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EWELL v. COMMONWEALTH OF VIRGINIA (59930)


EWELL v. COMMONWEALTH OF
VIRGINIA


September 12, 1997
Record No. 962304

VIRGINIA ANN EWELL

v.

COMMONWEALTH OF VIRGINIA

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
FROM THE COURT OF APPEALS OF VIRGINIA

Present: Carrico, C.J., Compton, Stephenson,[1] Lacy, Hassell, and
Keenan, JJ., and Whiting, Senior Justice


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unpublished opinion, affirmed the trial court’s judgment, and we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 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.

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, 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 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.

 

 

FOOTNOTES:

[1] 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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