Brandon Dajuan Anthony v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: September 3, 2024
• Docket: 1000231
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Fulton, Lorish and White Argued at Norfolk, Virginia

BRANDON DAJUAN ANTHONY MEMORANDUM OPINION* BY v. Record No. 1000-23-1 JUDGE JUNIUS P. FULTON, III SEPTEMBER 3, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Gary A. Mills, Judge

Charles E. Haden for appellant.

Suzanne Seidel Richmond, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

The trial court convicted Brandon Dajuan Anthony on his conditional guilty pleas of

possession of a firearm after being convicted of a violent felony and possession of a Schedule I

or II controlled substance. On appeal, he argues the trial court erred by denying his motion to

suppress evidence police obtained during a warrantless seizure and search of his person. Finding

no reversible error, we affirm the trial court’s judgment.

BACKGROUND1

On December 19, 2019, Newport News Police Officer Thomas Allen received a call from

another officer relaying a tip from a confidential informant, who reported that there were two armed

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 “When considering a challenge to the denial of a motion to suppress [on appeal], we ‘view the evidence in the light most favorable to the prevailing party, the Commonwealth, with all inferences fairly deducible from that evidence accorded to the Commonwealth.’” Parady v. Commonwealth, 78 Va. App. 18, 24 n.1 (2023) (quoting McArthur v. Commonwealth, 72 Va. App. 352, 359 (2020)). men in a car parked outside a convenience store. The informant described the car’s color and

license plate number and said that one of the men was a convicted felon and both “were in

possession of concealed handguns.”

In response to the call, Officer Allen and his partner, Officer Nemanja Bogdanovic, drove to

the store wearing police uniforms displaying their badges of authority. A car matching the

informant’s description was parked nearby. Two other officers had arrived already and were

speaking to the car’s driver and sole occupant, a black male.

Assuming that the driver of that vehicle was one of the suspects described in the tip, Officers

Allen and Bogdanovic went inside the store to search for his “missing” passenger. Five men were

inside the store. One of the men, Anthony, was standing near “the back” holding a cell phone to his

ear with his right hand. Allen and Bogdanovic approached Anthony because they saw him

repeatedly “glancing” at them “out of the corner of his eyes.” Allen walked behind Anthony while

Bogdanovic approached Anthony from the opposite direction. Anthony walked away from Officer

Allen at what he described as “an L.” When Bogdanovic approached him from the opposite

direction, Anthony “backpedaled” and walked down a different aisle. As he did so, the officers saw

Anthony’s “left hand” move toward a shelf containing bags of chips. The bags moved and the

officers heard a “loud clanking sound” like “a hard object making contact with the shelf” directly

beneath Anthony’s hand. Officer Allen went to the shelf and saw a “black firearm” lying there.

The officers handcuffed Anthony and said that he was “being detained.” Officer

Bogdanovic accused Anthony of having possessed the firearm. About a minute later, after receiving

Miranda v. Arizona, 384 U.S. 436 (1966), warnings and confirming he understood his rights,

Anthony said that he previously had been convicted of robbery. Officer Bogdanovic searched

Anthony and found “suspected narcotics” in Anthony’s pants pocket. The officers formally placed

Anthony under arrest and transported him to jail, where he was charged with possession of a firearm

-2- after being convicted of a felony and possession of a concealed weapon. Subsequent forensic

testing confirmed that the suspected narcotics found in Anthony’s pocket contained heroin, a

Schedule I controlled substance.

A grand jury indicted Anthony for possession of a firearm after being convicted of a violent

felony, simultaneous possession of a firearm and a Schedule I or II controlled substance, possession

of a Schedule I or II controlled substance, and possession of a concealed weapon. Before trial,

Anthony moved to suppress the firearm and drugs, arguing that they were the fruit of an

unconstitutional seizure. At the hearing, the Commonwealth introduced a video from Officer

Bogdanovic’s body-worn camera depicting Anthony’s arrest.2 Officers Allen and Bogdanovic

testified that they went to the store in response to an informant’s tip, but neither officer described the

basis of the informant’s knowledge or history of reliability. The officers acknowledged that when

they searched the store for the second suspect, they “didn’t know who [they] . . . were looking for.”

The officers also acknowledged that they had assumed that Anthony was one of the men described

in the tip based solely on his nervous demeanor. Neither officer knew Anthony’s identity when

they handcuffed him; nor did they receive any information from the informant indicating that

Anthony, specifically, was ineligible to possess a firearm or did not have a concealed weapon

permit. Officer Allen testified that he and Bogdanovic originally had intended merely to “speak to”

Anthony, but they detained him for further investigation once they heard him discard the firearm.

Allen confirmed that the officers did not issue any commands to Anthony until they handcuffed

him. Neither officer saw a firearm on Anthony’s person during their investigation.

2 The video does not show Anthony discard the firearm because items inside the store obstructed the view of Officer Bogdanovic’s body-worn camera. At the suppression hearing, Officer Bogdanovic explained that he could see Anthony’s upper body and left arm move toward the shelf where Officer Allen found the firearm because the officer’s “eyesight was really higher than the [body-worn] camera,” which was on the collar of his uniform. -3- Anthony argued that the officers effectuated an unlawful de facto arrest by handcuffing him

in the store without “probable cause to arrest or a reasonable articulable suspicion of criminal

activity.” He asserted that the informant’s tip did not create the requisite suspicion to justify the

seizure because it was “unreliable hearsay” and there was no evidence demonstrating the basis of

the informant’s knowledge. In addition, Anthony emphasized that neither officer knew his identity

or had any information regarding his status as a convicted felon or whether he possessed a valid

concealed weapon permit. Anthony asserted that the officers did not see him commit any criminal

offense or engage in any conduct connecting him to the tip.

Following argument, the trial court found that “once he laid that gun on the shelf,” Anthony

violated Code §§ 18.2-56.1 and -56.2, prohibiting reckless handling of a firearm and reckless

handling of a firearm endangering children, respectively, by placing his firearm in an area accessible

to the public. Thus, the court held that the officers had probable cause to arrest him for those

offenses when they handcuffed him in the store. Accordingly, the trial court denied Anthony’s

suppression motion. The trial court later convicted Anthony of possession of a firearm after being

convicted of a violent felony and possession of a Schedule I or II controlled substance on his

conditional guilty pleas, preserving his right to appeal the trial court’s denial of his motion to

suppress.3

Adopting his arguments below, Anthony contends on appeal that the trial court erred by

denying his motion to suppress the firearm and drugs because they were the fruit of an unlawful de

facto arrest or detention unsupported by reasonable suspicion or probable cause. He argues that the

record failed to demonstrate that the informant’s tip was reliable or otherwise provided

reasonable suspicion or probable cause to detain him because the informant “was not a

3 The Commonwealth dismissed the related charges of simultaneous possession of a firearm and a Schedule I or II controlled substance, and possession of a concealed weapon. -4- disinterested citizen,” there “were no corroborative facts,” and there were “multiple

African[-]American males inside” the store who may have been the individual the officers were

looking for. Moreover, beyond the informant’s tip, Anthony maintains that the officers “lacked

probable cause or a particularized suspicion of other criminal activity” when they seized him.

He asserts that the officers did not observe him “engage[] in any criminal activity” before they

handcuffed him.

ANALYSIS

The Fourth Amendment protects individuals from unreasonable searches and seizures. U.S.

Const. amend. IV. “[W]arrantless searches [and seizures] are per se unreasonable, subject to a few

specifically established and well-delineated exceptions.” Parady v. Commonwealth, 78 Va. App.

18, 28-29 (2023) (first alteration in original) (quoting Megel v. Commonwealth, 262 Va. 531, 534

(2001)). Police detained and searched Anthony without a warrant, so “the Commonwealth ha[d] the

burden of proving the legitimacy of [the] warrantless search and seizure.” Id. (alterations in

original) (quoting Reittinger v. Commonwealth, 260 Va. 232, 235-36 (2000)). On appeal of the trial

court’s denial of his motion to suppress, however, Anthony “bears the burden of establishing that

reversible error occurred.” Mason v. Commonwealth, 291 Va. 362, 367 (2016) (citing Glenn v.

Commonwealth, 275 Va. 123, 130 (2008)). We are “bound by the trial court’s findings of historical

fact unless ‘plainly wrong’ or without evidence to support them.” Knight v. Commonwealth, 61

Va. App. 297, 305 (2012) (quoting McGee v. Commonwealth, 25 Va. App. 193, 198 (1997) (en

banc)). “[W]e ‘review[] de novo the overarching question of whether a search or seizure violated

the Fourth Amendment.’” Parady, 78 Va. App. at 29 (second alteration in original) (quoting

Williams v. Commonwealth, 71 Va. App. 462, 475 (2020)).

-5- I. The officers had probable cause to arrest Anthony for violating Code § 18.2-308 when they handcuffed him.

“The Supreme Court of the United States has identified two types of seizures of the

person protected by the Fourth Amendment—arrest and investigatory stop.” Baldwin v.

Commonwealth, 243 Va. 191, 195 (1992) (citing Terry v. Ohio, 392 U.S. 1 (1968)). “Whereas

full-scale arrests must be based on probable cause, . . . ‘brief investigatory stops,’ now known as

Terry stops, ‘must be based on specific and articulable facts which, taken together with rational

inferences from these facts, reasonably warrant a limited intrusion.’” Turay v. Commonwealth,

79 Va. App. 286, 297 (2023) (quoting Iglesias v. Commonwealth, 7 Va. App. 93, 99 (1988)).

In his brief, Anthony implies that Officers Allen and Bogdanovic subjected him to a

full-scale arrest by handcuffing him in the store and subsequently reading him Miranda

warnings. Thus, he asserts that the officers needed probable cause to believe he committed, or

was committing, a crime to justify the seizure. Anthony argues that no such probable cause

existed for Officers Allen and Bogdanovic to arrest him for unlawfully possessing a firearm

because they did not know Anthony’s identity when the seizure occurred. He emphasizes the

fact that neither officer knew that Anthony was a convicted felon or whether he possessed a valid

concealed handgun permit until after they had seized him and confirmed his identity. In

addition, Anthony emphasizes that the informant’s tip did not give the officers reasonable

suspicion to detain him because the tip did not disclose Anthony’s identity or otherwise connect

him to criminal activity. We disagree.

Assuming without deciding that Officers Allen and Bogdanovic effectuated a full-scale

arrest when they handcuffed Anthony, accused him of illegally possessing a firearm, and read

him Miranda warnings, the arrest was valid because the officers had probable cause, based on

-6- their observations, to believe that Anthony unlawfully carried a concealed handgun.4,5 “Probable

cause exists when the facts and circumstances within the arresting officer’s knowledge and of which

he has reasonable trustworthy information are sufficient in themselves to warrant a man of

reasonable caution in the belief that an offense had been or is being committed.” Slayton v.

Commonwealth, 41 Va. App. 101, 106 (2003) (quoting Purdie v. Commonwealth, 36 Va. App. 178,

185 (2001)). The probable cause standard is a “‘practical, nontechnical conception’ that deals

with ‘the factual and practical considerations of everyday life on which reasonable and prudent

men, not legal technicians, act.’” Doscoli v. Commonwealth, 66 Va. App. 419, 427 (2016)

(quoting Maryland v. Pringle, 540 U.S. 366, 370 (2003)). “[I]t deals with probabilities and

depends on the totality of the circumstances.” Id. (quoting Pringle, 540 U.S. at 370-71).

Consequently, “reasonable law officers need not resolve every doubt about a suspect’s guilt

before probable cause is established.” Id. (quoting Joyce v. Commonwealth, 56 Va. App. 646,

660 (2010)). In assessing whether an officer had probable cause to arrest a suspect, “a reviewing

court must consider ‘the totality of the circumstances—the whole picture.’” Mitchell v.

Commonwealth, 73 Va. App. 234, 247 (2021) (quoting United States v. Sokolow, 490 U.S. 1, 8

(1989)) (addressing reasonable suspicion).

4 Obviously neither officer had any knowledge at the time as to Anthony’s status as a former felon or whether he had a valid concealed carry permit. However, as the Supreme Court has held previously, this fact is immaterial. See Whitaker v. Commonwealth, 279 Va. 268, 277-78 (2010) (holding “[t]he fact that [the defendant] might not have been convicted on [a] concealed weapons charge . . . on a showing he had a permit d[id] not affect the viability of the probable cause to arrest [him for the offense] in the first instance”). 5 Given this conclusion, we do not address whether, as the trial court found, the officers had probable cause to arrest Anthony for reckless handling of a firearm. See Rickman v. Commonwealth, 294 Va. 531, 542 (2017) (recognizing that the “right-result-different-reason doctrine” is applicable in a case in which the appellate court “express[es] no view on the correctness of the lower court’s rationale”). -7- The Supreme Court has held that when police learned that a suspect had a firearm “in his

pocket,” they had probable cause to arrest him for carrying a concealed weapon. Whitaker v.

Commonwealth, 279 Va. 268, 277-78 (2010). Here, Officers Allen and Bogdanovic received a tip

that a male at the location had a concealed weapon on his person. When Officers Allen and

Bogdanovic entered the store, Anthony repeatedly “glanc[ed]” at them and attempted to avoid them

as they approached him. When he was about to encounter Bogdanovic, Anthony “backpedaled”

and walked down a different aisle. Then, the officers saw Anthony reach toward a shelf with his

left arm and heard a “loud clanking noise.” From his vantage point, Officer Allen saw the firearm

on the shelf where Anthony had reached.6 He then signaled to Officer Bogdanovic, whereafter

Officer Bogdanovic detained Anthony.

It is “universally conceded that the fact of an accused’s flight, escape from custody,

resistance to arrest, concealment, assumption of a false name, and related conduct are admissible

as evidence of consciousness of guilt, and thus of guilt itself.” Palmer v. Commonwealth, 14

Va. App. 346, 348‑49 (1992) (emphases added) (quoting Langhorne v. Commonwealth, 13

Va. App. 97, 102 (1991)). Thus, the tip regarding a concealed weapon,7 Anthony’s evasive

6 Though the officers both had been watching Anthony, neither officer actually observed the firearm until Officer Allen saw it on the shelf. 7 Anthony argues that the tip the officers received did not meet constitutional standards of reliability, as neither officer knew the tipster and the tip itself was hearsay, relayed to Officers Allen and Bogdanovic through another officer. While we agree that the tip, standing alone, may not have been sufficient to satisfy constitutional muster, Illinois v. Gates, 462 U.S. 213, 230 (1983), counsels that we do not analyze this type of evidence in a vacuum, “to be rigidly exacted in every case.” Instead, we deploy a “totality-of-the-circumstances approach,” recognizing that “[i]nformants’ tips doubtless come in many shapes and sizes from many different types of persons” and that “‘like all other clues and evidence coming to a policeman on the scene, [they] may vary greatly in their value and reliability.’” Id. at 231-33 (quoting Adams v. Williams, 407 U.S. 143, 147 (1972)). Accordingly, the fact that Officers Allen and Bogdanovic did not know the identity or reliability of the informant, as well as the fact that the tip was relayed via another officer, while “understood as relevant considerations in the totality-of-the-circumstances analysis,” are not in and of themselves dispositive on the issue of probable cause. Id. at 233. As the court in Gates recognized, “a deficiency in [the tip] may be compensated for, in determining -8- behavior, and his futile attempt to discard and conceal the firearm without attracting attention as

the officers approached him, taken together, provided probable cause that Anthony was carrying

a firearm “hidden from common observation” about his person in violation of Code § 18.2-308

under Whitaker. Accordingly, the officers did not subject Anthony to an unlawful arrest triggering

exclusion of the firearm and drugs as fruit of the poisonous tree.

II. The officers lawfully seized the drugs from Anthony during a valid search incident to arrest.

It is well established that a law enforcement officer may search a person “either before or

after” arresting him “if the search is contemporaneous with the arrest,” and the arrest is supported

by probable cause. Copeland v. Commonwealth, 42 Va. App. 424, 433 (2004) (quoting Italiano v.

Commonwealth, 214 Va. 334, 336 (1973)). After Officers Allen and Bogdanovic lawfully

handcuffed Anthony, as explained above, Bogdanovic promptly searched him and found suspected

narcotics. The officers then formally arrested Anthony and transported him to jail, where he was

charged with possession of a firearm after being convicted of a violent felony and possession of a

concealed weapon, among other offenses. Thus, Officer Bogdanovic seized the drugs from

Anthony during a valid search incident to arrest.

CONCLUSION

In sum, the trial court did not err by denying Anthony’s motion to suppress the firearm

and drugs Officers Allen and Bogdanovic recovered during their investigation because they

the overall reliability of a tip, by a strong showing as to . . . some other indicia of reliability.” Id. (citing Adams, 407 U.S. at 146-47). Here, though the officers had only a hunch or suspicion that an individual inside the store may have been concealing a weapon, and further, that Anthony was indeed that individual, Anthony’s evasive conduct, as well as the unusual “loud clanking noise” heard by Officer Allen and subsequent discovery of the weapon, functioned to corroborate the veracity of the tip, thereby giving rise to probable cause that Anthony had possessed a concealed weapon on his person, and ultimately discarded it on the shelf in order to further conceal it from the police. -9- lawfully arrested Anthony, and then seized the drugs from him during a valid search incident to

arrest. Accordingly, the circuit court’s judgment is affirmed.

Affirmed.

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