                      COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Clements and Agee
Argued at Richmond, Virginia


JAMES EDWARD SMITH, JR.
                                          MEMORANDUM OPINION * BY
v.   Record No. 3022-00-2              JUDGE JEAN HARRISON CLEMENTS
                                             FEBRUARY 19, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Margaret P. Spencer, Judge

          David M. Gammino for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


     James Edward Smith, Jr., was convicted on his conditional

plea of guilty of possession of cocaine, in violation of Code

§ 18.2-250.   On appeal, he contends the trial court erred in

denying his motion to suppress the cocaine as the product of a

seizure that violated his Fourth Amendment rights.    Finding no

error, we affirm the judgment of the trial court.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the

proceedings as necessary to the parties' understanding of the

disposition of this appeal.

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
        "On appeal from a trial court's denial of a motion to

suppress, we must review the evidence in the light most favorable

to the Commonwealth, granting to the Commonwealth all reasonable

inferences fairly deducible from it."    Debroux v. Commonwealth, 32

Va. App. 364, 370, 528 S.E.2d 151, 154, aff'd en banc, 34 Va. App.

72, 537 S.E.2d 630 (2000).    "'The 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) (alterations in original) (quoting Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).

        "'Ultimate questions of reasonable suspicion and probable

cause to make a warrantless search' involve questions of both law

and fact and are reviewed de novo on appeal."    Id. (quoting

Ornelas v. United States, 517 U.S. 690, 691 (1996)).    "Similarly,

the question whether a person has been seized in violation of the

Fourth Amendment is reviewed de novo on appeal."    Reittinger v.

Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000).

However, "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 (citing Ornelas, 517 U.S. at

699).



                                 - 2 -
     A police-citizen encounter "is not consensual 'if, in view of

all of the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.'"

Piggott v. Commonwealth, 34 Va. App. 45, 49, 537 S.E.2d 618, 619

(2000) (quoting United States v. Mendenhall, 446 U.S. 544, 554

(1980)).

           [W]hen a police officer confronts a person
           and informs the individual that he or she
           has been specifically identified as a
           suspect in a particular crime which the
           officer is investigating, that fact is
           significant among the "totality of the
           circumstances" to determine whether a
           reasonable person would feel free to leave.

McGee, 25 Va. App. at 200, 487 S.E.2d at 262.

     While admitting that his encounter with the police was

initially consensual, Smith contends, relying on McGee, that the

police subsequently seized him when Officer Graves told him that

he thought he had drugs on him and then asked to search him.    By

informing him that he was suspected of a crime, Smith argues,

Graves placed him in a situation in which no reasonable person

would feel free to leave.   That seizure, Smith further argues,

violated his Fourth Amendment rights because it was not based on a

reasonable, articulable suspicion.     Thus, he concludes, the trial

court erred in refusing to suppress the cocaine found in his

pockets, the discovery of which derived from the police's unlawful

seizure of him.




                               - 3 -
     The Commonwealth contends that the premise of Smith's

argument is fatally flawed because Officer Graves never told Smith

that he thought he had drugs on him.   Thus, the Commonwealth

concludes, Smith's claim is meritless.

     The trial court, in determining that the encounter between

Smith and Graves was consensual, found specifically that Graves

never told Smith that he thought Smith had drugs on him.   Smith

argues that we are not bound by this finding because it is "wholly

unsupported by the evidence and plainly wrong."

     The question before us, then, at least initially, is whether

Officer Graves told Smith that he thought Smith had drugs on him.

If answered in the negative, Smith's assignment of error will, as

Smith concedes, be rendered moot.   If, however, the question is

answered in the affirmative, further analysis on the merits of

Smith's Fourth Amendment claim will, as the Commonwealth concedes,

be warranted.

     On direct examination, Officer Graves described his encounter

with Smith as follows:

          Mr. Smith came in my direction. I asked did
          he mind if I talked to him. He didn't mind.
          At that time, I asked if I could search him.
          He stated, yes.

     On cross-examination, Smith's counsel and Graves engaged in

the following discussion regarding Smith's encounter with Graves:

               Q. All right. And when you spoke with
          Mr. Smith, you just testified that – you
          testified that you asked if you could search
          him?

                              - 4 -
     A.   Yes.

     Q. All right. Prior to that, you told
him, and you've testified to this on a prior
occasion, that you thought that he may have
drugs and then you asked him if you could
search him, correct?

     A.   Yes.

     Q. All right. So you said, you may
have drugs, and that was based on what you
all saw?

     A. Yes. If I'm understanding what you
just said, I didn't inquire that he had
drugs. I just asked if I could search him.

     Q. Right. But you had said, I think
you may have drugs, may I search you; and he
said, yes, you can search me, correct?

     A. I don't recall saying that. Off the
top of my memory, I don't recall saying that.

     Q. But it's possible you could have
said that?

     A.   It's possible.

     Q. Well, you certainly – he didn't just
walk up to you and the first thing you did
say to him was, may I search you, right?

     A. I believe I asked him, do you mind
if I search you.

     Q. Did you tell him why you wanted to
search him? Did you say it was because you
had seen him place something down or that
Officer Tovar wanted you to search him or
anything like that? Do you recall?

     A.   No.

     Q.   You don't recall?

     A.   I don't recall.


                     - 5 -
               Q. Okay. You don't recall. So the
          only thing that you recall saying to him was,
          may I search you?

                 A.   Yes.

               Q. And the only response that you
          recall him making is, yes?

                 A.   Yes, sir.

               Q. Okay. And that's your only
          recollection of the conversation?

                 A.   Yes, sir.

     Testifying on his own behalf, Smith, who had three prior

felony convictions, stated that, when he approached Graves, Graves

told him he suspected Smith was in possession of drugs.   However,

Officer Cole, who was standing near Graves and Smith during their

encounter, and who was called to testify by Smith, stated on

direct examination that, while Officer Tovar discussed "the

possibility that [Smith] may have possessed drugs or put drugs

down" with the other police officers when they saw Smith leaning

over near a tree, he never heard Graves tell Smith that he thought

Smith had drugs on him.

     We find that this evidence, when viewed in the light most

favorable to the Commonwealth, supports the trial court's factual

finding that, before asking Smith for permission to search him,

Graves did not say anything to Smith about Smith having drugs on

his person.   We further find that the court's finding is not

plainly wrong.



                                  - 6 -
     Although, in responding to a question that he clearly found

confusing, Graves initially testified that he told Smith that he

thought he may have drugs on him, Graves quickly clarified his

response by indicating that he did not ask Smith about drugs, but

rather "just asked if [he] could search him."    Furthermore, while

allowing for the possibility that he may have told Smith that he

thought Smith may have drugs in his possession, Graves repeatedly

testified that he did not recall telling Smith that he thought

Smith may have drugs on him.   Moreover, Officer Cole, who

witnessed the encounter between Graves and Smith, adamantly

testified that, while the police officers discussed among

themselves the possibility that Smith may have had drugs on him

when they first saw him leaning over near a tree, Graves did not

tell Smith that he thought Smith may have drugs on him.

     As for Smith's testimony that Graves told him he suspected

Smith had drugs in his possession, the trier of fact is not

required to accept a party's evidence in its entirety, but is free

to believe or disbelieve in part or in whole the testimony of any

witness.   Rollison v. Commonwealth, 11 Va. App. 535, 547, 399

S.E.2d 823, 830 (1991).   Furthermore, "[i]n its role of judging

witness credibility, the fact finder is entitled to disbelieve

the self-serving testimony of the accused and to conclude that

the accused is lying to conceal his guilt."     Marable v.

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235



                               - 7 -
(1998).   Thus, the trial court was not required to accept

Smith's version of what occurred and obviously did not.

     Because it is supported by credible evidence and not plainly

wrong, we are bound by the trial court's finding that Officer

Graves did not say anything to Smith about Smith having drugs in

his possession.   Consequently, the factual premise of Smith's

claim on appeal is without merit, and we need not address his

claim further.    Accordingly, we hold that the trial court did not

err in denying Smith's motion to suppress.

     For these reasons, we affirm Smith's conviction.

                                                          Affirmed.




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