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. 
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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 
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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. 
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 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 
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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. 
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 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 
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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 
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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 
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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 
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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 
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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 
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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.

 

 1The 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.