COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Senior Judge Cole 

COMMONWEALTH OF VIRGINIA 

v. Record No. 1613-95-2 MEMORANDUM OPINION* BY 

 JUDGE JERE M. H. WILLIS, JR. 

QUINCY DEMOND POWELL DECEMBER 29, 1995 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

William L. Wellons, Judge 

 (James S. Gilmore, III, Attorney General; 

Kathleen B. Martin, Assistant Attorney 

General, on brief), for appellant. Appellant 

submitting on brief. 

 (Brandon M. Gladstone, Assistant Public 

Defender; Office of the Public Defender, on 

brief), for appellee. Appellee submitting on 

brief. 

 Prior to trial on a charge of possessing cocaine, Quincy 

Demond Powell moved to suppress the cocaine found on his person 

on the ground that the discovery derived from a pretextual stop 

and pat-down for weapons. Finding that the stop was pretextual, 

that the officers lacked reasonable suspicion to detain Powell or 

probable cause to arrest him, and that the seizure of suspected 

cocaine from Powell's person violated his Fourth Amendment 

rights, the trial court granted Powell's motion to suppress. 

The Commonwealth contends on appeal that the officers had 

probable cause to arrest Powell and thus, the stop was not 

pretextual. We find no error and affirm the judgment of the 

 

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

designated for publication. 
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trial court. 

 South Boston Code § 12-2(a) provides, in pertinent part: 

 No person shall . . . obstruct passage through or upon 

any public street, alley, bridge, parking lot, park or 

other public place. 

 On January 13, 1995, a drug task force team, composed of 

Officer Binner, Lieutenant Loftis, Investigator Stovall, and 

Officer Pulliam, was investigating "open air" drug deals in South 

Boston. The officers saw four people, Powell, another man, and 

two women, standing on the sidewalk in front of 1908 College 

Street. Two lawn chairs were on the sidewalk. The officers 

stopped to investigate. As they exited the car, Powell and the 

other man ran. 

 Officer Binner pursued and caught Powell and patted him down 

 for weapons. He found none, but felt in Powell's coat pocket a 

container that he suspected contained drugs. Asked whether he 

had cocaine in his pocket, Powell did not reply. Officer Binner 

then reached in Powell's pocket and removed a "plastic 

prescription medicine bottle," which, being opened, was found to 

contain eighteen rocks of crack cocaine. 

 Officer Binner testified that he pursued Powell and patted 

him down for weapons because Lieutenant Loftis had informed him 

that Powell was known to carry a gun. However, Binner admitted 

that at the preliminary hearing he had testified that he patted 

Powell down for weapons because he had received an anonymous 

phone call warning him to be careful because certain people in 
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the College Street area carried weapons. 

 Asked whether upon his approach he saw anything improper 

about the gathering on the sidewalk, Officer Binner testified, 

"[t]he fact that they were obstructing anyone who wished to walk 

down the sidewalk." 

 Cheryl Pamplin testified that she lived at 1908 College 

Street and had been sitting in a lawn chair on the sidewalk with 

her friend, Nomolika Johnson, when Powell and the other man 

stopped by. She testified that no pedestrians, other than the 

four in her group, were in the vicinity and that no person's 

passage was impeded by the chairs or the persons standing there 

talking. She testified that none of the officers questioned her 

about obstructing the sidewalk. The officers issued no citation 

for violation of the ordinance. 

 The trial court ruled: 

 [T]his Court finds that the justification for 

apprehending Mr. Powell was pretextual, that Officer 

Binner lacked reasonable suspicion to stop and probable 

cause to arrest the defendant, and that the alleged 

cocaine seized from his person violated Mr. Powell's 

constitutional rights as alleged in his motion to 

suppress. 

 The Commonwealth contends on brief that the officers had 

probable cause to arrest Powell for violation of the South Boston 

ordinance and that this justified Powell's seizure and search. 

At trial, the Commonwealth's Attorney also argued that Officer 

Binner had information supporting a reasonable suspicion that 

Powell was carrying a concealed weapon, justifying Binner in 
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seizing Powell temporarily for investigation and conducting a 

protective frisk for weapons. The record supports neither 

contention. 

 An investigative stop is pretextual unless "a reasonable 

officer would have made the seizure in the absence of 

illegitimate motivation." Limonja v. Commonwealth, 8 Va. App. 

532, 538, 383 S.E.2d 476, 480 (1989) (en banc), cert. denied, 495 

U.S. 905 (1990) (citing United States v. Smith, 799 F.2d 704, 708 

(11th Cir. 1986)). 

 On appeal, we view the evidence in the light most favorable 

to the party prevailing below and grant all reasonable inferences 

fairly deducible from that evidence. Commonwealth v. Grimstead, 

12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). We give 

deference to a trial court's findings of fact. See Shavin v. 

Commonwealth, 17 Va. App. 256, 264, 437 S.E.2d 411, 417 (1993). 

 Powell did not obstruct the sidewalk merely by standing on 

it. He had not put the chairs on it, nor was he sitting in a 

chair. No other pedestrians were in the vicinity. No person's 

passage was impeded. This scenario was insufficient to provide 

probable cause to suspect violation of the South Boston 

ordinance. The officers' conduct corroborates this. No officer 

questioned any of the group about obstructing the sidewalk. No 

charges to that effect were lodged. 

 Officer Binner gave conflicting accounts concerning the 

information upon which he based his suspicion that Powell was 
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armed. Accepting everything that he said, his information 

derived from two sources. Lieutenant Loftis told him that Powell 

"is known to carry a firearm." An undisclosed informant had told 

him over the telephone, "just to . . . be careful in that area, 

that certain subjects out in the area carry weapons." The second 

item of information did not relate specifically to Powell. The 

first item was mere rumor, setting forth no reported observation, 

and containing no evidence of reliability sufficient to give rise 

to reasonable suspicion justifying an investigative seizure. 

 The record supports the trial court's finding that the 

officers' purpose in stopping Powell, and in conducting a 

pat-down of his person was not to investigate an obstruction of 

the sidewalk, but rather to search for illegal drugs. 

 Affirmed.