Search and Seizure: TUCKER V. COMMONWEALTH (COA; 2/17/2006)

CRIMINAL – Search and Seizure (Investigatory stops)

DATE: 2/17/2006

CA affirmed Tucker’s convictions for Possession of a Handgun by a Convicted Felon and related offenses.  The case arose when a citizen called police and reported that Tucker was drunk, threatening people with a gun, and driving around with a female companion in a Chevy Blazer.  A dispatcher relayed this information to a sheriff who knew that Tucker was a convicted felon.  The sheriff went to an apartment complex where Tucker was living and spotted a vehicle meeting the informant’s description.  Upon approach, Tucker and a female got out of the Blazer.  Because Tucker had his hand in his pocket, the sheriff took him by the arm and asked where the gun was.  Tucker said the gun was in his right pocket.  The sheriff then arrested him.  The court held a suppression hearing and denied Tucker’s motion to suppress.  Tucker entered a conditional guilty plea preserving his right to appeal the suppression ruling.  On appeal, he argued that the Commonwealth’s failure to introduce testimony from the police dispatcher meant that the Commonwealth had not met its burden of proving that reasonable, articulable suspicion justified the sheriff’s investigatory stop.  CA distinguished United States v. Hensley, 469 U.S. 221 (1985) and stated that it was not necessary for the Commonwealth to present the police dispatcher to testify at the suppression hearing because the sheriff was not acting at the request of another law enforcement agency.  The dispatcher was merely relaying information to him and had not determined for herself that reasonable, articulable suspicion existed to justify an investigatory stop.   

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