COURT OF APPEALS OF VIRGINIA Present: Judg es Bray, Frank and Humphreys Argued at Ches apeake, Virginia

ANTONIO LAMO NT MOZELLE MEMORANDUM OPINION * BY v. Record No. 1734-00-1 JUDGE RICHAR D S. BRAY SEPTEM BER 25, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH James A. Cales, Jr., Judge Andrew Kolp, Assistant Public Defender, for appellant. Stephen R. McCullou gh, Assistan t Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Antonio Lamont Mozelle (defen dant) was convic ted in a bench trial for posses sion of a fire arm by a convic ted felon and possession of hero in with intent to distribute, viol ations of Code §§ 18.2-308.2 and -248 , respectively. On appeal, he contends the trial court errone ously denied his motion to suppress evidence obtained by police incident to an unconsti tutional seizure of his person. We ag ree and reverse the convictions. The parties ar e fully conversa nt with the re cord, and this memorandum opinion re cites only those fa cts necess ary to a disposition of the appeal.I. "In reviewing a trial court's deni al of a motion to suppress, 'the burden is upon the defendant to show that th e ruling, when the evidence is considered most favorably to th e Commonwealth, constituted reversible error.'" McGee v. Commonwealth , 25 Va. App. 193, 197, 487 S. E.2d 259, 26 1 (1997) ( en banc ) (citation omitted). "Ultimate questions of reason able suspicion and probable cause to make a warran tless search" invo lve issues of both law and fa ct, reviewable de novo on appeal. Ornelas v. United States , 517 U.S. 690, 699 (1 996). However, "[i]n performing such anal ysis, we are bound by the trial court's findings of hist orical fact unless 'pla inly wrong' or without evidence to suppor t them and we give due we ight to the inferences drawn from those facts by re sident judges and local law enforcement of ficers." McGee , 25 Va. App. at 19 8, 487 S.E.2d at 261 (citation omitted). On March 6, 2000, several Portsmou th police officers "were conducting a surveillan ce on [defenda nt's] house," "l ooking for an individual who was an associate of defend ant" and "allegedly involved in a shoo ting." Alth ough police were un able to recognize the suspect, "informati on" indicated th at he "[h]ad been seen riding in [a] ve hicle with [defendant]." During the "stake-out," police observed defe ndant exit the home, accompanied by three unidentified males, enter an automobile and leave the area.

- 2 -The surveillance te am immediately noti fied Officer K.M. Armstrong who, togeth er with "six to ei ght" other officers, "effected a stop on the vehicle" seeking "to identify an associate of defendant" that "hung around with" hi m. When Armstrong approached the passenger side of the car, he "detected an odor of marijuana," "had the occupants step out of th e vehicle" and conducted a pat-do wn search of de fendant, discov ering a baggie containing heroin in his pocket. Defendant was then arrested for the offense and, as a result, Arms trong obtained a search warrant for his home. Upon execution of the warrant, police discovered "a .45 caliber, semiautoma tic handgun," "a magazine wi th bullets," "two clear bags . . . contain[ing] fifty capsules each of suspected hero in," and "personal pa pers" of defendant. At trial, defendan t moved the tr ial court to suppress the evidence as "fru it of the poison tree," arguing he was illegally seized at the time of the in itial stop. Wong Sun v. United States , 371 U.S. 471, 488 (1963). The court ov erruled de fendant's motion and proceeded with trial, result ing in the subject conviction and appeal.

II. "When the police stop a motor ve hicle and detain an occupant, this constitutes a 'sei zure' of the person for Fourth Amendment purposes, even though the function of the stop is limited and the detention brief." Zimmerman v. Commonwealth , 234 Va. 609, 611, 363 S.E.2d 708, 709 (1988) (citat ions omitted).

- 3 -Accordingly, the stop of an automobile and the resulting detention . . . is unreasonable under the Fourth Amendment absent a reasonable, articulable suspicion that the driver is unlicensed or that the automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of the law. Bass v. Commonwealth , 259 Va. 470, 475, 525 S.E.2d 921, 923-24 (2000). "Reasonable suspicion, while not as stringent a test as probable cause, requires at least an objective justification for making the stop." Ramey v. Commonwealth , 35 Va. App. 624, 629, 547 S.E.2d 519, 522 (2001) (citing United States v. Sokolow , 490 U.S. 1, 7 (1989)). Thus, "'[a]t the time of the stop, the officer must be able to point to specific and articulable facts, which taken together with rational inferences from those facts, objectively warrant a reasonable person with the knowledge and experience of the officer to believe that criminal activity is afoot.'" Id. (quoting Terry v. Ohio , 392 U.S. 1, 21-22 (1968)). 1 "To determine whether an officer has articulated a reasonable basis to suspect criminal activity, a court must consider the totality of the circumstances, including the officer's knowledge, training, and experience." Freeman v. Commonwealth ,

1 "[I]n Pennsylvania v. Mimms , 434 U.S. 106 (1977), the Supreme Court held that the principles of Terry apply equally to the stop of a suspect who is traveling in an automobile." Williams v. Commonwealth , 4 Va. App. 53, 64, 354 S.E.2d 79, 85 (1987). Accordingly, the Commonwealth expressly did "not rely upon the trial court's holding that the defendant lacked standing to challenge the stop of the car." - 4 -20 Va. App. 658, 661, 460 S.E.2d 261, 262 (1995) (citation omitted). Here, the circumst ances failed to pr ovide the requisite reasonable basis in justification of the disput ed stop and attendant seizur e. The offi cers observed no tr affic viol ation or other criminal activity and were admittedly unable to recognize the "associate" of defendant among the men accompanyi ng him in the vehicle. Neve rtheless, the ca r was stopped an d its occupants seized. To coun tenance such conduct would permit police to stop defendant whenev er found in the co mpany of an unid entified person, a result clearly of fensive to the Fo urth Amendment. Accordingly, the court errone ously admitted the evidence resulting from the unla wful stop and seizure, and we reverse the convictions and re mand the cause for such further proc eedings as the Commonweal th deems ap propriate. Reversed and remanded.

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