                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia


NORMAN MAJOR ALLEN
                                           MEMORANDUM OPINION * BY
v.   Record No. 2966-00-2                JUDGE JAMES W. BENTON, JR.
                                                MAY 28, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Margaret P. Spencer, Judge

          Craig W. Stallard, Assistant Public Defender
          (Office of the Public Defender, on brief),
          for appellant.

          Marla Graff Decker, Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


     Pursuant to Code § 19.2-254, Norman Major Allen conditionally

pled guilty to possession of cocaine in violation of Code

§ 18.2-250.    On appeal, Allen contends that police officers

unlawfully seized him and that the trial judge erred in denying

his motion to suppress cocaine obtained in a search that followed

the seizure.   For the following reasons, we agree and reverse the

conviction.

                                I.

     In reviewing the legality of a seizure, "we are bound by the

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

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
or without evidence to support them."   McGee v. Commonwealth, 25

Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc).    On

appeal, the appellant has "'[t]he burden . . . to show that th[e]

ruling, when the evidence is considered most favorably to the

Commonwealth, constituted reversible error.'"   Id. at 197, 487

S.E.2d at 261 (citation omitted).

     Viewed in this light, the evidence proved that during the

evening hours of August 16, 2000, police officers were

"surveilling" two blocks of a city street when one of the officers

observed Allen's pickup truck enter the street.   A police officer

testified that the truck stopped and a passenger exited the truck.

The passenger walked sixty-five feet to a person, who was

standing, and made a "hand-to-hand transaction in which the

passenger . . . gave money to the person . . . for a small item."

The officer testified that, although he did not know the color of

the item or the denomination of the money, his experience and

training as a police officer caused him to believe he had observed

a drug transaction.

     While this was occurring, the truck made a u-turn and stopped

again.   As the passenger returned to the truck, the officer

"radioed the other two officers, gave them a description of the

truck and of the passenger," and told them to "take down the

passenger."   Uniformed officers, who had not seen any part of the

transaction, approached the truck before it departed.    Officer

Joyner and other officers approached the passenger side of the

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truck.   When Officer Joyner got to the passenger side, the

passenger did something to cause him to believe the passenger put

something in his mouth.    Officer Joyner said, "its in his mouth,"

asked the passenger to exit the truck, and searched the passenger.

He was unable to recover what he believed went into the

passenger's mouth.

     Officer Gilliam approached Allen, who was in the driver's

seat, asked Allen what he was doing in the area, and told him to

remain in the truck.   He also asked for Allen's driver's license.

After more questioning, he directed Allen to exit the truck and

stand to the side away "from the other part of the action."

Officer Gilliam testified that when "nothing was recovered from

the passenger," he asked for Allen's consent to search his truck.

When Allen hesitated, he informed Allen that the area was "a high

crime, high drug area."    Officer Gilliam testified that Allen

"finally said go ahead."    Officer Gilliam then directed the other

officers to search the truck, and he stood with Allen while the

other officers searched.

     At some point after he obtained Allen's driver's license,

Officer Gilliam took it to his police vehicle to run a warrant

check.   While he was doing so, Officer Joyner had ceased his other

activities and "stood close by" Allen.   When Officer Gilliam

learned that warrants were on file for Allen, he directed Officer

Joyner to arrest Allen.    Officer Joyner then searched Allen

incident to the arrest on the outstanding warrant.

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     At the conclusion of the suppression hearing, Allen's

attorney argued that the police had no reasonable articulable

suspicion to detain Allen and to demand his driver's license.     He

argued that "once [the officers] dispelled the criminal suspicion

with regard to the passenger, . . . the seizure should [have]

end[ed]."   In response, the Commonwealth argued that "there

certainly could have been a reasonable articulable suspicion . . .

[Allen] was in some way a conspirator to that transaction they saw

occur out there" and that "[i]f he's being held during that time,

he's being held pursuant to reasonable suspicion that he was a

co-conspirator to the transaction they saw occur a few minutes

earlier."   The trial judge ruled that based on the passenger's

conduct, "the police had a reasonable suspicion to stop the

vehicle," and she denied the motion to suppress.

                                II.

     Allen contends the trial judge erred in denying the motion to

suppress because the officer lacked reasonable suspicion or

probable cause to detain him.   Allen concedes the detention of the

passenger was supported by reasonable articulable suspicion.    He

contends, however, that when the officer obtained his driver's

license, the officer unlawfully seized him because the officer had

no reasonable suspicion he had engaged in criminal conduct.    The

Commonwealth contends the officer had a reasonable suspicion of

drug activity to investigate the passenger and the only way to



                                - 4 -
confirm or dispel that suspicion was to detain both occupants of

the truck for questioning.

     In every encounter, "Terry [v. Ohio, 392 U.S. 1 (1968),]

requires reasonable, individualized suspicion," to support a

detention.   Maryland v. Buie, 494 U.S. 325, 334 n.2 (1990).   Thus,

an officer may not detain a person upon an "inchoate and

unparticularized suspicion or 'hunch.'"   Moss v. Commonwealth, 7

Va. App. 305, 308, 373 S.E.2d 170, 172 (1988).   According to well

established principles, "a person has been 'seized' within the

meaning of the Fourth Amendment . . . if, in view of all of the

circumstances surrounding the incident, a reasonable person would

have believed that he was not free to leave."    United States v.

Mendenhall, 446 U.S. 544, 554 (1980).   The trial judge ruled that

because the officers "had a reasonable suspicion to stop the

vehicle," they had a right to obtain Allen's driver's license.

     Unlike Maryland v. Wilson, 519 U.S. 408, 410 (1997), and

Pennsylvania v. Mimms, 434 U.S. 106, 107 (1977), where the police

stopped vehicles because of traffic violations, the police officer

here stopped the truck, not because of conduct of the driver, but,

rather, to detain the passenger.   Even if we assume, under these

circumstances, that police officers may interfere with the

driver's liberty by ordering him to remain in the truck or to exit

the truck pending completion of their investigation of the

passenger, the police officer here did more.    The officers



                               - 5 -
requested and kept Allen's driver's license and seized him for a

check of his status.

     If a police officer lacks reasonable suspicion to detain the

driver of a vehicle, the "'encounter quickly [becomes] an

investigative detention once the [officer] received [the person's]

driver's license and did not return it to him.'"    Richmond v.

Commonwealth, 22 Va. App. 257, 261, 468 S.E.2d 708, 710 (1996)

(citation omitted).    Although the officers were not investigating

a traffic violation, the officer specifically requested Allen's

driver's license.    The officer testified that when he examined the

driver's license, it had Allen's name and address and "looked to

be valid."   The officer testified, however, that he "like[s] to

double check" and took the driver's license to his car to check

the information and "run a check for warrants."    While he did so,

another officer stood next to Allen.

     The Commonwealth contends the officers had a reasonable

articulable suspicion to believe that Allen was a co-conspirator

to the drug transaction and that the detention was therefore

reasonable under the Fourth Amendment.   We disagree.   The officers

suspected only that the passenger in Allen's truck was buying

drugs.   The evidence here proved Allen had not been in close

proximity to the transaction.   We hold that Allen's association

with the passenger, under these facts, did not give the officer a

reasonable basis upon which to believe Allen was involved in

criminal activity.

                                - 6 -
     The Commonwealth additionally contends the officers had a

reasonable articulable suspicion to detain Allen while they

investigated the passenger.   The Commonwealth argues that the

evidence, viewed in the light most favorable to it, proves the

officer requested Allen's identification during a valid

investigatory detention of the passenger.   In Wilson and Mimms,

the Supreme Court held that where a vehicle already has been

lawfully stopped, the police may require the occupants of the

vehicle to exit or remain in the vehicle for the lawful

investigatory detention of another occupant.   The Court deemed

this restraint on the occupants' liberty to be a minimal

additional intrusion that flowed from the stop of the vehicle.

Wilson, 519 U.S. at 412; Mimms, 434 U.S. at 111.   Neither of those

cases holds, however, that requesting a driver, who is not the

focus of the stop, to produce a driver's license is not a separate

detention.

     When the officer asked for Allen's driver's license, Allen

was required by Code § 46.2-104 to produce it.   Although Officer

Gilliam testified on direct examination that he requested Allen's

driver's license after he asked Allen why he was in the area and

on cross-examination that he could not recall when he asked for

Allen's driver's license, the evidence clearly establishes that

the officer had Allen's license when he directed Allen to stand

beside the truck.   Allen remained there while the officer took his

license to learn whether the driver's license was valid and

                               - 7 -
whether warrants were outstanding.     Allen was not free to depart.

Moreover, given the events surrounding the taking of his driver's

license, it is clear that a reasonable driver in Allen's

circumstances would not have believed he was free to leave when

the officer obtained and kept his driver's license.    Mendenhall,

446 U.S. at 554; Richmond, 22 Va. App. at 261, 468 S.E.2d at 710.

Even if we assume the lawfulness of the officer's request for and

examination of Allen's license during the investigatory detention

of the passenger, the officer's further detention of Allen by

retaining his license was unlawful because it exceeded the scope

of the investigatory detention of the passenger.

     In summary, the evidence proved the officer had no reasonable

suspicion of criminal activity with respect to Allen.    Instead,

the officer took his driver's license to determine his driving

status and to check for outstanding warrants.    That was a seizure

based upon the officer's desire to independently investigate

Allen.   He had no individualized suspicion of criminal conduct

concerning Allen, but, instead, he was acting on a hunch that he

might learn incriminating information.

     For these reasons, we reverse the judgment of the trial judge

and dismiss the indictment.

                                           Reversed and dismissed.




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