                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
Argued at Salem, Virginia


RONNIE JAMES GOODE
                                     MEMORANDUM OPINION * BY
v.       Record No. 1643-98-3   CHIEF JUDGE JOHANNA L. FITZPATRICK
                                       SEPTEMBER 28, 1999
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                      Mosby G. Perrow, III, Judge

             Margaret A. Nelson, Senior Assistant Public
             Defender, for appellant.

             Donald E. Jeffrey, III, Assistant Attorney
             General (Mark L. Earley, Attorney General,
             on brief), for appellee.


     Ronnie James Goode (appellant) was indicted by a grand jury

for possession of cocaine, in violation of Code § 18.2-250.

Appellant filed a pretrial motion to suppress the cocaine found

on his person, contending that the police officer had neither a

warrant nor probable cause for an arrest.    The trial court

denied the motion and subsequently convicted appellant in a

bench trial.    For the following reasons, we affirm.

                                  I.

     On an appeal from a trial court's ruling on a suppression

motion, we view the evidence in the light most favorable to the


     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
party prevailing below, in this case the Commonwealth.       See

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d

47, 48 (1991).   However, "'[u]ltimate questions of reasonable

suspicion and probable cause . . . are reviewed de novo on

appeal.'"    McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487

S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United

States, 517 U.S. 690, 691 (1996)).      Similarly, whether a seizure

occurred at all is both a factual and legal question for this

Court to review de novo.    See id. at 198, 487 S.E.2d at 261.

     The evidence established that approximately two weeks prior

to appellant's arrest, Officer Benedict (Benedict) and Officer

Graves (Graves) went to 2200 Poplar Street in the City of

Lynchburg and spoke to Emma Wade (Mrs. Wade), one of the owners

of the property.   Mrs. Wade stated she was "interested in

getting a letter on file" to ensure that the police would

enforce the trespassing laws on her property.     She also

indicated that she and her husband were elderly and that they

were the only two residents of the property.      The letter, signed

by Mrs. Wade on February 23, 1998, stated the following:

            In order to enforce the No Trespassing signs
            posted on my property at 2200 Poplar
            Street[,] I would like to request the
            assistance of the Lynchburg Police
            Department.

            Increasingly, I have experienced problems
            with trespassers on my porch and around my
            yard. I have been advised that these
            subjects are hiding there [sic] drugs behind


                                - 2 -
          my house and selling them on the corner of
          Poplar St. and Florida Ave.

At the time of the instant offense, Benedict was aware that Mrs.

Wade's letter requesting enforcement of the trespassing laws was

on file with the police department.

     On March 3, 1998, at approximately 1:40 a.m., Benedict

drove by the Wade residence, which had the no trespassing sign

posted, and saw appellant and another individual "walking

through Wade's yard."     The two men appeared to be between twenty

and forty years old, and the officer did not observe an elderly

man with them.      Benedict also noticed that the lights in the

house were off. 1

     Officer Benedict exited his vehicle and approached the two

men, stopping within two feet of appellant.     Benedict testified

as follows:

          Q.     And did you get out of your vehicle and
                 approach him?

          A.     Yes.

          Q.     And did you speak with him?

          A.     Yes.

          Q.     What did you say to him, if anything?

          A.     When I got to him, I asked him if he
                 lived there.

     1
       The Commonwealth introduced into evidence a drawing of the
property, including the streets, residence, trespassing sign and
location of appellant when the officers first arrived on the
scene.


                                  - 3 -
            Q.   And what was his response?

            A.   He said nothing.

             *          *      *     *       *   *        *

            Q.   He didn't respond at all?

            A.   He said nothing at all.

            Q.   And did the other subject with him say
                 anything?

            A.   No.

            Q.   Did you see where his hands were?

            A.   Yes.

            Q.   Where were his hands?

            A.   He had some sort of shirt on [sic]
                 which had pockets in the front and he
                 had his hands in the pockets.

            Q.   Both hands?

            A.   Both hands.

            Q.   When the Defendant didn't respond to
                 your question, what did you do at that
                 point?

            A.   I placed him under arrest for
                 trespassing.

In a search incident to arrest, Benedict found a sandwich baggie

containing .39 grams of cocaine in the appellant's right hand.

     Mrs. Wade testified that she had been acquainted with

appellant for about ten to fifteen years and she considered him

a friend.   She had never denied appellant access to her

property, and he had been in her house on several occasions.


                                    - 4 -
However, Mrs. Wade also stated that she had not given anyone

permission to be on her property late at night and that it was

uncommon for appellant to be there at that hour of the night.

     The trial court found that Officer Benedict had probable

cause to arrest appellant and that the search incident to the

arrest was lawful.       The trial judge stated as follows:

          It's 1:40 in the morning. It's in the
          middle of the night. [Appellant] was
          walking through the yard in the vicinity of
          a No Trespassing sign. I realize the sign
          is facing the street, but the officer
          doesn't know whether he approached the house
          from the street and circled it or whether
          he's casing the joint.

               He doesn't know what's going on. And
          when [appellant] doesn't answer, he's either
          got to release him or arrest him. . . . Your
          motion is overruled.

           *         *        *      *      *      *      *

               . . . The question is whether there was
          probable cause to arrest [appellant] for
          trespass at 1:40 a.m. in the morning when
          he's walking on property and the police
          observed him and there's a No Trespassing
          sign in the vicinity. Actually, there are
          two [individuals] on the property and the
          police have been asked to enforce the no
          trespass. . . . The motion is overruled.

At the conclusion of the evidence, the trial court found

appellant guilty as charged.

                                    II.

     Appellant concedes that Officer Benedict had a reasonable

basis to approach him and conduct a Terry stop.        However, he



                                   - 5 -
contends that the circumstances did not rise to the level of

probable cause to arrest for trespass solely because appellant

failed to respond to Benedict's inquiry whether appellant lived

on the property.    He argues that Benedict was required to

conduct further investigation in order to establish probable

cause for arrest.   Accordingly, the cocaine seized in the search

incident to his arrest should have been suppressed.   We

disagree.

     Fourth Amendment jurisprudence recognizes three categories

of police-citizen confrontations, including the following:    "(1)

consensual encounters, (2) brief, minimally intrusive

investigatory detentions, based upon specific, articulable

facts, commonly referred to as Terry stops, and (3) highly

intrusive arrests and searches founded on probable cause."

Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744,

747 (1995) (citations omitted).   "[P]robable cause exists when

the facts and circumstances within the officer's knowledge, and

of which he has reasonably trustworthy information, alone are

sufficient to warrant a person of reasonable caution to believe

that an offense is being committed."    Taylor v. Commonwealth,

222 Va. 816, 820, 284 S.E.2d 833, 836 (1981), cert. denied, 465

U.S. 906 (1982).

     Probable cause is determined by the totality of the

circumstances and does not require "an actual showing" of



                                - 6 -
criminal activity, but, rather, "only a probability or

substantial chance" of such activity.     Illinois v. Gates, 462

U.S. 213, 243 n.13 (1983).    Additionally, we have recognized

that "[t]rained and experienced officers . . . may be able to

perceive and articulate meaning in given conduct which would be

wholly innocent to the untrained observer."     Richards v.

Commonwealth, 8 Va. App. 612, 616, 383 S.E.2d 268, 270-71

(1989).

     In the instant case, Officer Benedict observed appellant

and another man walking through the yard of the home of an

elderly couple in the middle of the night.    The lights in the

house were off.    Benedict knew that the owners did not want

trespassers on their property and that Mrs. Wade had signed a

letter requesting police enforcement of the posted no

trespassing signs.    The letter also indicated that Mrs. Wade

"experienced problems with trespassers on [her] porch and around

[her] yard."   The letter specified that with the exception of

her, her husband, and a few guests, there should be no one else

on her property.   Additionally, the area was known for illegal

drug sales.    When Benedict approached appellant and asked if he

lived in the house, appellant did not respond, but stood silent,

with his hands in his pockets.    Under the totality of the

circumstances, Benedict had probable cause to arrest appellant

for trespassing.     See Langston v. Commonwealth, 28 Va. App. 276,



                                 - 7 -
283-84, 504 S.E.2d 380, 383 (1998) (holding that the defendant's

actions, standing and walking on property known to be abandoned

with "no trespassing" signs, gave the officers probable cause to

believe that defendant was trespassing); see also Jordan v.

Commonwealth, 207 Va. 591, 596, 151 S.E.2d 390, 394 (1966)

(holding that "a police officer may arrest without a warrant

when a misdemeanor is committed in his presence, and . . . when

a person without authority of law goes upon the lands, buildings

or premises of another after having been forbidden to do so by a

sign or signs . . ."). 2    Because Officer Benedict had probable

cause to arrest appellant for trespassing, the search incident

to arrest was lawful.      Accordingly, appellant's conviction is

affirmed.

                                                           Affirmed.




     2
       Ewell v. Commonwealth, 254 Va. 214, 491 S.E.2d 721 (1997),
is factually distinguishable from the instant case. In Ewell,
the Supreme Court held the arresting officer did not have a
reasonable suspicion that the defendant may have been engaged in
trespassing or any other activity. The Court noted that the
officer "merely observed an unfamiliar automobile and its
operator in the parking lot of the apartment complex about 12:30
a.m." Id. at 217, 491 S.E.2d at 723. Accordingly, the Court
concluded that the defendant was seized in violation of her
Fourth Amendment rights. See id. However, in the present case,
appellant was walking in the yard of a private residence at
1:40 a.m. Officer Benedict was patrolling the area in response
to a specific request to enforce the no trespassing signs, and
he was aware that the property owners experienced problems with
drug sales in their yard.

                                  - 8 -
