Present: Carrico, C.J., Compton, Stephenson,*

 Lacy, Hassell, and 

Keenan, JJ., and Whiting, Senior Justice 

VIRGINIA ANN EWELL 

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR. 

v. Record No. 962304 

 September 12, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 The sole issue in this appeal is whether a police officer, 

who stopped and detained an operator of an automobile, had a 

reasonable articulable suspicion that the operator may be engaged 

in criminal activity. 

 Virginia Ann Ewell was indicted in the Circuit Court of the 

City of Virginia Beach for possession of cocaine in violation of 

Code § 18.2-250. Ewell moved the trial court to suppress the 

evidence obtained as a result of the stop, asserting that the 

stop and her seizure were without a reasonable suspicion that she 

may have been engaged in criminal activity. The trial court 

denied the motion. Following a bench trial, Ewell was found 

guilty of cocaine possession and sentenced to five years' 

imprisonment, with execution of the entire sentence suspended. 

The Court of Appeals, in an unpublished opinion, affirmed the 

trial court's judgment, and we awarded Ewell this appeal. 

 The material facts are undisputed. Andrew J. Spiess, a 

police officer for the City of Virginia Beach, worked part time 

in his off-duty hours as a security officer at an apartment 

complex. Spiess was employed primarily to enforce the complex's 

 

 *Justice Stephenson prepared the opinion in this case prior 

to the effective date of his retirement on July 1, 1997, and the 

Court subsequently adopted the opinion. 
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policy against trespassing. The complex's parking lot had only 

one access, and it was posted with a ten-by-five foot, lighted 

sign, stating "no trespassing." 

 On December 4, 1993, about 12:30 a.m., Spiess drove a marked 

police vehicle into the complex parking lot. Spiess was dressed 

in his police uniform. 

 As Spiess entered the parking lot, he observed a blue 1986 

Oldsmobile parked next to an apartment suspected of being the 

site of narcotics activity. Spiess focused attention on the 

Oldsmobile because, while he was familiar with most of the 

complex's residents and their automobiles, he did not recognize 

the vehicle. Spiess testified that he was concerned because it 

was very early and the car was parked in an area suspected of 

"high narcotics" trafficking. Additionally, the operator of the 

car attempted to leave the parking lot immediately upon Spiess' 

arrival in his marked vehicle. As the Oldsmobile approached, 

Spiess saw the driver whom he did not recognize as a resident of 

the apartment complex. Based upon these observations, Spiess 

decided to stop the vehicle to inquire whether its operator was 

trespassing. By this time, the vehicle had exited the parking 

lot onto a public street. 

 Spiess activated the flashing blue lights on the police 

vehicle and stopped the Oldsmobile on the street. Spiess then 

approached the stopped vehicle and ascertained that Ewell was the 

operator. 
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 Thereafter, Spiess used his flashlight to illuminate the 

interior of the car. In the car, Spiess saw a beer can that "had 

been fashioned in such a way that it gave the appearance of 

something that would be used, in his experience, to smoke crack 

cocaine." According to Spiess, "[t]he beer can had been crushed 

and dented and small holes placed in it with darkened residue." 

Spiess "believed that he was observing a homemade crack pipe." 

 Spiess also saw a wooden clothespin in an open purse. The 

clothespin was charred at one end, and Spiess testified that, 

based on his experience, the clothespin "was an item commonly 

used to hold a crack pipe when it became too hot to hold with the 

hand." 

 Ewell admitted owning the purse. Ewell also admitted that a 

search of the purse would reveal a crack pipe. Spiess then 

searched the purse and recovered "two homemade crack pipes or 

stems with burnt residue that he believed to be . . . cocaine." 

The seized items tested positive for cocaine. 

 The Fourth Amendment to the Constitution of the United 

States provides, in pertinent part, that "[t]he right of the 

people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures, shall not be 

violated." Two types of seizures of the person are protected by 

the Fourth Amendment--an arrest and an investigatory stop. Terry

v. Ohio, 392 U.S. 1 (1968); see Baldwin v. Commonwealth, 243 Va. 

191, 195, 413 S.E.2d 645, 647 (1992); Zimmerman v. Commonwealth, 
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234 Va. 609, 611-12, 363 S.E.2d 708, 709 (1988); Leeth v. 

Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982). A 

police officer may seize a person by an arrest only when the 

officer has probable cause to believe that the person seized has 

committed or is committing a crime. Dunaway v. New York, 442 

U.S. 200, 207-09 (1979); see Baldwin, 243 Va. at 195, 413 S.E.2d 

at 647. In order to justify the brief seizure of a person by an 

investigatory stop, a police officer need not have probable 

cause; however, he must have "a reasonable suspicion, based on 

objective facts, that the [person] is involved in criminal 

activity." Brown v. Texas, 443 U.S. 47, 51 (1979); accord 

Zimmerman, 234 Va. at 611, 363 S.E.2d at 709; Leeth, 223 Va. at 

340, 288 S.E.2d at 478. In determining whether a police officer 

had a particularized and objective basis for suspecting that the 

person stopped may be involved in criminal activity, a court must 

consider the totality of the circumstances. United States v. 

Cortez, 449 U.S. 411, 417-18 (1981); see Zimmerman, 234 Va. at 

612, 363 S.E.2d at 709; Leeth, 223 Va. at 340, 288 S.E.2d at 478. 

 In the present case, considering the totality of the 

circumstances and viewing the facts in the light most favorable 

to the Commonwealth, we do not think Officer Spiess had a 

reasonable suspicion that Ewell may have been engaged in 

trespassing or any other criminal activity. Officer Spiess 

merely observed an unfamiliar automobile and its operator in the 

parking lot of the apartment complex about 12:30 a.m. Although 
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the automobile was parked in an area suspected of "high 

narcotics" trafficking and it exited the parking lot upon Spiess' 

arrival in a police vehicle, nothing about Ewell's conduct was 

suspicious. Indeed, Ewell acted as any other person might have 

acted under similar circumstances. Consequently, we hold that 

Ewell was seized in violation of her Fourth Amendment rights. 

Therefore, the trial court erred in failing to suppress the 

evidence obtained as a result of Ewell's seizure, and the Court 

of Appeals erred in affirming the trial court's judgment. 

 Accordingly, we will reverse the judgment of the Court of 

Appeals and enter final judgment vacating the conviction and 

dismissing the indictment. 

 Reversed and final judgment.