COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
MARK RAMONE TOLIVER
OPINION BY
v. Record No. 1131-95-2 JUDGE JERE M. H. WILLIS, JR.
AUGUST 6, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Ernest P. Gates, Sr., Judge Designate
William B. Kerkam, III (Davis & Kirby, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Mark Ramone Toliver was convicted in a bench trial of
possession of a concealed weapon. On appeal, he contends that
the trial court erred in denying his motion to suppress evidence
of the firearm as the fruit of an illegal search. We agree and
reverse the conviction.
While on a routine patrol on February 10, 1995 at
approximately 1:00 p.m., Officer Mark Schnupp along with two
other officers observed Toliver and another man sitting in a
parked vehicle in Creighton Court. Toliver was behind the wheel.
Officer Schnupp approached the driver's side of the car and
another officer approached the passenger side.
Toliver and the passenger both testified that upon
approaching the vehicle, Officer Schnupp said, "let me see some
hands." Officer Schnupp testified that he did not recall whether
he said, "get your hands up," but that it was normal police
procedure to do so. Officer Schnupp asked Toliver who owned the
car. Toliver gave several different answers before replying that
it was his girlfriend's. Officer Schnupp asked Toliver for his
driver's license. Toliver admitted that he did not have one.
Toliver gave his correct name.
Asked by Officer Schnupp whether there were any guns or
drugs in the car, Toliver replied that there were not. Officer
Schnupp then asked whether he could search the car. Toliver
consented and stepped out of the car, as did his passenger. One
of the other officers remained by the passenger and the other
stood at the rear of the vehicle. Officer Schnupp told Toliver
that he was going to frisk him for weapons for the officers'
personal safety. Toliver did not consent to the frisk.
Nonetheless, Officer Schnupp frisked him and found a 9 mm Ruger
handgun.
The initial encounter between Toliver and Officer Schnupp
was consensual and implicated no Fourth Amendment interest.
However, the consensual aspect of the encounter disappeared when
Officer Schnupp frisked Toliver without his consent. While being
frisked, no reasonable person would feel free to walk away.
Thus, for Fourth Amendment purposes, Toliver was "seized" by
Officer Schnupp. Terry v. Ohio, 392 U.S. 1, 16 (1968). "In
order to justify such a seizure, an officer must have a
'reasonable and articulable suspicion of criminal activity on the
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part of the defendant.'" Hatcher v. Commonwealth, 14 Va. App.
487, 490, 419 S.E.2d 256, 258 (1992).
The circumstances were insufficient to give Officer Schnupp
an objectively reasonable basis for suspecting that Toliver was
armed and dangerous. He had no information that Toliver was
involved in criminal activity, nor had he observed any criminal
behavior. The mere fact that Toliver was in an area known for
drug use created no inference that he was involved in criminal
activity. Riley v. Commonwealth, 13 Va. App. 494, 498, 412
S.E.2d 724, 726-27 (1992). Toliver cooperated with Officer
Schnupp and willingly gave his correct name. Nothing suggested
that he was carrying a concealed weapon. See Payne v.
Commonwealth, 14 Va. App. 86, 414 S.E.2d 869 (1992). Therefore,
the frisk was illegal and the trial court erred in admitting the
evidence of the firearm.
The judgment of the trial court is reversed and the charge
is ordered dismissed.
Reversed and dismissed.
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Benton, J., concurring.
I do not agree with the majority's assertion that the
initial encounter of the police officers and the operator of the
vehicle was "consensual and implicated no Fourth Amendment
interest." When the three uniformed police officers approached
the vehicle, inquired about the ownership of the vehicle, and
asked for the vehicle's registration, they seized Toliver and his
passengers. See Code § 46.2-104; Brown v. Commonwealth, 17 Va.
App. 694, 696-97, 440 S.E.2d 619, 620-21 (1994). I concur,
however, in the remainder of the opinion and in the judgment
reversing the conviction and dismissing the charge.
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