COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Richmond, Virginia 

DARRICK HAMILTON HOOD 

 MEMORANDUM OPINION* BY 

v. Record No. 0821-94-2 JUDGE JAMES W. BENTON, JR. 

 OCTOBER 10, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Thomas N. Nance, Judge 

 C. David Whaley (Anthony G. Spencer; Morchower, 

 Luxton & Whaley, on briefs), for appellant. 

 Thomas C. Daniel, Assistant Attorney General 

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

 brief), for appellee. 

 Darrick Hamilton Hood appeals from his conviction of 

possessing a firearm after having been convicted of a felony. 

Code § 18.2-308.2. He contends the firearms were seized in 

violation of the Fourth Amendment. For the reasons that follow, 

we reverse the conviction. 

 I. 

 The evidence proved that on the evening of October 10, 1993, 

Hood went to a hospital to be treated for a gunshot wound to his 

right arm. Police Officers J. Morgan Brown, Jr., and Clyde 

Fisher went to the hospital and spoke with Hood as a victim of a 

shooting. After learning that somebody fired bullets at Hood's 

car, the officers went to look at the car. They observed bullet 

 

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

designated for publication. 
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holes in the car and shell casings on a seat inside the car. 

 The officers returned to the hospital and again questioned 

Hood about being a shooting victim. The officers asked Hood 

whether he had been armed and had returned fire. Hood responded 

that he had backed into a parking lot and that somebody 

approached his car and shot at him. He said that he quickly 

drove away and did not shoot at the assailant. Hood also stated 

that he had guns in the trunk of his car that had not been fired. 

 The officers asked Hood if he would go to his car with them and 

open the trunk. Hood agreed to do so. 

 Hood went outside without a shirt. When he opened the trunk 

of his car, the officers could not see the guns and asked Hood to 

remove them. Hood placed two guns on top of a speaker box in the 

trunk. Hood then asked for his coat and reached into the trunk 

for a jacket to wear. Officer Brown grabbed the jacket from Hood 

and patted it for weapons. When Officer Brown squeezed the 

jacket, he felt an object about three inches long and an inch 

thick. Although he knew the object was not a weapon, he 

suspected that it may have been drugs. Officer Brown removed the 

object, a folded brown paper bag, and opened it. He saw what 

appeared to be several rocks of crack cocaine. The officers 

seized the cocaine and the guns and arrested Hood on drug related 

offenses. When Hood was being processed at the police station, 

the officers learned that he was a convicted felon and charged 

him with the weapons offense. 
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 Hood was indicted for possession of cocaine with intent to 

distribute, possession of cocaine while possessing a firearm, and 

possession of a firearm after having been convicted of a felony. 

 Before trial, the judge ruled that the search of the jacket was 

unlawful and suppressed evidence of the cocaine. However, the 

judge denied Hood's motion to suppress evidence of the firearms 

seized from the trunk. At trial, Hood was convicted of 

possessing firearms after having been convicted of a felony. 

 II. 

 The trial judge's finding that the search of Hood's jacket 

was unlawful necessarily "also prohibit[s] the introduction of 

derivative evidence 'that is the product of the primary evidence, 

or that is otherwise acquired as an indirect result of the 

unlawful search.'" Commonwealth v. Ealy, 12 Va. App. 744, 754, 

407 S.E.2d 681, 687 (1974)(quoting Murray v. United States, 487 

U.S. 533, 536-37 (1988)). The principle is well established that 

evidence derived from an illegal search or seizure may not 

provide the basis for a subsequent seizure. Wong Sun v. United 

States, 371 U.S. 471, 484-85 (1963). Accordingly, the seizure of 

the guns cannot rest upon Hood's arrest for possession of the 

unlawfully seized cocaine. 

 Although the officers were not acting under authority of a 

warrant, the Commonwealth contends the officers could have 

properly seized the guns prior to discovering the cocaine. The 

Commonwealth asserts the seizure was permissible as a plain view 
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exception to the Fourth Amendment or as a consensual seizure. 

Thus, we begin our analysis with the principle that "searches 

[and seizures] conducted outside the judicial process, without 

prior approval of a judge or magistrate, are per se unreasonable 

under the Fourth Amendment -- subject only to a few specifically 

established and well-delineated exceptions." Katz v. United 

States, 389 U.S. 347, 357 (1967). 

 To invoke the plain view exception to the Fourth Amendment, 

see Coolidge v. New Hampshire, 403 U.S. 443, 464 (1970), the 

Commonwealth was required to prove that the police "'had probable 

cause to believe the evidence seized was a seizable item, i.e.

contraband, the fruit or tools of a crime, or other evidence of a 

crime.'" Commonwealth v. Grimstead, 12 Va. App. 1066, 1068, 407 

S.E.2d 47, 48 (1991)(citation omitted). The evidence proved that 

when the officers questioned Hood while he waited for medical 

attention they did not suspect him of criminal activity. Indeed, 

they testified that they were questioning him in the belief that 

he was a victim of a crime. During their questioning, Hood told 

them of the guns in his trunk and voluntarily opened his trunk at 

the officers' request. 

 Hood had earlier informed the officers that the assailant 

approached and shot into the car. The bullets holes in the body 

of the car observed by the officers were not inconsistent with 

Hood's report. There is no evidence that the officers believed 

the shell casings in the car were from the guns in the trunk. At 
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best, the officers' observations generated unanswered questions 

requiring further investigation. However, a vague need for 

inquiry does not rise to the level of probable cause to believe 

the weapons in the trunk were involved in criminal activity. 

 "Probable cause . . . must be based on more than 

speculation, suspicion, or surmise that a crime might be in 

progress." Alexander v. Commonwealth, 19 Va. App. 671, 674, 454 

S.E.2d 39, 41 (1995). The criminality of the guns in the trunk 

was not immediately apparent to the officers. See Coolidge, 403 

U.S. at 466. Thus, the evidence adduced at the hearing does not 

support the conclusion that the officers had probable cause to 

believe the guns were the tools of a crime. See Grimstead, 12 

Va. App. at 1068, 407 S.E.2d at 48. 

 Although Hood voluntarily removed the guns from his trunk, 

the evidence does not prove that the seizure was consensual. 

Hood only consented to opening his trunk and allowing the 

officers to view his guns. The Fourth Amendment's prohibition 

against unreasonable seizures requires the Commonwealth to prove 

that Hood freely and voluntarily consented to the seizure. 

Bumper v. North Carolina, 391 U.S. 543, 548 (1968); Hairston v. 

Commonwealth, 216 Va. 387, 388, 218 S.E.2d 668, 669 (1975). The 

officers seized the weapons only after finding the cocaine. The 

evidence does not prove that Hood consented to the seizure. 

 For these reasons, we hold that the trial judge erred in 

ruling that the seizure of the guns did not violate the Fourth 
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Amendment and in failing to also suppress the guns. We, 

therefore, reverse the conviction and remand the case to the 

circuit court. 

 Reversed and remanded.