Leonard Shelton Jackson v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 4, 1997
• Docket: 0036962
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Willis and Elder Argued at Richmond, Virginia

LEONARD SHELTON JACKSON MEMORANDUM OPINION * BY v. Record No. 0036-96-2 CHIEF JUDGE NORMAN K. MOON NOVEMBER 4, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge Maureen L. White (Theodore Tondrowski; Grennan & Tondrowski, on brief), for appellant.

Marla G. Decker, Assistant Attorney General (Richard Cullen, Attorney General; Steven A. Witmer, Assistant Attorney General, on brief), for appellee.

Leonard Shelton Jackson ("Jackson") was convicted of

possession of cocaine with an intent to distribute and

distribution of cocaine, both in violation of Code § 18.2-248.

Jackson contends that the cocaine on which his conviction rests

was illegally seized and, thus, the trial judge erred in

declining to suppress that evidence. Finding no error, we affirm

the convictions.

On May 9, 1995, police officers received a tip from an

informant who had previously provided the police with reliable

information. The informant identified Jackson by name, claimed

he was selling drugs, and predicted where he would be found and

* Pursuant to Code § 17-116.010, this opinion is not designated for publication. the car he would be using. The officers drove to the location

identified by the informant and saw both Jackson and the car

identified by the informant. The officers saw Jackson and Nelson

Washington ("Washington") get into the car, with Washington

driving.

The officers checked the car's license plate number and

discovered that the plates were for a different car owned by

Washington. They also learned that Washington's license was

suspended. The officers stopped the car and told Washington that

his plates were wrong and his license had been suspended. They

also told him that they had been told that the car he was driving

was being used to transport drugs. An officer asked Washington to consent to a search, and he

consented. The officer discovered cocaine on Washington. The

officer then told Jackson why they stopped the car and that they

had information that Jackson was transporting drugs. The officer

asked Jackson to consent to a search, and he consented. The

officer began searching Jackson, but when he reached to search

his pants leg, Jackson ran. The officers apprehended Jackson and

arrested him, discovering cocaine in his pants leg.

In reviewing a trial court's denial of a motion to suppress,

the appellant has the burden to show that, considering the

evidence in the light most favorable to the Commonwealth, the

ruling constituted reversible error. Fore v. Commonwealth, 220

Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980). "`Ultimate questions of reasonable suspicion and

- 2 - probable cause to make a warrantless search' involve questions of

both law and fact and are reviewed de novo on appeal," McGee v.

Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997)

(en banc) (quoting Ornelas v. United States, ___ U.S. ___, ___,

116 S. Ct. 1657, 1659 (1996)), but "we are bound by the trial

court's findings of historical fact unless `plainly wrong' or

without evidence to support them, and we give due weight to the

inferences drawn from those facts by resident judges and local

law enforcement officers.'" Id. at 198, 487 S.E.2d at 261

(citing Ornelas, ___ U.S. at ___, 116 S. Ct. at 1663).

Although the initial search of Jackson was consensual, his

flight implied a withdrawal of consent. Once consent is

withdrawn, the Fourth Amendment is implicated and police are

required to have probable cause to search further. Camden v.

Commonwealth, 17 Va. App. 725, 727-28, 441 S.E.2d 38, 40 (1994);

see Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869,

870 (1992) (citing Florida v. Bostick, 501 U.S. 429, 434 (1991)).

After verifying the reliable informant's identification of

Jackson, his location, and the car he was using, the officers

searched Jackson's companion, Washington, and found cocaine.

Jackson then consented to a search. When Jackson fled, he

impliedly withdrew consent. Nevertheless, the officers'

verification of the informant's information, their discovery of

Washington's possession of cocaine, and, most importantly,

Jackson's flight, together gave the officers probable cause to

search Jackson. Compare McGee, 25 Va. App. at 203, 487 S.E.2d at

- 3 - 264 (holding that police lacked probable cause to search because

informant was an anonymous tipster, no evidence established the

reliability of the tipster, and the police did not observe any

suspicious conduct), with James v. Commonwealth, 8 Va. App. 98,

101-02, 379 S.E.2d 378, 380 (1989) (noting that flight helps

support a finding of probable cause), and Quigley v.

Commonwealth, 14 Va. App. 28, 33 nn.5-6, 414 S.E.2d 851, 854

nn.5-6 (1992) (noting that fight alone may constitute

"`"reasonable suspicion" when made in the face of lawful

authority'" and can "`color[] conduct which hitherto had appeared

innocent'") (quoting United States v. Lane, 909 F.2d 895, 899 (6th Cir. 1990), cert. denied, 498 U.S. 1093 (1991)).

For the foregoing reasons, we affirm.

Affirmed.

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