                    COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Overton and Bumgardner
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.        Record No. 2111-97-3           JUDGE NELSON T. OVERTON
                                              MARCH 19, 1998
RONALD M. PACHECO


             FROM THE CIRCUIT COURT OF GILES COUNTY
                      Colin R. Gibb, Judge
          Jeffrey S. Shapiro, Assistant Attorney
          General (Richard Cullen, Attorney General;
          Steven A. Witmer, Assistant Attorney General,
          on brief), for appellant.

          Stephanie G. Cox for appellee.



     The Commonwealth of Virginia (appellant) appeals an order of

the Circuit Court of Giles County suppressing narcotics evidence

seized from Ronald Pacheco (appellee).     Appellant contends the

trial court erroneously suppressed the evidence because:     1)

appellee was not seized and 2) even if he was seized the police

had probable cause to support the seizure.     Because we find that

defendant was not seized but merely detained for purposes of a

brief investigatory search, we reverse and remand.

     The parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, no recitation of the facts is necessary.

     Appellant contends appellee was not seized for purposes of

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the Fourth Amendment to the United States Constitution.   There

are three types of "police-citizen" encounters under the Fourth

Amendment.   "'First, there are communications between police

officers and citizens that are consensual and, therefore, do not

implicate the Fourth Amendment.'   Second, are 'brief

investigatory stops' based upon 'specific and articulable facts,'

and third, are 'highly intrusive, full-scale arrests' based upon

probable cause."   Payne v. Commonwealth, 14 Va. App. 86, 88, 414

S.E.2d 869, 869-70 (1992) (quoting Iglesias v. Commonwealth, 7
Va. App. 93, 99, 372 S.E.2d 170, 173 (1988)).   This third

encounter occurs only when "in view of all of the circumstances

surrounding the incident, a reasonable person would have believed

that he was not free to leave."    United States v. Mendenhall, 446

U.S. 544, 554 (1980).   Whether a person is free to leave,

therefore, is an objective standard.    See Michigan v. Chesternut,

486 U.S. 567, 574 (1988).

     "We adhere to the view that a person is seized only when, by

means of physical force or a show of authority, his freedom of

movement is restrained.   Only when such restraint is imposed is

there any foundation whatever for invoking constitutional

safeguards."   United States v. Martinez-Fuerte, 428 U.S. 543, 554

(1976)).   In the instant matter, appellee was not seized so as to

require the police to show probable cause.

     We believe the holding of the United States Supreme Court in

Maryland v. Wilson, 117 S. Ct. 882 (1997), largely controls




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disposition of this case.   In Wilson, a car was stopped for a

traffic infraction and during a brief investigatory detention,

drugs were found and the occupants of the vehicle arrested.     The

passenger challenged his removal from the vehicle as an

unreasonable seizure under the Fourth Amendment.    The Court

balanced the danger to police officials during traffic stops

against the minimal additional intrusion to the passenger and

held that "an officer making a traffic stop may order passengers

to get out of the car pending completion of the stop."     Id. at

886.

       The instant matter is very similar.   The officer had already

arrested the driver for driving with a suspended license and

obtained his permission to search the vehicle.    Search of the

vehicle had not been completed, however, because a police dog had

not yet arrived.   In order to minimize the danger to the officers

present, appellee was ordered to exit the vehicle, submit to a

search of his person and remain outside of the vehicle until

completion of the stop.   Appellee's attempt to re-enter the

vehicle or leave with it was rightfully prohibited because police

officials had not finished searching it.

       Because this brief, non-intrusive detention was not a full

seizure, we look to see whether there was reasonable suspicion to

support the stop in the first place.    See Logan v. Commonwealth,

19 Va. App. 437, 441, 452 S.E.2d 364, 367 (1994).    Law

enforcement officials must have a reasonable, articulable



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suspicion to stop a vehicle and investigate whether the motorist

is licensed, the vehicle is registered or there is some other

violation of the law occurring.     See Gilpin v. Commonwealth, 26

Va. App. 105, 110, 493 S.E.2d 393, 395 (1997).     See also Delaware

v. Proust, 440 U.S. 648, 663 (1979); Waugh v. Commonwealth, 12

Va. App. 620, 621, 405 S.E.2d 429, 429 (1991).    This Court must

review questions of reasonable suspicion and probable cause de

novo, but questions of fact only for clear error.     See McGee v.
Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997)

(en banc) (citing Ornelas v. United States, 116 S. Ct. 1657, 1663

(1996)).    "The detaining officer 'must have a particularized and

objective basis for suspecting the particular person stopped of

criminal activity.'"     Zimmerman v. Commonwealth, 234 Va. 609,

612, 363 S.E.2d 708, 709 (1988) (citations omitted).

        The police initially pulled over appellee and his companion

for erratic driving behavior.    The rear seat of the vehicle

contained women's clothes.    Both appellee and his co-driver were

male.    They claimed that they were from New York and bound for

Florida, yet the road upon which they traveled was not a direct

thoroughfare between those locations.    The excuse they offered

for their detour through Narrows, Virginia was, while truthful,

suspicious.    Additionally, they could not prove that they were in

rightful possession of the vehicle they drove.    In these

circumstances, we find the police had reasonable and articulable

suspicion of criminal activity which justified the investigatory



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detention.   The subsequent discovery of methamphetamine in the

car and on appellee's person was proper and its suppression in

the trial court unjustified.

     Because we find that the trial court erred when it

suppressed the evidence of appellee's drug possession, we reverse

and remand for trial.

                                         Reversed and remanded.




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