                   COURT OF APPEALS OF VIRGINIA


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


SEAN A. JERRELLS
                                            MEMORANDUM OPINION *
v.   Record No. 0559-97-2                BY JUDGE MARVIN F. COLE
                                               APRIL 21, 1998
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                 Charles L. McCormick, III, Judge
           Buddy A. Ward, Public Defender, for
           appellant.

           Steven A. Witmer, Assistant Attorney General
           (Richard Cullen, Attorney General, on brief),
           for appellee.



     Appellant, Sean A. Jerrells, appeals his conviction in a

bench trial of possessing cocaine with the intent to distribute.

 He contends that the trial court erred in denying his motion to

suppress the evidence obtained in an illegal stop of his car

which violated his Fourth Amendment rights.   We agree and

reverse.

     When viewed in the light most favorable to the Commonwealth,

the prevailing party below, the evidence proved that on October

13, 1995, Lieutenant R.J. Loftis, of the South Boston Police

Department, received a radio dispatch which reported that a

delivery driver had witnessed a drug transaction on the church

lot next to the brick house on Park Avenue at the intersection of
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Hamilton Boulevard.   The unnamed delivery driver had described a

white Ford Tempo, with license plate number RSF-211.    She said

that two black males occupied the car.    No further information

was given.

     Lt. Loftis was familiar with the car described by the

informant.   He knew that it was a rented vehicle from the license

plate number.   Loftis had regularly, and including that day, seen

the car in the area of Park and Hamilton, an area known to him to

be an open air crack cocaine market.    Loftis had made arrests

leading to convictions at that location within the previous year.
     Loftis drove to the location but did not find the car there.

He continued to drive around in the area.     When he got to the

intersection of West and Washington, he met the Ford Tempo, which

was stopping at the intersection.     Loftis pulled in front of the

Tempo and stopped it.   Three black males occupied the car;

appellant was the driver.   As Loftis approached the Tempo, he

smelled marijuana and could see cigar tobacco on the floorboards.

According to Loftis, it was a common practice for marijuana

smokers to hollow out cigars and replace the tobacco with

marijuana.

     Loftis asked appellant for his driver's license, which he

could not produce.    Loftis checked on the status of appellant's

license and found that it had been suspended.    Loftis then had

appellant exit the car and patted him down for weapons.    He felt

a small square box in his right pocket.    Loftis reached into the




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pocket and retrieved a tic-tac candy dispenser, which he

described as a "container of choice" for crack cocaine in the

locality.   Appellant admitted that the container was his, it

contained crack cocaine, and he "may" have sold some cocaine

earlier.    Accordingly, appellant was "cuffed and placed under

arrest."

     In reviewing a trial court's denial of a motion to suppress,

"[t]he burden is upon [the defendant] to show that th[e] ruling,

when the evidence is considered most favorably to the

Commonwealth, constituted reversible error."     Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.

denied, 449 U.S. 1017 (1980).    "[U]ltimate questions of

reasonable suspicion and probable cause to make a warrantless"

stop or seizure involve questions of both law and fact and are

reviewed de novo on appeal.     Ornelas v. United States, 116 S. Ct.

1657, 1659 (1996).    In performing such analysis, we are bound by

the trial court's findings of historical fact unless plainly

wrong, and we "give due weight to inferences drawn from those

facts by resident judges and local law enforcement officers."
Id. at 1663. 1   "We analyze a trial judge's determination whether
     1
      Ornelas held that findings of historical fact are reviewed
on appeal only for "clear error." However, "'[c]lear error' is a
term of art derived from Rule 52(a) of the Federal Rules of Civil
Procedure, and applies when reviewing questions of fact" in the
federal system. Ornelas, 116 S. Ct. at 1661 n.3. In Virginia,
questions of fact are binding on appeal unless "plainly wrong."
Quantum Dev. Co. v. Luckett, 242 Va. 159, 161, 409 S.E.2d 121,
122 (1991); Naulty v. Commonwealth, 2 Va. App. 523, 527, 346
S.E.2d 540, 541 (1986).




                                  3
the Fourth Amendment was implicated by applying de novo our own

legal analysis of whether based on those facts a seizure

occurred."     McGee v. Commonwealth, 25 Va. App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc) (citations omitted).

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

(1989), we reviewed the law that permits a police officer to stop

a motor vehicle based upon a reasonable suspicion of an unlawful

activity:
             When the police stop a vehicle and detain its
             occupants, the action constitutes a "seizure"
             of the person for fourth amendment purposes.
              If the stop of the vehicle is without a
             warrant, the Commonwealth has the burden to
             prove the stop was legal. Any warrantless
             stop of a vehicle which leads to an arrest of
             its occupants requires probable cause to
             believe that a crime has been committed.
             However, if an officer has an "articulable
             and reasonable suspicion that a motorist is
             unlicensed or that an automobile is not
             registered, or that either the vehicle or an
             occupant is otherwise subject to seizure for
             violation of the law," the officer may
             conduct an investigatory stop of the vehicle
             limited in time and scope to ascertaining
             whether the suspicions are accurate.

Id. at 143, 384 S.E.2d at 127 (citations omitted).     See also

Bulatko v. Commonwealth, 16 Va. App. 135, 136-37, 428 S.E.2d 306,

307 (1993).

     A seizure for Fourth Amendment purposes occurs when

"circumstances . . . amount to a show of official authority such

that 'a reasonable person would have believed that he was not

free to leave.'"     Florida v. Royer, 460 U.S. 491, 502 (1983)

(citation omitted).    "[W]henever a police officer accosts an



                                   4
individual and restrains his freedom to walk away, he has

'seized' that person."    Terry v. Ohio, 392 U.S. 1, 16 (1967).

     We conclude, as the Attorney General conceded in oral

argument, that the manner in which Loftis pulled his police

vehicle in front of appellant, stopping him at the intersection,

constituted a "seizure" for Fourth Amendment purposes.      No

reasonable person would feel that he was free to leave if stopped

in such a manner by a police car.
     If Lt. Loftis had reasonable, articulable suspicion that

appellant was engaged in, or was about to engage in, criminal

activity, he had a right to detain appellant to conduct a brief

investigation without violating his Fourth Amendment protection

against unreasonable searches and seizures.      The justification

for stopping appellant need not rise to the level of probable

cause, but must be more than an "inchoate and unparticularized

suspicion or 'hunch.'"    Terry, 392 U.S. at 27.

     Anonymous information may furnish reasonable suspicion

justifying an investigative stop, provided it has been

sufficiently corroborated by other evidence.       See Alabama v.

White, 496 U.S. 325, 331 (1990).       See also Bulatko, 16 Va. App.

at 137, 428 S.E.2d at 307.   Every detail reported by an anonymous

informant need not be corroborated to establish reasonable

suspicion.   See id.   Significant aspects of the informer's

information must be independently verified, however, to give

"some degree of reliability to the other allegation" of the



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informant.   White, 496 U.S. at 332.

     In this case, the Commonwealth alleges that the stop was

justified by reasonable suspicion of criminal activity and that

the information given by the unidentified truck driver was

sufficiently corroborated to give it reliability.   It enumerates

the following to corroborate the informer's information:    (1) the

driver reported actually seeing a drug deal at a specific

location; (2) the informant gave a detailed description of a

vehicle which included the make and license plate number, details

which were later verified by police observation; (3) Loftis was

familiar with the area and recognized the car as a rental car

that was kept at the described location, and he had seen the car

in the area many times; and (4) Loftis knew the area to be an

open air crack market.   Therefore, the Commonwealth argues, Lt.

Loftis had reasonable suspicion that the occupants of the vehicle

were engaged in unlawful activity and he properly stopped the

vehicle to briefly investigate.
     The appellant contends that Loftis seized him on the basis

of an anonymous, unsubstantiated statement by someone who

believed she had seen a drug transaction.   He argues that the

police made no inquiry as to how she reached that conclusion,

what she saw, or what training she had that would support a

reasonable belief that appellant was committing a crime.    Her

report made no predictions, but provided only information that

could be reported by anyone, regardless of whether he or she had



                                  6
seen a drug transaction.   Therefore, appellant contends that

there was no evidence to give any credibility to the informant's

report.   Appellant maintains that his motion for suppression

should have been granted and all the evidence secured as a result

of the illegal stop should have been suppressed.    We agree.

     We shall respond to the Commonwealth's corroboration

evidence in the order enumerated.     The informant reported that

she had observed a drug transaction at Park Avenue and Hamilton

Boulevard.    The dispatch related the description of a white Ford

Tempo that was occupied by two men.    When Loftis went to this

location to verify the tip, he did not find the Tempo.    The truck

driver reported seeing a drug transaction, but there is no

evidence in the record to support such an accusation except the

tip itself.    Moreover, the record contains no testimony that

recites the activity observed or that describes the conduct of

the car's occupants as being involved in the suspected drug

transaction.
     Loftis testified that he was familiar with the area and

recognized the car as a rental car, from its license number.      He

had seen the car in the area many times before.    Lt. Loftis did

not explain how this information would lead to a reason to

suspect that the occupants were engaged in criminal activity.       He

indicated only that a rental car was kept in the area "most of

the time."    We fail to see any connection between this testimony

and the informant's tip.




                                  7
     Loftis testified that he knew the area at Park and Hamilton

Boulevard to be an open air crack market.   Not every operator of

an automobile in the vicinity of where drugs are known to be sold

can reasonably be suspected of trafficking in drugs.   Moreover,

the Tempo was not found at that location, but at West and

Washington Avenue, some distance away.   The evidence does not

disclose that area to be an open air crack market.   No

corroborating evidence places the Tempo at any location except

where the officers stopped it.   The informant reported two

occupants in the Tempo.   When located by Loftis, it contained

three occupants.
     Based upon a totality of the evidence, we find that the

evidence is insufficient to properly corroborate the informant's

information and the stop was illegal.    Therefore, the motion to

suppress the evidence should have been granted because the

seizure was unlawful.   All of the evidence obtained after the

seizure should have been suppressed as "fruit of the poisonous

tree."    Commonwealth v. Ealy, 12 Va. App. 744, 754, 407 S.E.2d

681, 687 (1991).

     Accordingly, we reverse the conviction and dismiss the

charge.

                                          Reversed and dismissed.




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