                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Willis and Elder
Argued by Teleconference


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.        Record No. 0813-97-2         JUDGE JERE M. H. WILLIS, JR.
                                             AUGUST 26, 1997
ALLEN EUGENE HARRIS


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Robert W. Duling, Judge
          Michael T. Judge, Assistant Attorney General
          (Richard Cullen, Attorney General, on brief),
          for appellant.

          Carl C. Muzi for appellee.



     The Commonwealth contends that Harris was not seized, and,

alternatively, that an investigatory stop was justified based

upon a reasonable suspicion that Harris may have been engaged in

criminal activity.    We disagree, and affirm the judgment of the

trial court.

                            I.   BACKGROUND

     When viewed in the light most favorable to Harris, the party

prevailing below, see Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991), the evidence proved that at

approximately 12:00 p.m., a motorist flagged down Officer Peace

and "told [him] there was a man in the McDonald's . . . that he

thought had a gun."    The unnamed informant described the man as a

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
"black male . . . in his thirties or forties and he had on a

green jacket."

       Peace entered the restaurant, saw Harris, who fit the

informant's description, and "accompanied him out of the store as

[he] was initiating and continuing" a casual conversation with

Harris.   Around the time that they exited the restaurant, a

marked police cruiser and a patrol wagon pulled into the parking

lot.   Two uniformed police officers alit from their vehicles and

approached near where Harris and Peace stood.     The exterior wall

of the restaurant was immediately behind Harris.    He testified

that he was "surrounded" by the three officers.
       Peace testified that once they left the restaurant:
                 Well, I just started talking about the
            specifics of why I was there. I said
            something to him to the effect that I had
            just been flagged down by somebody that said
            you might have had a gun and had described
            the person and said look, you match the
            description of the person that I was told had
            a gun so what I would like you to do -- so I
            asked him if he had a weapon and he said he
            did.


       Peace took a 10 millimeter semi-automatic pistol from

Harris' jacket, and arrested him for carrying a concealed weapon

without a permit.   Harris testified that Peace told him he was

under arrest before asking him about a gun.

       The trial court ruled that Harris had been seized without

the required reasonable suspicion of unlawful conduct.

                       II.   STANDARD OF REVIEW

       On appeal of a ruling suppressing evidence, the Commonwealth



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must prove, viewing the evidence in the light most favorable to

the defendant, that the trial court's decision constituted

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

265 S.E.2d 729, 731 (1980) (citation omitted).    As a general

matter, determinations of reasonable suspicion are reviewed de

novo.   James v. Commonwealth, 22 Va. App. 740, 743, 473

S.E.2d 90, 91 (1996) (citing Ornelas v. United States, 517 U.S.

___, 116 S. Ct. 1657 (1996)).     However, "[i]n performing such

analysis, we 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

officials."   McGee v. Commonwealth, 25 Va. App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc) (citation and footnote omitted).

                           III.    SEIZURE

     "A person is seized 'only if, in view of all of the

circumstances surrounding the incident, a reasonable person would

have believed that he was not free to leave.'"     Satchell v.

Commonwealth, 20 Va. App. 641, 648, 460 S.E.2d 253, 256 (1995)

(en banc) (quoting United States v. Mendenhall, 446 U.S. 544, 554

(1980)).   Indeed, "[a]n encounter between a law enforcement

officer and a citizen in which the officer merely identifies

himself and states that he is conducting a narcotics

investigation, without more, is not a seizure within the meaning

of the Fourth Amendment but is, instead, a consensual encounter."




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 McGee, 25 Va. App. at 199, 487 S.E.2d at 262.      The Commonwealth

contends that the presence of the three police officers did not

dispel the consensual and casual nature of the encounter.

       This case closely parallels McGee.     In McGee, an anonymous

informant reported to the police that an unidentified individual

was selling drugs on a street corner.       Id. at 196, 487 S.E.2d at

260.   Three uniformed officers arrived in marked police vehicles

and approached the defendant, who matched the description given

to police.    One of the officers told the defendant that he

matched the description of the individual who was reported to

have sold drugs, and asked if he could pat him down.      When the

defendant opened his clenched fists at the officer's demand, he

revealed a white substance and was placed under arrest for drug

possession.    Id. at 197, 487 S.E.2d at 261.

       Holding that the officers "seized" the defendant by a show

of authority, we noted that "when a police officer confronts a

person and informs the individual that he or she has been

specifically identified as a suspect in a particular crime which

the officer is investigating, that fact is significant among the

'totality of the circumstances' to determine whether a reasonable

person would feel free to leave."       Id. at 200, 487 S.E.2d at 262

(footnote omitted).

       Peace told Harris that he, specifically, was the focus of a

criminal investigation.   Peace accompanied Harris from the

restaurant.   Outside, three uniformed police officers maintained




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a perimeter around Harris.     These facts support the trial court's

ruling that Harris was seized when he submitted to the officers'

show of authority.    A reasonable person in Harris' situation

would not have believed that he was free to leave.      See Satchell,

20 Va. App. at 649-50, 460 S.E.2d at 257; McGee, 25 Va. App. at

201, 487 S.E.2d at 263.

                       IV.   REASONABLE SUSPICION

     Generally, "[t]he police can stop and briefly detain a

person for investigative purposes if the officer has a reasonable

suspicion supported by articulable facts that criminal activity

'may be afoot.'"     United States v. Sokolow, 490 U.S. 1, 7 (1989)

(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).

     In Beckner v. Commonwealth, 15 Va. App. 533, 425 S.E.2d 530

(1993), an unidentified driver informed a police officer that a

white woman, who was pumping gas into a 1966 Chevrolet at a

nearby filling station, did not have a driver's license.      Id. at

534, 425 S.E.2d at 531.      On the basis of that tip, the officer

stopped the defendant and discovered that her license was

suspended.   Holding that the circumstances did not give rise to

reasonable suspicion, we noted that:
          The informant must provide some basis for his
          knowledge before the police officer relies
          upon it as being reliable enough to support
          an investigatory stop. That information may
          come in questioning or it may be implied in
          the information. Such implications of a
          personal basis of knowledge may arise when an
          individual reports that a person . . . "is
          displaying a gun."




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Id. at 537, 425 S.E.2d at 533 (emphasis added).        See Gregory v.

Commonwealth, 22 Va. App. 100, 106-07, 468 S.E.2d 117, 120

(1996).

     In McGee, we found no credible evidence justifying the stop.

A police officer received an anonymous tip that a black male,

wearing a white t-shirt, black shorts and white shoes, was

selling drugs on a street corner.        McGee, 25 Va. App. at 196, 487

S.E.2d at 260.   While the defendant fit the description contained

in the tip, the officer "did not observe any suspicious activity

or furtive gestures by the defendant that tended to verify or

corroborate the citizen's tip that the defendant was engaged in

criminal activity." Id. at 203, 487 S.E.2d at 264.
          If a hunch is not enough for a police officer
          to effectuate a stop, it follows that the
          hunch of an unnamed informant, albeit an
          informant with some indicia of personal
          reliability, is also not sufficient. The
          fact that the informant's hunch is conveyed
          to the police officer does not raise the
          hunch to the level of reasonable suspicion.


Beckner, 15 Va. App. at 537, 363 S.E.2d at 710.

     In this case, Harris was found in a fast-food restaurant

around 12:00 noon.   See Gregory, 22 Va. App. at 107-08, 468

S.E.2d at 121.   The tipster stated that he thought a man matching

Harris' description had a gun.    The tipster stated neither that

he saw a gun, nor why he thought Harris had a gun.        Cf. Scott v.

Commonwealth, 20 Va. App. 725, 460 S.E.2d 610 (1995).       Peace made

no effort to explore the basis for the tipster's hunch.       The

record contains no indication that Harris acted in a manner so as


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to "verify or corroborate" that he might be engaged in criminal

activity.

     The record supports the trial court's conclusion that the

officers lacked reasonable suspicion to detain Harris.

Accordingly, the judgment of the trial court is affirmed.

                                             Affirmed.




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