COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Elder
Argued by Teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0813-97-2 JUDGE JERE M. H. WILLIS, JR.
AUGUST 26, 1997
ALLEN EUGENE HARRIS
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Michael T. Judge, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellant.
Carl C. Muzi for appellee.
The Commonwealth contends that Harris was not seized, and,
alternatively, that an investigatory stop was justified based
upon a reasonable suspicion that Harris may have been engaged in
criminal activity. We disagree, and affirm the judgment of the
trial court.
I. BACKGROUND
When viewed in the light most favorable to Harris, the party
prevailing below, see Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991), the evidence proved that at
approximately 12:00 p.m., a motorist flagged down Officer Peace
and "told [him] there was a man in the McDonald's . . . that he
thought had a gun." The unnamed informant described the man as a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
"black male . . . in his thirties or forties and he had on a
green jacket."
Peace entered the restaurant, saw Harris, who fit the
informant's description, and "accompanied him out of the store as
[he] was initiating and continuing" a casual conversation with
Harris. Around the time that they exited the restaurant, a
marked police cruiser and a patrol wagon pulled into the parking
lot. Two uniformed police officers alit from their vehicles and
approached near where Harris and Peace stood. The exterior wall
of the restaurant was immediately behind Harris. He testified
that he was "surrounded" by the three officers.
Peace testified that once they left the restaurant:
Well, I just started talking about the
specifics of why I was there. I said
something to him to the effect that I had
just been flagged down by somebody that said
you might have had a gun and had described
the person and said look, you match the
description of the person that I was told had
a gun so what I would like you to do -- so I
asked him if he had a weapon and he said he
did.
Peace took a 10 millimeter semi-automatic pistol from
Harris' jacket, and arrested him for carrying a concealed weapon
without a permit. Harris testified that Peace told him he was
under arrest before asking him about a gun.
The trial court ruled that Harris had been seized without
the required reasonable suspicion of unlawful conduct.
II. STANDARD OF REVIEW
On appeal of a ruling suppressing evidence, the Commonwealth
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must prove, viewing the evidence in the light most favorable to
the defendant, that the trial court's decision constituted
reversible error. Fore v. Commonwealth, 220 Va. 1007, 1010,
265 S.E.2d 729, 731 (1980) (citation omitted). As a general
matter, determinations of reasonable suspicion are reviewed de
novo. James v. Commonwealth, 22 Va. App. 740, 743, 473
S.E.2d 90, 91 (1996) (citing Ornelas v. United States, 517 U.S.
___, 116 S. Ct. 1657 (1996)). However, "[i]n performing such
analysis, we are bound by the trial court's findings of
historical fact unless 'plainly wrong' or without evidence to
support them and we give due weight to the inferences drawn from
those facts by resident judges and local law enforcement
officials." McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc) (citation and footnote omitted).
III. SEIZURE
"A person is seized 'only if, in view of all of the
circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave.'" Satchell v.
Commonwealth, 20 Va. App. 641, 648, 460 S.E.2d 253, 256 (1995)
(en banc) (quoting United States v. Mendenhall, 446 U.S. 544, 554
(1980)). Indeed, "[a]n encounter between a law enforcement
officer and a citizen in which the officer merely identifies
himself and states that he is conducting a narcotics
investigation, without more, is not a seizure within the meaning
of the Fourth Amendment but is, instead, a consensual encounter."
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McGee, 25 Va. App. at 199, 487 S.E.2d at 262. The Commonwealth
contends that the presence of the three police officers did not
dispel the consensual and casual nature of the encounter.
This case closely parallels McGee. In McGee, an anonymous
informant reported to the police that an unidentified individual
was selling drugs on a street corner. Id. at 196, 487 S.E.2d at
260. Three uniformed officers arrived in marked police vehicles
and approached the defendant, who matched the description given
to police. One of the officers told the defendant that he
matched the description of the individual who was reported to
have sold drugs, and asked if he could pat him down. When the
defendant opened his clenched fists at the officer's demand, he
revealed a white substance and was placed under arrest for drug
possession. Id. at 197, 487 S.E.2d at 261.
Holding that the officers "seized" the defendant by a show
of authority, we noted that "when a police officer confronts a
person and informs the individual that he or she has been
specifically identified as a suspect in a particular crime which
the officer is investigating, that fact is significant among the
'totality of the circumstances' to determine whether a reasonable
person would feel free to leave." Id. at 200, 487 S.E.2d at 262
(footnote omitted).
Peace told Harris that he, specifically, was the focus of a
criminal investigation. Peace accompanied Harris from the
restaurant. Outside, three uniformed police officers maintained
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a perimeter around Harris. These facts support the trial court's
ruling that Harris was seized when he submitted to the officers'
show of authority. A reasonable person in Harris' situation
would not have believed that he was free to leave. See Satchell,
20 Va. App. at 649-50, 460 S.E.2d at 257; McGee, 25 Va. App. at
201, 487 S.E.2d at 263.
IV. REASONABLE SUSPICION
Generally, "[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)
(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).
In Beckner v. Commonwealth, 15 Va. App. 533, 425 S.E.2d 530
(1993), an unidentified driver informed a police officer that a
white woman, who was pumping gas into a 1966 Chevrolet at a
nearby filling station, did not have a driver's license. Id. at
534, 425 S.E.2d at 531. On the basis of that tip, the officer
stopped the defendant and discovered that her license was
suspended. Holding that the circumstances did not give rise to
reasonable suspicion, we noted that:
The 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. Such implications of a
personal basis of knowledge may arise when an
individual reports that a person . . . "is
displaying a gun."
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Id. at 537, 425 S.E.2d at 533 (emphasis added). See Gregory v.
Commonwealth, 22 Va. App. 100, 106-07, 468 S.E.2d 117, 120
(1996).
In McGee, we found no credible evidence justifying the stop.
A police officer received an anonymous tip that a black male,
wearing a white t-shirt, black shorts and white shoes, was
selling drugs on a street corner. McGee, 25 Va. App. at 196, 487
S.E.2d at 260. While the defendant fit the description contained
in the tip, the officer "did not observe any suspicious activity
or furtive gestures by the defendant that tended to verify or
corroborate the citizen's tip that the defendant was engaged in
criminal activity." Id. at 203, 487 S.E.2d at 264.
If a hunch is not enough for a police officer
to effectuate a stop, it follows that the
hunch of an unnamed informant, albeit an
informant with some indicia of personal
reliability, is also not sufficient. The
fact that the informant's hunch is conveyed
to the police officer does not raise the
hunch to the level of reasonable suspicion.
Beckner, 15 Va. App. at 537, 363 S.E.2d at 710.
In this case, Harris was found in a fast-food restaurant
around 12:00 noon. See Gregory, 22 Va. App. at 107-08, 468
S.E.2d at 121. The tipster stated that he thought a man matching
Harris' description had a gun. The tipster stated neither that
he saw a gun, nor why he thought Harris had a gun. Cf. Scott v.
Commonwealth, 20 Va. App. 725, 460 S.E.2d 610 (1995). Peace made
no effort to explore the basis for the tipster's hunch. The
record contains no indication that Harris acted in a manner so as
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to "verify or corroborate" that he might be engaged in criminal
activity.
The record supports the trial court's conclusion that the
officers lacked reasonable suspicion to detain Harris.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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