COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Fitzpatrick 

RICHARD LEE CARTER, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 1159-95-2 JUDGE SAM W. COLEMAN III 

 JULY 2, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF POWHATAN COUNTY 

Thomas V. Warren, Judge 

 (William R. Blandford, Jr., on briefs), for 

appellant. Appellant submitting on brief. 

 (James S. Gilmore, III, Attorney General; 

Brian Wainger, Assistant Attorney General, on 

brief), for appellee. Appellee submitting on 

brief. 

 Richard Lee Carter, Jr. was convicted in a bench trial of 

petit larceny, a subsequent offense, in violation of Code 

§§ 18.2-96 and 18.2-104. Carter contends that the trial court 

erred by admitting into evidence illegally seized cartons of 

cigarettes that allegedly were the subject of the larceny. He 

also asserts that the evidence is insufficient to support the 

conviction. Because the trial court erred by admitting the 

cartons of cigarettes into evidence, we reverse the defendant's 

conviction and remand the case for further proceedings if the 

Commonwealth be so advised. Accordingly, we do not address the 

question of the sufficiency of the evidence. 

 On the evening of October 19, 1994, Hunter Goode, the 

 

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

designated for publication. 
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assistant manager of the IGA supermarket in Powhatan County, 

observed the defendant enter the store with Kenneth Harold Gage 

and Richard Greene. Goode had seen the defendant and one of the 

other two men enter the store on at least five occasions in the 

preceding two months and had become suspicious of their 

activities. Consequently, Goode decided to closely watch the 

defendant, particularly after he placed approximately eight 

cartons of cigarettes in his shopping basket. When the defendant 

noticed that Goode was watching him, he walked to the checkout 

stand, placed his basket on the counter, and stated that he had 

to go to his car to get money. The defendant then exited the 

store and did not return; he "walked down the sidewalk" and was 

picked up in a car driven by Gage and occupied by Greene. 

 Goode did not see the defendant take anything from the 

store, but Goode remained suspicious and decided to ban the three 

men from the store. Accordingly, Goode called the Sheriff's 

Department in order to obtain their names, addresses, and Social 

Security numbers. Deputy Sheriff Darren Law responded to the 

call, and after talking with Goode, Law located and followed the 

vehicle in which Gage, Greene, and the defendant were riding. 

Deputy Law stopped the vehicle for the purpose of advising the 

men "that they were no longer welcome[] at IGA and that they were 

never to come back again." When Law approached the vehicle, Gage 

and Greene were sitting in the front seat and the defendant was 

lying down in the backseat. 
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 Deputy Law noticed a Food Lion bag between Gage and Greene, 

whereupon he "advised them that they were suspects in a 

shoplifting from the IGA." Law "asked them what was in the bag"; 

Law determined that it contained "a half full carton of Newport 

cigarettes" and "several cartons of Marlboro cigarettes." Deputy 

Law found "two or three other . . . cartons of Marlboros" under 

the backseat. The serial number "912" was stamped on five of the 

eight cartons that Law recovered from the vehicle. 

 Deputy Law called Goode, who told Law that he suspected the 

men of stealing cigarettes and verified that "912" was IGA's 

identification number. Law arrested the three men. After the 

defendant was advised of his Miranda warnings, he gave the 

following written statement: 

 I entered the store to pick up a few things 

and also some cigarettes. I placed six 

cartons into the basket, and the other two 

guys came into the store and got them by 

placing them on themselves, leaving the 

store. They then returned to pick up the 

remainder of the cigarettes, and the store 

manager seemed to notice something about them 

as well as myself, began walking the store 

everywhere I went. They got food and were on 

the way out the store, got into the car 

together and picked me up about 10 or 15 

yards. I got into the back of the car, and 

they said to get down and do something with 

the cigarettes. I removed the ones I seen 

and placed them under the back seat. 

 At trial, the court admitted into evidence, over the 

defendant's objection, the eight cigarette cartons that Deputy 

Law recovered from the vehicle. The court also admitted, without 

objection, the defendant's written statement. 
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 The Commonwealth concedes that Deputy Law seized the 

defendant, for fourth amendment purposes, when he stopped the 

vehicle. Therefore, the question is whether Deputy Law possessed 

reasonable and articulable suspicion to conduct an investigatory 

stop. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 

L.Ed.2d 889 (1968). 

 When a law enforcement officer receives information about 

possible criminal activity from an ordinary citizen in a 

"face-to-face confrontation," the officer can "form[] a 

reasonable belief that the informant [is] reliable." Beckner v. 

Commonwealth, 15 Va. App. 533, 535, 425 S.E.2d 530, 532 (1993); 

see State v. Davis, 393 N.W.2d 179, 181 (Minn. 1986); State v. 

Ege, 420 N.W.2d 305, 308 (Neb. 1988); State v. Davis, 517 A.2d 

859, 868 (N.J. 1986). Nevertheless, "[t]he informant must 

provide some basis for his knowledge before the police officer 

relies upon it as being reliable enough to support an 

investigatory stop. That information may come in questioning or 

it may be implied in the information." Beckner, 15 Va. App. at 

537, 425 S.E.2d at 533. 

 Here, Hunter Goode testified that he "called the Sheriff's 

Department and asked them to get the names and addresses and 

social security number of the [defendant and his companions] so 

[he could] have them banned from the store." Goode did not 

testify that he had reason to believe that they had stolen items 

from IGA, nor did he report that he suspected them of having 
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committed a criminal act. Deputy Law confirmed that his purpose 

in stopping the vehicle was "[t]o advise [the men] that they were 

no longer welcome[] at IGA and that they were never to come back 

again." Deputy Law further testified that he "didn't have time 

to talk to [Goode] . . . before the vehicle got out of the 

parking lot," apparently referring to the vehicle in which Gage, 

Greene, and the defendant were traveling. Consequently, Law 

called Goode to "ask[] him what [the men] were suspected of 

stealing" after he stopped the vehicle and after he had found the 

cigarettes. According to this record, Goode did not tell Deputy 

Law of any suspected criminal activity that he observed which was 

the reason for Goode banning the men from the store. Neither 

Goode nor Law testified that Goode informed Law of any reasons or 

facts that would have led Law to suspect that the defendant was 

engaged in criminal activity. In fact, although Goode testified 

that the defendant acted suspiciously, he also stated that he did 

not see the defendant take any cigarettes or other items from the 

store and did not tell Law why he wanted them banned from IGA. 

Therefore, although Deputy Law "advised [Gage, Greene, and the 

defendant] that they were suspects in a shoplifting from the 

IGA," the evidence fails to show that either he or Goode had 

reason to suspect that they were, or had been, engaged in 

criminal activity. 

 The fact that Goode informed Deputy Law that he wanted the 

men banned from the IGA, without further explanation, does not 
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support an inference that the men were, or had been, shoplifting. 

 "Implications of a personal basis of knowledge may arise when an 

individual reports that a person has 'just run a red light,' or 

'nearly struck my vehicle,' or 'is displaying a gun.'" Beckner, 

15 Va. App. at 537, 425 S.E.2d at 533. The request that Deputy 

Law received from Goode did not provide any indication of what 

Goode had witnessed or why he wanted the men banned from the 

store. Deputy Law could not reasonably infer that Goode had 

witnessed the defendant engaging in criminal activity or 

reasonably suspect him of criminal activity merely from learning 

that Goode had banned the defendant from the store. A decision 

to ban persons from a grocery store could be based upon 

inappropriate dress or language, disruptive behavior, or a myriad 

of reasons not related to suspected criminal activity. 

Accordingly, Goode's statement that he was banning the men from 

the store did not provide a basis for him to personally suspect 

the defendant of criminal activity, and in the absence of further 

information, Deputy Law did not have an articulable reason to 

suspect the defendant of criminal activity. Thus, Deputy Law had 

no basis for conducting an investigatory stop, and the cigarette 

cartons that were obtained as a result of that stop were the 

product of an illegal seizure. 

 The Commonwealth contends that even if the trial court erred 

by admitting the cigarettes, the error was harmless. 

"Constitutional error . . . is harmless only when the reviewing 
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court is 'able to declare a belief that it was harmless beyond a 

reasonable doubt." Lavinder v. Commonwealth, 12 Va. App. 1003, 

1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting Chapman v. 

California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L.Ed.2d 765 

(1967)). The cigarettes Deputy Law found in the vehicle tended 

to independently prove that the defendant was guilty of the 

charged offense, and also corroborated the defendant's statement 

to the police. The evidence that tends to prove defendant's 

guilt, absent the cigarettes, is not overwhelming. White v. 

Commonwealth, 21 Va. App. 710, 716, 467 S.E.2d 297, 300 (1996). 

Thus, we cannot conclude that the admission of the cigarettes was 

harmless beyond a reasonable doubt. 

 Because the trial court committed reversible error by 

admitting the cigarettes into evidence, we do not decide whether 

the evidence is sufficient to support the conviction. We reverse 

the defendant's conviction and remand the case for further 

proceedings if the Commonwealth be so advised. 

Reversed and remanded.