COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

SEAN A. JERRELLS 

 MEMORANDUM OPINION*

v. Record No. 0559-97-2 BY JUDGE MARVIN F. COLE 

 APRIL 21, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

Charles L. McCormick, III, Judge 

 Buddy A. Ward, Public Defender, for 

appellant. 

 Steven A. Witmer, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Appellant, Sean A. Jerrells, appeals his conviction in a 

bench trial of possessing cocaine with the intent to distribute. 

 He contends that the trial court erred in denying his motion to 

suppress the evidence obtained in an illegal stop of his car 

which violated his Fourth Amendment rights. We agree and 

reverse. 

 When viewed in the light most favorable to the Commonwealth, 

the prevailing party below, the evidence proved that on October 

13, 1995, Lieutenant R.J. Loftis, of the South Boston Police 

Department, received a radio dispatch which reported that a 

delivery driver had witnessed a drug transaction on the church 

lot next to the brick house on Park Avenue at the intersection of 

 

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

designated for publication. 
 2 

Hamilton Boulevard. The unnamed delivery driver had described a 

white Ford Tempo, with license plate number RSF-211. She said 

that two black males occupied the car. No further information 

was given. 

 Lt. Loftis was familiar with the car described by the 

informant. He knew that it was a rented vehicle from the license 

plate number. Loftis had regularly, and including that day, seen 

the car in the area of Park and Hamilton, an area known to him to 

be an open air crack cocaine market. Loftis had made arrests 

leading to convictions at that location within the previous year. 

 Loftis drove to the location but did not find the car there. 

 He continued to drive around in the area. When he got to the 

intersection of West and Washington, he met the Ford Tempo, which 

was stopping at the intersection. Loftis pulled in front of the 

Tempo and stopped it. Three black males occupied the car; 

appellant was the driver. As Loftis approached the Tempo, he 

smelled marijuana and could see cigar tobacco on the floorboards. 

 According to Loftis, it was a common practice for marijuana 

smokers to hollow out cigars and replace the tobacco with 

marijuana. 

 Loftis asked appellant for his driver's license, which he 

could not produce. Loftis checked on the status of appellant's 

license and found that it had been suspended. Loftis then had 

appellant exit the car and patted him down for weapons. He felt 

a small square box in his right pocket. Loftis reached into the 
 3 

pocket and retrieved a tic-tac candy dispenser, which he 

described as a "container of choice" for crack cocaine in the 

locality. Appellant admitted that the container was his, it 

contained crack cocaine, and he "may" have sold some cocaine 

earlier. Accordingly, appellant was "cuffed and placed under 

arrest." 

 In reviewing a trial court's denial of a motion to suppress, 

"[t]he burden is upon [the defendant] to show that th[e] ruling, 

when the evidence is considered most favorably to the 

Commonwealth, constituted reversible error." Fore v. 

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.

denied, 449 U.S. 1017 (1980). "[U]ltimate questions of 

reasonable suspicion and probable cause to make a warrantless" 

stop or seizure involve questions of both law and fact and are 

reviewed de novo on appeal. Ornelas v. United States, 116 S. Ct. 

1657, 1659 (1996). In performing such analysis, we are bound by 

the trial court's findings of historical fact unless plainly 

wrong, and we "give due weight to inferences drawn from those 

facts by resident judges and local law enforcement officers." 

Id. at 1663.1 "We analyze a trial judge's determination whether 

 

 1Ornelas held that findings of historical fact are reviewed 

on appeal only for "clear error." However, "'[c]lear error' is a 

term of art derived from Rule 52(a) of the Federal Rules of Civil 

Procedure, and applies when reviewing questions of fact" in the 

federal system. Ornelas, 116 S. Ct. at 1661 n.3. In Virginia, 

questions of fact are binding on appeal unless "plainly wrong." 

Quantum Dev. Co. v. Luckett, 242 Va. 159, 161, 409 S.E.2d 121, 

122 (1991); Naulty v. Commonwealth, 2 Va. App. 523, 527, 346 

S.E.2d 540, 541 (1986). 
 4 

the Fourth Amendment was implicated by applying de novo our own 

legal analysis of whether based on those facts a seizure 

occurred." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 

S.E.2d 259, 261 (1997) (en banc) (citations omitted). 

 In Murphy v. Commonwealth, 9 Va. App. 139, 384 S.E.2d 125 

(1989), we reviewed the law that permits a police officer to stop 

a motor vehicle based upon a reasonable suspicion of an unlawful 

activity: 

 When the police stop a vehicle and detain its 

occupants, the action constitutes a "seizure" 

of the person for fourth amendment purposes. 

 If the stop of the vehicle is without a 

warrant, the Commonwealth has the burden to 

prove the stop was legal. Any warrantless 

stop of a vehicle which leads to an arrest of 

its occupants requires probable cause to 

believe that a crime has been committed. 

However, if an officer has an "articulable 

and reasonable suspicion that a motorist is 

unlicensed or that an automobile is not 

registered, or that either the vehicle or an 

occupant is otherwise subject to seizure for 

violation of the law," the officer may 

conduct an investigatory stop of the vehicle 

limited in time and scope to ascertaining 

whether the suspicions are accurate. 

Id. at 143, 384 S.E.2d at 127 (citations omitted). See also 

Bulatko v. Commonwealth, 16 Va. App. 135, 136-37, 428 S.E.2d 306, 

307 (1993). 

 A seizure for Fourth Amendment purposes occurs when 

"circumstances . . . amount to a show of official authority such 

that 'a reasonable person would have believed that he was not 

free to leave.'" Florida v. Royer, 460 U.S. 491, 502 (1983) 

(citation omitted). "[W]henever a police officer accosts an 
 5 

individual and restrains his freedom to walk away, he has 

'seized' that person." Terry v. Ohio, 392 U.S. 1, 16 (1967). 

 We conclude, as the Attorney General conceded in oral 

argument, that the manner in which Loftis pulled his police 

vehicle in front of appellant, stopping him at the intersection, 

constituted a "seizure" for Fourth Amendment purposes. No 

reasonable person would feel that he was free to leave if stopped 

in such a manner by a police car. 

 If Lt. Loftis had reasonable, articulable suspicion that 

appellant was engaged in, or was about to engage in, criminal 

activity, he had a right to detain appellant to conduct a brief 

investigation without violating his Fourth Amendment protection 

against unreasonable searches and seizures. The justification 

for stopping appellant need not rise to the level of probable 

cause, but must be more than an "inchoate and unparticularized 

suspicion or 'hunch.'" Terry, 392 U.S. at 27. 

 Anonymous information may furnish reasonable suspicion 

justifying an investigative stop, provided it has been 

sufficiently corroborated by other evidence. See Alabama v. 

White, 496 U.S. 325, 331 (1990). See also Bulatko, 16 Va. App. 

at 137, 428 S.E.2d at 307. Every detail reported by an anonymous 

informant need not be corroborated to establish reasonable 

suspicion. See id. Significant aspects of the informer's 

information must be independently verified, however, to give 

"some degree of reliability to the other allegation" of the 
 6 

informant. White, 496 U.S. at 332. 

 In this case, the Commonwealth alleges that the stop was 

justified by reasonable suspicion of criminal activity and that 

the information given by the unidentified truck driver was 

sufficiently corroborated to give it reliability. It enumerates 

the following to corroborate the informer's information: (1) the 

driver reported actually seeing a drug deal at a specific 

location; (2) the informant gave a detailed description of a 

vehicle which included the make and license plate number, details 

which were later verified by police observation; (3) Loftis was 

familiar with the area and recognized the car as a rental car 

that was kept at the described location, and he had seen the car 

in the area many times; and (4) Loftis knew the area to be an 

open air crack market. Therefore, the Commonwealth argues, Lt. 

Loftis had reasonable suspicion that the occupants of the vehicle 

were engaged in unlawful activity and he properly stopped the 

vehicle to briefly investigate. 

 The appellant contends that Loftis seized him on the basis 

of an anonymous, unsubstantiated statement by someone who 

believed she had seen a drug transaction. He argues that the 

police made no inquiry as to how she reached that conclusion, 

what she saw, or what training she had that would support a 

reasonable belief that appellant was committing a crime. Her 

report made no predictions, but provided only information that 

could be reported by anyone, regardless of whether he or she had 
 7 

seen a drug transaction. Therefore, appellant contends that 

there was no evidence to give any credibility to the informant's 

report. Appellant maintains that his motion for suppression 

should have been granted and all the evidence secured as a result 

of the illegal stop should have been suppressed. We agree. 

 We shall respond to the Commonwealth's corroboration 

evidence in the order enumerated. The informant reported that 

she had observed a drug transaction at Park Avenue and Hamilton 

Boulevard. The dispatch related the description of a white Ford 

Tempo that was occupied by two men. When Loftis went to this 

location to verify the tip, he did not find the Tempo. The truck 

driver reported seeing a drug transaction, but there is no 

evidence in the record to support such an accusation except the 

tip itself. Moreover, the record contains no testimony that 

recites the activity observed or that describes the conduct of 

the car's occupants as being involved in the suspected drug 

transaction. 

 Loftis testified that he was familiar with the area and 

recognized the car as a rental car, from its license number. He 

had seen the car in the area many times before. Lt. Loftis did 

not explain how this information would lead to a reason to 

suspect that the occupants were engaged in criminal activity. He 

indicated only that a rental car was kept in the area "most of 

the time." We fail to see any connection between this testimony 

and the informant's tip. 
 8 

 Loftis testified that he knew the area at Park and Hamilton 

Boulevard to be an open air crack market. Not every operator of 

an automobile in the vicinity of where drugs are known to be sold 

can reasonably be suspected of trafficking in drugs. Moreover, 

the Tempo was not found at that location, but at West and 

Washington Avenue, some distance away. The evidence does not 

disclose that area to be an open air crack market. No 

corroborating evidence places the Tempo at any location except 

where the officers stopped it. The informant reported two 

occupants in the Tempo. When located by Loftis, it contained 

three occupants. 

 Based upon a totality of the evidence, we find that the 

evidence is insufficient to properly corroborate the informant's 

information and the stop was illegal. Therefore, the motion to 

suppress the evidence should have been granted because the 

seizure was unlawful. All of the evidence obtained after the 

seizure should have been suppressed as "fruit of the poisonous 

tree." Commonwealth v. Ealy, 12 Va. App. 744, 754, 407 S.E.2d 

681, 687 (1991). 

 Accordingly, we reverse the conviction and dismiss the 

charge. 

 Reversed and dismissed.