                   COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Overton
Argued at Norfolk, Virginia


QUANTI M. EVANS, S/K/A
 QUANTI MONTERIO EVANS
                                           MEMORANDUM OPINION * BY
v.   Record No. 2557-95-1                JUDGE JAMES W. BENTON, JR.
                                             DECEMBER 10, 1996
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
                 James C. Godwin, Judge Designate
           Kathleen A. Maynard, Assistant Public
           Defender, for appellant.

           Kathleen B. Martin, Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.


      Quanti Evans was convicted of possession of cocaine with the

intent to distribute.    On this appeal from the trial judge's

refusal to suppress evidence, Evans argues (1) that the police

found evidence during a detention that violated the Fourth

Amendment and (2) that the statement he made after his arrest was

not voluntary.   For the reasons that follow, we hold that the

detention was unlawful and that the trial judge erred in

admitting the seized evidence.

                                 I.

      The evidence proved that at 9:25 p.m. on September 2, 1994,

Officer Christopher P. Smith and Officer Clark were on routine

patrol when they saw an automobile parked on a dead-end street.

      *
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
The officers stopped their vehicle facing the automobile and

illuminated the automobile with their bright headlights.    Officer

Smith testified that this particular street was an area normally

checked for drug activity.   He also testified that he observed a

pile of clothes on top of the automobile.    He recognized the

automobile as belonging to an individual who rented it to other

people in exchange for narcotics.

     The officers, both in uniform, left their vehicle and went

to the automobile.   Officer Smith approached the automobile on

the driver's side.   He saw five people inside and noticed that

the interior was "extremely smoky."     Officer Smith motioned for

the person in the driver's seat to roll down the window.    The

driver, who was not wearing a shirt, looked away.    Officer Smith

then tapped on the window and again motioned to the driver to

open the window.   After the driver partially rolled down the

window, Officer Smith detected a strong odor of marijuana.
     Officer Smith asked the driver to produce his driving permit

and vehicle registration.    The driver gave Officer Smith his

permit.   The passenger in the front seat, Quanti Evans, looked in

the glove compartment for the registration card without success.

While this was occurring, Officer Smith noticed a cellophane

wrapper for a cigar on the ground outside the automobile.    He

testified that he concluded the occupants were smoking marijuana

in a hollowed-out cigar.

     Officer Smith ordered the driver out of the automobile.




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After a brief conversation with Officer Smith, the driver

consented to a search of the automobile.      The officers then

removed Evans and the other three occupants and conducted pat

down searches.    The officers found two small baggies of marijuana

and a cigar stuffed with marijuana on one of the passengers from

the rear seat.    The officer who searched Evans found $271 in his

front pants pocket.    After Officer Clark discovered cocaine in

the glove compartment, Officer Smith arrested Evans.
        At the police station, the officers placed Evans in a cell.

Because Evans was a minor, Officer Smith contacted Evans'

mother.    When Evans' mother arrived, Officer Smith advised Evans

of his Miranda rights.     Evans and his mother indicated that they

understood the Miranda rights, and they both signed a waiver

form.

        Officer Smith testified that he explained the charges and

told Evans and his mother that it was "always in [a defendant's]

best interest to make a statement, get the facts out as he sees

them, clear the air sort of thing."      He also advised Evans that

he would tell the Commonwealth's Attorney and the judge that

Evans had been cooperative.    He testified that although he told

Evans that "anything can happen" in court, he also told him "that

it would, may be more favorable to him" if he gave a statement.

Officer Smith said he "may have told [Evans] that [he has] seen

the court . . . go on a different route with people that make

statements or that type of thing."       After Officer Smith made



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those statements, Evans gave a written statement confessing his

possession of the cocaine in the glove compartment.

     Evans testified at the suppression hearing that Officer

Smith told him that he "need[ed] to be cooperative" so that the

Commonwealth's Attorney would "take it easy on [him], but if [he

kept] trying to fight the system they [would] . . . send [him]

away for a long time."   Evans also alleged that Officer Smith

stated that in "previous cases . . . where people wrote

statements they didn't get that much time."
     The trial judge found that the police officers had a

reasonable suspicion of criminal activity when they detained the

occupants of the automobile and found that Evans' statement was

voluntary.   Thus, the trial judge denied Evans' motion to

suppress both the cocaine seized from the glove compartment and

Evans' statement.

                                II.

     "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).

When the officers parked their car blocking the path of the

suspects' vehicle, shined their bright lights into the vehicle,

approached the vehicle in uniform, and insisted that the driver

roll down his window and display his driver's permit, the




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officers effected a stop of the passengers in the vehicle.

     "[T]he police can stop and briefly detain a person for

investigative purposes if the officer has a reasonable suspicion

supported by articulable facts that criminal activity 'may be

afoot.'"   United States v. Sokolow, 490 U.S. 1, 7 (1989) (citing

Terry v. Ohio, 392 U.S. 1, 30 (1968)).     The Terry standard

requires that "[t]he officer . . . be able to articulate

something more than an 'inchoate and unparticularized suspicion

or "hunch."'"    Sokolow, 490 U.S. at 7 (citation omitted).     The

record must contain a basis for the trial judge and this Court to

exclude the hypothesis that the police operated on a hunch.      The

Supreme Court has stated that "[a] court sitting to determine the

existence of reasonable suspicion [that a crime is occurring]

must require the agent to articulate the factors leading to that

conclusion."    Id. at 10.

     Although the record contains a myriad of facts, the record

contains no testimony by the officers asserting that they

suspected criminal activity or articulating the nature of the

criminal activity they allegedly suspected.    The officers had not

received a call that required them to respond to that vicinity.

Officer Smith testified that they were on routine patrol when

they saw the automobile.     Moreover, he responded in the

affirmative when asked, "Well, is there any responsibility . . .

when you see a vehicle parked at a location where in your opinion

it's not supposed to be parked and it is abandoned, do you go up



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and check it?"   However, no evidence established that the

automobile appeared abandoned.

     Although the trial judge found "from the evidence presented

that the officers had every reasonable suspicion," the officers

did not articulate a basis to support a conclusion other than a

desire to check the automobile because it was suspicious.     In

short, the officers did not articulate a basis to exclude the

conclusion that the stop was based on a hunch.    For these

reasons, we hold that the trial judge erred in refusing to

suppress the evidence seized from the automobile.
                                 III.

     "The burden is upon the Commonwealth to prove that

extra-judicial inculpatory statements were made voluntarily

before they can be admitted in evidence against one charged with

or suspected of the commission of a crime."     Gwaltney v.

Commonwealth, 19 Va. App. 468, 472, 452 S.E.2d 687, 690 (1995).

In assessing the evidence, this Court must examine the totality

of the circumstances.   Id.    None of the facts and circumstances

of the interrogation established that Evans' "will was overcome

and his capacity for self-determination critically impaired."

Wilson v. Commonwealth, 13 Va. App. 549, 554, 413 S.E.2d 655, 658

(1992).   The statements made by the police officer did not render

the confession inadmissible.     See Starks v. Commonwealth, 225 Va.

48, 52-54, 301 S.E.2d 152, 155 (1983).

     Accordingly, we reverse the conviction and remand for



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further proceedings.
                               Reversed and remanded.




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