COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges McClanahan and Millette 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION∗

 BY 

v. Record No. 0714-08-2 JUDGE LeROY F. MILLETTE, JR. 

 AUGUST 11, 2008 

THOMAS RENALDO JOHNSON 

FROM THE CIRCUIT COURT OF KING GEORGE COUNTY 

Horace A. Revercomb, III, Judge 

 Karri B. Atwood, Assistant Attorney General (Robert F. McDonnell, 

 Attorney General, on brief), for appellant. 

 Tara-Beth Coleman (Woodbridge, Ventura and Coleman P.C., 

 on brief), for appellee. 

 The trial court granted a pretrial motion by appellee, Thomas Renaldo Johnson (Johnson), 

to suppress evidence concerning Johnson’s possession of a controlled substance in violation of 

Code § 18.2-250, possession of a firearm while in possession of a controlled substance in 

violation of Code § 18.2-308.4, possession of a firearm by a convicted felon in violation of Code 

§ 18.2-308.2, receipt of a stolen firearm in violation of Code § 18.2-108.1, and driving on a 

suspended license in violation of Code § 46.2-301. The Commonwealth appealed pretrial 

pursuant to Code § 19.2-398. On appeal, the Commonwealth argues the tip, which led to 

Johnson’s seizure and subsequent search, was received from a known person and contained 

sufficient indicia of reliability. Johnson responds that the officer based his reasonable suspicion 

upon an unreliable and uncorroborated tip; therefore, the officer’s search and seizure of his 

person and vehicle were conducted in violation of the Fourth Amendment. For the following 

 ∗

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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reasons, we affirm the trial court’s grant of Johnson’s motion to suppress and remand for 

additional proceedings consistent with this opinion. 

Due to the parties’ familiarity with the record below, we cite only to those facts pertinent 

to the disposition of the appeal. At approximately midnight on October 18, 2007, Deputy Lyons, 

of the King George County Sheriff’s Department, received a call from police dispatch. The 

police dispatch stated that a Michael Cornwell (Cornwell) had called to report a silver Toyota, 

with a specific tag number, traveling with no taillights activated. At the pretrial suppression 

hearing, Deputy Lyons testified that he had known a Michael Cornwell for years, had last seen 

him five to six months prior, knew Cornwell’s sister, Amanda, who worked at the King George 

County Sheriff’s Department, knew where Cornwell lived, and knew that Cornwell drove a 

pickup truck. 

Deputy Lyons received a second call from the dispatch a few minutes later, relaying 

Cornwell’s statement that the Toyota now had its taillights illuminated but was “weaving and 

crossing the road lines.” Cornwell stayed on the line with dispatch, relaying the Toyota’s 

location. Deputy Lyons went to the location provided by Cornwell and observed a silver car 

with matching tags. Deputy Lyons pulled up behind the car but did not observe any erratic 

driving or any other unlawful or suspicious behavior on the part of the driver. However, due to 

the information Deputy Lyons had received from dispatch, he initiated a traffic stop of the car. 

Deputy Lyons testified that after receiving Cornwell’s tip, he suspected the driver of the vehicle 

“was possibly fatigued.” Upon speaking with the driver of the car, who was later identified as 

Johnson, Deputy Lyons smelled marijuana.1

 Deputy Lyons conducted a search of the car and 

found illegal narcotics and a firearm. 

1

 During the trial and appellate argument, Johnson’s counsel conceded the subsequent 

search was valid as Deputy Lyons had smelled marijuana emanating from Johnson’s vehicle. 
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The trial court granted Johnson’s motion to suppress the evidence found as a result of 

Deputy Lyons’ search of his car. This appeal followed. 

On appeal from a trial court’s ruling on a motion to suppress, “‘[w]e are bound by the 

trial court’s findings of historical fact unless “plainly wrong” or without evidence to support 

them.’” Blevins v. Commonwealth, 40 Va. App. 412, 420, 579 S.E.2d 658, 662 (2003) (quoting 

McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc)). We 

view the facts, and all reasonable inferences fairly deducible therefrom, in the light most 

favorable to Johnson, the party prevailing below. See Commonwealth v. Grimstead, 12 Va. App. 

1066, 1067, 407 S.E.2d 47, 48 (1991). The Commonwealth, as the appellant, bears the burden of 

showing that the trial court’s ruling constituted reversible error. McGee, 25 Va. App. at 197, 487 

S.E.2d at 261. 

 “[A] defendant’s claim that evidence was seized in violation of the Fourth Amendment 

presents a mixed question of law and fact that we review de novo on appeal.” King v. 

Commonwealth, 49 Va. App. 717, 721, 644 S.E.2d 391, 393 (2006) (citing Ornelas v. United 

States, 517 U.S. 690, 691 (1996)). In determining whether evidence was seized in violation of 

the Fourth Amendment, “we must give ‘deference to the factual findings of the trial court’ and 

‘independently determine’ whether those findings satisfy the requirements of the Fourth 

Amendment.” Slayton v. Commonwealth, 41 Va. App. 101, 105, 582 S.E.2d 448, 450 (2003) 

(quoting Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003)). 

Whether or not Deputy Lyons knew the informant does not affect the outcome of this 

case. Even if we assume the informant was known and met the highest indicia of reliability, the 

tip failed to support Deputy Lyons’ seizure of Johnson because it did not relay information 

describing possible illegal activity that was corroborated by the officer. “The reasonable 

suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its 
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tendency to identify a determinate person.” Florida v. J.L., 529 U.S. 266, 272 (2000) (citing W. 

LaFave, Search and Seizure § 9.4(h), at 213 (3d ed. 1996)). 

Prior to pulling Johnson over, Deputy Lyons only knew from the informant’s tip that: 

(1) the vehicle’s taillights had previously been off but were now properly illuminated; and (2) the 

vehicle had weaved and crossed the road lines. Deputy Lyons testified that based on the tip, he 

believed the driver was not inebriated, but rather “possibly fatigued.”2

 Prior to stopping 

Johnson’s vehicle, Deputy Lyons did not corroborate the informant’s claim that the vehicle was 

being driven in an unlawful or erratic manner. Nor did Deputy Lyons articulate any other 

reasonable suspicion of criminal activity on the part of the driver. 

As Deputy Lyons failed to corroborate any criminal behavior, he had no factual basis 

upon which to rest a reasonable, articulable suspicion for making the traffic stop. Deputy Lyons’ 

seizure of Johnson was, therefore, unsupported by a reasonable suspicion of illegal activity, and 

violated the Fourth Amendment’s protection against unreasonable searches and seizures. 

Affirmed and remanded.

 

 2

 At the hearing, the Commonwealth never made any community caretaker argument that 

Deputy Lyons pulled Johnson over because he reasonably suspected Johnson was driving in a 

fatigued state. See Cady v. Dombrowski, 413 U.S. 433, 441 (1973); see also King v. 

Commonwealth, 39 Va. App. 306, 309, 572 S.E.2d 518, 520 (2002).