COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman, Willis, Elder, Bray, 

 Fitzpatrick, Annunziata and Overton 

Argued at Richmond, Virginia 

DOUGLAS McGEE, JR. 

 OPINION BY 

v. Record No. 0104-95-2 JUDGE SAM W. COLEMAN III 

 JULY 8, 1997 

COMMONWEALTH OF VIRGINIA 

UPON REHEARING EN BANC 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Walter W. Stout, III, Judge 

 Cullen D. Seltzer, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

brief), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 The defendant, Douglas McGee, Jr., was convicted in a bench 

trial of one count of possession of cocaine with intent to 

distribute in violation of Code § 18.2-248. A panel of this 

Court affirmed the conviction, holding that the defendant was not 

seized for Fourth Amendment purposes before he voluntarily 

consented to the search which resulted in the recovery of 

cocaine. See McGee v. Commonwealth, 23 Va. App. 334, 477 S.E.2d 

14 (1996). Upon rehearing en banc, we hold that the trial court 

erred in denying the defendant's motion to suppress the cocaine 

because it was seized as the result of an illegal search of the 

defendant. 
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BACKGROUND

 When viewed in the light most favorable to the Commonwealth 

as the prevailing party, the evidence proved that Officer 

Norris I. Loperl of the Richmond Police Department received a 

radio dispatch that a black male wearing a white t-shirt, black 

shorts, and white tennis shoes was selling drugs on a corner near 

5001 Government Road in Richmond. The dispatch was based on a 

tip from an anonymous informant, who did not relate the 

circumstances under which the drugs were being sold, the identity 

of the seller, the nature of drugs being sold, or where the drugs 

were located. 

 Approximately two minutes after receiving the dispatch, 

Loperl and two other officers, all of whom were in uniform and 

armed, arrived at 5001 Government Road in two marked police 

cruisers. Immediately after parking the police cruisers, the 

three officers approached the defendant, who was sitting on a 

porch in front of a store. The defendant and a female companion 

were the only persons that the officers observed in the vicinity. 

 The officers did not observe the defendant's activity prior to 

approaching him. At trial, Officer Loperl testified that he did 

not know whether the defendant was wearing a white t-shirt, black 

shorts, and tennis shoes as reported in the anonymous tip. 

 After exiting his vehicle, Officer Loperl approached the 

defendant and "stated to him that I had received a call that [he] 

was on this corner selling drugs and [that he] matched the 
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description" of the individual who had been reported as selling 

drugs. According to Loperl, the defendant was free to leave, 

although the officers did not expressly so inform the defendant. 

 Loperl testified that the officers did not block the defendant's 

path in any direction or draw their weapons. 

 Loperl then "asked [the defendant] could I pat him down to 

make sure he didn't have any weapons on him." Loperl testified 

that he asked the question in the same tone of voice he was using 

in court. The defendant responded by standing up and extending 

his arms in front of him with both fists clenched. Loperl patted 

the defendant down and found no weapons. Since Officer Loperl 

believed the defendant could have been holding a "small pocket 

knife" or "a razor" in his closed fists, Loperl asked the 

defendant to open his hands. Although Loperl could not remember 

the exact words used, he testified that, "I know I asked him. I 

know I didn't tell him. I asked him." The defendant opened his 

hands, which contained money, a torn ziplock bag, and "a little 

piece of white substance." Loperl then placed the defendant 

under arrest and, in a search of the defendant incident to that 

arrest, Loperl found twenty-five bags containing crack cocaine in 

the defendant's trousers. 

 In a written opinion, the trial judge held that the police 

officers' encounter with the defendant constituted an 

investigatory stop but that Officer Loperl had a reasonable, 

articulable suspicion that the defendant was involved in criminal 
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activity. Thus, the trial judge ruled that, because the police 

did not restrict the defendant's movement or engage in coercive 

conduct, the brief detention was reasonable and defendant's 

consent to Loperl's request to open his hands was voluntary and, 

therefore, the fruits of the search were admissible. 

ANALYSIS

 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). "Ultimate questions of reasonable 

suspicion and probable cause to make a warrantless search" 

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" or 

without evidence to support them and we give due weight to the 

inferences drawn from those facts by resident judges and local 

law enforcement officers. Id. at 1663.1

 We analyze a trial 

 

 1 The Ornelas case holds 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 Div. 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, 542 (1986). 
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judge's determination whether the Fourth Amendment was implicated 

by applying de novo our own legal analysis of whether based on 

those facts a seizure occurred. See Satchell v. Commonwealth, 20 

Va. App. 641, 648, 460 S.E.2d 253, 256 (1995) (en banc); see also

Watson v. Commonwealth, 19 Va. App. 659, 663, 454 S.E.2d 358, 361 

(1995). 

 Police-citizen confrontations generally fall into one of 

three categories. Payne v. Commonwealth, 14 Va. App. 86, 88, 414 

S.E.2d 869, 869-70 (1992); Iglesias v. Commonwealth, 7 Va. App. 

93, 99, 372 S.E.2d 170, 173 (1988). First, there are consensual 

encounters which do not implicate the Fourth Amendment. 

Iglesias, 7 Va. App. at 99, 372 S.E.2d at 173. Next, there are 

brief investigatory stops, commonly referred to as "Terry" stops, 

which must be based upon reasonable, articulable suspicion that 

criminal activity is or may be afoot. United States v. Sokolow, 

490 U.S. 1, 7 (1939). Finally, there are "highly intrusive, 

full-scale arrests" or searches which must be based upon probable 

cause to believe that a crime has been committed by the suspect. 

Id.; see also Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 

S.E.2d 744, 746-47 (1995). 

 We find, as did the trial court, that the defendant's 

encounter with the police was not consensual. Therefore, as the 

trial court held, the defendant was seized when the three 

officers approached him on the porch and told him that they had a 

report that he "was on the corner selling drugs and [that he] 
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matched the description." However, we disagree with the trial 

court's ruling that the police had reasonable, articulable 

suspicion to detain the defendant. Therefore, because the 

request to frisk the defendant and his "consent" to be searched 

were the result of an illegal detention, the cocaine seized from 

him should have been suppressed. 

 An encounter between a law enforcement officer and a citizen 

in which the officer merely identifies himself and states that he 

is conducting a narcotics investigation, without more, is not a 

seizure within the meaning of the Fourth Amendment but is, 

instead, a consensual encounter. See Florida v. Royer, 460 U.S. 

491, 497 (1983); Williams v. Commonwealth, 21 Va. App. 263, 266, 

463 S.E.2d 679, 681 (1995). A seizure occurs when an individual 

is either physically restrained or has submitted to a show of 

authority. California v. Hodari D., 499 U.S. 621, 625 (1991); 

Ford v. City of Newport News, 23 Va. App. 137, 142, 474 S.E.2d 

848, 850 (1996). 

 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." As long as the 

person to whom questions are put remains free 

to disregard the question 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. 

United States v. Mendenhall, 446 U.S. 544, 553-54 (1980); see

Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 647 
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(1992). Whether a seizure has occurred for Fourth Amendment 

purposes depends upon whether, under the totality of the 

circumstances, a reasonable person would have believed that he or 

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

 When the police expressly inform an individual that they 

have received information that the individual is engaging in 

criminal activity, the police "convey a message that compliance 

with their requests is required," Florida v. Bostick, 501 U.S. 

429, 435 (1991), and "that failure to cooperate would lead only 

to formal detention." United States v. Berry, 670 F.2d 583, 597 

(5th Cir. 1982). See also Royer, 460 U.S. at 501 (holding that 

the accused was seized "when the officers identified themselves 

as narcotics agents, told Royer that he was suspected of 

transporting narcotics, and asked him to accompany them to the 

police room") (emphasis added); United States v. Glass, 741 F.2d 

83, 85 (5th Cir. 1984) (holding that the accused was seized when 

"the officers informed [him] that [he] was suspected of illegal 

activity"); United States v. Manchester, 711 F.2d 458, 460 (1st 

Cir. 1983) (finding a seizure where the agents confronted the 

accused with their suspicions that he was involved in drug 

trafficking); State v. Ossey, 446 So. 2d 280, 285 (La.) (holding 

that there was a seizure where the accused "was told that he was 

the focus of investigation"), cert. denied, 469 U.S. 916 (1984). 

 Thus, when a police officer confronts a person and informs 

the individual that he or she has been specifically identified as 
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a suspect in a particular crime which the officer is 

investigating, that fact is significant among the "totality of 

the circumstances" to determine whether a reasonable person would 

feel free to leave.2

 When confronted with an accusation from 

police, such as, "we know you are selling drugs from this 

location, let us search you," no reasonable person would feel 

free to leave. Whether a seizure occurs must be determined by 

evaluating the facts of each case to determine whether the manner 

in which the police identified the individual as a suspect 

conveys to the person that he or she is a suspect and is not free 

to leave. 

 In this case, Officer Loperl's statement to the defendant 

did not merely convey a message that the officers were conducting 

a general investigation in response to a report of drug dealing. 

 Rather, Loperl specifically identified the defendant as the 

subject of their drug investigation. See United States v. 

Saperstein, 723 F.2d 1221, 1226 (6th Cir. 1983) (finding a 

seizure where the agent stated "that he had information 

concerning the appellant and his probable activities as a drug 

courier"); Wilson v. People, 670 P.2d 325, 334 (Cal. 1983) 

(finding a seizure where "the officer advised [the accused] that 

he had information that [the accused] was carrying a lot of 

 

 2 Other factors that could be considered include the number of 

officers present, whether the officers displayed weapons, and 

physical circumstances of the encounter. Mendenhall, 446 U.S. at 

554. 
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drugs"), cert. denied, 466 U.S. 944 (1984). In addition to 

Officer Loperl's statement to the defendant, the evidence proved 

that three uniformed officers arrived in two marked police 

cruisers and confronted the defendant. See Satchell, 20 Va. App. 

at 650, 460 S.E.2d at 257. Furthermore, the trial court, which 

found that a seizure had occurred, had the opportunity to 

evaluate the tone of voice that Officer Loperl said he used in 

speaking to the defendant. See id. at 648, 460 S.E.2d at 256 

(holding that "[t]he trial court has before it the living 

witnesses and can observe their demeanors and inflections"). The 

officers did not by their words or actions suggest that the 

defendant was free to leave. The unmistakable message conveyed 

to the defendant was that the officers had reason to suspect that 

he was selling drugs and that they were detaining him to 

investigate his activity. A reasonable person would have 

believed, as the trial court found, that he or she was being 

detained and was required to open his or her hands as requested 

by the officers. Upon our de novo review, we find that the 

evidence supports the finding that the officers seized the 

defendant by their show of authority. The dispositive question 

then is whether the officers had a reasonable basis to suspect 

the defendant of criminal activity to justify the investigatory 

stop. 

 If a police officer has reasonable, articulable suspicion 

that a person is engaging in, or is about to engage in, criminal 
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activity, the officer may detain the suspect to conduct a brief 

investigation without violating the person's Fourth Amendment 

protection against unreasonable searches and seizures. See Terry 

v. Ohio, 392 U.S. 1, 27 (1968). The justification for stopping 

the individual need not rise to the level of probable cause, but 

must be more than an "inchoate and unparticularized suspicion or 

'hunch.'" Id. at 27. 

 Contrary to the trial court's finding, the evidence is 

insufficient to prove that the investigatory detention was 

"justifiable" and based upon reasonable, articulable suspicion. 

In Alabama v. White, 496 U.S. 325 (1990), the United States 

Supreme Court held that a law enforcement officer is justified in 

relying upon information from an anonymous tipster in order to 

briefly detain a suspect for inquiry and investigation only if 

the anonymous information is "sufficiently corroborated" to 

provide it some indicia of reliability. Id. at 331. "[A]lthough 

the police do not have to verify every detail provided by an 

anonymous informant, '[s]ignificant aspects of the informer's 

information must be independently corroborated.'" Gregory v. 

Commonwealth, 22 Va. App. 100, 106, 468 S.E.2d 117, 120 (1996) 

(quoting Bulatko v. Commonwealth, 16 Va. App. 135, 137, 428 

S.E.2d 306, 307 (1993)). 

 In Gregory, the police officer received an anonymous tip 

that an individual fitting a certain description was flagging 

down cars and selling drugs. When the officer arrived at the 
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reported location, and after observing that the accused fit the 

description provided by the informant, the officer verified that 

the accused was occupying the described vehicle from which he 

allegedly was selling drugs. At that point, the officer saw 

Gregory exit the car and begin to walk away from it and from the 

officer, repeatedly looking over his shoulder at the officer as 

he did so. Id. at 108, 468 S.E.2d at 121. 

 In Gregory, we found that the officer verified or observed 

the description of the suspect and his car, that the defendant 

was present during the early morning hours at a location where 

frequent complaints of drug dealing had been received, the 

defendant acted suspiciously and furtively when the police 

officer arrived, and refused to show both hands to the officer 

when he approached. We held, based upon the informant's tip and 

corroborating information developed, that the officer was 

justified in believing that Gregory was selling drugs. Id. at 

109, 468 S.E.2d at 121-22. 

 Here, Officer Loperl received an anonymous tip that a black 

male wearing a white t-shirt, black shorts, and white tennis 

shoes was selling drugs. Officer Loperl did not observe any 

suspicious activity or furtive gestures by the defendant that 

tended to verify or corroborate the citizen's tip that the 

defendant was engaged in criminal activity. At most, Officer 

Loperl only knew that the defendant may have fit the description 

of the person that the anonymous tipster observed. However, 
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Loperl did not observe any suspicious conduct or behavior or 

furtive gestures by the defendant. He observed nothing that 

suggested in any way that the defendant may have been or was 

about to be engaged in criminal activity. 

 On these facts, no credible evidence supports the trial 

court's finding that the investigatory stop was "justifiable." 

The police officers had no reason, other than a report from an 

anonymous person, to suspect that the defendant was selling 

drugs. No evidence established the identity or reliability of 

the anonymous tipster or explained how the tipster obtained the 

reported information. The evidence provides no reason why the 

tipster's conclusory assertion was worthy of being believed. The 

officers did not possess a basis to conclude that the anonymous 

informant was reliable and, therefore, did not have reasonable 

and articulable suspicion to conduct a Terry stop. 

 Because the seizure of the defendant was unlawful, the 

cocaine that was obtained from him in the "consent" search 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). Consent to search obtained as the result of an illegal 

detention is "not an independent source of the evidence, but 

rather [is] an exploitation of the unlawful [stop]." Id. at 757, 

407 S.E.2d at 689. 

 Accordingly, we reverse the conviction and dismiss the 

charge. 
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Reversed and dismissed.