                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Humphreys
Argued by teleconference


COMMONWEALTH OF VIRGINIA

v.   Record No. 0876-02-1

LOUVIERE CRADLE
                                        MEMORANDUM OPINION * BY
                                      JUDGE ROBERT J. HUMPHREYS
COMMONWEALTH OF VIRGINIA                   OCTOBER 8, 2002

v.   Record No. 0877-02-1

LOUVIERE CRADLE


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Von L. Piersall, Jr., Judge

          Marla Graff Decker, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on briefs), for appellant.

          S.H. Weaver, Jr., for appellee.


     Pursuant to Code § 19.2-398, et seq., the Commonwealth of

Virginia appeals orders of the trial court suppressing evidence

found by police during a search of Louviere Cradle's vehicle.    The

suppressed evidence relates to Cradle's indictment for possession

of cocaine with intent to distribute, possession of cocaine with




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
intent to distribute on school property, and possession of a

firearm while in possession of cocaine.1   For the reasons that

follow, we affirm the decision of the trial court.

                            Background

     During the hearing on Cradle's motion to suppress the

evidence, Detective L. Defredas, of the Portsmouth Police

Department, testified that on June 21, 2001, at approximately

7:15 p.m., he received a telephone call on his cellular phone

from a confidential informant.    The informant told Defredas that

ten minutes prior to making the telephone call, he had observed

an individual he referred to as "Big" in possession of, and

selling, crack cocaine from a burgundy Volvo.    The informant

gave Defredas the license plate number of the Volvo and told him

that "Big" was driving the Volvo and that there were three other

individuals in the car.   The informant described "Big" as a

"heavy-set black male with medium brown skin and dreads," and



     1
       Although each of the charges against Cradle originates
from the same set of circumstances, the indictment for
possession with intent to distribute was issued separate and
apart from the indictment against Cradle for possession with
intent to distribute on school property, and possession of a
firearm while in possession of cocaine. Thus, two separate
cases are pending against Cradle, Circuit Court Case Numbers
CR01-2632 and CR01-2633. However, the record reflects that the
matters were consolidated by the trial court for purposes of the
hearing on the motion to suppress, and its resulting orders
suppressing the evidence. Therefore, the Commonwealth filed a
petition for appeal in both matters. Since the factual
circumstances underlying the motion and the trial court's
decision in each matter are identical, we likewise, consolidate
the appeals.

                                 - 2 -
told Defredas that "in thirty minutes[, 'Big'] would be pulling

up to 45 East Pollux Circle."   "[A]t that point [the individuals

in the car] would be selling crack to two individuals who were

meeting ['Big'] there."   Finally, he informed Defredas that the

contraband would be "on ['Big']."

     However, on cross-examination, there was some dispute as to

whether Defredas had testified during the preliminary hearing that

the informant told him how he knew Cradle would have drugs on his

person.   There was also some dispute as to whether Defredas had

testified at the preliminary hearing that the informant had told

him the location was "East Pollux," as opposed to "West Pollux,"

and whether the informant had told him Cradle was going to that

location for the purpose of selling drugs.

     Defredas testified that he knew "Big" to be Louviere Cradle. 2

He further testified that the confidential informant had been

arrested in Portsmouth and charged with possession of drugs with

intent to distribute, as well as possession of a firearm.   He had

been providing information to the police concerning drug activity

in Portsmouth "with a view to [sic] helping reduce his charges,"

and had been giving Defredas information for about "[f]our to six

weeks" prior to the date of the telephone conversation at issue.




     2
       Defredas testified that the informant referred to Louviere
Cradle as William Cradle. It was later determined that Cradle
often used the name of his brother, "William Cradle," and that
Cradle had used his brother's name in this instance.

                                - 3 -
Defredas stated that he had been able to substantiate information

provided by the informant on "four or five occasions."

Nevertheless, the informant had not provided information that had

led to an arrest in Portsmouth, nor had he provided information

that had yet led to the discovery of illegal drugs. 3

     Defredas testified that he was off-duty and with his

children at the time he received the informant's telephone call.

He contacted Officer Vicky Miller, who was working uniform

patrol at the time, and relayed "the information to her in

relation to Mr. Cradle and where he would be going, what he

would be driving, his description, and that there would be three

other people in the vehicle."   Defredas denied having received

"any information . . . with respect to safety issues" from the

informant and denied having relayed such information to Officer

Miller.

     Officer Miller testified that Defredas called her on her

cellular phone at approximately "ten minutes to eight" that

evening.   She stated that Defredas told her

           [t]hat an individual that went by the
           nickname of Big named William Cradle who
           would be a large, heavy-set black male with
           dreads would be driving a burgundy Volvo
           bearing Virginia tags 647845 who would



     3
       Defredas testified, however, that after Cradle's arrest,
one of the individuals about whom the informant had provided
information was arrested in the City of Norfolk, "based on that
information and other investigation."


                                - 4 -
          be making – And he would have a large amount
          of crack cocaine secreted about his person.
          He would be making a delivery in the area of
          East Pollux Circle, specifically in the 40
          block."

Miller also testified that Defredas had told her that "one or

more guns may be in the vehicle."

     Miller then contacted two other officers who were in the

area, Officer J.C. Knorowski and Officer Grove, and relayed the

information to them.   Miller stated that she and Officer Grove

subsequently reported to the area on foot and stood off to the

side by a tree.   Officer Knorowski reported to the area in his

marked police car, stopping to observe from around the corner on

West Pollux Circle.    Shortly thereafter, Officer Miller observed

a burgundy Volvo, bearing the license plate number 647845,

driving toward the area on the right side of the road.   The

Volvo then "pulled from the right side of the road, came across

the traffic lane, [and] pulled to the curb in the left side of

the road opposing traffic [sic]."   Miller observed that there

were four occupants in the car.   After bringing the car to a

stop, Cradle, who was driving, "looked back over his left

shoulder," looked in the direction of Officers Miller and Grove,

and appeared to be startled.   He then "turned his head around

real quick, stepped on the gas[,] . . . broke traction and sped

off at a very high rate of speed," around the corner.    Officer

Miller radioed Officer Knorowski and advised him to stop the

Volvo "and perform a traffic stop."

                                - 5 -
     Officer Knorowski testified that Officer Miller told him the

driver of the car would be in possession of a large quantity of

cocaine and that it was possible there were weapons in the car.

Accordingly, Knorowski activated his emergency lights and

conducted a "felony stop" of the car.    Once he stopped the car, he

used the "PA system" to order the occupants out of the car, one at

a time, with their hands raised.   By this time, Officers Miller

and Grove had arrived on the scene.     Each of the officers then

approached the vehicle and the occupants with their weapons drawn,

handcuffed the occupants, and placed them under investigative

detention.   The officers next conducted a search of the vehicle,

as well as the individuals, and found no drugs or weapons.

     Officer Miller testified that she then contacted Detective

Defredas, at approximately 8:30 p.m.     Miller stated that Defredas

arrived at the scene at approximately 8:50 p.m.    Once he arrived,

he spoke with Officer Miller and "the individuals from the

vehicle."    Defredas testified that when he spoke with Cradle, he

advised him of his Miranda rights and stated that Cradle indicated

he understood the rights, and waived them.    Defredas then told

Cradle about the information he had received from the informant

and told him that he believed Cradle "had cocaine about his

person."    Cradle denied having drugs, but after some discussion

with Defredas, agreed to a strip-search.

     Defredas and Knorowski transported Cradle to the nearest

police station to conduct the strip-search.     Once they arrived

                                - 6 -
there, Cradle conceded that he "had a quarter of an ounce," but

claimed "he had thrown it out . . . as they had come [sic] around

the bend when the police were trying to stop him."   Defredas told

Cradle he would notify the officers at the scene to look for the

drugs, but stated that he was going to go through with the

strip-search.   Cradle then took each of his clothing items off,

one-by-one, so the officers could search his clothing as well as

his person.   Initially, the officers found only a "large amount of

U.S. currency," and found no drugs.    However, as Cradle began to

put his clothing back on, Defredas observed a plastic bag, which

appeared to contain crack cocaine, located between the rolls of

fat on the rear, upper portion of Cradle's thigh.    Defredas seized

the item and placed Cradle under arrest.   At that time, Cradle

consented to a search of his home where officers recovered

firearms, a scale, and cash from Cradle's bedroom.

     Based upon this evidence, the trial court granted Cradle's

motion to suppress, finding:

          The confidential informant is not somebody
          who's been verified much [sic]. It's just
          somebody who [Defredas] made a deal with
          when he arrested him, and then [Defredas]
          says that the informant gave him some
          information. There's some peculiarity about
          the information. Did the guy have a gun?
          Did he not have a gun? Did he have drugs on
          him or did he not have drugs on his person?
          [H]ad he given information in the past that
          led to something, some reliable information?
          Has it led to arrests? Has it led to
          finding any drugs? Everything depends – And
          Defredas is not the one who made the stop.


                               - 7 -
             He gave the information to another police
             Officer who made the stop.

              *      *      *          *      *      *       *

             And I am going to suppress the evidence. I
             think that this is very tenuous in this
             case. If the policeman had enough evidence
             that he thought there should have been an
             arrest made, he should have followed it up.
             He should have corroborated it in some way.
             He shouldn't have – We shouldn't be getting
             this evidence second – and third-hand, from
             Miller to Knorowski to the Court and back;
             and there was no need for those policemen to
             sit out there and wait for the off-duty
             policeman to come who couldn't come in the
             beginning. It seems to me that the police
             department ought to have enough people on
             the street at any time to have worked this
             case out rather than have to wait for
             Defredas to do it all. I'm going to grant
             the motion to suppress.

                                II.   Analysis

     On an appeal of a ruling on a motion to suppress, we view the

evidence in the light most favorable to the party prevailing

below, 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 (1996)).         However, we review

de novo the trial court's application of defined legal standards.

                                      - 8 -
Ornelas, 517 U.S. at 699.    Thus, in this matter, the burden is

upon the Commonwealth to show that the trial court's ruling, when

the evidence is considered most favorably to Cradle, constituted

reversible error.   See Fore v. Commonwealth, 220 Va. 1007, 1010,

265 S.E.2d 729, 731 (1980); Commonwealth v. Tart, 17 Va. App. 384,

390-91, 437 S.E.2d 219, 223 (1993).

     The Commonwealth contends that here, "the trial court based

its conclusion that the defendant was unlawfully stopped and

searched on an incorrect interpretation of the law."

Specifically, the Commonwealth argues "[t]he judge, while not

making any factual conclusions to support suppression of the

evidence . . . focused on legally irrelevant facts relating to

procedures of the Portsmouth Police."   We disagree with the

Commonwealth's contention that the trial court made no factual

findings.   Indeed, we find that they are dispositive of the issue

presented and, therefore, affirm the judgment of the trial court

on the motion to suppress.

     A fair reading of the trial court's lengthy commentary, in

conjunction with its holding, establishes that the trial court

was clearly concerned with the credibility of the Commonwealth's

witnesses in this matter.    In fact, just before suppressing the

evidence, the trial court stated:

            You know, Detective Defredas' involvement in
            this is peculiar, to be honest with you. He
            gets a phone call at his personal phone and
            calls some friend of his on the police force
            who's not a detective, who's not in the Vice

                                - 9 -
          Squad, who's not an officer, who's not
          somebody who can assign. He didn't call the
          dispatcher. And then that person stops the
          car and waits for Defredas who said he
          couldn't come earlier because he was not
          working, and then does come. And in the
          process of this investigation he starts
          making deals with the guy he just made a
          deal with to catch. When does it ever stop?
          And that's probable cause to – Is that what
          you're saying?

              *     *      *       *       *     *      *

          It all depends on Defredas, doesn't it?
          Everything in this case depends on me
          believing what Defredas has said, right?

Thus, because the factual decisions to be made in determining

the reliability of the informant, as well as the reliability of

the tip, turned solely on the credibility of the witnesses, the

trial court held that reliability had not been established.

     It is well settled that in hearing a defendant's motion to

suppress, "the trial court, acting as fact finder, must evaluate

the credibility of the witnesses . . . [and] resolve the conflicts

in their testimony . . . ."    Witt v. Commonwealth, 215 Va. 670,

674, 212 S.E.2d 293, 297 (1975).       Indeed, when a trial court is

sitting as fact finder, it "must evaluate the credibility of the

witnesses, resolve the conflicts in their testimony and weigh the

evidence as a whole."   Albert v. Commonwealth, 2 Va. App. 734,

738, 347 S.E.2d 534, 536 (1986) (emphasis added).      Such

"determinations of the trial court, like those of a jury, are

binding on this Court, and we will reverse such findings 'only if

they are plainly wrong or without evidence to support them.'"

                                - 10 -
Mercer v. Commonwealth, 259 Va. 235, 243, 523 S.E.2d 213, 217

(2000) (quoting McCaskey v. Patrick Henry Hospital, 225 Va. 413,

415, 304 S.E.2d 1, 2 (1983)).

       In the case at bar, the trial court resolved the internal

conflicts in the Commonwealth's evidence in favor of the defendant

and, therefore, found no credible evidence upon which to base a

determination of the reliability of the confidential informant's

tip.   On this record, we cannot find that the trial court's

determination in this regard was plainly wrong.

       On appeal the Commonwealth recognizes the trial court's

concern with Defredas' testimony, but contends that because the

trial court made no specific finding as to Defredas' credibility,

we must assume the trial court relied upon his testimony in

reaching a finding as to the reliability of the tip.   However, "a

reviewing court 'faced with a record of historical facts that

supports conflicting inferences must presume — even if it does not

affirmatively appear in the record — that the trier of fact

resolved any such conflicts in favor of the [prevailing party

below], and must defer to that resolution[.]'"    Wright v. West,

505 U.S. 277, 296-97 (1992) (quoting Jackson v. Virginia, 443 U.S.

307, 326 (1979)).

       Accordingly, because the remaining evidence necessarily

flowed from Defredas' interaction with the confidential informant,

we find that the trial court was not plainly wrong in finding that

the Commonwealth failed to present credible evidence upon which to

                                - 11 -
determine the reliability of the confidential informant's tip and,

thus, failed to establish that the police had probable cause to

arrest and search Cradle based on the tip.   Therefore, we affirm

the judgment of the trial court, granting the motion to suppress

the evidence.

                                                        Affirmed.




                              - 12 -
