                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia


DARRICK HAMILTON HOOD
                                            MEMORANDUM OPINION * BY
v.   Record No. 0821-94-2                 JUDGE JAMES W. BENTON, JR.
                                               OCTOBER 10, 1995
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                        Thomas N. Nance, Judge
             C. David Whaley (Anthony G. Spencer; Morchower,
             Luxton & Whaley, on briefs), for appellant.

             Thomas C. Daniel, Assistant Attorney General
             (James S. Gilmore, III, Attorney General, on
             brief), for appellee.



      Darrick Hamilton Hood appeals from his conviction of

possessing a firearm after having been convicted of a felony.

Code § 18.2-308.2.    He contends the firearms were seized in

violation of the Fourth Amendment.     For the reasons that follow,

we reverse the conviction.

                                  I.

      The evidence proved that on the evening of October 10, 1993,

Hood went to a hospital to be treated for a gunshot wound to his

right arm.    Police Officers J. Morgan Brown, Jr., and Clyde

Fisher went to the hospital and spoke with Hood as a victim of a

shooting.    After learning that somebody fired bullets at Hood's

car, the officers went to look at the car.    They observed bullet

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
holes in the car and shell casings on a seat inside the car.

     The officers returned to the hospital and again questioned

Hood about being a shooting victim.     The officers asked Hood

whether he had been armed and had returned fire.    Hood responded

that he had backed into a parking lot and that somebody

approached his car and shot at him.     He said that he quickly

drove away and did not shoot at the assailant.    Hood also stated

that he had guns in the trunk of his car that had not been fired.

The officers asked Hood if he would go to his car with them and

open the trunk.   Hood agreed to do so.
     Hood went outside without a shirt.     When he opened the trunk

of his car, the officers could not see the guns and asked Hood to

remove them.   Hood placed two guns on top of a speaker box in the

trunk.   Hood then asked for his coat and reached into the trunk

for a jacket to wear.   Officer Brown grabbed the jacket from Hood

and patted it for weapons.   When Officer Brown squeezed the

jacket, he felt an object about three inches long and an inch

thick.   Although he knew the object was not a weapon, he

suspected that it may have been drugs.    Officer Brown removed the

object, a folded brown paper bag, and opened it.    He saw what

appeared to be several rocks of crack cocaine.    The officers

seized the cocaine and the guns and arrested Hood on drug related

offenses.   When Hood was being processed at the police station,

the officers learned that he was a convicted felon and charged

him with the weapons offense.




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     Hood was indicted for possession of cocaine with intent to

distribute, possession of cocaine while possessing a firearm, and

possession of a firearm after having been convicted of a felony.

Before trial, the judge ruled that the search of the jacket was

unlawful and suppressed evidence of the cocaine.   However, the

judge denied Hood's motion to suppress evidence of the firearms

seized from the trunk.   At trial, Hood was convicted of

possessing firearms after having been convicted of a felony.
                                 II.

     The trial judge's finding that the search of Hood's jacket

was unlawful necessarily "also prohibit[s] the introduction of

derivative evidence 'that is the product of the primary evidence,

or that is otherwise acquired as an indirect result of the

unlawful search.'"   Commonwealth v. Ealy, 12 Va. App. 744, 754,

407 S.E.2d 681, 687 (1974)(quoting Murray v. United States, 487

U.S. 533, 536-37 (1988)).    The principle is well established that

evidence derived from an illegal search or seizure may not

provide the basis for a subsequent seizure.    Wong Sun v. United

States, 371 U.S. 471, 484-85 (1963).    Accordingly, the seizure of

the guns cannot rest upon Hood's arrest for possession of the

unlawfully seized cocaine.

     Although the officers were not acting under authority of a

warrant, the Commonwealth contends the officers could have

properly seized the guns prior to discovering the cocaine.   The

Commonwealth asserts the seizure was permissible as a plain view




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exception to the Fourth Amendment or as a consensual seizure.

Thus, we begin our analysis with the principle that "searches

[and seizures] conducted outside the judicial process, without

prior approval of a judge or magistrate, are per se unreasonable

under the Fourth Amendment -- subject only to a few specifically

established and well-delineated exceptions."   Katz v. United

States, 389 U.S. 347, 357 (1967).

     To invoke the plain view exception to the Fourth Amendment,
see Coolidge v. New Hampshire, 403 U.S. 443, 464 (1970), the

Commonwealth was required to prove that the police "'had probable

cause to believe the evidence seized was a seizable item, i.e.

contraband, the fruit or tools of a crime, or other evidence of a

crime.'"   Commonwealth v. Grimstead, 12 Va. App. 1066, 1068, 407

S.E.2d 47, 48 (1991)(citation omitted).   The evidence proved that

when the officers questioned Hood while he waited for medical

attention they did not suspect him of criminal activity.   Indeed,

they testified that they were questioning him in the belief that

he was a victim of a crime.   During their questioning, Hood told

them of the guns in his trunk and voluntarily opened his trunk at

the officers' request.

     Hood had earlier informed the officers that the assailant

approached and shot into the car.   The bullets holes in the body

of the car observed by the officers were not inconsistent with

Hood's report.   There is no evidence that the officers believed

the shell casings in the car were from the guns in the trunk.    At



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best, the officers' observations generated unanswered questions

requiring further investigation.    However, a vague need for

inquiry does not rise to the level of probable cause to believe

the weapons in the trunk were involved in criminal activity.

     "Probable cause . . . must be based on more than

speculation, suspicion, or surmise that a crime might be in

progress."     Alexander v. Commonwealth, 19 Va. App. 671, 674, 454

S.E.2d 39, 41 (1995).    The criminality of the guns in the trunk

was not immediately apparent to the officers.     See Coolidge, 403

U.S. at 466.    Thus, the evidence adduced at the hearing does not

support the conclusion that the officers had probable cause to

believe the guns were the tools of a crime.     See Grimstead, 12

Va. App. at 1068, 407 S.E.2d at 48.

     Although Hood voluntarily removed the guns from his trunk,

the evidence does not prove that the seizure was consensual.

Hood only consented to opening his trunk and allowing the

officers to view his guns.    The Fourth Amendment's prohibition

against unreasonable seizures requires the Commonwealth to prove

that Hood freely and voluntarily consented to the seizure.
Bumper v. North Carolina, 391 U.S. 543, 548 (1968); Hairston v.

Commonwealth, 216 Va. 387, 388, 218 S.E.2d 668, 669 (1975).     The

officers seized the weapons only after finding the cocaine.     The

evidence does not prove that Hood consented to the seizure.

     For these reasons, we hold that the trial judge erred in

ruling that the seizure of the guns did not violate the Fourth




                                 - 5 -
Amendment and in failing to also suppress the guns.    We,

therefore, reverse the conviction and remand the case to the

circuit court.
                                      Reversed and remanded.




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