                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Clements and Felton
Argued at Chesapeake, Virginia


GENEARL MELVIN GARY
                                                              MEMORANDUM OPINION* BY
v.     Record No. 0432-03-1                                     JUDGE LARRY G. ELDER
                                                                  DECEMBER 2, 2003
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                               Thomas S. Shadrick, Judge

                 Melinda R. Glaubke (Slipow, Robusto & Kellam, P.C., on brief), for
                 appellant.

                 Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General; Josephine F. Whalen, Assistant Attorney General,
                 on brief), for appellee.


       Genearl Melvin Gary (appellant) appeals from his bench trial convictions for armed

statutory burglary, wearing a mask in public, two counts of robbery, two counts of abduction

with intent to gain pecuniary benefit, and four counts of use of a firearm in the commission of

the abductions and robberies. On appeal, he contends his arrest was not supported by probable

cause and, thus, that the trial court erroneously denied his motion to suppress statements he made

to police following that arrest. He also contests the sufficiency of the evidence to prove

abduction for pecuniary benefit. Finally, he contends that using a firearm in the commission of

abduction for pecuniary benefit is not an offense proscribed by Code § 18.2-53.1 and that his

convictions for two such offenses must be reversed.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       We hold that appellant’s arrest was not supported by probable cause. Thus, we reverse

the trial court’s denial of appellant’s motion to suppress his statements. Without reaching

appellant’s other assignments of error, we remand for further proceedings consistent with this

opinion if the Commonwealth be so advised.

       At a hearing on a defendant’s motion to suppress, the Commonwealth has the burden of

proving the challenged action did not violate the defendant’s constitutional rights. Simmons v.

Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989). “[T]he test of constitutional

validity [of a warrantless arrest] is whether at the moment of arrest the arresting officer had

knowledge of sufficient facts and circumstances to warrant a reasonable man in believing that an

offense has been committed.” Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248,

250 (1970). Probable cause to arrest must exist exclusive of the incident search. Carter v.

Commonwealth, 9 Va. App. 310, 312, 387 S.E.2d 505, 506 (1990).

       On appeal, we view the evidence in the light most favorable to the prevailing party, here

the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). “[W]e 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.” McGee v. Commonwealth, 25 Va. App. 193, 198,

487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699, 116

S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996)). However, we review de novo the trial court’s




                                                -2-
application of defined legal standards such as probable cause to the particular facts of the case.1

Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.

       When the factual basis for probable cause is provided by an informer, the informer’s (1)

veracity, (2) reliability, and (3) basis of knowledge are “highly relevant” factors in the overall

totality-of-the-circumstances probable cause analysis. Illinois v. Gates, 462 U.S. 213, 230, 233,

103 S. Ct. 2317, 2328, 2329, 76 L. Ed. 2d 527 (1983).

                [A] deficiency in [either veracity or basis of knowledge] may be
                compensated for, in determining the overall reliability of a tip, by a
                strong showing as to the other, or by some other indicia of
                reliability. If, for example, a particular informant is known for the
                unusual reliability of his predictions of certain types of criminal
                activities in a locality, his failure, in a particular case, to
                thoroughly set forth the basis of his knowledge surely should not
                serve as an absolute bar to a finding of probable cause based on his
                tip. Likewise, if an unquestionably honest citizen comes forward
                with a report of criminal activity--which if fabricated would
                subject him to criminal liability--we have found rigorous scrutiny
                of the basis of his knowledge unnecessary. Conversely, even if we
                entertain some doubt as to the informant’s motives, his explicit and
                detailed description of alleged wrongdoing, along with a statement
                that the event was observed first-hand, entitles his tip to greater
                weight than might otherwise be the case.

Id. at 233-34, 103 S. Ct. at 2329-30 (citations and footnote omitted).




       1
           As we have noted previously:

                        This is higher than the standard we apply in reviewing the
                existence of probable cause to support the issuance of a warrant.
                Appellate review of a magistrate’s probable cause determination is
                deferential in nature, and the reviewing court determines whether
                the evidence, viewed as a whole, provided the magistrate with a
                substantial basis for concluding that probable cause existed to issue
                the warrant. See Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct.
                2317, 2332, 76 L. Ed. 2d 527 (1983).

Russell v. Commonwealth, 33 Va. App. 604, 610 n.2, 535 S.E.2d 699, 702 n.2 (2000).
                                           -3-
       “Unlike a tip from a known informant whose reputation can be assessed and who can be

held responsible if her allegations turn out to be fabricated, ‘an anonymous tip alone seldom

demonstrates the informant’s basis of knowledge or veracity.’” Florida v. J.L., 529 U.S. 266,

270, 120 S. Ct. 1375, 1378, 146 L. Ed. 2d 254 (2000) (quoting Alabama v. White, 496 U.S. 325,

329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301 (1990)) (citation omitted). Nevertheless,

situations exist “in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of

reliability to provide [(1)] reasonable suspicion to make an investigatory stop,’ [White,] 496 U.S.

at 327[, 110 S. Ct. at 2414],” id., or (2) probable cause for an arrest or search, Gates, 462 U.S. at

242-46, 103 S. Ct. at 2334-36. The corroboration may be of innocent behavior or details, id. at

243 n.13, 103 S. Ct. at 2335 n.13, but innocent information must be sufficiently predictive so as

to establish “the informer’s knowledge or credibility,” J.L., 529 U.S. at 271, 120 S. Ct. at 1379.

Compare Gates, 462 U.S. at 242-46, 103 S. Ct. at 2334-36 (holding that predictive nature of

detailed tip regarding defendants’ travel plans, coupled with extensive police corroboration of

suspicious circumstances “ordinarily not easily predicted,” provided probable cause for search

warrant for car, despite anonymity of tipster), with White, 496 U.S. at 330-32, 110 S. Ct. at

2416-17 (where anonymous tip predicted that defendant would leave apartment in described car

at specific time and drive with brown attaché case containing cocaine to nearby motel and police

confirmed activities except for defendant’s name and possession of attaché case and cocaine and

stopped defendant “just short of [the specified] [m]otel,” case was “close” but provided

reasonable suspicion for a Terry stop); United States v. Campbell, 920 F.2d 793, 794-97 (11th

Cir. 1991) (holding, under Gates, where reliability of confidential informant not established

independently, that mere confirmation of tip that woman with whom informant allegedly had

been working would arrive in Montgomery with three Mexican males via specified highway in

green-and-white Chevrolet pickup truck with Texas license plates and stop at specified truck stop

                                                -4-
between 11:30 p.m. and 1:00 a.m. may have provided reasonable suspicion for investigatory stop

but did not provide probable cause for arrest or search).

       Here, the anonymous tipster’s basis of knowledge was clear from the tip. He or she

reported having been present when appellant, Travis Saunders, and two other men named Jameel

and Danton viewed a news report regarding the crimes and admitted their involvement. See,

e.g., State v. Smith, 777 A.2d 182, 188 (Conn. 2001) (noting that “informant’s overhearing of the

defendant planning or admitting criminal activity constitute[s] a type of firsthand knowledge . . .

‘highly relevant’ under Gates”). However, this information, standing alone, was insufficient to

provide probable cause for arrest. “The mere fact that a tip, if true, would describe illegal

activity does not mean that the police may make a Terry stop [or an arrest] without meeting the

reliability requirement . . . .” J.L., 529 U.S. at 273 n.*, 120 S. Ct. at 1380 n.*.

       Here, the anonymous informant’s tip was not predictive, and to the extent the record

established partial corroboration of the tip, we hold this corroboration was insufficient to provide

probable cause for appellant’s warrantless arrest. The informer accurately described appellant.

He also accurately indicated appellant lived on Bridle Creek Boulevard, a fact corroborated by

the police information system, Pistol, and brief surveillance of appellant. Finally, he reported

appellant had been present at a particular address on Halter Drive and claimed that, on that

occasion, appellant and several others--including Travis Saunders and two men with the first

names Jameel and Danton--admitted their involvement in the robbery at issue.

       Police surveilled the Halter Road address and confirmed appellant’s presence there on a

subsequent occasion. Police learned that Tiffany Saunders, aunt of Travis Saunders and

appellant, resided at that address.2 Police also obtained partial corroboration from Steven Rivera,


       2
         Detective Primeaux also learned that Michael Cuffee was a participant in the robbery
and that Cuffee was the father of Tiffany Saunders’ baby. However, no evidence established
whether Primeaux learned these things before or after he arrested appellant.
                                              -5-
who was under arrest for driving one of the “get-away” cars at the time the tip was received.3

Rivera said that Travis Saunders, Jameel Cross and three of their associates had committed the

robbery. The victims also reported the perpetrators were five masked men of a specified race,

one of whom carried a small silver .32 caliber handgun, a shell from which was found at the

scene, and a gun matching that description was found in Rivera’s truck when he was arrested.

Thus, Rivera’s statement and the anonymous tip corroborated each other with respect to the

involvement of Travis Saunders and Jameel Cross in the robbery.

       However, only the anonymous tipster named appellant as a participant in the crimes, and

no other evidence sufficiently linked appellant to the events at issue. At least one of the victims

testified she could identify the masked men by their hairstyles and skin color, but the record

contains no indication that she described their hairstyles to Detective Primeaux or that Primeaux

confirmed appellant’s hairstyle matched that of one of the perpetrators before Primeaux arrested

appellant. Further, although two cars were seen leaving the scene of the robbery, no evidence in

the record indicates their make, model or color.4 Thus, no evidence in the record links the green


       3
          We assume without deciding that Rivera’s information naming Travis Saunders and
Jameel Cross was credible. We note, however, that Rivera had already been arrested for his
participation in the offenses when he named Saunders and Cross as participants. The reliability
afforded statements against penal interest may be diminished when such statements are made
after one has been “‘apprehended by the police’” and “‘it has become apparent to them that the
police already know of their own involvement in the serious offense.’” Russell, 33 Va. App. at
615-16, 535 S.E.2d at 704-05 (quoting 2 Wayne R. LaFave, Search and Seizure § 3.3(c), at
124-25, 128 (3d ed. 1996)).
       4
          At the suppression hearing, Detective Primeaux testified merely that his investigation
revealed “two vehicles [were] involved.” No evidence at the suppression hearing established the
color of those two vehicles or any other vehicles seen at or near the scene. Thus, in ruling on the
suppression motion, the trial court mistakenly concluded that, when “[t]he robbery occurred[,]
there were two cars, one of [which] was green.”
        At trial, when Detective Primeaux recounted the details of his interrogation of appellant,
he testified merely that he told appellant a “green-and-black, four-door car” and a black car were
spotted at or near the scene of the robbery. Detective Primeaux never testified and no
substantive evidence in the record indicated that witnesses saw cars matching these descriptions
at the scene.
                                                 -6-
Mitsubishi Mirage or black Honda Accord that appellant drove with some regularity to either of

the cars associated with the robbery.

       In the absence of such evidence, the minimal corroboration for the anonymous tip that

appellant admitted participating in the robbery was insufficient to provide probable cause for

appellant’s warrantless arrest and provided, at most, reasonable suspicion to detain him for

questioning. Compare United States v. Procopio, 88 F.3d 21, 25-26 (1st Cir. 1996) (finding

probable cause supporting issuance of warrant where one informant of unknown veracity said

defendants had committed certain robbery of armored truck, but “information from three other

informants . . . tend[ed] to corroborate” first informant’s story and defendants were known to

have “beg[u]n spending large sums of cash” in months following robbery), with State v. Walker,

584 N.W.2d 763, 768-69 (Minn. 1998) (holding detailed account in anonymous letter of named

persons’ involvement in murder--corroborated only by police investigation showing these were

“actual persons” and that address given for one of them, an “easily ascertainable fact,” was

correct--was insufficient to provide probable cause).

       For these reasons, we hold appellant’s arrest was not supported by probable cause. Thus,

we reverse the trial court’s denial of appellant’s motion to suppress his statements. Without

reaching appellant’s other assignments of error, we remand for further proceedings consistent

with this opinion if the Commonwealth be so advised.

                                                                         Reversed and remanded.




                                               -7-
