                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued by teleconference


COMMONWEALTH OF VIRGINIA

v.       Record No. 0619-98-4

BENJAMIN S. CREWE

COMMONWEALTH OF VIRGINIA

v.       Record No. 0620-98-4
PADERIC HOWELL CONROY                  MEMORANDUM OPINION * BY
                                 CHIEF JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA                   AUGUST 25, 1998

v.       Record No. 0621-98-4

PHILIP C. MANISCALCO

COMMONWEALTH OF VIRGINIA

v.       Record No. 0622-98-4

MICHAEL R. CAROSELLA


               FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                       James W. Haley, Jr., Judge

             Eugene Murphy, Assistant Attorney General
             (Mark L. Earley, Attorney General, on brief),
             for appellant.

             Clifford Y. Rose (Rose & Wall, P.C., on
             brief), for appellee Benjamin S. Crewe.

             Benjamin H. Woodbridge, Jr. (Woodbridge &
             Reamy, on brief), for appellee Paderic Howell
             Conroy.

             Arthur L. Grace for appellee Philip C.
             Maniscalco.

             (Albert H. Jacoby, on brief), for appellee
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
            Michael R. Carosella.




     Benjamin S. Crewe and Paderic H. Conroy (appellees) were

each indicted on three counts of grand larceny and one count of

throwing a missile at an occupied vehicle.   Philip C. Maniscalco

and Michael R. Carosella (appellees) were each indicted on three

counts of grand larceny, one count of throwing a missile at an

occupied vehicle, and one count of felony destruction of

property.   Appellees filed pretrial motions to suppress their

statements and property turned over to police, arguing:    1) the

police officer's investigatory stop of their vehicle was

unlawful, and 2) their subsequent statements were tainted as

fruit of the illegal stop.   The trial court granted the

suppression motions, and the Commonwealth appeals pursuant to

Code § 19.2-398(2).   For the following reasons, we reverse.
                                    I.

     At 4:03 a.m. on July 23, 1997, the Stafford County Sheriff's

Office received a call from a clerk at a 7-Eleven store

requesting that the police investigate suspicious activity

outside the store.    The clerk indicated that four individuals had

exited a white Ford Explorer, and two were outside at the rear of

the store and two were at the side of the store.   The police

dispatcher relayed this information to Deputy Mike Jenkins, who

arrived at the store approximately ten seconds later.   Jenkins

testified that although the location of the 7-Eleven was not a




                                    -2-
high crime area, the early morning hours were the "most

dangerous" for twenty-four-hour convenience stores, and the

clerk's description of the individuals' behavior was "a classic

example of people casing the area."

     As Jenkins turned into the 7-Eleven parking lot, he saw a

white Ford Explorer leave the lot and drive onto Route 3.    He saw

the driver's eyes widen in "a surprised facial expression."      The

officer scanned the parking lot, noting that the clerk was in the

store and no other individuals or vehicles were present.    As

Jenkins turned to follow the truck, the passengers in the truck

watched him, and he recognized Crewe, who was sitting in the

right rear seat, as a former jail inmate.   Jenkins followed the

truck on Route 3 for approximately two-tenths of a mile and

observed the passengers in the rear seat "leaning forward" with

"furtive movements," as if they were putting something under the

seat or in the side panel.   The officer requested additional

information from the dispatcher regarding the suspicious

circumstances call from the store clerk, but the dispatcher had

nothing further to report.   Jenkins also attempted to check the

license tag number of the vehicle, but because it was a temporary

tag, he was unable to acquire information about the owner.    He

observed no traffic or other violations, but based on the

reported suspicious activity, the driver's surprise, and the

passengers' furtive movements, Jenkins suspected "possible

criminal activity," and he initiated a traffic stop.



                                -3-
        During the traffic stop, Jenkins checked the identification

of each of the five occupants, the four appellees and a juvenile,

C.W.    Jenkins also searched the truck and photographed the

contents, which included long-handled screw drivers, baseball

bats, gloves, a flashlight, automobile compact disc players,

compact disc player face plates, golf clubs, a cellular phone,

sunglasses, two cases of compact discs, and several cans of

Surge, a sports drink.    After approximately twenty minutes, the

officer allowed the occupants of the truck to leave without

making an arrest or issuing a summons.    The traffic stop

concluded at approximately 4:30 a.m.
        At approximately 5:00 a.m., Deputy Jenkins was advised of

multiple reports of vandalism and items having been stolen from

cars.    One report involved a store window that had been broken

with a Surge soda can, and a second report described someone in a

vehicle throwing a Surge can at another vehicle on the road.

Additional reports of stolen items, including golf clubs and

automobile compact disc players, matched Jenkins' recollection of

the items he observed in the white Ford Explorer.

        Between 8:00 and 8:30 a.m., Deputy Jenkins, accompanied by

several deputies, went to the home of Conroy, the owner and

driver of the white Explorer.    Jenkins asked Conroy whether he

knew why they were there, and he said that he did.    The officer

then told Conroy that "[t]here was a lot of damage done last

night, vandalism done last night, and that's what we're here to




                                  -4-
talk about."    Conroy was advised of his rights under Miranda,

completed a voluntary statement form, and gave written and oral

statements implicating himself, Crewe, Maniscalco, Carosella, and

C.W. in numerous offenses committed earlier that evening.    Conroy

then showed the deputies some of the stolen compact discs located

in his bedroom and told them Maniscalco had left with the rest of

the stolen property.

        When the officers conducted a consensual search of the

bedroom they found Crewe hiding under the bed.    When asked why he

was under the bed, Crewe replied that he did not want to go to

jail.    The deputies advised Crewe of his rights under Miranda and
told him that Conroy had given them written and oral statements

about the events of the evening.    Crewe completed a voluntary

statement form and gave written and oral statements which

implicated the other occupants of the vehicle.

        Before leaving, Deputy Jenkins asked Conroy to contact the

others and have them all come to the police station for

questioning that night at 9:30 p.m. and to bring any stolen

property with them.    Conroy and Crewe arrived at the station at

approximately 10:00 p.m. that evening.    Deputy Jenkins again

advised Conroy and Crewe of their rights under Miranda and that
neither was under arrest when he interviewed them for the second

time.    Conroy gave an oral statement implicating Carosella,

Maniscalco, and C.W.    Crewe stated that the idea to break into

the cars was mutual and further implicated Maniscalco and C.W.




                                  -5-
     While Jenkins did not arrest either Conroy or Crewe at that

time, he told them he would be obtaining warrants for their

arrest and he would give them until 8:00 p.m. on the next day to

get back to him and to bring in any stolen items.     Conroy gave no

further statement and had no additional contact with police until

his arrest.   He did not give a post-arrest statement.    Crewe was

arrested on July 30, 1997, and his post-arrest statement was

videotaped at the police station.
     At approximately 3:00 a.m. on July 24, 1997, nearly

twenty-four hours after the initial stop, Maniscalco and

Carosella arrived at the police station.     As Deputy Jenkins met

them in the lobby, before he asked them any questions, Carosella

gave him one of the stolen compact disc player face plates.

     Jenkins advised Maniscalco and Carosella of their rights

under Miranda.    Both appellees signed voluntary statement forms

and provided statements implicating each other as well as Crewe,

Conroy and C.W.   In response to Jenkins' question whether he

possessed any additional property taken from the vehicles that

night, Maniscalco retrieved the stolen golf clubs from the trunk

of his car.   When Jenkins asked where the rest of the stolen

property was, Maniscalco replied that it was at Carosella's

house.   After advising Maniscalco and Carosella that he would be

obtaining warrants for their arrest and they had until 8:00 p.m.

to get back to him and to bring in any additional stolen items,

Jenkins concluded the interviews.      None of the appellees appeared



                                 -6-
at 8:00 p.m. on July 24 as Jenkins had requested.

     In the course of an interview with C.W. on July 27, 1997,

Deputy Jenkins learned for the first time that Maniscalco and

Carosella had been involved in two incidents of vandalism at the

county garage during the month of February.     On July 28, 1997,

when Maniscalco notified Jenkins that he would be bringing more

stolen property to the police station, Jenkins invited Detective

Ernie Jones, the investigating officer on the county garage

offenses, to be present during the interview.
     Maniscalco arrived on July 28 and immediately turned over a

plastic bag with several stolen items in it.     Deputy Jenkins

informed Maniscalco that he had a warrant for his arrest, but he

did not execute the warrant.   Jenkins and Detective Jones advised

Maniscalco of his rights under Miranda and conducted an

interview, during which Maniscalco made incriminating statements

concerning his involvement in the July 23 offenses and the county

garage offenses.   He was allowed to leave with the agreement that

he would return the following day.      He did return the following

day, July 29, 1997, and was again advised of his rights and

interviewed by Detective Jones.    Maniscalco gave additional

incriminating statements about the July 23 offenses and the

county garage offenses.   At the close of the July 29 interview,

Maniscalco was arrested and taken into custody.

     Carosella had no further contact with police until August 5,

1997, when he gave a post-arrest statement describing his



                                  -7-
involvement in both the July 23 vandalism and the county garage

offenses.

     After a hearing limited to the issue of the reasonableness

of the stop, the trial court issued a letter opinion enumerating

the undisputed facts.    Relying on Ewell v. Commonwealth, 254 Va.

214, 491 S.E.2d 721 (1997), the trial court concluded that "the

totality of these facts do not, and did not, grant the police

officer a reasonable suspicion" of criminal activity.
                                 II.

     The threshold question is whether the officer had reasonable

suspicion of criminal activity when he stopped the vehicle.

"'Ultimate questions of reasonable suspicion and probable cause'

. . . 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) (quoting Ornelas v. United States, 517

U.S. 690, 691 (1996)).   Consequently, we review the undisputed

facts and the trial court's application of the relevant law de
novo.

     "'[W]hen the police stop a motor vehicle and detain an

occupant, this constitutes a seizure of the person for Fourth

Amendment purposes.'"    Logan v. Commonwealth, 19 Va. App. 437,

441, 452 S.E.2d 364, 367 (1994) (quoting Zimmerman v.

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

order to justify an investigatory stop of a vehicle, the officer

must have some reasonable, articulable suspicion that the vehicle



                                 -8-
or its occupants are involved in, or have recently been involved

in, some form of criminal activity."   Logan, 19 Va. App. at 441,

452 S.E.2d at 367.   "Actual proof that criminal activity is afoot

is not necessary; the record need only show that it may be

afoot."   Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d

77, 79 (1992).

     "To determine whether an officer has articulated a

reasonable basis to suspect criminal activity, a court must

consider the totality of the circumstances, including the

officer's knowledge, training, and experience."     Freeman v.

Commonwealth, 20 Va. App. 658, 661, 460 S.E.2d 261, 262 (1995).

We may also consider "'the "characteristics of the area" where

the stop occurs, the time of the stop, whether late at night or

not, as well as any suspicious conduct of the person accosted

such as an obvious attempt to avoid officers or any nervous

conduct on the discovery of their presence.'"     Commonwealth v.

Thomas, 23 Va. App. 598, 611, 478 S.E.2d 715, 721 (1996) (quoting
Smith v. Commonwealth, 12 Va. App. 1100, 1103, 407 S.E.2d 49,

51-52 (1991)).

     Additionally, we acknowledge that "'a trained law

enforcement officer may [be able to] identify criminal behavior

which would appear innocent to an untrained observer.'"     Freeman,

20 Va. App. at 661, 460 S.E.2d at 262 (quoting Taylor v.

Commonwealth, 6 Va. App. 384, 388, 369 S.E.2d 423, 425 (1988)).

For example, in Logan v. Commonwealth, the only evidence



                                -9-
providing reasonable suspicion was a broken vent window in the

defendant's vehicle.   19 Va. App. 437, 452 S.E.2d 364 (1994).      We

held that the stop was lawful based on the officer's testimony

that "[h]er experience and training suggested that a broken vent

window on this type of vehicle often indicated that the vehicle

had been broken into and stolen."      Id. at 439-40, 452 S.E.2d at

366.

       In the instant case, a vehicle carrying at least four

passengers drove into a 7-Eleven parking lot at 4:00 a.m.      After

exiting the vehicle, two pairs of occupants walked around the

7-Eleven, one pair going to the side and the other to the rear of

the building.   There was no reported attempt to enter or approach

the building's public entrance.   Deputy Jenkins testified that in

his experience these actions comprised a classic example of

individuals casing a store.   Jenkins was also aware that the

store clerk had reported this activity and requested assistance

during the most dangerous time for an all-night convenience

store.   As Jenkins arrived on the scene to investigate these

unusual circumstances, the officer observed the white Ford

Explorer described by the store clerk leaving the parking lot and

a surprised expression on the driver's face as he noticed the

officer's presence.    Once Jenkins began to follow the vehicle,

the passengers turned to look at him and made furtive gestures,

as if they were concealing items.      At this time, Jenkins also

recognized one of the passengers as a former jail inmate.      Based



                                -10-
on these facts, Jenkins made an investigatory stop of the

vehicle.

     Citing Ewell v. Commonwealth, 254 Va. 214, 491 S.E.2d 721

(1997), appellees contend the stop was unlawful because the

officer lacked an articulable reasonable suspicion that the

occupants of the vehicle were engaged in criminal activity.

However, the instant facts are distinguishable from the facts of

Ewell, in which the Supreme Court suppressed evidence seized as a

result of an unlawful stop.   In Ewell, an officer entered a
parking lot around 12:30 a.m. and noticed a vehicle parked next

to an apartment suspected of being the site of narcotics

activity.   The officer focused his attention on the vehicle

because he did not recognize the car or its driver, Ewell, as a

resident of the adjoining apartment complex.   Moreover, Ewell

attempted to leave the parking lot immediately upon the officer's

arrival.    Based on these facts the officer stopped the vehicle.

The Supreme Court found that the stop violated the Fourth

Amendment because "nothing about Ewell's conduct was suspicious."
 Id. at 217, 491 S.E.2d at 723.    The Court emphasized this by

stating that "Ewell acted as any other person might have acted

under similar circumstances."     Id.

     In the case before us, the officer stated the following

facts as the basis of the stop.    Deputy Jenkins arrived at the

twenty-four-hour convenience store in response to a call about

suspicious behavior in its parking lot.   This suspicious behavior




                                -11-
consisted of four men exiting a parked vehicle and walking around

to the side and rear of the store at 4:00 a.m., the most

dangerous time in the operation of such a business.    Upon

arrival, the officer focused his attention on appellees' vehicle

not because he thought it did not belong there, but because the

store clerk specifically described the vehicle.    Moreover, rather

than acting "as any other person might have acted under similar

circumstances," id., the occupants of the vehicle displayed

surprise and "'nervous conduct on discovery of [the presence of

the officer].'"   Thomas, 23 Va. App. at 611, 478 S.E.2d at 721

(citation omitted).

     For the foregoing reasons, we hold that the totality of the

circumstances disclose articulable facts both before and after

the officer's arrival that justified his reasonable suspicion and

the investigatory stop. 1   Consequently, the decisions of the

trial court are reversed.

                                          Reversed and remanded.




     1
      The Commonwealth also appealed the trial court's ruling
that appellees' statements and the property they turned over to
police were inadmissible fruit of the illegal investigatory stop.
 In light of our holding that the investigatory stop was
justified by reasonable articulable suspicion, the admissibility
of evidence obtained subsequent to the stop is moot, and we need
not address it.




                                -12-
