Commonwealth of Virginia v. Jermaine Durell Spence

• Court: Court of Appeals of Virginia
• Decided: January 9, 2015
• Docket: 1515141
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Petty and Decker UNPUBLISHED

Argued by teleconference

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION BY v. Record No. 1515-14-1 JUDGE WILLIAM G. PETTY JANUARY 9, 2015 JERMAINE DURELL SPENCE

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH William R. O’Brien, Judge

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellant.

Suzanne Moushegian, Deputy Public Defender (Office of the Public Defender, on brief), for appellee.

This is a pre-trial appeal by the Commonwealth pursuant to Code § 19.2-398. Jermaine

Durell Spence was indicted on April 21, 2014 for possession of a controlled substance with intent to

distribute, in violation of Code § 18.2-248. Spence made a motion to suppress the introduction of

evidence that was discovered when he was detained by the police. The trial court issued a written

opinion granting the motion to suppress. On appeal, the Commonwealth argues that the trial court

erred in ruling that the Commonwealth’s evidence should be suppressed. For the reasons stated

below, we agree and reverse the ruling of the trial court.

I. BACKGROUND

On February 9, 2014, Officer Michelle Schwegler responded to a reported burglary in

progress at the Magnuson Hotel in the City of Virginia Beach. The dispatcher indicated that the

hotel’s front desk clerk had called and relayed information provided by hotel guests. The front

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. desk clerk gave the dispatcher her name and contact phone number, both of which were provided

to Officer Schweiler. According to the guests, two people were banging on the door of room 175

and it appeared that they were trying to break into the room. The suspects were described as a

black male wearing a navy blue hoodie and jeans and a white female wearing a gray sweat suit

and driving a dark SUV. The male suspect came to the front desk and asked the clerk for keys to

the room. The front desk clerk described the male as “very intoxicated and high.”

Officer Schwegler arrived at room 175 within minutes of receiving the call from dispatch.

A black SUV was parked in front of the room. A white female wearing a gray sweatshirt,

matching the description given by the dispatcher, was sitting in the SUV’s driver seat. When

Schwegler asked the female about the male she was with, the female pointed to the open door of

the room.

Officer Schwegler approached the room and saw no signs of forced entry. She stepped

into the open doorway and saw Spence wearing a dark sweatshirt and jeans, matching the

description of the male suspect. Spence’s eyes were “going everywhere,” he appeared

incoherent, he was mumbling, and he had white powder in the corner of his mouth. Schwegler

looked past Spence, into the room, and saw a black female and a white female. The white

female was on her knees with her hands on the desk. She looked very sick, she had a sunken

face, and her mouth was hanging open. Schwegler asked what was going on, but the white

female was unable to respond. Spence and the black female responded that everything was fine.

While Officer Schwegler radioed for medical assistance for the white female, Spence

tried to push past Schwegler through the doorway. The officer put her hand up and told Spence

he needed to wait a second while she figured out what was going on. Spence again tried to push

past her, and a struggle ensued. Schwegler grabbed Spence’s arms and attempted to place him in

handcuffs. As she secured Spence’s right hand with the handcuff, Spence pulled his left hand

-2- out of her grasp and placed it into the left pocket of his sweatshirt. Schwegler grabbed Spence’s

wrist and pulled it out of his pocket because she was worried about what he was trying to get

from his pocket. Spence took a clear plastic bag containing purple and green squares out of his

pocket, tossed the bag on the floor, and said, “that’s on the floor. That can’t be mine.” It was

later verified that the bag contained heroin. The officer then successfully handcuffed Spence.

Spence filed a motion to suppress the evidence resulting from the seizure. At the

suppression hearing, Officer Schwegler testified that, when she attempted to prevent Spence

from leaving, she suspected him of breaking into the hotel room, committing burglary, and

committing trespass. The officer admitted that she did not know who had rented the room. The

trial court issued a memorandum opinion granting the motion to suppress. The trial court found

that the seizure was not a justifiable Terry stop because the officer saw no signs of a burglary at

the scene and the sick female was not unconscious or wounded. The trial court stated that

“although the scene in the room seemed strange, it seemed strange in a way that was not related

to a burglary.” The court found that the only facts giving rise to a suspicion of criminal activity

were the hotel guests’ reports of an attempted break-in and the matching description of the

suspects. However, the court concluded that the front desk clerk was relaying information from

guests and did not have first-hand knowledge of the alleged break-in. Therefore, the court found

that the tip was not reliable enough to justify a Terry stop. The Commonwealth appealed.

II. ANALYSIS

“On appeal of a ruling on a motion to suppress, we view the evidence in the light most

favorable to the prevailing party, here [Spence], granting to the evidence all reasonable

inferences deducible therefrom.” Cherry v. Commonwealth, 44 Va. App. 347, 356, 605 S.E.2d

297, 301 (2004). “‘We are bound by the trial court’s findings of historical fact unless ‘plainly

wrong’ or without evidence to support them.’” Id. (quoting McGee v. Commonwealth, 25

-3- Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc)). But, “we review de novo the trial

court’s application of defined legal standards such as probable cause and reasonable suspicion to

the particular facts of the case.” Id.

The Commonwealth argues that the totality of the circumstances, including the tips of

criminal activity and the officer’s observations at the scene, provided reasonable, articulable

suspicion to justify stopping Spence. The dispatch information bore adequate indicia of

reliability, and an officer need not observe explicitly criminal behavior or suspect a particular

crime to justify the stop. Spence responds that the dispatch information was no more than an

anonymous tip that was not reliable enough to justify the investigatory stop. Further, he argues,

the scene did not show any signs of burglary or other criminal conduct.

“Under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, a police officer ‘may

constitutionally conduct a brief, investigatory stop when the officer has a reasonable, articulable

suspicion that criminal activity is afoot.’”1 Beasley v. Commonwealth, 60 Va. App. 381, 395,

1 In evaluating whether information known to a police officer rises to the level of reasonable suspicion, it is informative to consider the conduct involved in the original Terry stop. In that opinion, the Court described the following conduct by John Terry and his partner in crime Richard Chilton and concluded that it was sufficiently suspicious to warrant Officer McFadden to conduct a “stop and frisk.”

His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet away from the two men. “I get more purpose to watch them when I seen their movements,” he testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately between five and six times apiece — in all, roughly a dozen trips. At one point, -4- 728 S.E.2d 499, 505 (2012) (quoting Bass v. Commonwealth, 259 Va. 470, 474-75, 525 S.E.2d

921, 923 (2000)). “Although a mere ‘hunch’ does not create reasonable suspicion, Terry, 392

U.S. at 27, the level of suspicion the standard requires is ‘considerably less than proof of

wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is necessary for

probable cause, United States v. Sokolow, 490 U.S. 1, 7 (1989).” Navarette v. California, 134

S. Ct. 1683, 1687 (2014). In other words, “[a] ‘reasonable suspicion’ requires only ‘some

minimal level of objective justification’ for making such a stop.” Beasley, 60 Va. App. at 395,

728 S.E.2d at 505 (emphasis added) (quoting I.N.S. v. Delgado, 466 U.S. 210, 217 (1984)).

For a seizure to be reasonable, “the police officer must be able to point to specific and

articulable facts which, taken together with rational inferences from those facts,” justify the

investigatory stop. Terry, 392 U.S. at 21. However, in reviewing the reasonableness of an

investigatory stop, “‘we are not limited to what the stopping officer says or to evidence of his

subjective rationale, rather, we look to the record as a whole to determine what facts were known

to the officer and then consider whether a reasonable officer in those circumstances would have

been suspicious.’” Raab v. Commonwealth, 50 Va. App. 577, 589 n.2, 652 S.E.2d 144, 148 n.2

(2007) (en banc) (quoting United States v. Brown, 232 F. 3d 589 (7th Cir. 2000)). An action can

be reasonable “‘under the Fourth Amendment, regardless of the individual officer’s state of

mind, as long as the circumstances, viewed objectively, justify [the] action.’” Id. (quoting

Brown, 232 F.3d at 594).

while the two were standing together on the corner, a third man approached them and engaged them briefly in conversation. This man then left the two others and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering, and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on Euclid Avenue, following the path taken earlier by the third man.

Terry, 392 U.S. at 6. -5- Furthermore, reasonable suspicion is “based on an assessment of the totality of the

circumstances.” Beasley, 60 Va. App. at 395, 728 S.E.2d at 505 (quoting Harris v.

Commonwealth, 276 Va. 689, 695, 668 S.E.2d 141, 145 (2008)). In other words, law

enforcement must look at the “whole picture.” Navarette, 134 S. Ct. at 1687 (quoting United

States v. Cortez, 449 U.S. 411, 417 (1981)). Whether the totality of the circumstances, viewed

objectively, justified a brief investigatory stop “‘is dependent upon both the content of

information possessed by police and its degree of reliability.’” Id. (quoting Alabama v. White,

496 U.S. 325, 330 (1990)).

Reasonable suspicion can be based on an officer’s personal observations or information

supplied by another. See id. at 1688. However, “to provide reasonable suspicion, either the

informant or information given must exhibit ‘sufficient indicia of reliability’” Giles v.

Commonwealth, 32 Va. App. 519, 525, 529 S.E.2d 327, 330 (2000) (quoting White, 496 U.S. at

326-27). “‘[A]n anonymous tip alone seldom demonstrates the informant’s basis of knowledge

or veracity.’ . . . But under appropriate circumstances, an anonymous tip can demonstrate

‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.’”

Navarette, 134 S. Ct. at 1688 (quoting White, 496 U.S. at 329, 327).

Here, the dispatch information was not a truly anonymous tip like those at issue in White

and its progeny. The tipster in this case was the hotel’s front desk clerk, whose name and contact

information was on the dispatch sheet entered into evidence at the suppression hearing. The

clerk saw and spoke to a male matching the description of the suspect when he came to get a

room key from the front desk. The clerk told the dispatcher that the male was intoxicated and

high. The clerk also relayed information given to her by the hotel guests who had seen the male

suspect banging on the hotel room door. Because the motel clerk was identifiable, the

-6- information she provided was not truly “anonymous” and thus exhibited more reliability than an

anonymous tip.

Furthermore, to the extent that some of the information came from an unnamed motel

guest and could therefore be considered an “anonymous” tip, “‘anonymous [information that

has] been sufficiently corroborated [may] furnish reasonable suspicion . . . [justifying an]

investigative stop.’” Gregory v. Commonwealth, 22 Va. App. 100, 106, 468 S.E.2d 117, 120

(1996) (quoting White, 496 U.S. at 331). In Florida v. J.L., 529 U.S. 266, 268 (2000), the United

States Supreme Court held that an anonymous call, reporting that a young black male wearing a

plaid shirt and standing at a bus stop was carrying a gun, did not justify an investigatory stop.

The caller could not be traced and identified, the call was not recorded, the caller did not state

how he knew about the gun, and there were no other facts giving rise to reasonable suspicion.

Id. The Court held that, without more, a tip cannot give rise to reasonable suspicion of criminal

activity simply because the description of the suspect is accurate. Id. at 271-72 (“[R]easonable

suspicion . . . requires that a tip be reliable in its assertion of illegality, not just in its tendency to

identify a determinate person.”).

By contrast, a tip that bears adequate indicia of reliability in addition to an accurate

description of the suspect may serve as a basis for reasonable suspicion. In Navarette, the tip at

issue bore several other indicia of reliability, including: the specificity of the tip, the eyewitness

knowledge of the tipster, the fact that the tip was made contemporaneously with the observation

of suspicious events, the tipster’s use of the 911 system, and that the tip turned out to be

accurate. 134 S. Ct. at 1688-90. Because of these additional factors indicating reliability, the

Navarette Court held that the 911 call from an eyewitness reporting a specific act of reckless

driving provided reasonable suspicion to justify a traffic stop. Id. at 1692.

-7- Like the tip in Navarette, and in contrast to the tip in Florida v. J.L., the information

provided to the officer here bore numerous additional indicia of reliability. Here, the information

very specifically and accurately described the suspects, their actions, and their location. The

desk clerk and the hotel guests who made reports could be identified, the call was recorded via

the 911 system, and the call was made contemporaneously with the alleged break-in. The hotel

guests observed the suspects banging on the door of the room, and the desk clerk who made the

call observed that Spence was high and intoxicated. Thus, the officer in this case had much more

than just an accurate description of the suspect as a basis for reasonable suspicion.

Furthermore, the officer’s observations of the unusual scene at the hotel room

corroborated the dispatch information and served as an additional basis for the officer’s

reasonable suspicion. Spence and the trial court contend that the officer could not have had a

reasonable suspicion that criminal activity was afoot because there were no signs of burglary at

the scene. However, as the Commonwealth argues, an officer need not observe explicitly

criminal behavior or suspect a particular crime to justify a stop. See Navarette, 134 S. Ct. at

1691; Hatcher v. Commonwealth, 14 Va. App. 487, 490, 419 S.E.2d 256, 258 (1992).

It is well settled that reasonable suspicion “need not rule out the possibility of innocent

conduct.” United States v. Arvizu, 534 U.S. 266, 277 (2002). “While the officer must be able to

articulate more than an ‘inchoate and unparticularized suspicion or ‘hunch,’’ Sokolow and Terry

do not require that the articulable facts show that criminal activity actually is afoot, only that it

may be afoot.” Richards v. Commonwealth, 8 Va. App. 612, 617, 383 S.E.2d 268, 271 (1989).

And, “[t]here may be circumstances where wholly lawful conduct might justify the suspicion that

criminal activity ‘may be’ afoot.” Id. (citing Terry, 392 U.S. at 30; United States v. Sokolow,

490 U.S. 1, 9 (1989)). In other words, “the possibility of an innocent explanation does not

deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.

-8- Indeed, the principal function of his investigation is to resolve that very ambiguity and establish

whether the activity is in fact legal or illegal.” Raab, 50 Va. App. at 581-82, 652 S.E.2d at 147

(quoting 4 Wayne R. LaFave, Search and Seizure § 9.5(b), at 482 (4th ed. 2004)). Thus, the

possibility that Spence and his companions were lawfully in the hotel room did not preclude the

officer from making further investigations.

Furthermore,

an officer need not suspect an individual of a particular crime in order to justify a Terry stop. A general suspicion of some criminal activity is enough, as long as the officer can, based on the circumstances before him at the time, articulate a reasonable basis for his suspicion.

Hatcher, 14 Va. App. at 490, 419 S.E.2d at 258 (1992) (emphasis added); see also Raab, 50

Va. App. at 583 n.2, 652 S.E.2d at 148 n.2 (finding that an officer need not explicitly testify that

a suspect was stopped to investigate a specific crime).

Because a general suspicion of criminal activity is enough, it is inapposite that the officer

here did not see specific signs of forced entry and did not testify that she suspected Spence of

committing a particular crime. Here, the officer had information that Spence appeared to be

intoxicated and high when he went to the front desk. The front desk clerk told the dispatcher that

Spence and another male were seen banging on the door to room 175 and the clerk did not think

that anyone was in that room. Through the open door to the motel room, the officer made

specific and articulable observations of the strange scene before her, including the sick and

unresponsive woman on the floor, Spence’s elusive and incoherent mannerisms, and the white

powdery substance on Spence’s mouth. Viewed objectively, these observations served as the

basis for a reasonable suspicion that a burglary, drug-related crime, or other criminal activity

may have been afoot. In other words, under the totality of the circumstances, an objectively

reasonable officer would most certainly not have walked away from the scene without

-9- maintaining the status quo and conducting further investigation. Simply put, just as Officer

McFadden was justified in seizing John Terry for purposes of a pat down, so to was Officer

Schwegler justified in seizing and detaining Spence in order to confirm or dispel her suspicions

of criminal activity.

Because the seizure was proper under the Fourth Amendment, the trial court erred in

granting Spence’s motion to suppress the evidence.2

III. CONCLUSION

For the foregoing reasons, we reverse the ruling of the trial court and remand the case for

further proceedings.

Reversed and remanded.

2 This Court need not reach the issue of whether the exclusionary rule would apply had the seizure been unlawful because we decide that the seizure was lawful under the Fourth Amendment and the motion to suppress should have been denied. - 10 -