarly, Sergeant Hogan knew of no efforts to confirm the information received by the dispatcher. Like Officer Cook, he saw the white Honda automobile and it matched the description of the vehicle for which they were looking. So, Sergeant Hogan turned his police vehicle around and followed Officer Cook, who was pursuing the white Honda automobile. Likewise, Officer Bartley responded to the original dispatch and saw the white Honda vehicle turning southbound on Jefferson Avenue. He did, however, testify that he had a clear vision of the entire parking lot at the small bar and he did not see another white Honda automobile there.

ANALYSIS

The Fourth Amendment protects "persons" from "unreasonable searches and seizures." U.S. Const. amend. IV. An investigatory stop (sometimes referred to as a "Terry stop"), such as the traffic stop at issue in this case, constitutes a seizure within the meaning of the Fourth and Fourteenth Amendments "even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); see United States v. Hassan El, 5 F.3d 726, 729 (4th Cir.1993). Consequently, such action by a police officer "must be justified by probable cause or a reasonable suspicion, based on specific and articulable facts, of unlawful conduct." Hassan El, 5 F.3d at 729; see Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 923-24 (2000) ("stop of an automobile . . . is unreasonable under the Fourth Amendment absent a reasonable, articulable suspicion that the driver is unlicensed or that the automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of the law"); United States v. Bell, 183 F.3d 746, 749 (8th Cir.1999) ("An investigative stop does not violate the Fourth Amendment if the police have reasonable suspicion that the vehicle or its occupants are involved in criminal activity.") If evidence is seized during an illegal stop, it is not admissible at trial under the doctrine known as "the fruit of the poisonous tree." Hassan El, 5 F.3d at 729; see Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The issue we decide in this appeal is whether the anonymous tip together with the police officers' observations of the white Honda automobile and its occupants provided reasonable articulable suspicion to justify the investigative traffic stop.

In deciding that issue and reviewing the trial court's denial of Jackson's motion to suppress, we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial. Bass, 259 Va. at 475, 525 S.E.2d at 924. Since the constitutionality of a search and seizure under the Fourth Amendment involves questions of law and fact, 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. McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001); see Ornelas v. United States, 517 U.S. 690, 696-97, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The Commonwealth carries the burden of showing that a warrantless search and seizure was constitutionally permissible. Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989). However, a defendant must show, when viewing the evidence in the light most favorable to the Commonwealth, that the denial of the motion to suppress evidence was reversible error. McCain, 261 Va. at 490, 545 S.E.2d at 545; Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980).

The constitutionality of the traffic stop in this case turns on whether the anonymous tip sufficed to give rise to reasonable suspicion. Reasonable suspicion is something "more than an `inchoate and unparticularized suspicion or "hunch"` of criminal activity." Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). However, it is something less than probable cause. Bass, 259 Va. at 475, 525 S.E.2d at 923. In Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), the Supreme Court of the United States explained that

[r]easonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different

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