Washington v. Commonwealth

509 S.E.2d 512, 29 Va. App. 5, 1999 Va. App. LEXIS 35

• Court: Court of Appeals of Virginia
• Decided: January 19, 1999
• Docket: Record No. 0230-96-2
• Status: Published

Opinions

BUMGARDNER, Judge.

Welford V. Washington appeals his convictions of possession of heroin and of cocaine. He contends that the trial court erred in denying his motion to suppress evidence found when the police seized him and entered his home. A panel of this Court reversed the convictions. See Washington v. Commonwealth, 26 Va.App. 657, 496 S.E.2d 135 (1998). Upon a rehearing en banc, we affirm his convictions.

Reginald Ford was free on bond, but a felony capias had been issued for his arrest. His bondsman received a tip from an informant that Ford was at 2347 Bethel Street in Richmond, and the bondsman contacted Officer Michael Moore for assistance. Before going to that address, Officer Moore verified that a capias was outstanding, but he did not obtain a copy of the capias. He believed that Ford either had jumped or was about ready to jump bail. Officer Moore did not determine Ford’s residence address and did not have a description of him. The bondsman knew and could recognize Ford.

Two additional officers met Moore and the bondsman at 2347 Bethel Street. The additional officers learned that Ford was supposed to be in the house. They only knew his name and did not have a description. Officer Moore and the bondsman went to the front door, and the other two went to the back door. Moore knocked on the front door, and Officer Samuels, one of the officers at the back door, heard the knocking.

Three to four seconds after the knocking began, the defendant opened the back door “rather fast” and stepped out. Officer Samuels placed his hands on the defendant and asked, “Mr. Ford?” The defendant replied, “[N]o. I’m Welford Washington.” Samuels frisked him and then asked for identification. The defendant said that his driver’s license was inside and turned to go back inside. Samuels stepped in front of him and entered the house first as the second officer followed. As soon as they entered the kitchen, the officers saw cocaine and heroin on the kitchen table. They seized the drugs and arrested Washington. Ford was not in the residence.

The defendant contends the officers violated the Fourth Amendment when they entered his residence without a search warrant. We hold that the officers could go upon the property in search of Ford, that they had reasonable belief the person exiting the house was Ford, and that they could accompany that person back into the house while they completed identifying him. The officers did not violate the defendant’s rights.

The police possessed a capias for Reginald Ford’s arrest. The capias was issued on probable cause, and it required all police officers to arrest Ford if they found him. The bondsman had pledged to produce Ford according to the terms of the bond. The police officers possessed judicially mandated authority to seize Ford while the bondsman had statutory authority to seize and return him to the court. In exercising their authority, either could lawfully approach any citizen and ask if he were Ford or if he had information that would help them find Ford.

The officers did not implicate the Fourth Amendment when they went to 2347 Bethel Street to find Ford. Not every encounter that the police have with a member of the public is a seizure. “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions----” Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (citation omitted). “[0]ur recent decision in Royer ... plainly implies that interrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.” I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984).

Police officers implicate the Fourth Amendment when they seize a person or search a person’s home or effects. A seizure occurs when by physical force or show of authority and submission thereto, an individual’s freedom of movement is restrained and the person is not free to leave. See California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

The critical moment occurred when the defendant stepped out the back door and the police confronted him. The officer seized Washington when he placed his hands on the defendant. At that instant, if the officers had reason to believe that the person was Ford, they had the right to detain that person briefly and to identify him. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Cf White v. Commonwealth, 25 Va.App. 662, 666-67, 492 S.E.2d 451, 453 (1997) (en banc). The issue is whether Officer Samuels had a reasonable suspicion that Reginald Ford was coming out the back door.

We need not address whether the officers believed that criminal activity was occurring. The police were not investigating a crime. The judge who issued the capias determined that the person named in the warrant was engaging in criminal conduct. The officers were executing lawful process, an arrest warrant. Their investigation was to find Ford. When they gathered enough information to develop a reasonable, good-faith belief that they had found Ford, they could seize that person. Since the warrant gave the officers probable cause to arrest, the only issue is whether the officers had a reasonable and good-faith belief that the defendant was Ford. See Shears v. Commonwealth, 23 Va.App. 394, 399, 477 S.E.2d 309, 311 (1996) (citing United States v. McEachern, 675 F.2d 618, 621 (4th Cir.1982)).

The informant’s tip was unsubstantiated information about Ford’s location. “An informant’s tip can provide the justification for a Terry stop even if the informant’s reliability is unknown and certainly can do so if, as here, the information is corroborated.” United States v. Porter, 738 F.2d 622, 625 (4th Cir.), cert. denied, 469 U.S. 983, 105 S.Ct. 389, 83 L.Ed.2d 323 (1984). In this case, the officers raised their level of knowledge to reasonable suspicion by corroborating the tip.

To give the tip some indicia of reliability, the officers needed only to verify that the person detained was reasonably believed to be the person whom they were to arrest pursuant to the capias. Anonymous information sufficiently corroborated may give reasonable suspicion for an investigative stop although the unverified tip by itself would not justify a forcible stop. See Alabama v. White, 496 U.S. 325, 331, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

Partial corroboration has always been available to bolster the reliability of a tip and increase the accumulated knowledge to the level of reasonable suspicion. If partial corroboration can raise an unreliable tip to the point that it provides probable cause, see Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Illinois v. Gates, 462 U.S. 213, 246, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Alabama v. White, 496 U.S. at 331, 110 S.Ct. 2412, it can raise such a tip to the point it provides reasonable suspicion.

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

Alabama v. White, 496 U.S. at 330,110 S.Ct. 2412.

Corroboration of the informant’s tip could have been accomplished many ways. In this case, Moore verified that there was a capias for Ford, and he took the bondsman who could identify Ford on sight with him. They went to the house to see if Ford was there. The fugitive warrant gave the officer reason to suspect that the person might flee. As soon as they knocked on the front door, someone exited the back door rather fast. A reasonable person could believe that these were the acts of a person trying to flee the police. The police were looking for just such a person at this address. The defendant’s reaction to the police knocking at the door provided articulable facts that corroborated the tip and raised Offlcer Samuels’ accumulated knowledge to the level of reasonable suspicion.

A single instance of attempted flight or furtive behavior by a suspect is suggestive of guilt and provides a significant reason to believe that the informant was correct and that Reginald Ford was at the specified address. See Gregory v. Commonwealth, 22 Va.App. 100, 109, 468 S.E.2d 117, 121 (1996) (“defendant’s ... behavior tended to support informer’s report”). “[D]eliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.” Sibron v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

If articulable facts support a reasonable suspicion that a person has committed a criminal offense, the police may stop that person to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information. See Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985). “A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (citations omitted).

Officer Samuels had reasonable suspicion that Ford was the person coming out the back door. He had the authority to detain briefly the person whom he suspected was Ford and to confirm his identity. Although Washington gave his name, the officer was entitled to verify this statement. See Terry, 392 U.S. at 21-22, 88 S.Ct. 1868; Jones v. Commonwealth, 230 Va. 14,19, 334 S.E.2d 536, 540 (1985) (questions about identity did not end when officer was handed identification card that appeared to have been tampered with).

The next question is whether Samuels could accompany Washington inside the dwelling without a search warrant. “[Warrantless entries into dwellings, followed by ... arrests therein, ..., are presumed to be unreasonable, in Fourth Amendment terms, casting upon the police a heavy burden of proving justification by exigent circumstances.” Verez v. Commonwealth, 230 Va. 405, 410, 337 S.E.2d 749, 752-53 (1985) (citations omitted), cert. denied, 479 U.S. 813, 107 S.Ct. 63, 93 L.Ed.2d 21 (1986). See Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

One of the situations that has been held sufficient to justify a warrantless intrusion upon a citizen’s personal privacy is that “[o]nce an officer has lawfully stopped a suspect, he is ‘authorized to take such steps as [are] reasonably necessary to protect [his and others’] personal safety and to maintain the status quo during the course of the stop.’ ” Servis v. Commonwealth, 6 Va.App. 507, 519, 371 S.E.2d 156, 162 (1988) (alteration in original) (quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)). As we noted in Servis, relying upon Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), frisking for weapons based upon the exigency of protecting an officer’s safety is not limited to a pat-down of the suspect but may extend to nearby vehicles, as in Long, or rooms or premises to which the suspect may retreat to secure a weapon, as in Servis. See 6 Va.App. at 520, 371 S.E.2d at 162-63.

Once the officer had reason to stop and identify the defendant, he could stay with the defendant to keep him in sight. See id. at 519, 371 S.E.2d at 162. This protects the police, an important consideration during any investigatory detention. It also maintains the status quo.

Officer Samuels knew that Ford was a fugitive wanted for a crime. He detained the person he reasonably suspected was trying to evade the officers at the front door. The officer could not reasonably be expected to allow that person to reenter the premises alone. Although Samuels could not have entered the premises to search for weapons or contraband, he could accompany the suspect inside solely to maintain the status quo and ensure the officers’ safety. See id.

Samuels reasonably suspected that Washington was Ford, a person for whom he possessed a capias as a fugitive. Thus, not only could Samuels enter the premises to maintain a safe situation while identifying the person, Samuels could enter the premises to prevent the suspected fugitive from escaping. Cf United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) (officer had right based on exigencies of situation to pursue individual into private premises without a search warrant where officer had set in motion an arrest outside). The subject of an arrest warrant can be seized before entering or after leaving the home of a third party. See Steagald v. United States, 451 U.S. 204, 221, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). The threshold of one’s home may be private under the common law of property, but it is a “public place” when interpreting the Fourth Amendment. See Santana, 427 U.S. at 42, 96 S.Ct. 2406.

That Samuels could have taken the defendant around to the front door or had the bondsman come to the back door to identify defendant does not detract from the propriety of what he did. “The reasonableness of the officer’s decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques.” United States v. Sokolow, 490 U.S. 1, 11, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). “[Defining what means are ‘least intrusive’ is a virtually unmanageable and unbounded task.” United States v. Sharpe, 470 U.S. 675, 694, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (Marshall, J., concurring). When “evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria.” Id. at 685, 105 S.Ct. 1568. The test is whether the police methods were calculated to confirm or dispel the suspicion quickly and with minimal intrusion upon the person detained. See Thomas v. Commonwealth, 16 Va.App. 851, 856-57, 434 S.E.2d 319, 323 (1993).

Officer Samuels possessed reasonable suspicion to detain the person he reasonably thought was Ford while verifying his identity. Samuels had the right to accompany Washington into the home to prevent him from fleeing and to ensure the officers’ safety. The contraband was not the fruit of an illegal entry or illegal search because the officers immediately observed it in the kitchen in open view. We affirm the trial court’s decision.

Affirmed.