Commonwealth v. Tony Sirrell Mann ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judges Cole and Duff
Argued at Alexandria, Virginia
COMMONWEALTH OF VIRGINIA
v. Record No. 2047-95-4 MEMORANDUM OPINION * BY
JUDGE MARVIN F. COLE
TONY SIRREL MANN FEBRUARY 6, 1996
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald Hall Kent, Judge
John H. McLees, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellant.
J. Amy Dillard, Assistant Public Defender, for
appellee.
The appellee, Tony Sirrel Mann ("Mann"), was indicted for
possession of cocaine. Following an evidentiary hearing, the
trial court granted Mann's motion to suppress, concluding that
the police lacked probable cause to arrest Mann. The
Commonwealth appeals that ruling pursuant to Code § 19.2-398(2).
For the reasons that follow, we reverse and remand.
In reviewing a trial court's denial of a motion to suppress,
"the burden is upon [the appellant] to show that this ruling,
when the evidence is considered most favorably to the
Commonwealth, constituted reversible error." Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.
denied, 449 U.S. 1017 (1980). "When an arrest is challenged on
constitutional grounds, the Commonwealth has the burden to prove
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the arrest was based on probable cause." Watson v. Commonwealth,
19 Va. App. 659, 664, 454 S.E.2d 358, 361 (1995).
On March 25, 1995, at about 11:10 p.m., Alexandria Police
Officer William G. Bunney ("Bunney") was in a concealed location,
watching for drug violations. This location was selected because
it was an area with a "high incidence of drug activity" and "a
lot of buyers come in and leave from" it. Street lights and
lights from adjacent dwellings illuminated the area. Stationed
twelve to fifteen feet above street level, Bunney observed Mann
walking alone towards his position from the direction of a group
of men Bunney had been observing. Bunney did not observe Mann as
part of the group, and he did not see the group engaging in any
suspicious activity.
From a distance of approximately twenty-five feet, Bunney,
with his naked eye, observed Mann lift his right hand and open
his palm, exposing a small, off-white, rock-like object about
three-quarters the size of a green pea. Bunney saw Mann look at
the object briefly, then close his hand, returning it to his
side. Believing Mann possessed cocaine, Bunney called for his
arrest. Another Alexandria police officer, responding to the
request, made the arrest, conducted a search incident to the
arrest, and seized the alleged contraband.
Mann filed a motion to suppress and an evidentiary hearing
was held on the motion. The only evidence presented at the
hearing was the testimony of Bunney and the officer who made the
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arrest. Their testimony was uncontradicted and unimpeached in
any manner. Bunney testified that he had been employed as a
police officer for the City of Alexandria for ten years, seven of
which he was assigned to street level interdiction of narcotics.
In this capacity, he had seen crack cocaine in excess of a
thousand times. Bunney testified that he focused his attention
on Mann and he had a clear and unobstructed view of him.
Regarding the incident involved in this case, he stated:
At one point, he simply brought up his right
hand, opened it up. I could detect a small,
light colored object. He looked at it very
briefly, closed his hand, put his hand back
down. All this, while proceeded to walk
[sic].
Bunney testified that he could clearly see the entire palm
of Mann's hand. He further described the object in the hand as
off-white in color, not perfectly round, or square, or
cylindrical. It was not packaged and was a rock-like object. He
said the object was smaller than a household eraser and probably
three-quarters the size of a green pea. He testified that based
upon his training and experience, he "believed it to be a rock of
crack cocaine." Based upon this conclusion, Bunney had another
officer arrest Mann for possession of cocaine. Bunney identified
the defendant as the person that he observed on the street.
The only issue in this case is whether the police had
probable cause to arrest Mann and, incident to that arrest, to
seize from him the object that Officer Bunney believed to be
crack cocaine. The test of the constitutional validity of a
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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.'" Hardy v. Commonwealth, 11 Va. App.
433, 434, 399 S.E.2d 27, 28 (1990) (quoting DePriest v.
Commonwealth, 4 Va. App. 577, 583-84, 359 S.E.2d 540, 543 (1987),
cert. denied, 488 U.S. 985 (1988)). Furthermore, "we are
required to 'test what the totality of the circumstances meant to
police officers trained in analyzing the observed conduct for
purposes of crime control.'" Derr v. Commonwealth, 6 Va. App.
215, 220, 368 S.E.2d 916, 918 (1998) (quoting Hollis v.
Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889 (1976)). See
also Buck v. Commonwealth, 20 Va. App. 298, 302, 304, 456 S.E.2d
534, 536 (1995); DePriest, 4 Va. App. at 584, 359 S.E.2d at 543.
The United States Supreme Court has frequently remarked that
probable cause is a flexible, common-sense
standard. It merely requires that the facts
available to the officer would "warrant a man
of reasonable caution in the belief" that
certain items may be contraband or stolen
property or useful as evidence of a crime; it
does not demand any showing that such a
belief be correct or more likely true than
false. A "practical, nontechnical"
probability that incriminating evidence is
involved is all that is required.
Texas v. Brown, 460 U.S. 730, 742 (1983) (citations omitted).
Accord Delong v. Commonwealth, 234 Va. 357, 366, 362 S.E.2d 669,
673 (1987), cert. denied, 485 U.S. 929 (1988) (using identical
language to define probable cause).
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In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court
said:
[P]robable cause requires only a probability
or substantial chance of criminal activity,
not an actual showing of such activity. By
hypothesis, therefore, innocent behavior
frequently will provide the basis for a
showing of probable cause; to require
otherwise would be to sub silentio impose a
drastically more rigorous definition of
probable cause than the security of our
citizens demands. . . . In making a
determination of probable cause the relevant
inquiry is not whether particular conduct is
"innocent" or "guilty", but the degree of
suspicion that attaches to particular types
of noncriminal acts.
462 U.S. at 243-44, n. 13. See also United States v. Sokolow,
490 U.S. 1, 8 (1989).
Ordinarily, uncontradicted evidence
should be accepted as true and cannot be
wholly discredited or disregarded if not
opposed to probabilities, even though the
witness is an interested party.
Uncontradicted evidence is not, however,
necessarily binding on the court or the jury.
It may be disbelieved where it is inherently
improbable, inconsistent with circumstances
in evidence, or somewhat contradictory in
itself, especially where the witness is a
party or is interested. Neither courts nor
juries are required to believe that which
they know from ordinary experience is
incredible.
Stegall v. Commonwealth, 208 Va. 719, 722, 160 S.E.2d 566, 568
(1968) (citing Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d
1, 4 (1958)); Blankenship v. Commonwealth, 193 Va. 587, 593, 70
S.E.2d 335, 338 (1952)).
In this case, the testimony of Officer Bunney was
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uncontradicted and unimpeached. It was not inconsistent with any
circumstances in evidence, and was not contradictory. Therefore,
the trial court had no reason to disbelieve it upon this record
at this stage of the proceedings. The undisputed evidence
clearly proved that Bunney had a reasonable belief that the
object in the defendant's hand was cocaine. He observed it in
plain view right before his eyes. See Carson v. Commonwealth, 12
Va. App. 497, 501, 404 S.E.2d 919, 921, aff'd on reh'g en banc,
13 Va. App. 280, 410 S.E.2d 412 (1991), aff'd, 244 Va. 293, 421
S.E.2d 415 (1992) (holding that officer may seize item if he is
in lawful position to see item and it is immediately apparent
that item is evidence of crime). Therefore, the police officers
were justified in arresting Mann and seizing the object as an
incident of the arrest. Accordingly, the ruling of the trial
court was plainly wrong and without evidence to support it.
For these reasons, we reverse the trial court's order
suppressing evidence of the alleged cocaine because the police
officers lacked probable cause to arrest Mann and remand for
further proceedings.
Reversed and remanded.
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Annunziata, J., dissenting.
The question before this Court is whether Bunney had
probable cause to believe the object Mann held was crack cocaine.
As stated in the majority opinion, the standard we apply in
making this determination is whether
the facts available to [Bunney] would
`warrant a man of reasonable caution in the
belief' that [the item Mann held] may [have
been] contraband . . . or useful as evidence
of a crime; it does not demand any showing
that such a belief be correct or more likely
true than false.
Delong v. Commonwealth, 234 Va. 357, 366, 362 S.E.2d 669, 674
(1987), cert. denied, 485 U.S. 929 (1988) (quoting Texas v.
Brown, 460 U.S. 730, 741-42 (1983)); Commonwealth v. Ramey, 19
Va. App. 300, 304, 450 S.E.2d 775, 777 (1994) (same). But see 2
Wayne R. LaFave, Search & Seizure, § 3.2(e), at 82 (3rd Ed. 1996)
(suggesting a more probable than not standard in such a
circumstance). 1
1
LaFave suggests a higher standard should be applied when
the question is whether there is probable cause to believe a
crime has occurred:
It is commonly said that `an arrest and
search based on events as consistent with
innocent as with criminal activity are
unlawful,' so that if the observed pattern of
events `occurs just as frequently or even
more than frequently in innocent
transactions, the pattern is too equivocal to
form the basis for such a warrantless
arrest.'
LaFave, supra, § 3.2(e), at 69 (citations omitted). See also
People v. McRay, 416 N.E.2d 1015, 1019 (N.Y. 1980).
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I first note that the trial court applied the correct
standard in determining Bunney lacked probable cause to arrest
Mann. Nothing in the record suggests the court demanded proof
that Bunney's belief that he observed cocaine be correct or be
more probably so than not. Moreover, the record does not suggest
that the court failed to consider the evidence from the
perspective of the reasonable police officer "trained in
analyzing the observed conduct for purposes of crime control."
See Derr v. Commonwealth, 6 Va. App. 215, 220, 368 S.E.2d 916,
918 (1988) (citation omitted). Rather, it appears the court
credited both Bunney's experience and his testimony concerning
what he saw.
In weighing Bunney's testimony, however, the trial court
made a factual determination that probable cause did not exist.
As such, the trial court's determination will be affirmed unless
it is plainly wrong or unsupported by the evidence. See Code
§ 8.01-680; Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,
407 S.E.2d 47, 48 (1991); see also LaFave, supra, § 11.7(c), at
401 ("the reviewing court will affirm the trial court's
determinations unless `it is left with the definite and firm
conviction that a mistake has been committed'") (citation
omitted).
The considerable deference accorded the trial judge's
determination of probable cause under the "plainly wrong"
analysis reflects the difficulty inherent in evaluating the
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quantum of information which is required to support a finding of
probable cause. "The distinction between `reasonable belief' and
`bare suspicion' remains elusive and can only be determined by
focusing on the precise facts of individual cases." Ronald J.
Bacigal, Virginia Criminal Procedure § 4-7 (3d ed. 1994). As
between the trial and appellate courts, the former is assigned
the "primary responsibility" for making this distinction as it is
in the "superior position" to evaluate and weigh the evidence.
LaFave, supra, § 11.7(c), at 401 (citing United States v.
McConney, 728 F.2d 1195 (9th Cir. 1984)).
I find the court's determination that Bunney lacked probable
cause to arrest Mann was not plainly wrong or unsupported by the
evidence. Distilled to its essence, the evidence shows that the
only activity Bunney witnessed from his perch, some twenty-five
feet away, bearing any relationship to a belief that Mann carried
crack cocaine was Mann looking at an off-white, rock-like object
three-quarters the size of a pea that he held in his hand while
he walked in an area known for drug trafficking.
The remaining circumstances under which Bunney observed Mann
were innocent in character. Bunney did not see Mann engaged in
the activities of the group he had under surveillance for conduct
involving controlled substances, and he saw no suspicious
activity by the group itself. He observed no packaging
materials, drug paraphernalia, or consumptive activity by Mann.
The fact that Mann approached from the direction where the group
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was located is of little, if any, import. And, Bunney's
testimony that Mann walked as if he had just bought crack was
conclusory and lacked the articulation of "objective facts that
could justify the issuance of a warrant by a magistrate." Derr,
6 Va. App. at 220, 368 S.E.2d at 918 (1988) (citation omitted);
Cf. DePriest v. Commonwealth, 4 Va. App. 577, 584, 359 S.E.2d
540, 543 (1987), ("In assessing an officer's probable cause for
making a warrantless arrest, no less strict standards may be
applied than are applicable to a magistrate's determination that
an arrest warrant should issue."), cert. denied, 488 U.S. 985(1988) (citation omitted). Moreover, Bunney initially testified
that Mann walked at a "normal gait." As such, the court did not
err in failing to accord great weight to the testimony regarding
Mann's manner of walking in its review of the totality of the
circumstances.
The remaining circumstance--the character of an area--is
clearly a relevant circumstance to consider. See DePriest, 4 Va.
App. at 585, 359 S.E.2d at 544; LaFave, supra, § 3.6(g), at
333-37. However, weighing the nature of an area too heavily has
the consequence of adversely affecting honest citizens who live
there. Id. at 334 (citation omitted); see also Riley v.
Commonwealth, 13 Va. App. 494, 498, 412 S.E.2d 724, 726-27
(1992). The proper balance is struck by "using the crime problem
in the area only to give meaning to highly suspicious facts and
circumstances." Id. at 336-37 (emphasis added) (citation
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omitted); see also United States v. Gonzalez, 362 F. Supp. 415,
421-22 (S.D.N.Y 1973). Under the facts of this case, the trial
court's implicit finding that Mann's activity was not so
suspicious as to accord great weight to the character of the
neighborhood in which the incident took place, was not plainly
wrong.
In summary, the trial court's determination that Bunney had
insufficient cause to arrest Mann was predicated on its
evaluation of the totality of the circumstances and was not
plainly wrong. The court weighed Bunney's experience and
testimony, the size and color of the object, and Bunney's vantage
point against the absence of any other circumstance which would
support something more than bare suspicion that the object Mann
held was crack cocaine. Moreover, Bunney himself conceded that
the presence of additional suspicious circumstances enhanced the
2
reliability of his bare observation of the suspected substance.
Such circumstances were absent here. Accordingly, I would
affirm.
2
At the hearing, the following colloquy took place:
THE COURT: But generally, when you spot
somebody like this, there's something else
that brings them to your attention, other
than the fact that they've got something in
the palm of their hand. There's a cash
transaction going on?
[BUNNEY]: Or the way they're acting, or
the way they're standing. Yes, sir.
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