                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Clements
Argued by teleconference


COMMONWEALTH OF VIRGINIA/
 COUNTY OF BOTETOURT
                                           MEMORANDUM OPINION * BY
v.   Record No. 1889-01-3                JUDGE JAMES W. BENTON, JR.
                                               JANUARY 4, 2002
CHRIS MARK GRADY


             FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
                    George E. Honts, III, Judge

            Eugene Murphy, Assistant Attorney General
            (Randolph A. Beales, Attorney General, on
            brief), for appellant.

            David A. Downes for appellee.


     The trial judge granted Chris Mark Grady's motion to suppress

evidence discovered during Grady's detention and his arrest.    The

Commonwealth contends the trial judge erred in ruling that no

probable cause existed to arrest Grady and to search his vehicle.

We affirm the trial judge's ruling.

                                 I.

     On an appeal by the Commonwealth from the trial judge's

granting of a motion to suppress, we view the evidence in the

light most favorable to the accused, who prevailed on the motion,

and we grant all reasonable inferences fairly deducible from that

evidence.   Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
S.E.2d 47, 48 (1991).    The record established, that for the

limited purpose of portraying the police conduct in response to a

citizen's complaint, see Upchurch v. Commonwealth, 220 Va. 408,

258 S.E.2d 506 (1979), Detective John Mandeville testified

concerning a report he received from Roberta Hipes on March 28,

2001.    She said two men arrived at her home the previous day in a

"maroon . . . brownish type vehicle" and offered to pave her

driveway.    The men informed Hipes they were in the area working,

had some extra paver, and offered to give her "a good deal" on her

driveway.    When she asked the cost, the men said they could not

tell the cost until they finished.       Hipes agreed to the offer.

Two more men arrived in a blue pickup truck and put material on

Hipes's driveway.    After the work was completed, the men told

Hipes the cost was $2,400.    When Hipes said she did not have that

amount, the men asked for $1,800.    After Hipes said she also did

not have that amount, one of the men left.      Another man entered

and said if she would pay $900 he would pay the balance, otherwise

he would lose his job.    Hipes wrote a check for $900, pre-dated

it, and gave it to the man who said he would pay the balance.

        The day after Hipes contacted the police, two men in a blue

pickup truck attempted to negotiate the check.      The bank refused

payment and alerted a deputy sheriff, who detained the men until

the detective arrived.    After speaking to the men, the detective

learned that they were Milton Dorr and Belcher Grady and that Dorr

possessed the check Hipes had written.      Dorr informed the

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detective that he worked for two other men, who had been driving

ahead of Dorr when the deputy sheriff stopped Dorr.   Although Dorr

identified the other vehicle as a "maroon burgundy Chevy Suburban

. . . with Maryland tags," no evidence indicated the officers who

initially detained Dorr saw such a vehicle.   Dorr also said that

he helped spray the material on Hipes's driveway and that "if [the

work] had been done correct its three to four hundred dollars."

     With Dorr in his vehicle, the detective searched for a

"maroon Suburban" vehicle.   While the detective was driving, he

learned from his dispatcher that no permit to solicit work had

been issued in Botetourt County for Milton Dorr or Belcher Grady.

When the detective drove past a maroon vehicle, Dorr said "they

are right there."   The detective and another deputy followed the

vehicle and arrested the two occupants, Kevin Connell and

appellee, for soliciting in Botetourt County without a permit, a

misdemeanor.   The deputy sheriff searched appellee incident to the

arrest and found a bottle containing pills.   He also searched

appellee's vehicle and found another bottle of pills inside the

vehicle.   Later, at the sheriff's office, the officers charged

appellee with two felonies, obtaining property or money by false

pretenses with intent to defraud in violation of Code § 18.2-178

and possession with intent to distribute a controlled substance in

violation of Code § 18.2-248.

     After considering the testimony of the detective and the

deputy sheriff who arrested and searched appellee, the trial judge

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issued a letter opinion, which contained findings of fact and

concluded that the officers lacked probable cause to arrest

appellee.   Thus, the trial judge suppressed the arrest and the

seized items.

                                II.

     The Commonwealth contends the trial judge erred in finding

that, when the officers arrested appellee, the officers had

insufficient probable cause to believe he had committed a felony.

The Commonwealth argues that the information available to the

officers was sufficient for them to believe appellee "had intended

to defraud [Hipes], that he had in fact effected the fraud, that

he had used false pretense to do so and that [Hipes] had relied

upon that pretense."

     On appeal from a ruling on a motion to suppress, the burden

is upon the appellant, in this case the Commonwealth, to show the

trial judge's ruling constituted reversible error.   Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1989).     The

principle is well established that "[w]hether [a warrantless]

arrest was constitutionally valid depends . . . upon whether, at

the moment the arrest was made, the officers had probable cause to

make it."   Beck v. Ohio, 379 U.S. 89, 91 (1964).   In other words,

the issue is "whether at that moment [of arrest] the facts and

circumstances within [the officers'] knowledge and of which they

had reasonably trustworthy information were sufficient to warrant



                               - 4 -
a prudent man in believing that the petitioner had committed or

was committing an offense."      Id.

     We review de novo the trial judge's application of the legal

standard of probable cause to the particular facts of the case.

McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261

(1997) (en banc).       In our review, however, "we are bound by the

trial [judge's] findings of historical fact unless 'plainly wrong'

or without evidence to support them."      Id.   The trial judge's

findings included the following:

             No warrant or summons had been issued at
          the time of the arrest for the misdemeanor
          for which the [appellee] was arrested. If
          there was probable cause to arrest upon
          suspicion of a felony, no such arrest was
          made at the scene of the stop, nor at any
          other time in evidence, until after the
          magistrate had issued a felony warrant.

             It is also noteworthy that neither the
          name of the [appellee] was known to the
          officer(s) nor did they have a detailed
          description of him. Further, the officer(s)
          did not identify the [appellee] or his
          vehicle, but relied upon the representations
          of Dorr who was then under arrest, in
          possession of the check and being
          interrogated. Dorr's identification of the
          vehicle cannot be fairly said to be
          inculpatory under such circumstances.

          *         *        *      *      *      *       *

             The arrest of the [appellee] lacked
          probable cause. The [appellee] had
          committed no offense in the officer(s)
          presence. While [Hipes] had made,
          indirectly, a complaint of wrongdoing, she
          had not identified the [appellee]. No
          warrant or other indicia of formal arrest
          was outstanding. The check was in the

                                   - 5 -
           possession of, and payable to Dorr. The
           only identification of the [appellee] was
           made by Dorr whose veracity and reliability
           was unknown to the officer(s).

     The record clearly establishes that the officers knew very

little about appellee when they arrested him.    Hipes had given a

general description of four "white males" but had not given any

distinguishing physical characteristics except that one had dark

hair and was cleanly dressed.    She said the other three were

dirtier with tar on them.    No testimony further identified the

men, indicated which man made particular statements to Hipes, or

established who was present when various statements were made.

The officers had no basis to know whether the two men who

arrived later and performed the work were aware of the financial

arrangements or Hipes's expectation of receiving asphalt and not

sealant.   The only indication that appellee was one of the two

individuals who solicited the work from Hipes was Dorr's

statements.

     When the police act upon the tip of an informant to make an

arrest, the informant's veracity and reliability must be

established.   Russell v. Commonwealth, 33 Va. App. 604, 610, 535

S.E.2d 699, 702 (2000).     The officer had no basis, however, to

assume Dorr was credible or reliable.    Although Dorr possessed

Hipes's check and apparently was aware of the transaction with

Hipes, those facts are not sufficient to establish Dorr's

reliability and truthfulness regarding the events.     This was the


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first encounter between Dorr and the officers.    "Although [Dorr]

was not anonymous, . . . he does not have as much indicia of

reliability as a known informant who has given previous

information."    Beckner v. Commonwealth, 15 Va. App. 533, 538,

425 S.E.2d 530, 533 (1993).   His self-serving statement that he

had only worked on the driveway was not particularly

inculpatory.    As we have noted, informants "'typically provide

information after they have been apprehended by the police and

after it is apparent to them that the police already know of

their own involvement in the serious offense.'"     Russell, 33 Va.

App. at 616, 535 S.E.2d at 705 (citation omitted).     See also Lee

v. Illinois, 476 U.S. 530, 545 (1986) (holding that "a

codefendant's confession is presumptively unreliable as to the

passages detailing the defendant's conduct or culpability

because those passages may well be the product of the

codefendant's desire to shift or spread blame, curry favor,

avenge himself, or divert attention to another").

     As the trial judge found, Dorr's "veracity and reliability

[were] unknown" to the officer when he stopped appellee.    The

record clearly supports the finding that upon the totality of

the circumstances the officers had no basis to believe Dorr was

reliable or credible before detaining appellee.   Accordingly, we

hold that the trial judge's determination that Dorr's veracity

and reliability were not established was neither plainly wrong

nor unsupported by the evidence.

                                - 7 -
                              III.

     Although the Commonwealth also contended on brief that the

trial judge erred in applying Code § 19.2-81 and suppressing

evidence discovered by the officers when they arrested appellee

for a misdemeanor not committed in their presence, that issue

was abandoned and not pursued on appeal.   Accordingly, we affirm

the order suppressing the evidence and the arrest.

                                                        Affirmed.




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