                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia


CHARLES COREY ROBINSON
                                            MEMORANDUM OPINION * BY
v.   Record No. 1680-01-2                JUDGE JERE M. H. WILLIS, JR.
                                                 MAY 21, 2002
COMMONWEALTH OF VIRGINIA


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

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

          Eugene Murphy, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on
          brief), for appellee.


     Charles Robinson was convicted in a bench trial of (1)

possession of cocaine with the intent to distribute, in violation

of Code § 18.2-248; (2) possession of heroin, in violation of Code

§ 18.2-250; and (3) possession of marijuana, in violation of Code

§ 18.2-250.1.   Arguing that he was seized without probable cause

or reasonable suspicion, he contends that the trial court erred in

denying his motion to suppress.   He further contends that

insufficient evidence supports his conviction for possession of

cocaine with the intent to distribute.    We disagree and affirm the

judgment of the trial court.


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

                         A.      TRAFFIC STOP

     On November 17, 2000, Virginia State Trooper D.J. Corbett

stopped at the traffic signal at the intersection of Jahnke Road

and Forest Hill Avenue in Richmond.       Robinson pulled his car up

to the intersection and stopped to Trooper Corbett's left.

Looking to his left, Trooper Corbett observed hanging from

Robinson's mouth what he believed from his experience was a

hand-rolled marijuana cigarette.      Robinson looked over at the

trooper, made eye contact, then looked back.        Facing front,

Robinson pulled down on his lip, removed the cigarette from his

mouth, and then looked up and to his left.        Trooper Corbett

motioned Robinson to pull over.

     Approaching Robinson's car, Trooper Corbett detected a

strong odor of marijuana.     He removed Robinson from the car,

placed him in handcuffs, and Mirandized him.        Trooper Corbett

then explained that he was detaining Robinson until he

determined how much marijuana was in the car.        Trooper Corbett

also removed a passenger from the car.         Robinson told Trooper

Corbett that he had thrown the cigarette out the window and that

his passenger had thrown out the marijuana.

     Trooper Corbett began to search for the cigarette and the

marijuana.   He found neither.     He advised Robinson that he

wanted to search the car and asked for Robinson's consent.

Robinson refused.   Trooper Corbett advised Robinson that he had

                                  - 2 -
probable cause to search the car and would do so.      Robinson

thereupon volunteered that $500 worth of cocaine was "under the

car."

        During the vehicle search, Trooper Corbett discovered (1)

6.4 grams of marijuana beneath the seat; (2) 46.88 grams of

crack cocaine beneath the seat on the passenger side, just down

from the marijuana; (3) 0.047 grams of heroin wrapped in a one

dollar bill in Robinson's wallet, which was in the car; and (4)

Oxycodone (Percoset) tablets.       In searching Robinson, he

discovered $860 in cash.

        After the drugs were discovered, Robinson stated he had

lent his car to a person called "Mousee."      He stated he was

going to return the drugs to Mousee "and he hadn't realized the

drugs were in there until [the passenger] looked under the front

seat and mentioned that there was cocaine under the front seat."

Robinson stated that this conversation with the passenger

occurred before his car was stopped.

                               B.     TRIAL

        Robinson was indicted for (1) possession of cocaine with

the intent to distribute, in violation of Code § 18.2-248;

(2) possession of heroin, in violation of Code § 18.2-250;

(3) possession of Oxycodone, in violation of Code § 18.2-250;

and (4) possession of marijuana, in violation of Code

§ 18.2-250.1.    Robinson moved to suppress as evidence the drugs

found by Trooper Corbett in the car, arguing that his stop by

                                    - 3 -
Trooper Corbett and the resulting warrantless search were

unsupported by probable cause or reasonable suspicion and,

therefore, constituted an unlawful search and seizure.      The

motion to suppress was denied.    The trial court stated:

          You know, I probably never would have seen
          the cigarette. None of the rest of us would
          have unless you've had that training. It's
          certainly [sic] he cannot articulate what he
          saw, but it is a reasonable articulable
          suspicion. And I think the furtive
          movement, the way the trooper described the
          way he removed it after seeing, making eye
          contact. We give him a minimal amount of
          reasonable articulable suspicion.

     The case proceeded to trial.    At the close of all the

evidence, the motion to suppress was renewed and again denied.

Robinson was found not guilty of possession of Oxycodone, but

was convicted on the remaining counts.       He was sentenced to ten

years incarceration with five years suspended for possession of

cocaine with the intent to distribute.       On the charge of

possession of heroin, he was sentenced to five years

incarceration with two years suspended.      The trial court

suspended imposition of sentence on the possession of marijuana

charge.

                          II.     ANALYSIS

     On appeal, Robinson contends that the trial court erred in

denying his motion to suppress.    He argues that he was seized

without probable cause or reasonable suspicion and that the

resulting search of his car was unlawful.      He also argues that


                                 - 4 -
the evidence was insufficient to support his conviction for

possession of cocaine with the intent to distribute.    We

disagree on both issues.

                A.   DENIAL OF MOTION TO SUPPRESS

     Upon a Fourth Amendment challenge on appeal, "[u]ltimate

questions of reasonable suspicion and probable cause to make a

warrantless search" involve questions of both law and fact and

are reviewed de novo.   McGee v. Commonwealth, 25 Va. App. 193,

197, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v.

United States, 517 U.S. 690, 691 (1996)).    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 officers."     Id. at 198, 487 S.E.2d at 261

(citing Ornelas, 517 U.S. at 699).

     Trooper Corbett's initial stop of Robinson was predicated

on reasonable suspicion.

          [W]hen a court reviews whether an officer
          has reasonable suspicions to make an
          investigatory stop, it must view the
          totality of the circumstances and view those
          facts objectively through the eyes of a
          reasonable police officer with the
          knowledge, training and experience of the
          investigating officer. Based upon that
          objective assessment, courts must determine
          whether the officer could have entertained
          an articulable and reasonable suspicion that
          the defendant was involved in unlawful
          activity. If the officer's suspicion
          amounts to merely an "inchoate and
          unparticularized suspicion or 'hunch' . . .

                               - 5 -
          [rather] than a fair inference in light of
          his experience, [it] is simply too slender a
          reed to support the seizure" under the
          fourth and fourteenth amendments of the
          United States Constitution.

Murphy v. Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128

(1989) (citation omitted).

     The circumstances to be considered in determining

reasonable suspicion include "any suspicious conduct of the

person accosted such as an obvious intent to avoid officers or

any nervous conduct on the discovery of their presence."     United

States v. Bull, 565 F.2d 869, 870-71 (4th Cir. 1977).    Such

circumstances were considered in Hollis v. Commonwealth, 216 Va.

874, 223 S.E.2d 877 (1976).

     In Hollis, Officer Cox observed Hollis sitting in an

automobile smoking a hand-rolled cigarette.   Experienced in

narcotics investigations, Officer Cox believed the cigarette to

contain marijuana.   When the officer approached the automobile,

Hollis furtively attempted to hide the cigarette from view.

Before opening the car door, Cox observed the hand-rolled

cigarette on the floorboard.   In affirming Hollis' conviction,

the Court held that "[t]he appearance of the cigarette and

Hollis's furtive gesture in attempting to hide it combined to

provide the necessary probable cause to search the car without

obtaining a warrant."   Id. at 877, 223 S.E.2d at 889.

     Like Officer Cox, Trooper Corbett possessed narcotics

experience.   In five years with the Virginia State Police he had

                               - 6 -
recorded over 160 drug arrests involving marijuana, cocaine,

heroin, and ecstasy.   He testified that when Robinson pulled up

beside him at the intersection, he observed what he believed

from his experience to be a marijuana cigarette.   After making

eye contact, Robinson removed the cigarette from his mouth and

began looking in the opposite direction, avoiding further eye

contact.   Trooper Corbett's experience and observations, coupled

with Robinson's furtive actions, provided reasonable suspicion

to stop Robinson.

     Upon approaching Robinson's car, Trooper Corbett detected a

strong odor of marijuana.   That odor, coupled with his previous

observations, provided Trooper Corbett probable cause to search

the vehicle.   Consequently, the trial court did not err in

denying Robinson's motion to suppress the fruits of that search.

   B.   EVIDENCE SUFFICIENT TO ESTABLISH POSSESSION OF COCAINE

     Robinson argues that the evidence was insufficient to prove

that he possessed the cocaine found in the car.    No drugs were

found on Robinson's person.   Thus, he was not in actual

possession of any drugs.    However, the Commonwealth may prove

constructive possession.    See Wright v. Commonwealth, 217 Va.

669, 670, 232 S.E.2d 733, 734 (1977).   To prove constructive

possession, the Commonwealth must prove (1) that Robinson was

aware of the presence and character of the drugs found in the

car; and (2) that he exercised dominion and control over them.



                                - 7 -
See Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845

(1986).

     Robinson concedes that he had knowledge of the presence and

character of the cocaine.   He informed Trooper Corbett of its

presence in the car, thus satisfying the first prong of the test

as to the cocaine.   However, he argues that the evidence was

insufficient to show he exercised dominion and control over the

cocaine.   We disagree.

     Robinson asserted that he and his passenger had a

conversation, prior to the stop, regarding the presence of the

cocaine.   Indeed, he testified that he told Trooper Corbett that

he intended to return the drugs to "Mousee," the proper owner.

Those actions, coupled with the cocaine's close proximity to

Robinson, are sufficient to constitute exercise of dominion and

control.   Consequently, the evidence was sufficient to prove

constructive possession of the cocaine.   This supports an

inference of constructive possession with respect to the other

drugs.

     The judgment of trial court is affirmed.

                                                         Affirmed.




                               - 8 -
Benton, J., dissenting.

     "When the police stop a motor vehicle and detain an

occupant, this constitutes a 'seizure' of the person for Fourth

Amendment purposes, even though the function of the stop is

limited and the detention brief."       Zimmerman v. Commonwealth,

234 Va. 609, 611, 363 S.E.2d 708, 709 (1988) (citations

omitted).

               It is well-established that an
            investigatory stop may be initiated only
            when an officer has "a reasonable suspicion,
            based on objective facts, that the
            individual is involved in criminal
            activity." When examining the officer's
            articulable reasons for stopping a person,
            we examine the objective reasonableness of
            the officer's behavior rather than the
            officer's subjective belief that the conduct
            indicates criminal activity.

Riley v. Commonwealth, 13 Va. App. 494, 496-97, 412 S.E.2d 724,

725 (1992) (quoting Brown v. Texas, 443 U.S. 47, 51 (1979)).

"'Ultimate questions of reasonable suspicion . . . to make a

warrantless search' involve questions of both law and fact and

are reviewed de novo on appeal."    McGee v. Commonwealth, 25 Va.

App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citation

omitted).

     The evidence in this record proves that "[t]he detaining

officer [did not] 'have a particularized and objective basis for

suspecting [Robinson] of criminal activity.'"       Zimmerman, 234

Va. at 612, 363 S.E.2d at 710 (citation omitted).      When the

officer was waiting for the traffic light to change, Robinson

                                - 9 -
stopped his vehicle in the travel lane to the left of the

officer's vehicle.    The officer looked into Robinson's vehicle

while both were stopped for the traffic light; he saw a front

seat passenger and Robinson, the driver.    The officer testified

he "observed a hand rolled cigarette hanging from the mouth of

the driver . . . Robinson."    The officer then noted the

following:

             [Robinson] looked over to the right and my
             eyes looked into his eyes and he then looked
             back. His head then turned back so it was
             facing front again. He pulled down on his
             lip pulling the cigarette out of his mouth
             . . . and proceeded to look up and to his
             left.

As the light turned green, the officer motioned to Robinson to

stop his vehicle.

     Nothing in the officer's testimony suggests that he had a

particularized and objective basis for suspecting Robinson of

criminal activity.     Brown, 443 U.S. at 51.   An objective

assessment of the totality of the circumstances requires more

than a recitation of the minutia of the factual setting.       Unless

the objective facts are shown to give rise to a reasonable

articulable suspicion of criminal conduct, the seizure is

unlawful.    The officer articulated nothing about his observation

that suggested the cigarette did not contain ordinary tobacco.

The brief eye contact the officer had with Robinson had no

articulable significance.    The fact that a person looks at an

officer does not justify a suspicion of wrongdoing.      Taylor v.

                                - 10 -
Commonwealth, 6 Va. App. 384, 389, 369 S.E.2d 423, 425 (1988).

See also Reid v. Georgia, 448 U.S. 438, 441 (1980).     The officer

saw the driver smoking a hand-rolled cigarette and had only a

subjective hunch that caused him to investigate the vehicle and

detain the occupants.

     Every citizen has a constitutionally guaranteed right not

to be stopped at the unfettered discretion of police.    "Nothing

is more clear than that the Fourth Amendment was meant to

prevent wholesale intrusions upon the personal security of our

citizenry, whether these intrusions be termed 'arrests' or

'investigatory detentions.'"    Davis v. Mississippi, 394 U.S.

721, 726-27 (1969).   Fundamental Fourth Amendment principles

require that, "in justifying [a] particular intrusion the police

officer must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts,

reasonably warrant that intrusion."     Terry v. Ohio, 392 U.S. 1,

21 (1968).    "In the absence of any basis for suspecting

[Robinson] of misconduct, the balance between the public

interest and [Robinson's] right to personal security and privacy

tilts in favor of freedom from police interference."     Brown, 443

U.S. at 52.

     The circumstances proved by the evidence in this case are

significantly different than those proved in Hollis v.

Commonwealth, 216 Va. 874, 223 S.E.2d 887 (1976).    There, police

detectives were watching a particular Mustang car that a

                               - 11 -
reliable informant said was transporting narcotics.     Id. at 875,

223 S.E.2d at 888.

             As the detectives drove past, [a detective]
             shined a hand spotlight on the Mustang and
             "it lit the whole complete car up." [The
             detective] saw Hollis, seated in the
             passenger seat, remove what appeared to be a
             hand-rolled cigarette from his mouth and
             throw it to the floor of the car. [The
             detective] testified that in his
             investigation of narcotics cases in past
             years he had found that such a movement
             comes from "people trying to get rid of
             them."

Id.

        The fact that the detectives had reliable information about

narcotics in the car added context to their suspicion that the

hand-rolled cigarette contained narcotics.    Furthermore, the

detectives saw Hollis remove the hand-rolled cigarette from his

mouth and throw it to the floor of the car after Hollis saw

them.    No testimony indicated that Hollis extinguished the

cigarette before dropping it on the floor of the car.

Additionally, the detective articulated that in his experience

the unusual conduct of a person removing a hand-rolled cigarette

from his mouth and discarding it on the floor of a car indicated

the person wanted to hide contraband.

        Unlike Hollis, the officer did not see Robinson do anything

with the cigarette that any ordinary smoker of a hand-rolled

tobacco cigarette would not have done.    Robinson's activities

were no different than any other driver in those same


                                - 12 -
circumstances; he "acted as any other person might have acted

under similar circumstances."      Ewell v. Commonwealth, 254 Va.

214, 217, 491 S.E.2d 721, 723 (1997).     Furthermore, the evidence

does not establish that Robinson did anything unusual with the

cigarette as he smoked it and held it in his hands.     Certainly,

the officer articulated nothing that indicated Robinson's

conduct corresponded to the activities of a person violating the

law.   "At best, [the officer's] suspicion amounts to merely an

'inchoate and unparticularized suspicion or "hunch" . . .

[rather] than a fair inference in the light of his experience.'"

Gilpin v. Commonwealth, 26 Va. App. 105, 111-12, 493 S.E.2d 393,

396 (1997) (citation omitted).

       As the Court held in Reid, a suspicion based merely on an

officer's observation of conduct that is characteristic of a

very large category of innocent persons is a suspicion grounded

only in a "hunch" and "is simply too slender a reed to support

the seizure."   448 U.S. at 441.    "'Reasonable suspicion' is more

than a 'mere hunch.'"    Commonwealth v. Thomas, 23 Va. App. 598,

610-11, 478 S.E.2d 715, 721 (1996).      "Under the circumstances of

this case, [Robinson's] conduct, viewed either in isolation as

the officer considered it or along with the other behavior as

the court must examine it, is utterly insufficient to generate a

reasonable suspicion that [Robinson] was involved in criminal

activity."    Zimmerman, 234 Va. at 612, 363 S.E.2d at 710.



                                - 13 -
     For these reasons, I would hold that the officer had no

reasonable articulable suspicion that Robinson was engaging in

criminal activity.   He acted on a hunch and was not justified in

making the detention.   I dissent.




                              - 14 -
