Washington v. Commonwealth

496 S.E.2d 135, 26 Va. App. 657, 1998 Va. App. LEXIS 120
CourtCourt of Appeals of Virginia
DecidedFebruary 24, 1998
DocketRecord No. 0230-96-2
StatusPublished
Cited by4 cases

This text of 496 S.E.2d 135 (Washington v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Washington v. Commonwealth, 496 S.E.2d 135, 26 Va. App. 657, 1998 Va. App. LEXIS 120 (Va. Ct. App. 1998).

Opinions

BENTON, Judge.

Welford V. Washington was convicted of possession of heroin and possession of cocaine. See Code § 18.2-250. Contending that he was illegally seized and that the police unlawfully entered his home, Washington argues that the trial judge erred in denying his motion to suppress. We agree and reverse his convictions.

I.

The evidence proved that on August 30, 1995, a bondsman telephoned Officer Michael Moore and asked Officer Moore to meet him at the 2000 block of Mecklenburg Street. Officer Moore testified that the bondsman received a tip from an informant that Reginald Ford, for whom a capias had been issued, could be found at 2347 Bethel Street. Officer Moore testified that he verified that a capias was outstanding, that he did not obtain a copy of the capias, and that he believed Ford “had either jumped or was about ready to jump [bail].” [660]*660Officer Moore also testified that he had not checked to determine Ford’s address and did not have a physical description of Ford. Only the bondsman could recognize Ford.

At 10:30 a.m., Officer Samuels and Sergeant Kemp met Officer Moore and the bondsman at 2347 Bethel Street, Washington’s residence. Officer Samuels testified that he was told that Ford “was supposed” to be in the residence. He knew only Ford’s name. He did not have a physical description of Ford, and he had no information concerning the capias. He had not been told that Ford was dangerous, but he testified that he “take[s] everybody to be dangerous.”

Officers Samuels and Kemp went to the back door of Washington’s residence. Officer Moore and the bondsman went to the front door. Officer Moore knocked on the front door for a “[c]ouple of minutes.” Moore did not see anybody look out of a window.

Officer Samuels testified that he heard Officer Moore knocking on the front door. Three to four seconds after the knocks began, Washington opened the back door and stepped out. Officer Samuels testified that Washington opened the door “rather fast.” Samuels placed his hands on Washington and said, “Mr. Ford.” Washington replied, “[N]o. I’m Welford Washington.” Officer Samuels then frisked Washington and asked Washington for identification. Washington said his driver’s license was inside the residence and turned to go inside. Officer Samuels went into the house in front of Washington. Officer Kemp followed. When Officer Samuels entered the kitchen, he saw “syringes with cocaine and heroin” residue and baggies of white powder and he arrested Washington. Ford was not in the residence.

Washington contended the officers unlawfully entered his residence without a search warrant in violation of the Fourth Amendment. The trial judge denied the motion to suppress the seized evidence.

II.

To justify a Terry stop, a “police officer must be able to point to specific and articulable facts which, taken together [661]*661with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). When a stop is based on an informant’s tip, the “informant must provide some basis for his knowledge [of the facts he reported] before the police officer relies upon it as being reliable enough to support an investigatory stop.” Beckner v. Commonwealth, 15 Va.App. 533, 537, 425 S.E.2d 530, 533 (1993). In addition, “[significant aspects of the informer’s information must be independently corroborated ... to give ‘some degree of reliability to the ... allegation’ of the informant.” Bulatko v. Commonwealth, 16 Va.App. 135, 137, 428 S.E.2d 306, 307 (1993) (quoting Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990)). On appeal, we review de novo the trial judge’s determination that reasonable suspicion existed to stop Washington. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).

We hold that the police officers lacked a reasonable suspicion that Ford was at 2347 Bethel Street, that Washington was Ford, or that Washington was engaging in criminal activity. The evidence proved that Washington resided at 2347 Bethel Street. The police learned from the bondsman that an unidentified informant said Ford could be found at that address. No evidence established the basis of the unknown informant’s asserted knowledge that Ford could be found at Washington’s residence. Moreover, no evidence established that either the informant or the bondsman was a reliable informant. Indeed, none of the officers attempted to corroborate the tip by determining Ford’s address or by determining who resided at 2347 Bethel Street. Because neither the informant’s reliability nor the basis for the informant’s knowledge was established, the officers lacked a reasonable suspicion to believe that Ford was in the residence at 2347 Bethel Street. See McGee v. Commonwealth, 25 Va.App. 193, 203, 487 S.E.2d 259, 264 (1997) (en banc). See also State v. Rubert, 46 Or.App. 843, 612 P.2d 771 (1980).

[662]*662Officer Samuels lacked a reasonable suspicion to believe that Washington was Ford. The uncontroverted testimony of Officer Samuels and the other officers established that none of the officers had a physical description of Ford. Officer Samuels simply speculated that Washington might be Ford. The uncorroborated, unsubstantiated informant’s tip was not enough, alone, to provide Officer Samuels with reasonable suspicion to believe that any man who was in the residence was Ford. Furthermore, Washington promptly identified himself to Officer Samuels by stating that his name was Welford Washington.

Finally, the fact that Washington opened the rear door of the residence after Officer Moore knocked on the front door is insufficient to justify a stop of Washington. No evidence proved that the officers announced their presence or that Washington knew the police were at the door. Washington testified that he opened the rear door because he believed the knock was at that door. Even if Officer Samuels suspected that Washington intended to flee, “flight alone may not supply sufficient reason to suspect a person of criminal activity.” Buck v. Commonwealth, 20 Va.App. 298, 303, 456 S.E.2d 534, 536 (1995). Washington’s appearance at the rear door could give rise “to no more than an ‘inchoate and unparticularized suspicion or “hunch” ’ ” about his intention. Deer v. Commonwealth, 17 Va.App. 730, 736, 441 S.E.2d 33, 37 (1994) (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883). In the absence of any particular information, Officer Samuels lacked a reasonable articulable suspicion that Washington, when he opened the door, was involved in a criminal offense or that he was armed and dangerous.

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Related

Commonwealth v. Davis
53 Va. Cir. 140 (Fairfax County Circuit Court, 2000)
Washington v. Commonwealth
509 S.E.2d 512 (Court of Appeals of Virginia, 1999)
Washington v. Com.
509 S.E.2d 512 (Court of Appeals of Virginia, 1999)

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Bluebook (online)
496 S.E.2d 135, 26 Va. App. 657, 1998 Va. App. LEXIS 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-commonwealth-vactapp-1998.