                        COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Humphreys
Argued at Richmond, Virginia


WILLIAM JAMES ELLISON
                                           MEMORANDUM OPINION * BY
v.   Record No. 1619-01-2               JUDGE JERE M. H. WILLIS, JR.
                                                JUNE 11, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Thomas N. Nance, Judge

          Gregory W. Franklin, Assistant Public
          Defender (Office of the Public Defender, on
          briefs), for appellant.

          Eugene Murphy, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     William Ellison was convicted in a bench trial of (1)

possession of cocaine, in violation of Code § 18.2-250, and (2)

possession of marijuana, in violation of Code § 18.2-250.1.   On

appeal, he contends that the trial court erred in denying his

motion to suppress.   He argues that the seizure, pat down, and

search of his person were conducted in the absence of reasonable

suspicion or probable cause and after he withdrew his consent to

be searched.   For the following reasons, we reverse the judgment

of the trial court.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                          I.    BACKGROUND

     On February 1, 2001, Richmond Police Officer Michael

Koehler received a call regarding a loud group of people

"hanging out" beside 2409 Halifax and urinating on the building.

The call provided no physical description of the persons

involved other than that they were black males.     It provided no

clothing description, no indication of age, no indication of the

number of individuals involved, and no information as to whether

they were armed.   The referenced address is next to a Texaco gas

station that is known for extensive drug activity.

     When Officer Koehler arrived at the scene, he saw a group

of people walking down the sidewalk.     He approached them and

explained why he was there.    He then asked the group whether

they had anything on them that he should know about.      All denied

such possession.   Officer Koehler then asked the group for

permission to search them.     Ellison gave permission.   Officer

Koehler reached into Ellison's pockets.      Ellison pulled back

abruptly and said, "You can't go in my pockets.     You can't go in

my pockets."

     Because Ellison "clenched up" and seemed tense and angry,

Officer Koehler grabbed him, pulled him over to the police car,

and proceeded to pat down his outer clothing.     The officer felt

a hard, rock-like substance with something soft around it,

"either a plastic bag or handkerchief."      He testified that he

knew the item was either a pebble or a piece of crack cocaine,

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but believed it was crack cocaine because he did not think

anyone would carry a pebble.       Officer Koehler retrieved from

Ellison's pocket what he believed to be crack cocaine and

marijuana.   He arrested Ellison and charged him with possession

of cocaine and possession of marijuana.

     Ellison's motion to suppress the items removed from his

pocket was denied, and he was convicted on both charges.

                             II.    ANALYSIS

     To prevail on appeal, Ellison must demonstrate that the

trial court's denial of his motion to suppress was reversible

error.   In considering this issue, we view the evidence in the

light most favorable to the Commonwealth.       McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc).   While we review ultimate questions of reasonable

suspicion and probable cause de novo, we are bound by the trial

court's findings of historical fact, unless those findings are

plainly wrong or without evidence to support them.         Id. at

197-98, 487 S.E.2d at 261.

     "'[I]f there are articulable facts supporting a reasonable

suspicion that a person has committed a criminal offense, that

person may be stopped in order to identify him, to question him

briefly, or to detain him briefly while attempting to obtain

additional information.'"     Williams v. Commonwealth, 4 Va. App.

53, 64, 354 S.E.2d 79, 85 (1987) (citation omitted).        In

determining whether reasonable suspicion existed, we look to the

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"totality of the circumstances -- the whole picture."      United

States v. Sokolow, 490 U.S. 1, 7-8 (1989).

     At the outset, Officer Koehler had no basis to search

Ellison.    He had received a complaint regarding a loud group of

men urinating on a building.   The call, however, provided no

information supporting the conclusion that the group Officer

Koehler stopped was the group complained of or that they had

done anything wrong.   They were merely walking down the

sidewalk.   Specifically, the officer had no basis to suspect

that Ellison was engaged in criminal activity or that he was

armed.

     Ellison initially gave Officer Koehler permission to search

his person.   However, when Officer Koehler began to reach into

his pockets, Ellison "clenched up," pulled back, and told him

that he could not go in his pockets.    Ellison thus withdrew his

consent to be searched, a fact acknowledged by Officer Koehler.

At that point, Officer Koehler had no legal basis to continue

his encounter with Ellison.    The Commonwealth notes that upon

withdrawing his consent, Ellison "clenched up" and became

"hyper."    However, the record reflects no aggressive act

directed by Ellison against the officer.   He simply withdrew his

consent to be searched and resisted the officer's attempt to

search him.

     With no consent and no probable cause or reasonable

suspicion that Ellison had committed a crime or was armed,

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Officer Koehler had no right to grab Ellison and to forcibly

search him.   See Payne v. Commonwealth, 14 Va. App. 86, 414

S.E.2d 869 (1992).   Therefore, the trial court erred in refusing

to suppress and exclude the fruits of that search.

     The judgment of the trial court is reversed and the case is

remanded for further proceedings, if the Commonwealth be so

advised.

                                         Reversed and remanded.




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