                               COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Petty and Senior Judge Bumgardner
Argued at Richmond, Virginia


GREGORY LAMONT LEWIS
                                                            MEMORANDUM OPINION * BY
v.     Record No. 1543-10-2                               JUDGE RUDOLPH BUMGARDNER, III
                                                                 NOVEMBER 15, 2011
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                Bradley B. Cavedo, Judge

                 Catherine French, Supervising Assistant Public Defender, for
                 appellant.

                 Josephine F. Whalen, Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       Gregory Lamont Lewis entered a conditional guilty plea to possession of cocaine with

intent to distribute, Code § 18.2-248. He appeals the denial of his motion to suppress the drugs

found on his person, maintaining he was illegally seized. We conclude the defendant was not

seized before the police had probable cause to arrest, and affirm the conviction.

       “In reviewing a trial court’s denial of a motion to suppress, ‘[t]he burden is upon [the

defendant] to show that th[e] 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) (quoting Fore v. Commonwealth, 220 Va. 1007,

1010, 265 S.E.2d 729, 731 (1980)). While we are bound to review de novo the ultimate

questions of reasonable suspicion and probable cause, we “review findings of historical fact only

for clear error and . . . give due weight to inferences drawn from those facts by resident judges

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
and local law enforcement officers.” Ornelas v. United States, 517 U.S. 690, 699 (1996)

(footnote added).

       Officer Mark Godwin was driving northbound on North Second Street in the City of

Richmond when he observed the defendant standing alone at the side of the S&R Market. The

officer testified that the area around the S&R Market was an open-air drug market, and he had

personally made 20 to 25 drug arrests there. Officer Godwin had learned from those arrests that

drug dealers usually kept their drugs on the side of the market, close to the building, and knew

the police usually approached the market headed southbound on North Second Street. On this

occasion Officer Godwin was purposely approaching from the opposite direction.

       The defendant wore a one-piece jumpsuit over a shirt and jeans. The officer saw him

“digging” in the “front of his pants.” The officer parked his police cruiser and approached the

defendant from the side. The jumpsuit was unzipped, and the defendant was removing his right

hand from his pants after buttoning up his jeans. He appeared “surprised” to see the officer,

quickly zipped his jumpsuit, and started walking away. The officer asked, “My man, can I speak

with you for a minute?” When the defendant did not respond, he repeated the request. This time

the defendant turned around, answered “ yes,” and walked back towards the officer. The officer

asked the defendant if he had any identification on him, and the defendant said yes, reached into

his pocket, and handed the officer a Virginia identification card. The officer spoke in a

conversational tone, did not touch the defendant, nor draw his weapon.

       Officer Godwin asked the defendant “what he was digging for down the front of his

pants.” The defendant responded that he “was trying to use the bathroom.” The officer asked

why he did not use the restroom inside the store, and the defendant said he had to go “real

quick.” The officer became suspicious because of the length of time the defendant had his hands

inside his pants and because he was buttoning up his pants but had stated he only attempted to

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relieve himself. Based on training and experience, Officer Godwin was aware that many drug

dealers conceal narcotics in their crotch and buttocks area because those areas are typically not

examined during a routine consensual search. The defendant appeared “fidgety,” looking over

his shoulders, and pacing back and forth as if he were going to flee. Officer Godwin called for a

backup unit and a K-9 unit.

       Officer Walker arrived within three minutes. He provided back-up support while Officer

Godwin looked for signs that the defendant had urinated in public. When he found no indication

that the defendant had recently urinated, Officer Godwin began processing the defendant’s

identification information. The defendant had no outstanding warrants but did have a record of

prior drug arrests. K-9 Officer Robinson arrived within ten minutes while Godwin was still

checking the defendant’s status. His dog positively alerted to drugs on the defendant. Officer

Godwin then placed the defendant into investigative detention, searched him, and recovered a

plastic bag containing eight smaller bags of cocaine from the defendant’s underwear. The

encounter lasted about fifteen minutes.

       The defendant concedes that Officer Godwin initiated a consensual encounter when he

first approached and asked to speak with him. He claims he was seized before the dog alerted to

drugs when Officer Walker arrived as backup and Officer Godwin began processing the

defendant’s identification data.

       “Police officers are free to engage in consensual encounters with citizens, indeed, it is

difficult to envision their ability to carry out their duties if that were not the case.” Malbrough v.

Commonwealth, 275 Va. 163, 169, 655 S.E.2d 1, 4 (2008). A consensual encounter “does not

require any justification and may be terminated at will by the individual.” White v.

Commonwealth, 267 Va. 96, 104, 591 S.E.2d 662, 666 (2004). Officers do not need to have a

particularized suspicion to approach “individuals on the street or in other public places” and then

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put “questions to them if they are willing to listen.” United States v. Drayton, 536 U.S. 194, 200

(2002); see also Barkley v. Commonwealth, 39 Va. App. 682, 691-93, 576 S.E.2d 234, 238-39

(2003).

          “[I]nterrogation relating to one’s identity or a request for identification by the police does

not, by itself, constitute a Fourth Amendment seizure.” INS v. Delgado, 466 U.S. 210, 216

(1984); accord Montague v. Commonwealth, 278 Va. 532, 538, 684 S.E.2d 583, 587 (2009)

(Fourth Amendment is not implicated when person voluntarily responds to police request to

produce identification); McCain v. Commonwealth, 261 Va. 483, 491, 545 S.E.2d 541, 546

(2001) (holding same); McLellan v. Commonwealth, 37 Va. App. 144, 153, 554 S.E.2d 699, 703

(2001) (holding same).

          So long as officers refrain from inducing “cooperation by coercive means,” they need no

suspicion of criminality to “pose questions” and “ask for identification” from a citizen. Drayton,

536 U.S. at 201 (citing Florida v. Bostick, 501 U.S. 429, 434-35 (1991)). If an officer does not

seize a citizen simply by asking him to produce identification, a seizure cannot arise merely

because the citizen agrees to do so. See, e.g., McCain, 261 Va. at 491, 545 S.E.2d at 545-46

(finding no seizure where officer requested and temporarily retained identification); McLellan,

37 Va. App. at 152-54, 554 S.E.2d at 703-04 (finding no seizure where detective, in public place,

requested some identification).

          Officer Godwin asked the defendant in a conversational tone if he had any identification,

and the defendant handed the officer his identification card. The officer never restrained the

defendant’s freedom of movement by use of physical force or show of authority. The officer did

not display his weapon, touch the defendant when he asked for identification, or use language or

tone that indicated compliance with the request might be compelled. The entire encounter was

brief and only lasted approximately fifteen minutes.

                                                   -4-
       A seizure occurs only when an innocent person would reasonably conclude that an

officer’s “physical force or show of authority” has taken away the person’s freedom to leave.

United States v. Mendenhall, 446 U.S. 544, 553-54 (1980) (citing Terry v. Ohio, 392 U.S. 1, 19

n.16 (1968)). And that conclusion cannot be made merely because of the presence of several

armed officers, Drayton, 536 U.S. at 204-05, or the failure of the officers to inform the person

that he is free to ignore further questioning, Delgado, 466 U.S. at 216, or their failure to tell the

individual he is free to leave, Ohio v. Robinette, 519 U.S. 33, 39-40 (1996). “While most

citizens will respond to a police request, the fact that people do so, and do so without being told

they are free not to respond, hardly eliminates the consensual nature of the response.” Delgado,

466 U.S. at 216.

       At no time during the consensual encounter did the defendant request the return of his

identification card or express a desire to leave. Viewed in the light most favorable to the

Commonwealth, the evidence showed a brief consensual encounter between the defendant and

the officers, not a seizure. Seizure did not take place until the dog alerted and provided probable

cause to believe the defendant was involved in criminal activity.

       The trial court properly denied the motion to suppress. Accordingly, we affirm the

conviction.

                                                                                            Affirmed.




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