COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Elder 

Argued at Richmond, Virginia 

MARK RAMONE TOLIVER 

 OPINION BY 

v. Record No. 1131-95-2 JUDGE JERE M. H. WILLIS, JR. 

 AUGUST 6, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Ernest P. Gates, Sr., Judge Designate 

 William B. Kerkam, III (Davis & Kirby, on 

brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

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

brief), for appellee. 

 Mark Ramone Toliver was convicted in a bench trial of 

possession of a concealed weapon. On appeal, he contends that 

the trial court erred in denying his motion to suppress evidence 

of the firearm as the fruit of an illegal search. We agree and 

reverse the conviction. 

 While on a routine patrol on February 10, 1995 at 

approximately 1:00 p.m., Officer Mark Schnupp along with two 

other officers observed Toliver and another man sitting in a 

parked vehicle in Creighton Court. Toliver was behind the wheel. 

 Officer Schnupp approached the driver's side of the car and 

another officer approached the passenger side. 

 Toliver and the passenger both testified that upon 

approaching the vehicle, Officer Schnupp said, "let me see some 

hands." Officer Schnupp testified that he did not recall whether 
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he said, "get your hands up," but that it was normal police 

procedure to do so. Officer Schnupp asked Toliver who owned the 

car. Toliver gave several different answers before replying that 

it was his girlfriend's. Officer Schnupp asked Toliver for his 

driver's license. Toliver admitted that he did not have one. 

Toliver gave his correct name. 

 Asked by Officer Schnupp whether there were any guns or 

drugs in the car, Toliver replied that there were not. Officer 

Schnupp then asked whether he could search the car. Toliver 

consented and stepped out of the car, as did his passenger. One 

of the other officers remained by the passenger and the other 

stood at the rear of the vehicle. Officer Schnupp told Toliver 

that he was going to frisk him for weapons for the officers' 

personal safety. Toliver did not consent to the frisk. 

Nonetheless, Officer Schnupp frisked him and found a 9 mm Ruger 

handgun. 

 The initial encounter between Toliver and Officer Schnupp 

was consensual and implicated no Fourth Amendment interest. 

However, the consensual aspect of the encounter disappeared when 

Officer Schnupp frisked Toliver without his consent. While being 

frisked, no reasonable person would feel free to walk away. 

Thus, for Fourth Amendment purposes, Toliver was "seized" by 

Officer Schnupp. Terry v. Ohio, 392 U.S. 1, 16 (1968). "In 

order to justify such a seizure, an officer must have a 

'reasonable and articulable suspicion of criminal activity on the 
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part of the defendant.'" Hatcher v. Commonwealth, 14 Va. App. 

487, 490, 419 S.E.2d 256, 258 (1992). 

 The circumstances were insufficient to give Officer Schnupp 

an objectively reasonable basis for suspecting that Toliver was 

armed and dangerous. He had no information that Toliver was 

involved in criminal activity, nor had he observed any criminal 

behavior. The mere fact that Toliver was in an area known for 

drug use created no inference that he was involved in criminal 

activity. Riley v. Commonwealth, 13 Va. App. 494, 498, 412 

S.E.2d 724, 726-27 (1992). Toliver cooperated with Officer 

Schnupp and willingly gave his correct name. Nothing suggested 

that he was carrying a concealed weapon. See Payne v. 

Commonwealth, 14 Va. App. 86, 414 S.E.2d 869 (1992). Therefore, 

the frisk was illegal and the trial court erred in admitting the 

evidence of the firearm. 

 The judgment of the trial court is reversed and the charge 

is ordered dismissed. 

 Reversed and dismissed.
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Benton, J., concurring. 

 I do not agree with the majority's assertion that the 

initial encounter of the police officers and the operator of the 

vehicle was "consensual and implicated no Fourth Amendment 

interest." When the three uniformed police officers approached 

the vehicle, inquired about the ownership of the vehicle, and 

asked for the vehicle's registration, they seized Toliver and his 

passengers. See Code § 46.2-104; Brown v. Commonwealth, 17 Va. 

App. 694, 696-97, 440 S.E.2d 619, 620-21 (1994). I concur, 

however, in the remainder of the opinion and in the judgment 

reversing the conviction and dismissing the charge.