Antonious Lamont Clark v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 17, 2001
• Docket: 0581001
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Bumgardner and Senior Judge Hodges Argued at Chesapeake, Virginia

ANTONIOUS LAMONT CLARK MEMORANDUM OPINION * BY v. Record No. 0581-00-1 JUDGE RUDOLPH BUMGARDNER, III APRIL 17, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS H. Vincent Conway, Jr., Judge

Charles E. Haden for appellant.

Stephen R. McCullough, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Antonious Lamont Clark was convicted of possession of

cocaine, possession of marijuana, and possession of a firearm

while in possession of a controlled substance. He contends the

trial court erred in not suppressing evidence seized during

execution of a search warrant at his residence. He argues (1)

the warrant was not supported by probable cause, (2) the facts

used to support the probable cause finding were stale, and (3)

the good faith exception to the exclusionary rule does not

apply. We conclude the search warrant was properly issued and

affirm the convictions.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Detective Wayne A. Sorrell submitted a five-page, typed

affidavit detailing information provided by a citizen-informant

and further developed through his investigation of those

reports. The magistrate found probable cause and issued a

search warrant for the defendant's person and his apartment.

On October 5, 1998, a citizen contacted the Newport News

Police Department and reported that the defendant possessed

cocaine within the past 48 hours. The citizen advised that the

defendant possessed a handgun and had sold drugs at two

specified locations within the city. Acting on the information,

Sorrell two days later sent a reliable informant to the

defendant's address. The informant could not purchase drugs but

reported that a man in the apartment fit the defendant's

description. The man had a violent or threatening manner and

implied he was armed.

On October 9, 1998, the detective again spoke with the

citizen-informant. The citizen had seen the defendant in his

apartment processing cocaine into crack within the last

seventy-two hours. The citizen advised that the defendant

smoked marijuana and had been selling cocaine from his residence

since June 1998. The citizen described the drug activity in the

defendant's neighborhood, named individuals who traded drugs

there, and demonstrated detailed knowledge of drug processing

techniques. Sorrell felt the citizen had extensive knowledge

about the distribution of cocaine. The detective's experience

- 2 - with the drug traffic in that neighborhood conformed with the

citizen's report.

The citizen revealed specific details about the defendant

including his date of birth, length of residence at the

apartment, and the make, model, and year of the car used to

transport drugs. He described exterior damage to the car, named

the owners of the car, and gave their address. The citizen knew

that the defendant's driver's license was suspended and that he

had recently been to court for driving on a suspended license.

Sorrell verified that information through the Division of Motor

Vehicles. He also determined that the defendant's criminal

record, which included drug and firearm offenses and acts of

violence, corresponded with the information provided by the

citizen.

The citizen provided Sorrell with the plan of the

defendant's apartment. It had two floors and a shed. He

advised that the defendant stored drugs in both places and kept

a black 9-millimeter handgun in a black case. The gun was

either beside the defendant's bed, on a dresser in his bedroom,

or on his person. On October 10, 1998, the citizen told Sorrell

that the defendant continued to sell cocaine but was otherwise

unemployed.

The citizen-informant met with the detective and provided

his name, his length of residence in the area, his employment,

and lack of criminal history. Sorrell verified the

- 3 - identification through criminal history and motor vehicle

records. He found no discrepancies.

The information in the affidavit came from a

citizen-informant. While the citizen wished to remain

anonymous, he was anonymous only in not being named in the

affidavit. "Citizen-informants do not carry the same

presumption of reliability as police officers, but less evidence

is required to establish their veracity than that of criminal

informants." Corey v. Commonwealth, 8 Va. App. 281, 287, 381

S.E.2d 19, 22 (1989) (citations omitted). "[W]e will not apply

to citizen informers the same standard of reliability as is

applicable when police act on tips from professional informers

or those who seek immunity for themselves, whether such citizens

are named, . . . or, as here, unnamed." Guzewicz v.

Commonwealth, 212 Va. 730, 735-36, 187 S.E.2d 144, 148 (1972)

(citations omitted).

The detective investigated the defendant's personal data

provided by the citizen and verified specific details. "A

citizen-informant's veracity may be established by . . .

independent police corroboration of the details [they] provided

. . . ." Corey, 8 Va. App. at 287, 381 S.E.2d at 22 (citation

omitted). "[C]orroboration of apparently innocent details of an

informant's report tends to indicate that other aspects of the

report are also correct." United States v. Lalor, 996 F.2d

- 4 - 1578, 1581 (4th Cir.), cert. denied, 510 U.S. 983 (1993)

Much of the information the citizen provided was detail not

easily observed or readily available to the public. It revealed

personal knowledge of, and familiarity with, the defendant and

his activities in his apartment. An assertion of personal

observation is more persuasive than other types of information.

Boyd v. Commonwealth, 12 Va. App. 179, 191, 402 S.E.2d 914, 922

(1991). "[E]ven if we entertain some doubt as to the

informant's motives, his explicit and detailed description of

alleged wrongdoing, along with a statement that the event was

observed first-hand, entitles his tip to greater weight than

might otherwise be the case." Illinois v. Gates, 462 U.S. 213,

234 (1983).

The citizen reported that the defendant was unemployed and

earned his living by selling drugs. On October 9, the citizen

told Sorrell that within the past 72 hours he had personally

observed the defendant processing cocaine into crack. On

October 10, the citizen advised Sorrell the defendant continued

to sell cocaine. The magistrate issued the warrant on October

12, 1998.

"[W]hether probable cause continues to exist at the time

the warrant is executed depends on the length of delay and the

nature of the observed criminal activity, that is, whether the

activity is an ongoing enterprise or an isolated incident."

- 5 - Turner v. Commonwealth, 14 Va. App. 737, 745, 420 S.E.2d 235,

239 (1992) (eleven-day delay in executing warrant for contraband

in residence permissible). In Commonwealth v. Moss, 14 Va. App.

750, 752, 420 S.E.2d 242, 243 (1992), we held that a five-day

delay in executing a search warrant was permissible. Where the

evidence reveals ongoing drug activity, there is "no basis for

deeming that the circumstances providing probable cause for the

search had grown stale by the time the warrant was executed."

Id. at 753, 420 S.E.2d at 243.

Based on the facts in the affidavit, "we find that the

information was not rendered stale by the time frame presented

and, as such, that a substantial basis existed for the

magistrate's determination of probable cause." Tart v.

Commonwealth, 17 Va. App. 384, 389, 437 S.E.2d 219, 222 (1993).

We conclude the magistrate issued the search warrant upon

probable cause and the trial court properly denied the motion to

suppress the evidence seized during its execution.

Affirmed.

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