¶1dissenting.
¶2I respectfully dissent. I would find that appellant in his petition, briefs and arguments before the trial court and this Court regarding the issue of whether there was probable cause for the warrantless search of the automobile implicitly raised the issue of whether his initial detention and the detention of the Pinto were constitutionally permissible.
¶3Officer Larry Thrift was the first police officer to encounter Brown. Pulling his car to a stop in front of the brown Pinto, Thrift watched as Brown walked from the disco toward the Pinto. Brown continued to approach and, during an ensuing conversation with Thrift, revealed that the Pinto was in his custody. Brown asked for permission to turn off the car engine, but Thrift instructed him to remain where he was and await investigators.
¶4When a second officer, Roy Sydnor, arrived to investigate, Thrift advised him that he had just detained Brown. Sydnor in turn informed Rufus Baines, a third officer, of Brown’s presence. At trial, Officer Baines described his initial encounter with Brown.
I went to Mr. Brown and said that I had information that drugs were being dealt there, and that we were going to search for any evidence. At that time he said, do you have a search warrant? And I said, no, I don’t need one. I asked him to come over close to the Pinto where we could watch him, and that at that point I called for Special Investigator Jones to come with the State Police narcotics dog.
¶5Brown’s detention was plainly a “seizure.”
It is quite plain that the Fourth Amendment governs “seizures” of the person which do not eventuate in a trip to the station house and prosecution for crime—“arrests” in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person.
¶6Terry v. Ohio, 392 U.S. 1, 16 (1968). It is well settled that, even when no formal arrest is involved, a seizure of a person “must be supported by probable cause.” Michigan v. Summers, 452 U.S. 692, 696 (1981). Likewise, it is quite plain that the officers seized the Pinto when they *12informed Brown that they were going to search the car. See United States v. Place, 462 U.S. 696 (1983). A temporary detention of an individual’s personal effects is permissible based upon “specific articulable facts [warranting a reasonable belief] that the [effects] contain contraband or evidence of a crime.” Id. at 706.
¶7According to the testimony of Officer Baines, the police had already decided to conduct a search of the car at the time Brown was stopped. However, at that time, the only information they had concerning Brown or the car was the informant’s instruction to “check the brown Pinto.” “‘[Suspicion, or even strong reason to suspect’ is not an adequate substitute for probable cause to justify the entry and search.” Derr v. Commonwealth, 6 Va. App, 215, 221, 368 S.E.2d 916, 919 (1988) (quoting Henry v. United States, 361 U.S. 98, 101 (1959)). “‘[T]he probable-cause determination must be based on objective facts that could justify the issuance of a warrant by a magistrate’” Derr, 6 Va. App. at 220, 368 S.E.2d at 918 (quoting United States v. Ross, 456 U.S. 798, 808 (1982)). Here, relying only on an informant’s instruction to “check” a particular car, the police had, at best, a suspicion of criminal activity relative to that car.
¶8A narrow exception to the general rule requiring probable cause for a seizure of people or effects allows police to make “limited intrusions on an individual’s personal security based on less than probable cause.” Summers, 452 U.S. at 698. Such intrusions must be warranted by “substantial law enforcement interests” and must be supported by “an articulable basis for suspecting criminal activity.” Id. at 699.
¶9The case before us is unlike Terryor Adams v. Williams, 407 U.S. 143 (1972), where officers acted on a reasonable belief that the suspects they confronted were armed and potentially dangerous. Here, police faced no such concern. Moreover, in our review of the record, we have found no “articulable basis for suspecting criminal activity” to support a detention of Brown and a seizure of the Pinto. The sole possible basis for the detention and seizure was the suggestion by the informant “to check the brown Pinto,” coupled with Brown’s acknowledgement that the Pinto was in his possession. Because police did not at the time know what information prompted the informant to transmit this cryptic message back to them, it cannot serve as an articulable basis of suspicion of criminal activity.
¶10The facts before us are also distinguishable from those in Williams v. Commonwealth, 4 Va. App. 53, 354 S.E.2d 79 (1987), and Allen v. *13Commonwealth, 3 Va. App. 657, 353 S.E.2d 162 (1987). In Williams, this Court held that officers who detained the defendant had “sufficient articulable facts” to support the suspicion that the defendant was engaged in criminal activity. 4 Va. App. at 65, 354 S.E.2d at 85. However, those articulable facts were, as required by the Virginia Supreme Court in Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982), “particularized and objective.” In Williams, police had been informed that the defendant possessed contraband and was engaged in the distribution of that contraband. They had a search warrant for the residence supported by probable cause to believe that the defendant was carrying on his illegal activities in the residence from which he had just departed. They also knew that the defendant had a history of drug-related offenses. 4 Va. App. at 65, 354 S.E.2d at 86. The facts in Williams stand in stark contrast to the facts of this case — a lone informant’s vague admonition that police “check” an automobile. As long as the police remained uninformed about the basis for their informant’s remark, they had no articulable basis to support their actions.
¶11In Allen, this Court approved the detention of an individual seen driving away from premises as police arrived to execute a search warrant! 3 Va. App. at 661, 353 S.E.2d at 165. In so holding, this Court relied on Michigan v. Summers, 452 U.S. 692 (1981), in which the United States Supreme Court held that the existence of a search warrant provided objective justification for the detention of a defendant who was leaving his house just as police arrived to execute a search warrant on that house. In both Allenand Summers, the detention was based on a finding of probable cause for the issuance of a search warrant.
Of prime importance in assessing the intrusion is the fact that the police had obtained a warrant to search respondent’s house for contraband. A neutral and detached magistrate had found probable cause to believe that the law was being violated in that house and had authorized a substantial invasion of the privacy of the persons who resided there. The detention of one of the residents while the premises were searched, although admittedly a significant restraint on his liberty, was surely less intrusive than the search itself.
¶12Summers, 452 U.S. at 701 (footnote omitted).
¶13*14Absent from the facts before us is any suggestion that, at the time Brown was detained and the Pinto seized, probable cause existed for a search of the Pinto. Whether probable cause later arose is, on these facts, irrelevant to the question whether it existed at the time of the initial detention of Brown and the Pinto.
¶14With neither probable cause nor an articulable basis to believe that the Pinto contained evidence of crime, the police had no basis for detaining Brown or seizing the Pinto pending the arrival of the dog. Since the Pinto was illegally seized prior to the arrival of the dog, all evidence derived directly or indirectly from that search must be suppressed. See Derr, 6 Va. App. at 223, 368 S.E.2d at 920-21.
¶15I would reverse and remand.
¶16join, dissenting.
¶17I concur with the views expressed in Judge Elder’s dissenting opinion that the initial detentions of William E. Brown and the automobile were constitutionally impermissible. However, I would reverse the conviction and dismiss the case because the evidence was insufficient to support the conviction.
¶18“In order to convict a defendant of ‘possession’ of a narcotic drug ... it generally is necessary to show that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 805 (1970). Proof that illegal drugs were discovered in an automobile that was subject to Brown’s dominion and control is insufficient standing alone to support a conviction under Code § 18.2-250. The prosecution was required to prove beyond a reasonable doubt that Brown knew of the presence and nature of the illegal substances. Glenn v. Commonwealth, 10 Va. App. 150, 154, 390 S.E.2d 505, 507 (1990).
As noted in Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d 430 (1986), “[sjuspicious circumstances, including proximity to a controlled drug, are insufficient to support a conviction” for their possession. To convict a defendant of possession of an illegal narcotic drug, the Commonwealth must show that the defendant “was aware of the presence and character of the drug and was intentionally and consciously in possession of it.”
¶20*15Although the automobile was subject to Brown’s dominion and control by virtue of Brown’s admission that he drove it to the discotheque, no evidence exists upon which the fact finder could have reasonably found that Brown was aware of the presence or nature of the illegal drug and paraphernalia discovered in the automobile. Brown did not own the automobile; he borrowed it from Theresa Johnson. The drugs and paraphernalia were not in plain view. The cocaine was enclosed in a purse. Scales and other paraphernalia were contained in a black vinyl bag under the driver’s seat. A closed file case lying on the rear floorboard contained plastic baggies with cocaine residue.
¶21Although “[kjnowledge of the presence and character of the controlled substance . . . may be shown by evidence of the acts, statements or conduct of the accused,” id.,this record contains no such indicia of knowledge. Brown denied knowledge of the contraband, and he testified that several other persons rode in the automobile with him to the discotheque. When the police arrived, Brown did not attempt to flee, but acknowledged that he was the operator of the automobile. Brown made no statements from which it can be concluded that he was aware of the items in the automobile. “[Wjhere . . . the element of knowledge [is] based on circumstantial evidence, ‘all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.’” Hairston v. Commonwealth, 5 Va. App. 183, 186, 360 S.E.2d 893, 895 (1987) (quoting Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983)).
¶22Failing to prove that Brown had exclusive access to the automobile and failing to account for all those who may have had access to the location where the drugs were found, the Commonwealth cannot rely on an inference from these circumstances that Brown knew of the presence of the drugs. See Best v. Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981) (per curiam). Indeed, the legislature has decreed that “occupancy of. . . [a] vehicle ... in which a controlled substance was found shall not create a presumption that such person either knowingly or intentionally possessed such controlled substance.” Code § 18.2-250. The guilt of an accused may not be inferred merely because the circumstances are consistent with guilt. See Fogg v. Commonwealth, 216 Va. 394, 395, 219 S.E.2d 672, 673 (1975) (per curiam). Guilt is established beyond a reasonable doubt only when the circumstances are “inconsistent with innocence and exclude every *16reasonable hypothesis of innocence.” Wells v. Commonwealth, 2 Va. App. 549, 551, 347 S.E.2d 139, 140 (1986). “[Circumstances of suspicion, no matter how grave or strong, are not proof . . . sufficient to support a verdict of guilty.” Crisman v. Commonwealth, 197 Va. 17, 21, 87 S.E.2d 796, 799 (1955); see also Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197 (1981).
¶23For these reasons, I would reverse the conviction and dismiss the prosecution.