COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Overton 

Argued at Norfolk, Virginia 

VIRGINIA ANN EWELL 

 MEMORANDUM OPINION* BY 

v. Record No. 1730-95-1 JUDGE RICHARD S. BRAY 

 OCTOBER 22, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Robert B. Cromwell, Jr., Judge 

 William F. Burnside for appellant. 

 Michael T. Judge, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Virginia Ann Ewell (defendant) was convicted for possession 

of cocaine in violation of Code § 18.2-250. She complains on 

appeal that the trial court erroneously declined to suppress 

evidence resulting from an unlawful seizure of her person. We 

disagree and affirm the conviction. 

 Upon appeal from a trial court's denial of a motion to 

suppress, we must view the evidence in the light most favorable 

to the prevailing party, granting to it all reasonable inferences 

fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va. 

App. 1066, 1067, 407 S.E.2d 47, 48 (1991); Reynolds v. 

Commonwealth, 9 Va. App. 430, 436, 388 S.E.2d 659, 663 (1990). 

Determinations of reasonable suspicion and probable cause require 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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de novo review on appeal. Ornelas v. United States, 116 S. Ct. 

1657, 1663 (1996). However, a trial court's "findings of 

historical fact" should be reviewed only for "clear error." 

Moreover, "due weight" must be given to "inferences drawn from 

those facts by resident judges and local law enforcement 

officers," and "a trial court's finding that [an] officer was 

credible and [that his or her] inference was reasonable." Id. 

 In this instance, the historical facts are uncontroverted. 

At approximately 12:30 a.m. on December 4, 1993, Virginia Beach 

Police Officer Andrew J. Spiess was acting as a private "security 

guard" at the Friendship Village Apartments, "enforcing trespass 

codes and other city, state traffic codes." Spiess, who had been 

employed in a "part-time capacity" for several months to "cut the 

crime down" in the complex, also patrolled the area incidental to 

his routine police duties, and was "familiar with the majority of 

the residents . . . [as well as] the vehicles" usually on the 

property. Operating a marked police vehicle and in uniform, he 

entered the parking area of the apartments. "[N]o one [was] out" 

at "that time of night," and Spiess noticed a vehicle "next to an 

apartment . . . suspected strongly of being high narcotics 

. . . ." The car "immediately started up and proceeded to leave" 

and, as it "pulled by," Spiess recognized neither the driver nor 

the vehicle. A lighted "No Trespassing" sign was posted "right 

at the entrance," and Spiess, suspecting that the operator, 

defendant, was a trespasser, "activated [his] blue lights" and 
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signaled her to "pull[] over." 

 Once stopped, Spiess approached, "shined [his] flashlight 

into the vehicle," and observed an open bottle of alcohol and a 

beer can "fashioned" in a manner consistent with a crack smoking 

device on the "floorboard," and a "wooden clothespin" (a device 

"commonly used to hold a crack pipe"), "charred at one end," atop 

a purse resting on the front seat. Defendant acknowledged 

ownership of the purse which contained two "crack pipes," each 

with cocaine residue. 

 The sole issue on appeal is whether the investigatory stop 

of defendant's vehicle was supported by the requisite reasonable 

suspicion. 

 It is well established that "[w]hen the police stop a 

vehicle and detain its occupants, the action constitutes a 

'seizure' of the person for fourth amendment purposes." Murphy 

v. Commonwealth, 9 Va. App. 139, 143, 384 S.E.2d 125, 127 (1989). 

 However, not all seizures are unlawful. The Fourth Amendment 

prohibits only those which are "unreasonable." Terry v. Ohio, 

392 U.S. 1, 9 (1968); Iglesias v. Commonwealth, 7 Va. App. 93, 

99, 372 S.E.2d 170, 173 (1988). A brief detention to investigate 

"incipient criminal activity" is not unreasonable if "supported 

by the officer's reasonable and articulable suspicion that 

criminal activity may be afoot." Layne v. Commonwealth, 15 Va. 

App. 23, 25, 421 S.E.2d 215, 216 (1992); see Terry, 392 U.S. at 

21, 30. "Actual proof that [such] activity is afoot is not 
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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). 

 "There is no 'litmus test' for reasonable suspicion." 

Castaneda v. Commonwealth, 7 Va. App. 574, 580, 376 S.E.2d 82, 85 

(1989) (reh'g en banc) (citing Terry, 392 U.S. at 21). "In 

determining whether an 'articulable and reasonable suspicion' 

justifying an investigatory stop of [a] vehicle exists, courts 

must consider 'the totality of the circumstances--the whole 

picture.'" Murphy, 9 Va. App. at 144, 384 S.E.2d at 128 

(quoting United States v. Sokolow, 490 U.S. 1, 8 (1989)). 

"Compliance with the fourth amendment depends . . . on 'an 

objective assessment of an officer's actions in light of the 

facts and circumstances then known to him,'" Bosworth v. 

Commonwealth, 7 Va. App. 567, 570, 375 S.E.2d 756, 758 (1989) 

(quoting Scott v. United States, 436 U.S. 128, 136 (1978)), 

viewed "objectively through the eyes of a reasonable police 

officer with the knowledge, training, and experience of the 

investigating officer." Murphy, 9 Va. App. at 144, 384 S.E.2d at 

128. 

 Spiess was a police officer very familiar with the vicinity 

of the apartments, a majority of its residents, and those 

vehicles usually present on the property.1

 A "No Trespassing" 

 

 1In Lowery v. Commonwealth, 9 Va. App. 314, 388 S.E.2d 265 

(1990), we concluded that a police officer's observation in 
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sign was conspicuously displayed at the entrance, and Spiess was 

aware of and alert to related violations and other criminal 

activity in the proximity. Defendant and her car, both unknown 

to Spiess, were observed in the parking area at a late hour, 

located near an apartment with suspected narcotic connections. 

Defendant "immediately started up and proceeded to leave" upon 

the appearance of the marked police vehicle. 

 Viewing such circumstances objectively, from the perspective 

of the police officer, we find that Spiess initiated an 

investigatory stop, properly supported by the reasonable 

suspicion that defendant was a trespasser on the premises. The 

trial court, therefore, correctly declined to suppress the 

disputed evidence. 

 Accordingly, we affirm the conviction. 

 Affirmed.

 

Virginia of a "Florida rental vehicle owned by a local Florida 

rental agency," combined with the "officer's knowledge that such 

agencies generally prohibit their automobiles from being taken 

outside of the state," justified a "reasonable suspicion that the 

vehicle is stolen or may have been removed from Florida without 

proper authority." Id. at 319, 388 S.E.2d at 268 (emphasis 

added).