Byrd v. Commonwealth

¶1concurring, in part, and dissenting, in part.

¶2In reversing the trial court’s determination that probable cause for searching Byrd’s vehicle was established, the majority concludes that: (a) the informant “was reliable,” but was just not reliable enough; (b) the informant’s tip was “detailed,” but was just not “so detailed” as to support an inference that it was obtained in a “reliable way” through “inside personal knowledge of [Byrd’s] activities”; and (c) the fact there was no direct evidence of the informant’s basis of knowledge regarding Byrd’s activities further undermined the informant’s reliability. I disagree with all three conclusions, and would affirm the trial court’s denial of Byrd’s suppression motion, in light of the totality of the circumstances presented to the police at the time they conducted the search. I do agree, however, with the majority’s analysis of Byrd’s alternative challenge to his firearm conviction to the extent the majority concludes that his argument is procedurally barred.

¶3*763I.

¶4It has long been well established that “ ‘information received through an informant, rather than upon [a police officer’s] direct observations,’ ” may provide probable cause for a search “so long as the officer has reasonable grounds to believe that 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 Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Wright v. Commonwealth, 222 Va. 188, 278 S.E.2d 849 (1981). In Gates, the controlling authority in this area of Fourth Amendment law, the United States Supreme Court abandoned the “two-prong test” established in Aguilarand Spinelli(“directing] analysis into two largely independent channels—the informant’s ‘veracity’ or ‘reliability’ and his ‘basis of knowledge’ ”), in favor of “the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations.” Gates, 462 U.S. at 233-38, 103 S.Ct. at 2329-32. The GatesCourt recognized in adopting this approach that “probable cause determinations involve diverse factual scenarios that are ‘not readily, or even usefully, reduced to a neat set of legal rules.’ ” United States v. White, 549 F.3d 946, 949 (4th Cir. 2008) (quoting Gates, 462 U.S. at 232, 103 S.Ct. at 2329); see Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666 (1991) (stating that the Court in Gates “reject[ed] a hypertechnical, rigid, and legalistic analysis of probable cause determinations”). In Robinson v. Commonwealth, 53 Va.App. 732, 738, 675 S.E.2d 206, 210 (2009), this Court recently reaffirmed that we are not bound by any “technical standard concerning informant reliability.” Rather, the “totality of the circumstances” approach under Gates“ ‘permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending’ the informant’s tip.” Id.(quoting Gates, 462 U.S. at 234, 103 S.Ct. at 2330). The GatesCourt characterized this approach as the establishment of a “flexible, common-sense standard ... [that] serves the *764purpose of the Fourth Amendment’s probable-cause requirement.” Gates, 462 U.S. at 239,103 S.Ct. at 2333.

¶5Gatesthus 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 [search and/or] arrest, and then asking Vhether these historical facts, viewed from the standpoint of an objectively reasonable police officer,’ amount to probable cause.” White, 549 F.3d at 950 (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 1661-62, 134 L.Ed.2d 911 (1996)). In short, 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; see McGuire, 31 Va.App. at 595, 525 S.E.2d at 48-49(“Gates opened the door for police officers to establish the credibility of an informer in a variety of ways----” (citation and internal quotation marks omitted)).5

¶6*765Probable cause, in turn, as the GatesCourt reiterated and as the term implies, “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Gates, 462 U.S. at 245 n. 13, 103 S.Ct. at 2335 n. 13; see Jones v. Commonwealth, 277 Va. 171, 178, 670 S.E.2d 727, 731 (2009) (“‘[P]robable cause exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” ’ ” (quoting United States v. Grubbs, 547 U.S. 90, 95, 126 S.Ct. 1494, 1499, 164 L.Ed.2d 195 (2006))); Slayton v. Commonwealth, 41 Va.App. 101, 106, 582 S.E.2d 448, 450 (2003) (“Probable cause relies on a ‘flexible, common-sense standard’ ” and “does not ‘demand any showing that such a belief [regarding criminal activity] be correct or more likely true than false.’ ” (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983))). “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.” Gates, 462 U.S. at 245 n. 13, 103 S.Ct. at 2335 n. 13.

¶7II.

¶8The majority in this case has undertaken an overly “legalistic” review of the facts presented, Derr, 242 Va. at 421, 410 S.E.2d at 666, and, in the process, applied an excessively “rigorous definition of probable cause,” Gates, 462 U.S. at 245 n. 13, 103 S.Ct. at 2335 n. 13, all in contravention to the teaching of Gatesand its progeny. On the facts here presented, I would hold the trial court did not err in finding the police had probable cause for the warrantless search of Byrd’s vehicle and his subsequent arrest, which resulted in his conviction for illegal possession of both drugs and a firearm as a convicted felon.

¶9*766At the suppression hearing, Virginia Beach Police Officer William Canada testified that at approximately 1:00 a.m., he received information from a reliable informant that a drug transaction involving crack cocaine was going to take place in approximately 30 minutes in the parking lot of the Harris Teeter grocery store located at 29th and Arctic Boulevard in Virginia Beach. The informant told Canada that a green four-door vehicle occupied by two people, a black male and a black female, was going to pull into the parking lot. 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.

¶10Canada testified that he had worked with the informant for approximately eighteen months. More specifically, the informant had been a “confidential informant” for six months prior to the subject incident; 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 reliable.

¶11As to the subject incident, consistent with the informant’s tip, Canada and two other officers observed a green four-door vehicle pull into the Harris Teeter parking lot at about 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—this latter development being in variance with what the informant had expected, having indicated that a drug transaction would take place in the parking lot. Less than two *767minutes later, however, Byrd exited the store empty-handed. He then got into the waiting vehicle, and the two suspects drove away.

¶12The officers subsequently stopped and searched the vehicle in which Byrd was a passenger and recovered the loaded nine-millimeter handgun that led 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.

¶13In view of the totality of the circumstances presented to the police at the time they stopped and searched Byrd’s vehicle, I do not believe this Court can conclude, as a matter of law, that the police lacked probable cause to conduct the search. That is, I do not agree with the majority that we can say, under the circumstances, no reasonable police officer could have believed there was a fair probability that criminal activity was afoot.

¶14Upon reviewing similar circumstances involving a confidential informant, even in certain instances where the police had no prior history with the informant, courts in a number of other jurisdictions have concluded that the police had probable cause for executing a warrantless search and/or arrest. See, e.g., United States v. Gagnon, 373 F.3d 230, 232-38 (2d Cir.2004) (informant, previously unknown to the police, but cooperating after being apprehended for possession of a large quantity of marijuana, advised that Gagnon would be arriving at a certain date, time, and location, driving a tractor trailer with the name “Lanfort” on the side of the trailer, for the purpose of receiving the shipment of marijuana located in the informant’s trailer); United States v. Marchena-Borjas, 209 F.3d 698, 699-700 (8th Cir.2000) (a reliable informant advised that a named Hispanic male was in possession of methamphetamine at a certain trailer park, and would be delivering it at a certain time to a certain location, driving a silver Oldsmobile mini-van with Nebraska license plates); United States v. Miller, 925 F.2d 695, 696-700 (4th Cir.1991) (informant, previously unknown to the police but providing information to gain leniency on pending charges, advised that Miller would be *768arriving at the bus station on a certain day wearing blue jeans and a blouse, carrying a brown tote bag, and would be in possession of drugs); Williams v. Commonwealth, 147 S.W.3d 1, 6-8 (Ky.2004) (reliable informant advised police that a black male, who would be in possession of crack cocaine, would be driving a blue El Camino to a certain apartment complex and picking up another black male); State v. Abbott, 277 Kan. 161, 83 P.3d 794, 796-98 (2004) (reliable informant advised that Abbott would be traveling in a two-tone van to a certain location, giving the date and time, to purchase methamphetamine); State v. Munson, 594 N.W.2d 128, 132-37 (Minn.1999) (reliable informant advised that “in 1 1/2 to 2 hours a rented, green 1996 ‘Bronco or Jeep type vehicle’ with Minnesota license plates” would arrive at a certain location occupied by three African-American males, and the vehicle would contain a large quantity of crack cocaine); Commonwealth v. Bakoian, 412 Mass. 295, 588 N.E.2d 667, 668-72 (1992) (reliable informant advised that Bakoian and another named individual, traveling in a black Thunderbird with a beige roof bearing a Massachusetts license plate, would “soon” arrive at a certain location with a shipment of heroin).

¶15III.

¶16While concluding the police did not have probable cause to conduct the search of Byrd’s vehicle in this case, the majority acknowledges that the confidential informant “was reliable.” The majority nevertheless discounts the informant’s degree of reliability because there was no testimony that the informant’s tips to the police over the period of approximately eighteen months—all of which were reliable—ever resulted in a conviction. Yet, what we do know is that the informant’s tips resulted in the execution of twelve search warrants, seizures of large quantities of money, drugs, and firearms, and a number of arrests, which was more than sufficient to establish the informant as a highly reliable source of information. As stated in United States v. Johnson, 351 F.3d 254, 259 (6th Cir.2003), even if “previous successful searches based on [the informant’s] statements had not led to successful prosecutions, *769this would by itself not have thrown any doubt on the reliability or truthfulness of the informant,” as the “mere fact that contraband was discovered where he claimed it was going to be discovered is sufficient indicia of his reliability.” See United States v. Angulo-Lopez, 791 F.2d 1394, 1397 (9th Cir.1986) (“If the informant has provided accurate information on past occasions, he may be presumed trustworthy on subsequent occasions,” and “the inference of trustworthiness is even stronger” if “the information provided in the past involved the same type of criminal activity as the current information.” (citations omitted)).

¶17As Professor LaFave explains:

Courts have consistently held that an informant’s track record is sufficiently established by a showing (i) that on one or more prior occasions the informant indicated that a certain object, usually narcotics, but sometimes such other items as stolen property, counterfeit money, or even the body of a homicide victim are concealed at a certain place, and (ii) the information was verified as true by a search which uncovered the specified items at the place indicated. This is a sound result, for the fact that evidence was turned up which the informant indicated would be turned up bears very directly upon the informant’s credibility---- [A]s a general proposition such a showing may be more convincing than an assertion that the informer’s prior information led to convictions, for—except in those cases where conviction follows from the single fact of a defendant’s possession of a certain object, which the informant may have previously asserted as a fact—a conviction is likely to follow from an accumulation of several facts above and beyond those communicated by the informant.

¶182 Wayne R. LaFave, Search and Seizure § 3.3(b), at 116 (4th ed. 2004) (footnotes and internal quotation marks omitted); see Sexton v. State, 397 A.2d 540, 546 (Del.1979) (“The test for determining the reliability of an undisclosed informant is not his record in aiding arrests or convictions, but whether his information has ever been verified in the past.”); People v. Arnold, 186 Colo. 372, 527 P.2d 806, 809 (1974) (explaining it *770would be “an undue restriction” on the police to require that the informant’s information led to convictions because “[t]he information previously furnished may be in connection with cases not yet tried or may relate to prosecutions dismissed for reasons unrelated to the reliability of the informant’s information”).6

¶19The majority also concludes that the confidential informant did not provide Officer Canada with enough detail to infer that the informant had “personal knowledge of [Byrd’s] criminal activity.” To the contrary, the informant provided critical details “relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted,” Gates, 462 U.S. at 245, 103 S.Ct. at 2335-36; and the Supreme Court has “consistently recognized the value of corroboration of [such] details of an informant’s tip by independent police work” in establishing probable cause. Id. at 241, 103 S.Ct. at 2334.

¶20As outlined above, thirty-five minutes before Byrd’s arrival at the Harris Teeter grocery store located at 29th and Arctic Boulevard in Virginia Beach, the informant accurately advised Canada that Byrd, identified as a black male, would be arriving at that location in approximately thirty minutes, that he would be a passenger in a green four-door vehicle, and that he would be accompanied by a black female, who would be driving the vehicle. The informant also advised that a drug transaction would be taking place in the grocery store parking lot. Canada and two other officers then corroborated all but the latter piece of information, as Byrd quickly entered and exited the grocery store, empty-handed, rather than engaging in a transaction in the grocery store parking lot. The fact that there was a discrepancy with this latter piece of information does not mean that the police should have concluded the *771tip was unreliable. See United States v. Diallo, 29 F.3d 23, 26 (1st Cir.1994) (rejecting contention that informant’s tip was unreliable because he had predicted “there would be three men in a red Toyota [who were going in engage in a drug transaction on a particular night] when in actuality there were four men in two cars” and declaring that “[a] tipster need not deliver an ironclad case to the authorities on the proverbial silver platter” (citation and internal quotation marks omitted)); United States v. Morales, 923 F.2d 621, 625 (8th Cir.1991) (“While Morales was not wearing a black T-shirt at the time of arrest as the informant had predicted, he did arrive at the depot at the appointed time in a red pick-up with a white topper accompanied by a woman.”). Once again, we are to apply a totality-of-the-eireumstances analysis, viewed from the perspective of a reasonable police officer.

¶21Furthermore, the fact that “all of the corroborat[ed] detail ... was of entirely innocent activity” does not diminish its significance. Gates, 462 U.S. at 245 n. 13, 103 S.Ct. at 2335 n. 13. “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.” Id.; see Morales, 923 F.2d at 625 (“[T]he corroboration of minor, innocent details can suffice to establish probable cause.” (citation and internal quotation marks omitted)). Thus, when the officers evaluated the seemingly innocent details of the corroborating information in conjunction with the informant’s history of veracity, they could have reasonably believed that the uncorroborated portion of the informant’s tip, i.e., Byrd’s predicted illegal activity, was also correct. “[Because] an informant is right about some things, he is more probably right about other facts, ... including the claim regarding ... criminal activity.” Gates, 462 U.S. at 244, 103 S.Ct. at 2335 (internal citation and quotation marks omitted); see Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) (discussed at length in Gates, wherein the Court described Draper as the “classic case on the value of corroborative efforts of police officers,” Gates, 462 U.S. at 242, 103 S.Ct. at 2334). In *772addition, as we pointed out in Ramey v. Commonwealth, 35 Va.App. 624, 631, 547 S.E.2d 519, 523 (2001) (quoting Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990)), ‘“[bjeeause only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to have access to reliable information about that individual’s illegal activities.”

¶22Finally, in light of the totality of the circumstances here presented—including the informant’s eighteen-month history of providing accurate information to the police; the informant’s prediction of Byrd’s future behavior; the police’s near-total corroboration of that prediction; the fact that the subject location was known to police as a high drug crime area where numerous narcotics arrests had been made; and the fact that Byrd quickly entered and exited the grocery store empty-handed—I disagree with the majority in terms of the negative weight it attaches to the fact there was no direct evidence of the informant’s basis of knowledge regarding Byrd’s activities. If there is a “strong showing” of “some other indicia of [the informant’s] reliability,” there need not be any indicia of the informant’s basis of knowledge. Gates, 462 U.S. at 233, 103 S.Ct. at 2329. As the Supreme Court explained in Gates, consistent with the “totality-of-the-circumstances analysis,” “a deficiency in [the showing of either the informant’s ‘veracity’ or his ‘basis of knowledge’] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Id.(emphasis added); see 2 LaFave swpra § 3.3(f), at 190 (The GatesCourt “specifically approved of corroboration as a means of overcoming the lack of a more direct showing of an informant’s basis of knowledge.”).

¶23IV.

¶24For these reasons, I would affirm the decision of the trial court in denying Byrd’s motion to suppress the evidence obtained from the search of his vehicle (the firearm) and the custodial search of his person (the cocaine) on the grounds *773that the police had probable cause to search the vehicle, which led to his arrest and custodial search. I would also hold that Byrd’s alternative argument challenging his firearm conviction is barred under Rule 5A:18.