                   COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia


GUY C. AMBURGEY, JR.
                                          MEMORANDUM OPINION * BY
v.       Record No. 2503-96-2          JUDGE JOHANNA L. FITZPATRICK
                                           SEPTEMBER 23, 1997
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                  William H. Ledbetter, Jr., Judge

           Muriel-Theresa Pitney, Senior Assistant
           Public Defender, for appellant.
           Eugene Murphy, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



     On September 30, 1996, Guy C. Amburgey, Jr. (appellant) was

convicted of operating a motor vehicle after having been declared

an habitual offender in a manner such as to endanger life, limb

or property (second offense) in violation of Code § 46.2-357.     On

appeal, he argues that the trial court erred in finding the stop

of his car reasonable based upon information provided to the

police by an unnamed citizen.   For the reasons that follow, we

reverse the decision of the trial court.

                                 I.

     The facts of this case are not in dispute.    At about

1:00 a.m. on November 29, 1995, Deputy Sheriff Larry Lambrose

(Lambrose) of the Spotsylvania Sheriff's Department was on duty

in a marked police car.    A woman in a vehicle stopped him by
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
flashing her lights and honking her horn at him.    Lambrose had

never seen or met this woman prior to this time.    The informant

told Lambrose that she had been at a local bar with her boyfriend

until they argued and she left the bar.    Additionally, she told

Lambrose that her boyfriend and another man had been drinking,

would be in a black, two-door Ford, and would be traveling east

on Route 3 toward Fredericksburg.     The informant indicated that

the man who owned the vehicle and who would be driving had a

suspended license, and that the passenger would be her boyfriend.

Although she gave the tag number of the car, Lambrose did not

attempt to independently determine whether the owner of the car

had a suspended license.
     The informant provided no names or physical descriptions of

the people in the car, nor did she say how she knew the driver

was suspended.   Lambrose testified at the suppression hearing

that "[s]he didn't give me any description at all.    She just

advised there would be two fellows in the car and that the owner

of the vehicle should be driving the car."    The woman did not

state how much or for how long these men had been drinking or

whether they were intoxicated.   A car matching the description

passed, and she identified it as the car she described

previously.   Lambrose followed the car for approximately four

minutes.   He observed no erratic driving behavior and nothing

illegal or defective about the car, its tags, stickers, or

equipment.    He stopped the car, and the driver admitted he was an




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habitual offender.

     Prior to trial, appellant moved the court to suppress the

information obtained as a result of Lambrose's stop.    The court

denied the motion.

                                 II.

     Appellant argues that the officer did not have a reasonable

articulable suspicion that the driver of the car was committing

any offense.   We agree.
     "[T]o justify an investigatory stop of a vehicle,

          the officer must have some reasonable,

          articulable suspicion that the vehicle or its

          occupants are involved in, or have recently

          been involved in, some form of criminal

          activity."   Logan v. Commonwealth, 19 Va.

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

          "[R]easonable suspicion depends upon the

          content of information [obtained by the

          police] as well as its reliability."     Gregory

          v. Commonwealth, 22 Va. App. 100, 107, 468

          S.E.2d 117, 121 (1996) (citing Alabama v.

          White, 496 U.S. 325, 330, 110 S. Ct. 2412,

          2416 (1990)).    "In determining whether an

          'articulable and reasonable suspicion'

          justifying an investigatory stop of the

          vehicle exists, courts must consider 'the




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          totality of the circumstances -- the whole

          picture.'"    Murphy v. Commonwealth, 9 Va.

          App. 139, 144, 384 S.E.2d 125, 128 (1989)

          (quoting United States v. Sokolow, 490 U.S.

          1, 8, 109 S. Ct. 1581, 1585 (1989)).   "The

          circumstances we may consider include 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."
Gregory, 22 Va. App. at 107, 468 S.E.2d at 121 (quoting Smith v.

Commonwealth, 12 Va. App. 1100, 1103, 407 S.E.2d 49, 51-52 (1991)

(citations omitted)).

     The instant case is controlled by the rationale of Beckner
v. Commonwealth, 15 Va. App. 533, 425 S.E.2d 530 (1993).   In

Beckner, an unidentified driver pulled his car behind a police

cruiser and flashed his lights to get the officer's attention.

The officer pulled over, and the other driver pulled alongside.

The driver indicated that "there was a white female, who did not

have a driver's license, at a nearby gas station . . . pumping

gas into a 1966 Chevrolet."    Id. at 534, 425 S.E.2d at 531.

Based on this information, the officer located and approached the



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defendant, and requested her license.    First, we determined that,

under the circumstances of that case, the face-to-face

confrontation between the informant and the police officer

provided some indicia of reliability.     See id. at 535, 425 S.E.2d

at 532.   However, "[d]espite some indicia of the informant's

reliability, the basis of knowledge of the informant's tip

. . . is still questionable."     Id. at 536, 425 S.E.2d at 532.

"If no basis of knowledge is stated in the [informant's] report,

it is unreliable and cannot be used to support an investigatory

stop."    Id.   Thus, we held that in a case where the proof of

criminal conduct required the informant to know the status of the

defendant's driver's license, "[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."        Id.

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

     The instant case reveals the same flaw as in Beckner:        the

officer had no knowledge of the basis of the informant's tip.

While the informant predicted that a black Ford would be driving

past and would be occupied by two men, her tip was insufficient

to establish the reliability of the underlying information that

the driver was suspended.     See Hardy v. Commonwealth, 11 Va. App.

433, 435, 399 S.E.2d 27, 28 (1990).    The informant neglected to

tell Lambrose how she knew the driver had a suspended license.

The statement alone was not sufficiently reliable to justify

Lambrose's actions.



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     Alternatively, the reliability of an informant's tip may be

established if "[s]ignificant aspects" of the information are

"independently corroborated."   Bulatko v. Commonwealth, 16 Va.

App. 135, 137, 428 S.E.2d 306, 307 (1993).   Here, however,

Lambrose did not independently corroborate the driver's status.

Without independent corroboration or knowledge of the basis for

the tip, the information was not sufficiently reliable to support

an investigatory stop.
     Thus, we hold that the officer lacked a reasonable

articulable suspicion to effectuate this stop.   Although

face-to-face, the informant was anonymous, the details were

"innocent," and the uncorroborated tip failed to indicate a




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foundation for the knowledge that the driver was suspended.

Accordingly, we reverse the decision of the trial court.

                                        Reversed.




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