HUGHES v. COMMONWEALTH, 0702-98-2, Unpublished (Va.App. 6-1-1999)

JUDGE RICHARD S. BRAY

Byron K. Hughes (defendant) was convicted for possession of cocaine with intent to distribute, a violation of Code § 18.2-248. On appeal, he contends that the trial court erroneously denied his motion to suppress evidence obtained as the result of an unlawful search of his person. We disagree and affirm the conviction.

The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary for disposition of the appeal.

In reviewing a trial court's ruling on a suppression motion, we consider the evidence in the light most favorable to the prevailing party below, the Commonwealth in this instance, granting to it all reasonable inferences fairly deducible therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

"Ultimate questions of reasonable suspicion and probable cause to make a warrantless search" involve questions of both law and fact and are reviewed de novo on appeal. In performing such analysis, we are bound by the trial court's findings of historical fact unless "plainly wrong" or without evidence to support them, and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.

The record discloses that, on July 10, 1997, Detective J. Renee Payne of the Richmond Police Department received a message on her "voice mail" from a known informant, with established reliability, that

there was a very light complected male standing out in the front walk in the area of 320 West Grace Street, and that that person was dealing narcotics there, that he was keeping the money in his left pocket, and that drugs were kept in his underwear area, and that he was wearing a white shirt, blue jeans and he had very pretty hair.

Acting on this information within ten minutes of receipt, Payne, accompanied by two officers, arrived at the intersection of "Grace and Madison" and observed defendant "standing . . . at the corner," "across the street" from 320 West Grace, the "area" designated by the informant. The officers determined that defendant, "a very light complected male with dark wavy hair wearing blue jeans and a white shirt," was the individual described in the tip.

Payne approached defendant and advised him "that [she] had received information that a person fitting his description was out there dealing narcotics." Defendant denied possessing "any drugs or weapons" and consented to a pat-down search, which revealed money in his left pocket. Upon discovery of the money, Payne declared, "Well if the money is in your left pocket, then, the drugs should be in your underwear," and defendant agreed to allow Payne to "check further." To "ensure [defendant's] privacy" and with his continuing assent, Officer Rogers accompanied defendant to "an apartment building across the street[,] into the front hallway area" and "check[ed]" his underwear. Finding nothing, defendant agreed to "ben[d] over" and "cough," revealing "a plastic bag containing [the offending] narcotics in his behind."

Defendant contends on appeal, as he did before the trial court, that he was seized and searched by the officers without probable cause and subjected to an improper "cavity" search, all without consent or with consent "obtained as a result of an illegal detention." In response, the Commonwealth asserts that defendant consented to searches by the officers during a detention supported by probable cause or "certainly . . . reasonable suspicion that . . . [he] was concealing drugs" on his person. In overruling defendant's motion, the trial court concluded that the circumstances clothed police with the "right to approach [defendant], investigate and pat him down."

It is well established that " 'police officers may approach a person for the purpose of investigating possible criminal behavior even though no probable cause exists for arrest.' " Johnson v. Commonwealth, 20 Va. App. 49, 54, 455 S.E.2d 261, 264 (1995) (citations omitted). "The standard for conducting such a detention is less than probable cause, but more than an 'inchoate and unparticularized suspicion or "hunch." ' "Gregory v. Commonwealth, 22 Va. App. 100, 105, 468 S.E.2d 117, 120 (1996) (citations omitted). Thus, "[a]n investigative detention to detect or prevent incipient criminal activity is, when supported by the officer's reasonable and articulable suspicion that criminal activity may be afoot, consonant with fourth amendment protections against unreasonable seizures."Layne v. Commonwealth, 15 Va. App. 23, 25, 421 S.E.2d 215, 216 (1992) (citations omitted).

"Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the 'totality of the circumstances' . . . that must be taken into account when evaluating whether there is reasonable suspicion." Alabama v. White, 496 U.S. 325, 330 (1990) (citation omitted); accord Gregory, 22 Va. App. at 107, 468 S.E.2d at 121. Stated differently, "whether the stop was justified is dependent upon whether the facts available to the officer at the moment of the seizure or the search would warrant a man of reasonable caution in the belief that the action was appropriate." Johnson, 20 Va. App. at 54, 455 S.E.2d at 264 (citations and internal quotations omitted).

Here, the reliability of the informant had been previously established with Detective Payne. The content of the message, "there was a very light complected male standing out . . . in the area of 320 West Grace Street, . . . dealing narcotics there, . . . wearing a white shirt, blue jeans and [having] very pretty hair," suggested a contemporaneous observation by the informant. Within ten minutes of receiving the report, police observed a "very light complected male with dark wavy hair wearing blue jeans and a white shirt," "standing at the [street] corner" in the area designated in the tip. Thus, the accuracy of the information imparted to Detective Payne was tested by prompt corroboration under circumstances which indicated that the informant had recently seen the unlawful conduct. Such facts, considered together, "carried enough indicia of reliability to justify" an investigatory "Terry stop" of defendant by police. Adams v. Williams, 407 U.S. 143, 146-47 (1972).

Subsequently, the evidence, viewed most favorably to the Commonwealth, clearly established that defendant consented to a pat-down search, resulting in the discovery of money in his left front pocket. " 'Because [the] informant [was] right about some things, he [was] more probably right about other facts,' including the claim" of drugs in defendant's underwear area.Illinois v. Gates, 462 U.S. 213, 244 (1983) (citation omitted);accord White, 496 U.S. at 331-32. Thus, further investigation was warranted and properly pursued, with defendant's continuing consent, until the offending contraband was found on his person. See e.g. Commonwealth v. Rice, 28 Va. App. 374, 378, 504 S.E.2d 877, 879 (1998).

Defendant, therefore, was properly detained incident to a brief police investigation. The ensuing encounter was attended by appropriate exchanges between defendant and the officers that resulted in consensual searches of defendant's person and the eventual discovery of the cocaine. Such circumstances disclose no unconstitutional seizure and search of defendant, and the court properly denied the motion to suppress.

Affirmed.