                      COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia


COMMONWEALTH OF VIRGINIA
                                         MEMORANDUM OPINION * BY
v.   Record No. 2501-02-4            JUDGE RUDOLPH BUMGARDNER, III
                                             MARCH 28, 2003
WILLIAM D. PRIESTER


         FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
              Richard J. Jamborsky, Judge Designate

          Richard B. Smith, Senior Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on briefs), for appellant.

          Donald M. Haddock, Jr. (Redmon, Peyton &
          Braswell, LLP, on brief), for appellee.


     William D. Priester was charged with possession of cocaine

with intent to distribute and possession of ecstasy with intent

to distribute.   The trial court granted his pre-trial motion to

suppress the drugs and his statements to police.     Concluding the

police had reasonable articulable suspicion to conduct an

investigative detention, we reverse the trial court's ruling.

     The Commonwealth must show that granting the motion to

suppress constituted reversible error when the evidence is

considered in the light most favorable to the defendant.     McGee

v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
(1997) (en banc); Commonwealth v. Grimstead, 12 Va. App. 1066,

1067, 407 S.E.2d 47, 48 (1991).    "Ultimate questions of

reasonable suspicion and probable cause to make a warrantless

search" involve questions of both law and fact and are reviewed

de novo on appeal.     Ornelas v. United States, 517 U.S. 690, 699

(1996).   "[W]e 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

officers."   McGee, 25 Va. App. at 198, 487 S.E.2d at 261.

     Officers Trimber and Ritchie were working as street crimes

police officers.   Citizens had complained about drug activity in

the area, and Officer Trimber had made drug arrests there.     The

officers were dressed in trousers and black T-shirts with a

badge embroidered over the left breast pocket.    The words

"Police" and "Street Crimes Unit" encircled the badge, and the

phrase "Alexandria Police Department" appeared on the back of

the shirt.   The officers wore duty belts, which held their

firearms and badges.

     At approximately 7:15 p.m., June 4, 2002, Officer Trimber

observed the defendant lean for one or two seconds into the

driver's window of a vehicle stopped at the dead end of a

street.   The officer did not see anything pass from hand to

hand, but when the defendant looked at the officer, he walked

into an alley leading from the street.    As he did, the officer
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noticed the defendant's hand was closed in a fist.    He brought

his fist to his mouth, extended his fingers, and appeared to

empty whatever was in his hand into his mouth.    The defendant

then dropped his hand, which was then opened, to his side.

Officer Trimber knew from experience that drug dealers conceal

drugs in their mouths and swallow them if confronted by the

police.

        The officers drove into the alley, stopped close to the

defendant, and exited their vehicle.    The defendant stopped and

turned.    The officers did not draw weapons, but they were within

one foot and two feet of the defendant when Officer Trimber

asked, "Did you just swallow dope?"    The defendant said no and

opened his mouth.    The officer saw nothing in the defendant's

mouth.    Officer Trimber then asked for identification.   The

defendant reached into his back pockets with both hands and

pulled out plastic bags containing white substances from one of

them.    He immediately jammed the bags back into his pocket and

fled.    The officers pursued and apprehended the defendant

because they believed the bags contained cocaine.    They did not

see the defendant drop anything as they chased him, but they

retrieved plastic bags along the path he took.

        In deciding whether a seizure occurred, we determine

"whether, under a totality of circumstances, a reasonable person

would have believed that he . . . was not free to leave."

McGee, 25 Va. App. at 199-200, 487 S.E.2d at 262.     See also
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United States v. Mendenhall, 446 U.S. 544, 554 (1980).     Under

the facts of this case, we conclude a seizure occurred.    The

officers followed the defendant into an alley, exited their

vehicle, and stood within two feet of the defendant when Officer

Trimber asked, "Did you just swallow dope?"   The statement was

an accusation that conveyed an explicit message that the police

were investigating a crime being committed in their presence and

compliance with their directives was required.    McGee, 25

Va. App. at 200, 487 S.E.2d at 262.

     However, at the time the officers stopped the defendant

they had reasonable suspicion to conduct an investigative

detention.    Terry v. Ohio, 392 U.S. 1, 27 (1968).   To conduct

such a stop an officer must have "a particularized and objective

basis for suspecting" the defendant is engaged in criminal

activity.    United States v. Cortez, 449 U.S. 411, 417-18 (1981);

Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 923

(2000) ("a minimal level of objective justification" is

required).

     The officers observed the defendant in a high crime area

leaning in the driver's window of a car stopped at the end of a

dead-end street.   When the defendant saw the police, he walked

off and into an alley.   As he walked away, he raised his fist to

his mouth, and appeared to put something in his mouth.    The

officers knew from experience those actions were consistent with

sale and concealment of drugs. Experience also indicated
                             - 4 -
dealers conceal drugs in their mouths and swallow the drugs if

confronted by the police.    "The officer is also entitled 'to

view the circumstances confronting him in light of his training

and experience, and he may consider any suspicious conduct of

the suspected person.'"     Andrews v. Commonwealth, 37 Va. App.

479, 491, 559 S.E.2d 401, 407 (2002) (quoting James v.

Commonwealth, 22 Va. App. 740, 745, 473 S.E.2d 90, 92 (1996)).

See Whitfield v. Commonwealth, ___ Va. ___, ___, ___ S.E.2d ___,

___ (Feb. 28, 2003).

     When the defendant opened his mouth, the officer observed

no drugs in it.   Not having their original reasonable suspicion

of criminal conduct allayed, the officers continued their

investigative detention by requesting identification.    "[T]he

officer may ask the detainee a moderate number of questions to

determine his identity and to try to obtain information

confirming or dispelling the officer's suspicions."     Berkemer v.

McCarty, 468 U.S. 420, 439 (1984).

     When the defendant reached in his pockets to retrieve

identification, he pulled out plastic bags that the officers

recognized as probable cocaine.    The officers' reasonable

suspicion had ripened into probable cause.    The defendant's

flight provided further evidence of wrongdoing.     Illinois v.

Wardlow, 528 U.S. 119, 124-25 (2000).    The officers pursued and

arrested the defendant armed with probable cause to arrest and


                                - 5 -
search incident to the arrest.   All the evidence they obtained

from the defendant was lawfully obtained.

     We conclude the officers had reasonable suspicion for the

initial stop.   Their investigation developed probable cause

before they obtained any of the evidence the defendant sought to

suppress.   Accordingly, we reverse the decision to suppress and

remand.

                                            Reversed and remanded.




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