                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Fitzpatrick


RICHARD LEE CARTER, JR.
                                        MEMORANDUM OPINION * BY
v.         Record No. 1159-95-2        JUDGE SAM W. COLEMAN III
                                             JULY 2, 1996
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF POWHATAN COUNTY
                       Thomas V. Warren, Judge

           (William R. Blandford, Jr., on briefs), for
           appellant. Appellant submitting on brief.
           (James S. Gilmore, III, Attorney General;
           Brian Wainger, Assistant Attorney General, on
           brief), for appellee. Appellee submitting on
           brief.



     Richard Lee Carter, Jr. was convicted in a bench trial of

petit larceny, a subsequent offense, in violation of Code

§§ 18.2-96 and 18.2-104.   Carter contends that the trial court

erred by admitting into evidence illegally seized cartons of

cigarettes that allegedly were the subject of the larceny.     He

also asserts that the evidence is insufficient to support the

conviction.   Because the trial court erred by admitting the

cartons of cigarettes into evidence, we reverse the defendant's

conviction and remand the case for further proceedings if the

Commonwealth be so advised.   Accordingly, we do not address the

question of the sufficiency of the evidence.

     On the evening of October 19, 1994, Hunter Goode, the

     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
assistant manager of the IGA supermarket in Powhatan County,

observed the defendant enter the store with Kenneth Harold Gage

and Richard Greene.   Goode had seen the defendant and one of the

other two men enter the store on at least five occasions in the

preceding two months and had become suspicious of their

activities.   Consequently, Goode decided to closely watch the

defendant, particularly after he placed approximately eight

cartons of cigarettes in his shopping basket.   When the defendant

noticed that Goode was watching him, he walked to the checkout

stand, placed his basket on the counter, and stated that he had

to go to his car to get money.    The defendant then exited the

store and did not return; he "walked down the sidewalk" and was

picked up in a car driven by Gage and occupied by Greene.
     Goode did not see the defendant take anything from the

store, but Goode remained suspicious and decided to ban the three

men from the store.   Accordingly, Goode called the Sheriff's

Department in order to obtain their names, addresses, and Social

Security numbers.   Deputy Sheriff Darren Law responded to the

call, and after talking with Goode, Law located and followed the

vehicle in which Gage, Greene, and the defendant were riding.

Deputy Law stopped the vehicle for the purpose of advising the

men "that they were no longer welcome[] at IGA and that they were

never to come back again."    When Law approached the vehicle, Gage

and Greene were sitting in the front seat and the defendant was

lying down in the backseat.




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     Deputy Law noticed a Food Lion bag between Gage and Greene,

whereupon he "advised them that they were suspects in a

shoplifting from the IGA."   Law "asked them what was in the bag";

Law determined that it contained "a half full carton of Newport

cigarettes" and "several cartons of Marlboro cigarettes."    Deputy

Law found "two or three other . . . cartons of Marlboros" under

the backseat.   The serial number "912" was stamped on five of the

eight cartons that Law recovered from the vehicle.
     Deputy Law called Goode, who told Law that he suspected the

men of stealing cigarettes and verified that "912" was IGA's

identification number.   Law arrested the three men.   After the

defendant was advised of his Miranda warnings, he gave the

following written statement:
          I entered the store to pick up a few things
          and also some cigarettes. I placed six
          cartons into the basket, and the other two
          guys came into the store and got them by
          placing them on themselves, leaving the
          store. They then returned to pick up the
          remainder of the cigarettes, and the store
          manager seemed to notice something about them
          as well as myself, began walking the store
          everywhere I went. They got food and were on
          the way out the store, got into the car
          together and picked me up about 10 or 15
          yards. I got into the back of the car, and
          they said to get down and do something with
          the cigarettes. I removed the ones I seen
          and placed them under the back seat.


     At trial, the court admitted into evidence, over the

defendant's objection, the eight cigarette cartons that Deputy

Law recovered from the vehicle.   The court also admitted, without

objection, the defendant's written statement.


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        The Commonwealth concedes that Deputy Law seized the

defendant, for fourth amendment purposes, when he stopped the

vehicle.    Therefore, the question is whether Deputy Law possessed

reasonable and articulable suspicion to conduct an investigatory

stop.     Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20

L.Ed.2d 889 (1968).

        When a law enforcement officer receives information about

possible criminal activity from an ordinary citizen in a
"face-to-face confrontation," the officer can "form[] a

reasonable belief that the informant [is] reliable."     Beckner v.

Commonwealth, 15 Va. App. 533, 535, 425 S.E.2d 530, 532 (1993);

see State v. Davis, 393 N.W.2d 179, 181 (Minn. 1986); State v.

Ege, 420 N.W.2d 305, 308 (Neb. 1988); State v. Davis, 517 A.2d

859, 868 (N.J. 1986).    Nevertheless, "[t]he informant must

provide some basis for his knowledge before the police officer

relies upon it as being reliable enough to support an

investigatory stop.    That information may come in questioning or

it may be implied in the information."     Beckner, 15 Va. App. at

537, 425 S.E.2d at 533.

        Here, Hunter Goode testified that he "called the Sheriff's

Department and asked them to get the names and addresses and

social security number of the [defendant and his companions] so

[he could] have them banned from the store."    Goode did not

testify that he had reason to believe that they had stolen items

from IGA, nor did he report that he suspected them of having




                                 - 4 -
committed a criminal act.   Deputy Law confirmed that his purpose

in stopping the vehicle was "[t]o advise [the men] that they were

no longer welcome[] at IGA and that they were never to come back

again."   Deputy Law further testified that he "didn't have time

to talk to [Goode] . . . before the vehicle got out of the

parking lot," apparently referring to the vehicle in which Gage,

Greene, and the defendant were traveling.   Consequently, Law

called Goode to "ask[] him what [the men] were suspected of

stealing" after he stopped the vehicle and after he had found the

cigarettes.   According to this record, Goode did not tell Deputy

Law of any suspected criminal activity that he observed which was

the reason for Goode banning the men from the store.   Neither

Goode nor Law testified that Goode informed Law of any reasons or

facts that would have led Law to suspect that the defendant was

engaged in criminal activity.   In fact, although Goode testified

that the defendant acted suspiciously, he also stated that he did

not see the defendant take any cigarettes or other items from the

store and did not tell Law why he wanted them banned from IGA.

Therefore, although Deputy Law "advised [Gage, Greene, and the

defendant] that they were suspects in a shoplifting from the

IGA," the evidence fails to show that either he or Goode had

reason to suspect that they were, or had been, engaged in

criminal activity.

     The fact that Goode informed Deputy Law that he wanted the

men banned from the IGA, without further explanation, does not



                                - 5 -
support an inference that the men were, or had been, shoplifting.

"Implications of a personal basis of knowledge may arise when an

individual reports that a person has 'just run a red light,' or

'nearly struck my vehicle,' or 'is displaying a gun.'"     Beckner,

15 Va. App. at 537, 425 S.E.2d at 533.   The request that Deputy

Law received from Goode did not provide any indication of what

Goode had witnessed or why he wanted the men banned from the

store.   Deputy Law could not reasonably infer that Goode had

witnessed the defendant engaging in criminal activity or

reasonably suspect him of criminal activity merely from learning

that Goode had banned the defendant from the store.    A decision

to ban persons from a grocery store could be based upon

inappropriate dress or language, disruptive behavior, or a myriad

of reasons not related to suspected criminal activity.

Accordingly, Goode's statement that he was banning the men from

the store did not provide a basis for him to personally suspect

the defendant of criminal activity, and in the absence of further

information, Deputy Law did not have an articulable reason to

suspect the defendant of criminal activity.   Thus, Deputy Law had

no basis for conducting an investigatory stop, and the cigarette

cartons that were obtained as a result of that stop were the

product of an illegal seizure.
     The Commonwealth contends that even if the trial court erred

by admitting the cigarettes, the error was harmless.

"Constitutional error . . . is harmless only when the reviewing



                                 - 6 -
court is 'able to declare a belief that it was harmless beyond a

reasonable doubt."   Lavinder v. Commonwealth, 12 Va. App. 1003,

1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting Chapman v.

California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L.Ed.2d 765

(1967)).   The cigarettes Deputy Law found in the vehicle tended

to independently prove that the defendant was guilty of the

charged offense, and also corroborated the defendant's statement

to the police.   The evidence that tends to prove defendant's

guilt, absent the cigarettes, is not overwhelming.   White v.

Commonwealth, 21 Va. App. 710, 716, 467 S.E.2d 297, 300 (1996).

Thus, we cannot conclude that the admission of the cigarettes was

harmless beyond a reasonable doubt.

     Because the trial court committed reversible error by

admitting the cigarettes into evidence, we do not decide whether

the evidence is sufficient to support the conviction.   We reverse

the defendant's conviction and remand the case for further

proceedings if the Commonwealth be so advised.
                                            Reversed and remanded.




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