Present: All the Justices 

LEON PARKER 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 971010 January 9, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 I. 

 The primary issues in this appeal are whether an encounter 

between a police officer and a pedestrian constituted a seizure 

within the meaning of the Fourth Amendment of the Constitution of 

the United States and, if so, whether the seizure was 

constitutionally permissible. 

 II. 

 Leon Darnell Parker was indicted in the Circuit Court of the 

City of Richmond for possession of cocaine with intent to 

distribute in violation of Code § 18.2-248. The defendant filed 

a pretrial motion to suppress evidence of crack cocaine that had 

been seized from his person on the basis that this evidence was 

obtained in violation of the Fourth Amendment. The trial court 

denied the motion and, at a bench trial, convicted the defendant 

of the charged offense. The Court of Appeals affirmed the 

judgment of the circuit court in an unpublished opinion, and we 

awarded the defendant an appeal. 

 We will summarize the facts adduced at the suppression 

hearing and, under familiar principles, we will consider the 

testimony in the light most favorable to the Commonwealth, the 

prevailing party below. On July 13, 1995, City of Richmond 

police officer Michael J. Kurisky, who was wearing a police 
uniform and displaying a badge of authority, drove a white police 

cruiser to a public housing development known as Creighton Court. 

 Officers John O'Connor and Wes Moore were passengers in Officer 

Kurisky's police cruiser. The police officers were "checking 

various areas . . . for drug activity." 

 As Officer Kurisky drove his police cruiser onto Creighton 

Road, a street in the housing development, the officers observed 

a group of men "standing around a white Cadillac which had its 

trunk open." Officer Kurisky had made numerous prior drug 

arrests in the area, and he had recovered drugs and weapons in 

the immediate area where the men were located. Officer Kurisky 

"personally consider[ed] that area to be an open-air drug 

market." 

 When Officer Kurisky drove his police cruiser near the 

Cadillac, the men looked toward him, immediately shut the car's 

trunk, and began to disperse. Officers O'Connor and Moore got 

out of the police cruiser, and Officer Kurisky remained in the 

vehicle. 

 As Officer Kurisky watched the men disperse, he saw the 

defendant "turn and place an item with his right hand in the 

waistband of his shorts." The defendant proceeded to walk on 

Creighton Road, away from the Cadillac. While the two other 

officers remained at the scene, Officer Kurisky "backed the 

police vehicle up" and drove down Creighton Road following the 

defendant. Officer Kurisky drove the police cruiser "parallel" 

to the defendant who was about 20 feet away from him. Officer 

Kurisky was looking at the defendant, who then "looked at the 
direction of the police vehicle, turned around and started 

walking back on the sidewalk the other way." Officer Kurisky, 

still in his police cruiser, continued to follow the defendant, 

who began to walk on "posted" property owned by the Richmond 

Redevelopment and Housing Authority. Officer Kurisky, continuing 

to follow the defendant, drove the police cruiser 40 feet off the 

street onto the Richmond Redevelopment and Housing Authority's 

property and stopped the car at the location where the defendant 

was standing. 

 Officer Kurisky, who possessed clearly visible weapons, 

approached the defendant and inquired whether he lived in the 

public housing development. In response to the officer's 

inquiry, the defendant stopped and responded that he did not live 

there. Officer Kurisky asked the defendant if he had any guns or 

drugs in his possession, and the defendant replied, "no." 

Officer Kurisky then asked the defendant if the officer could 

"pat him down," and the defendant put his hands up in the air. 

Officer Kurisky "went around behind [the defendant] and just 

patted him down for any weapons or drugs" and found none. 

 After Officer Kurisky conducted this search, another 

Richmond police officer, Mark Ambrozy, approached the defendant 

who was wearing a white basketball jersey, white "mesh" 

basketball shorts, and a pair of thin white or peach boxer 

underwear. Officer Ambrozy asked the defendant if he "had 

anything in his crotch." The defendant replied that he did not, 

and "he grabbed his basketball shorts and boxer shorts and 

started, in very exaggerated motions, pulling them to the side, 
up and down, shaking them in and out . . . ." 

 As the defendant made these exaggerated motions, Officer 

Kurisky saw "a pink object through the boxer shorts material." 

Officer Kurisky placed his hand on the object and realized that 

the object was crack cocaine. When Officer Kurisky removed the 

item from the defendant's waistband, he found a sandwich bag 

containing 18 red ziploc baggies, and each baggie contained a 

substance later identified as crack cocaine. Officer Kurisky did 

not ask the defendant for permission to conduct this search. 

 III. 

 A. 

 The defendant argues that Officer Kurisky violated the 

defendant's Fourth Amendment rights because he was seized when 

the officer drove the police cruiser 40 feet away from the street 

onto a common area at the housing development in order to 

question the defendant. The Commonwealth responds that this 

encounter did not constitute a seizure within the meaning of the 

Fourth Amendment. We disagree with the Commonwealth. 

 The Fourth Amendment of the Constitution of the United 

States provides in part that "[t]he right of the people to be 

secure in their persons, houses, papers, and effects against 

unreasonable searches and seizures shall not be violated . . . ." 

 This guarantee applies to seizures of the person as well as to 

seizures of the houses, papers, and effects of an individual. 

Baldwin v. Commonwealth, 243 Va. 191, 195, 413 S.E.2d 645, 647 

(1992). The United States Supreme Court stated the following test 

which we must apply when determining whether a person has been 
seized within the meaning of the Fourth Amendment: 

 "We adhere to the view that a person is 'seized' 

only when, by means of physical force or a show of 

authority, his freedom of movement is restrained. Only 

when such restraint is imposed is there any foundation 

whatever for invoking constitutional safeguards. The 

purpose of the Fourth Amendment is not to eliminate all 

contact between the police and the citizenry, but 'to 

prevent arbitrary and oppressive interference by 

enforcement officials with the privacy and personal 

security of individuals.' United States v. MartinezFuerte, 428 U.S. 543, 554 [(1976)]. As long as the 

person to whom questions are put remains free to 

disregard the questions and walk away, there has been 

no intrusion upon that person's liberty or privacy as 

would under the Constitution require some 

particularized and objective justification. 

 Moreover, characterizing every street encounter 

between a citizen and the police as a 'seizure,' while 

not enhancing any interest secured by the Fourth 

Amendment, would impose wholly unrealistic restrictions 

upon a wide variety of legitimate law enforcement 

practices. The Court has on other occasions referred 

to the acknowledged need for police questioning as a 

tool in the effective enforcement of the criminal laws. 

 'Without such investigation, those who were innocent 

might be falsely accused, those who were guilty might 

wholly escape prosecution, and many crimes would go 

unsolved. In short, the security of all would be 

diminished. Haynes v. Washington, 373 U.S. 503, 515 

[(1963)].' Schneckloth v. Bustamonte, 412 U.S., at 225 

[(1973)]. 

 We conclude that a person has been 'seized' within 

the meaning of the Fourth Amendment 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. Examples of circumstances that might 

indicate a seizure, even where the person did not 

attempt to leave, would be the threatening presence of 

several officers, the display of a weapon by an 

officer, some physical touching of the person of the 

citizen, or the use of language or tone of voice 

indicating that compliance with the officer's request 

might be compelled." United States v. Mendenhall, 446 

U.S. 544, 553-54 (1980) (opinion of Stewart, J.) 

(footnote omitted). 

 The United States Supreme Court applied the Mendenhall test 

in Michigan v. Chesternut, 486 U.S. 567, 573 (1988), and made the 

following observation which is equally pertinent here: 
 "The test provides that the police can be said to have 

seized an individual '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.' . . . . 

 The test is necessarily imprecise, because it is 

designed to assess the coercive effect of police 

conduct, taken as a whole, rather than to focus on 

particular details of that conduct in isolation. 

Moreover, what constitutes a restraint on liberty 

prompting a person to conclude that he is not free to 

'leave' will vary, not only with the particular police 

conduct at issue, but also with the setting in which 

the conduct occurs." 

Accord California v. Hodari D., 499 U.S. 621, 627-28 (1991); INS

v. Delgado, 466 U.S. 210, 215 (1984). 

 Applying these principles, we hold that Officer Kurisky's 

encounter with the defendant constituted a seizure within the 

meaning of the Fourth Amendment. As we have already stated, 

Officer Kurisky was wearing a police uniform, displaying his 

badge of authority, and possessed clearly visible weapons on his 

utility belt. The officer, driving his police cruiser, followed 

the defendant, who sought to avoid the officer by walking in 

different directions. The officer followed the defendant from 

the moment he left the Cadillac until he walked on the property 

owned by the Richmond Redevelopment and Housing Authority. Then, 

the police officer drove the police cruiser from the street onto 

the Richmond Redevelopment and Housing Authority's property for a 

distance of about 40 feet and stopped the cruiser at a location 

where the defendant was standing. Certainly, under these 

circumstances, "a reasonable person would have believed that he 

was not free to leave." Mendenhall, 446 U.S. at 554. 

 The Commonwealth, however, relying upon Baldwin v. 
Commonwealth, supra, argues that the defendant was not seized 

within the meaning of the Fourth Amendment. The Commonwealth's 

reliance upon Baldwin is misplaced. As we have already stated, 

any assessment whether police conduct constitutes a seizure 

implicating the Fourth Amendment must be determined by examining 

the evidence of record in each individual case, accord

Chesternut, 486 U.S. at 573; INS v. Delgado, 466 U.S. at 215. 

Baldwin is readily distinguishable and is limited to its 

unique facts. There, a police officer drove a police vehicle to 

a parking lot and saw a man, later identified as Michael T. 

Baldwin, and a woman companion standing near a dumpster at the 

rear of the parking lot. The officer parked his car about 15 

feet from the couple, got out of his car, and walked toward them. 

 The officer acknowledged that he may have "call[ed] for them" as 

the couple walked away toward some apartments. When the couple 

returned to the dumpster area, the officer noticed that Baldwin 

was having trouble with his balance and could smell an odor of 

alcohol "about his person." The officer asked Baldwin whether he 

had been drinking, and Baldwin stated that "he'd had ten beers 

which is too much." Baldwin was "staggering" and his face was 

"flushed." The officer arrested him for being drunk in public 

and subsequently discovered that Baldwin had in his possession 

marijuana and psilocin (hallucinogenic mushrooms). 

 Baldwin and his companion gave a different explanation of 

the events that occurred when the officer approached them. Among 

other things, Baldwin and his companion testified that they had 

been standing together near the trash dumpster, and when they 
proceeded to walk toward an apartment, they heard a police car 

enter the parking lot, and the officer "put a big floodlight on 

[them] . . . and told [them] to come here, said you two, come 

over here." 

 We held in Baldwin that the defendant was not seized because 

our consideration of all the evidence, including the police 

conduct at issue, indicated that a reasonable person would have 

believed that he was free to leave. Here, however, unlike 

Baldwin, Officer Kurisky drove his police cruiser forty feet off 

of the street and onto private property and stopped his police 

cruiser at the location where the defendant was standing. 

Without question, Officer Kurisky's acts constituted a show of 

authority which restrained the defendant's liberty. Thus, we 

must next consider whether this seizure was a limited intrusion 

permitted by the Fourth Amendment as recognized in Terry v. Ohio, 

392 U.S. 1 (1968). 

 B. 

 The defendant argues that at the time of the seizure, 

Officer Kurisky had no basis to suspect that the defendant had 

committed a crime sufficient to give rise to a permissible 

detention. The Commonwealth argues that the evidence of record 

establishes that the officer had a reasonable suspicion to detain 

the defendant for investigative purposes. We agree with the 

Commonwealth. 

 The United States Supreme Court held in Terry v. Ohio, 392 

U.S. at 22, that "a police officer may in appropriate 

circumstances and in an appropriate manner approach a person for 
purposes of investigating possibly criminal behavior even though 

there is no probable cause to make an arrest." In order to 

justify a Terry seizure, "the police officer must be able to 

point to specific and articulable facts which, taken together 

with rational inferences from those facts, reasonably warrant 

that intrusion." Id. at 21. The United States Supreme Court, 

explaining the nature of a Terry stop, stated that 

 "[i]n addressing the reach of a Terry stop . . . we 

observed that '[a] brief stop of a suspicious 

individual, in order to determine his identity or to 

maintain the status quo momentarily while obtaining 

more information, may be most reasonable in light of 

the facts known to the officer at the time.' . . . [I]f 

there are articulable facts supporting a reasonable 

suspicion that a person has committed a criminal 

offense, that person may be stopped in order to 

identify him, to question him briefly, or to detain him 

briefly while attempting to obtain additional 

information." Hayes v. Florida, 470 U.S. 811, 816 

(1985); accord Brown v. Texas, 443 U.S. 47, 51 (1979); 

Simmons v. Commonwealth, 217 Va. 552, 554-55, 231 

S.E.2d 218, 220-21 (1977). 

 In determining whether a police officer had a particularized 

and objective basis for suspecting that a person stopped may be 

involved in criminal activity, a court must consider the totality 

of circumstances. United States v. Cortez, 449 U.S. 411, 417-18 

(1981); see Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d 

721, 722-23 (1997); Zimmerman v. Commonwealth, 234 Va. 609, 612, 

363 S.E.2d 708, 709 (1988); Leeth v. Commonwealth, 223 Va. 335, 

340, 288 S.E.2d 475, 478 (1982). This test is less stringent 

than probable cause. Id.

 We hold that under the facts and circumstances of this case, 

Officer Kurisky did have a reasonable suspicion, based on 

objective facts, that the defendant was engaged in criminal 
activity. As we have already observed, the defendant was with a 

group of men in an area described as "an open-air drug market." 

Officer Kurisky had made numerous drug arrests in the area and 

had recovered drugs and weapons from that area. When Officer 

Kurisky drove his police cruiser on Creighton Road, the men, who 

were standing around the white Cadillac with the trunk open, 

immediately closed the trunk and dispersed. Officer Kurisky saw 

the defendant place an object in the waistband of his shorts. 

Considering the totality of circumstances, and viewing the facts 

in the light most favorable to the Commonwealth, we are of 

opinion that Officer Kurisky had a particularized and objective 

basis for suspecting that the defendant was involved in criminal 

activity. 

 C. 

 The defendant argues that Officer Kurisky violated the 

defendant's Fourth Amendment rights when the officer seized the 

cocaine from the defendant's boxer underwear without a warrant. 

The defendant says he did not give the officer consent to search 

his person, and the officer lacked probable cause to seize the 

objects from the defendant's undergarments. 

 We agree with the defendant that the record establishes that 

he did not give the officer consent to remove the crack cocaine 

from the defendant's undergarments. Officer Kurisky testified 

that he did not request the defendant's consent before he removed 

the drugs from the defendant's undergarments. Contrary to the 

Commonwealth's assertions, the record is simply devoid of any 

evidence from which an inference can be drawn that the defendant 
gave the officer consent to conduct the second search of the 

defendant's undergarments. 

 The Commonwealth, however, contends that even if the 

defendant did not give consent to search his person, Officer 

Kurisky, nevertheless, was entitled to search the defendant 

because the officer had probable cause to believe that the 

defendant possessed illegal drugs. Responding, the defendant 

argues that the police officer lacked probable cause to believe 

that the defendant had either committed a criminal offense or was 

in the process of committing a criminal offense. We disagree 

with the defendant. 

 The United States Supreme Court has stated that "[w]here the 

formal arrest followed quickly on the heels of the challenged 

search of petitioner's person, we do not believe it particularly 

important that the search preceded the arrest rather than vice 

versa." Rawlings v. Kentucky, 448 U.S. 98, 111 (1980). However, 

the police must have probable cause to believe that the suspect 

has either committed a criminal offense or was in the process of 

committing a criminal offense before searching the suspect. See

United States v. Banshee, 91 F.3d 99, 102 (11th Cir. 1996), cert.

denied, ___ U.S. ___, 117 S.Ct. 752 (1997); United States v. 

Bizier, 111 F.3d 214, 217 (1st Cir. 1997); United States v. 

Armstrong, 16 F.3d 289, 294 (8th Cir. 1994); United States v. 

Miller, 925 F.2d 695, 698 (4th Cir.), cert. denied, 502 U.S. 833 

(1991); United States v. Potter, 895 F.2d 1231, 1234 (9th Cir.), 

cert. denied, 497 U.S. 1008 (1990); United States v. Tavolacci, 

895 F.2d 1423, 1428 (D.C. Cir. 1990); United States v. Hernandez, 
825 F.2d 846, 852 (5th Cir. 1987), cert. denied, 484 U.S. 1068 

(1988); United States v. Donaldson, 793 F.2d 498, 502-03 (2nd 

Cir. 1986), cert. denied, 479 U.S. 1056 (1987); United States v. 

Gay, 774 F.2d 368, 378 (10th Cir. 1985). 

 We discussed the concept of probable cause in Taylor v. 

Commonwealth, 222 Va. 816, 820-21, 284 S.E.2d 833, 836 (1981): 

 "The legal standard of probable cause, as the term 

suggests, relates to probabilities that are based upon 

the factual and practical considerations in everyday 

life as perceived by reasonable and prudent persons. 

The presence or absence of probable cause is not to be 

examined from the perspective of a legal technician. 

Rather, probable cause exists when the facts and 

circumstances within the officer's knowledge, and of 

which he has reasonably trustworthy information, alone 

are sufficient to warrant a person of reasonable 

caution to believe that an offense has been or is being 

committed. Draper v. United States, 358 U.S. 307, 313 

(1959); Schaum v. Commonwealth, 215 Va. 498, 500, 211 

S.E.2d 73, 75 (1975). In order to ascertain whether 

probable cause exists, courts will focus upon 'what the 

totality of the circumstances meant to police officers 

trained in analyzing the observed conduct for purposes 

of crime control.' Hollis v. Commonwealth, 216 Va. 

874, 877, 223 S.E.2d 887, 889 (1976)." 

 We hold that the totality of circumstances shown in this 

record supports the conclusion that Officer Kurisky did indeed 

have probable cause to believe that the defendant had committed a 

crime and, therefore, the challenged search was permissible. 

Officer Kurisky observed the defendant with a group of men in an 

area described as an "open-air drug market." The officer saw the 

defendant place something in his basketball shorts. The 

defendant's shorts were made of a "mesh," "thin" material, and 

the officer was able to see a pink object between the defendant's 

undergarments and the defendant's skin. 

 In addition, Officer Kurisky knew, from personal experience, 
that "people often try to hide contraband in their shorts, in 

their crotch area or in their buttocks area." Officer Kurisky 

also knew, before he retrieved the items from the defendant's 

undergarments, that "[p]ink baggies are often one of the colors 

of baggies used to package . . . crack cocaine." When Officer 

Ambrozy asked the defendant if he had anything in his crotch, the 

defendant grabbed the waistbands of both his basketball shorts 

and his boxer shorts, and pulled "them to the side, up and down" 

in an apparent effort to prevent the crack cocaine from falling 

to the ground. 

 IV. 

 For the foregoing reasons, we will affirm the judgment of 

the Court of Appeals. 

Affirmed. 

CHIEF JUSTICE CARRICO, JUSTICE COMPTON, JUSTICE LACY, and JUSTICE 

KOONTZ concur in the result.