Harrison R. Jones, etc. v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia
HARRISON R. JONES, JR., S/K/A
HARRISON RANDOLPH JONES, JR.
MEMORANDUM OPINION *
v. Record No. 0604-96-4 BY JUDGE WILLIAM H. HODGES
APRIL 22, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James H. Chamblin, Judge
Robert J. Hartsoe, Assistant Public Defender,
for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Harrison R. Jones, Jr. (appellant) was convicted in a bench
trial of possessing phencyclidine (PCP) and marijuana. On
appeal, appellant challenges the trial judge's refusal to
suppress the evidence based upon the police officer's encounter
with him. For the reasons that follow, we find no error and
affirm appellant's convictions.
"On appeal, the burden is on appellant to show, considering
the evidence in the light most favorable to the Commonwealth,
that the denial of the motion to suppress constituted reversible
error." Stanley v. Commonwealth, 16 Va. App. 873, 874, 433
S.E.2d 512, 513 (1993). Although we are bound to review de novo
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the ultimate determination of reasonable suspicion, we "review
findings of historical fact only for clear error and . . . give
due weight to inferences drawn from those facts by resident
judges and local law enforcement officers." Ornelas v. United
States, 517 U.S. ___, ___, 116 S. Ct. 1657, 1663 (1996).
Here, Officer Ebersole responded to a shopping center
parking lot to investigate "a citizen's report of a possible
intoxicated driver." The report indicated that "two white male
subjects had left Zingers [a nightclub] and had gotten into a
light blue Chevrolet pickup truck that had . . . Pennsylvania
license plates on it and that the vehicle's occupants were being
disorderly." On cross-examination, Ebersole further elaborated
that he was told that "these two disorderly subjects that were
reported to be intoxicated had entered a vehicle and appeared as
though they were attempting to leave."
Within five minutes, Ebersole arrived and found the truck at
the reported location; it was parked and contained two white
males. Ebersole parked his police car so as not to block the
truck and, dressed in his uniform, he "attempted to make contact"
with the driver by "knocking on the driver's side window."
Appellant sat in the driver's seat, looked at Ebersole "and then
turned away and continued" to talk with the person in the
passenger seat. Ebersole "again knocked on the window louder,"
and appellant "rolled down the window" and asked what Ebersole
wanted. Ebersole "requested to see some identification," and
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appellant "produced [his] driver's license." "Talking with
[appellant, Ebersole] detected a very strong odor of alcohol
emitting from [appellant's] person. [Ebersole] noted that
[appellant's] eyes were glassy and when he spoke his speech was
very slurred." Appellant did not appropriately respond to
Ebersole's questions, and eventually he "got abusive towards
[Ebersole] and became angry."
After appellant became "argumentative," Ebersole asked
appellant to exit the vehicle. Upon alighting from the vehicle,
appellant "was staggering to the point where he had to brace
himself on the vehicle to keep from falling." Due to appellant's
condition, Ebersole "was unable to have" appellant perform any
field sobriety tests. At that point in time, Ebersole "placed
[appellant] under arrest for being drunk in public."
Following a search incident to appellant's arrest, the
police recovered PCP and marijuana. The trial judge found no
Fourth Amendment violation and denied the suppression motion. He
then found appellant guilty of both charges.
Assuming without deciding that appellant was seized when
Ebersole knocked on the window a second time and requested
identification, we find that the encounter was supported by a
reasonable suspicion that appellant was or was about to be
engaged in criminal behavior.
"A police officer may lawfully stop . . . an individual if
the officer possesses a reasonable suspicion, based on
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articulable facts, that the individual is or is about to be
engaged in criminal activity." Gregory v. Commonwealth, 22 Va.
App. 100, 105, 468 S.E.2d 117, 120 (1996). "Although the
Commonwealth has the burden of proving that such an investigatory
stop is lawful, the 'level of suspicion required [for an
investigative stop] is less demanding than the standard of
probable cause.'" Logan v. Commonwealth, 19 Va. App. 437, 441,
452 S.E.2d 364, 367 (1994) (en banc) (citation omitted). "'When
a court reviews whether an officer had reasonable suspicion to
make an investigatory stop, it must view the totality of the
circumstances . . . objectively through the eyes of a reasonable
police officer with the knowledge, training, and experience of
the investigating officer.'" Wechsler v. Commonwealth, 20 Va.
App. 162, 170, 455 S.E.2d 744, 748 (1995) (quoting Murphy v.
Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128 (1989)).
"In considering whether facts based on an anonymous tip are
sufficient to provide a police officer a reason to suspect
criminal activity, the United States Supreme Court has stated
that 'anonymous [information that has] been sufficiently
corroborated [may] furnish reasonable suspicion . . . [justifying
an] investigative stop.'" Gregory, 22 Va. App. at 106, 468
S.E.2d at 120 (quoting Alabama v. White, 496 U.S. 325, 331
(1990)). "[A]lthough the police do not have to verify every
detail provided by an anonymous tipster, 'significant aspects of
the informer's information must be independently corroborated.'"
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Id. (quoting Bulatko v. Commonwealth, 16 Va. App. 135, 137, 428
S.E.2d 306, 307 (1993)). "This Court has held that Alabama v.
White does not preclude a finding of reasonable suspicion when
the anonymous tipster does 'not provide the government with
information that predicts the future actions of the [defendant],
if some other indicia of reliability of the informant exists.'"
Beckner v. Commonwealth, 15 Va. App. 533, 535, 425 S.E.2d 530,
531 (1993).
Here, the tipster provided a detailed description of the
vehicle, the location, and the nature of the illegal activity in
which the individual was possibly engaged. Although Officer
Ebersole did not observe appellant engaged in illegal activity,
he verified significant details provided by the tipster within
moments after receiving the detailed information. Ebersole
verified that, indeed, two white males were in the truck and the
truck matched the description provided by the tipster.
Viewing the totality of the circumstances in the light most
favorable to the Commonwealth, we find that Ebersole sufficiently
articulated circumstances from which it reasonably could be
inferred that appellant may be intoxicated in public, see Code
§ 18.2-388, and that he might attempt to drive while intoxicated,
see Code § 18.2-266. Ebersole immediately verified the tipster's
detailed information, and proceeded to investigate. It was
nighttime, and, although appellant was in a nonmoving vehicle,
the truck was located in a public parking lot. See Fierst v.
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Commonwealth, 210 Va. 757, 760, 173 S.E.2d 807, 810 (1970)
(holding that officer had probable cause to arrest defendant
seated in parked car for being drunk in public). After Ebersole
knocked on the window, appellant looked at Ebersole and turned
away without making an auditory or visual acknowledgment. Based
on these circumstances, Ebersole had no way to determine the
status of appellant, who was located in a public place at the
time. The evidence established sufficient reasonable suspicion
to warrant the initial encounter. See Layne v. Commonwealth, 15
Va. App. 23, 26, 421 S.E.2d 215, 217 (1992). Therefore, the
trial judge did not commit reversible error in denying
appellant's motion to suppress.
Because Ebersole had a reasonable, articulable suspicion to
approach appellant and investigate, we find it unnecessary to
address whether the initial encounter between appellant and
Ebersole was consensual. Accordingly, we affirm appellant's
convictions.
Affirmed.
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