                   COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia


ANTONIO LAMONT MOZELLE
                                          MEMORANDUM OPINION * BY
v.   Record No. 1734-00-1                  JUDGE RICHARD S. BRAY
                                             SEPTEMBER 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. McCullough, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     Antonio Lamont Mozelle (defendant) was convicted in a bench

trial for possession of a firearm by a convicted felon and

possession of heroin with intent to distribute, violations of Code

§§ 18.2-308.2 and -248, respectively.   On appeal, he contends the

trial court erroneously denied his motion to suppress evidence

obtained by police incident to an unconstitutional seizure of his

person.   We agree and reverse the convictions.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.




     *
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                  I.

     "In reviewing a trial court's denial of a motion to suppress,

'the burden is upon the defendant to show that the ruling, when

the evidence is considered most favorably to the Commonwealth,

constituted reversible error.'"   McGee v. Commonwealth, 25

Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citation

omitted).   "Ultimate questions of reasonable suspicion and

probable cause to make a warrantless search" involve issues of

both law and fact, reviewable de novo on appeal.   Ornelas v.

United States, 517 U.S. 690, 699 (1996).   However, "[i]n

performing such analysis, we are bound by the trial court's

findings of historical fact unless 'plainly wrong' or without

evidence to support them and we give due weight to the inferences

drawn from those facts by resident judges and local law

enforcement officers."    McGee, 25 Va. App. at 198, 487 S.E.2d at

261 (citation omitted).

     On March 6, 2000, several Portsmouth police officers "were

conducting a surveillance on [defendant's] house," "looking for an

individual who was an associate of defendant" and "allegedly

involved in a shooting."   Although police were unable to recognize

the suspect, "information" indicated that he "[h]ad been seen

riding in [a] vehicle with [defendant]."   During the "stake-out,"

police observed defendant exit the home, accompanied by three

unidentified males, enter an automobile and leave the area.



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     The surveillance team immediately notified Officer K.M.

Armstrong who, together with "six to eight" other officers,

"effected a stop on the vehicle" seeking "to identify an associate

of defendant" that "hung around with" him.    When Armstrong

approached the passenger side of the car, he "detected an odor of

marijuana," "had the occupants step out of the vehicle" and

conducted a pat-down search of defendant, discovering a baggie

containing heroin in his pocket.    Defendant was then arrested for

the offense and, as a result, Armstrong obtained a search warrant

for his home.   Upon execution of the warrant, police discovered "a

.45 caliber, semiautomatic handgun," "a magazine with bullets,"

"two clear bags . . . contain[ing] fifty capsules each of

suspected heroin," and "personal papers" of defendant.

     At trial, defendant moved the trial court to suppress the

evidence as "fruit of the poison tree," arguing he was illegally

seized at the time of the initial stop.    Wong Sun v. United

States, 371 U.S. 471, 488 (1963).     The court overruled defendant's

motion and proceeded with trial, resulting in the subject

conviction and appeal.

                                II.

     "When the police stop a motor vehicle and detain an occupant,

this constitutes a 'seizure' 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) (citations 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 circumstances failed to provide the requisite

reasonable basis in justification of the disputed stop and

attendant seizure.    The officers observed no traffic violation or

other criminal activity and were admittedly unable to recognize

the "associate" of defendant among the men accompanying him in the

vehicle.    Nevertheless, the car was stopped and its occupants

seized.    To countenance such conduct would permit police to stop

defendant whenever found in the company of an unidentified person,

a result clearly offensive to the Fourth Amendment.

     Accordingly, the court erroneously admitted the evidence

resulting from the unlawful stop and seizure, and we reverse the

convictions and remand the cause for such further proceedings as

the Commonwealth deems appropriate.

                                          Reversed and remanded.




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