                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia


GLENN LAVELLE MOSLEY
                                               MEMORANDUM OPINION * BY
v.   Record No. 1207-00-1                       JUDGE ROBERT P. FRANK
                                                     MAY 29, 2001
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    Alan E. Rosenblatt, Judge

          Ben Pavek, Assistant Public Defender, for
          appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Glenn Lavelle Mosley (appellant) was convicted in a bench

trial 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.   Finding no error, we affirm the conviction.

                             I.   BACKGROUND

     On December 19, 1998, Detective Dan Lindemeyer and Officer

David Banks of the Virginia Beach Police Department were

conducting surveillance of an apartment building in the 3700 block

of Windlass Circle.    The property was posted as a no-trespassing

area and private property.    Detective Lindemeyer testified that he


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
was working as a security guard for F & W Management, the owner of

the apartment complex, that evening.      When the officers observed

appellant coming from the hallway of 3704 Windlass Circle, they

realized they did not recognize him as a resident of the property.

     The officers approached appellant and asked if they could

speak with him.   The officers did not ask appellant to stop,

rather he stopped voluntarily.    Detective Lindemeyer testified

that he asked appellant if he was a resident of the property.

Appellant responded that he was not a resident of the property but

was there visiting a friend.   Detective Lindemeyer then asked

appellant if he had identification.      When appellant indicated he

did not have identification, Detective Lindemeyer asked for his

name, date of birth, and Social Security number so the officers

could determine whether appellant was included on the list of

persons banned from the apartment property.     Appellant provided

the information voluntarily.   Detective Lindemeyer testified that

he wrote down the information and gave it to Officer Banks.

Officer Banks compared appellant's information to the "ban list,"

and he then radioed in to verify appellant's personal information

and determine whether there existed any outstanding warrants for

appellant.   Officer Banks did not face appellant while he spoke on

the radio.   Appellant was not on the "ban list."

     Detective Lindemeyer testified that while Officer Banks was

running the checks on appellant's information, he continued to

talk with appellant and asked appellant if he had any kind of

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drugs or weapons on his person.     Appellant responded in the

negative, and Detective Lindemeyer then asked for permission to

search appellant.   Appellant responded, "I don't know why, but go

ahead."   During the search, Detective Lindemeyer found crack

cocaine in appellant's inner jacket pocket.    Detective Lindemeyer

testified he then placed appellant in custody.    Neither officer

handcuffed appellant, drew a weapon, or otherwise placed appellant

in custody until after the cocaine was discovered.

     Detective Lindemeyer testified that throughout the encounter

he spoke to appellant in a conversational tone of voice and did

not elevate or raise his voice.     He stated he did not use strong

language or "cuss words."   Detective Lindemeyer also testified

that he and Officer Banks had flashlights but they did not shine

their lights on appellant because the streetlights provided

sufficient lighting to see that appellant's hands were outside of

his pockets.

     After hearing evidence on the suppression motion, the trial

judge found, "[I]t was not a seizure under the circumstances that

existed in the case and that it was a proper contact with the

police and it was consensual . . . ."

                            II.    ANALYSIS

                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. Commonwealth v. Grimstead, 12 Va.
           App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

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          The findings of the trial court will not be
          disturbed unless plainly wrong or without
          evidence to support them. See Mier v.
          Commonwealth, 12 Va. App. 827, 828, 407
          S.E.2d 342, 343 (1991). When reviewing the
          trial court's denial of a defendant's motion
          to suppress evidence, "[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) (quotation marks and citations
          omitted).

Debroux v. Commonwealth, 32 Va. App. 364, 370-71, 528 S.E.2d 151,

154, aff'd en banc, 34 Va. App. 72, 537 S.E.2d 630 (2000).

               "[W]e 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 v.
          Commonwealth, 25 Va. App. 193, 198, 487
          S.E.2d 259, 261 (1997) (en banc) (citing
          Ornelas v. United States, 517 U.S. 690, 699,
          116 S. Ct. 1657, 1659, 134 L.Ed.2d 911
          (1996)). However, we review de novo the
          trial court's application of defined legal
          standards such as probable cause and
          reasonable suspicion to the particular facts
          of the case. See Shears v. Commonwealth, 23
          Va. App. 394, 398, 477 S.E.2d 309, 311
          (1996); see also Ornelas, 517 U.S. at 699,
          116 S. Ct. at 1659.

Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359

(1999).

     "Fourth Amendment jurisprudence recognizes three categories

of police-citizen confrontations:   (1) consensual encounters, (2)

brief, minimally intrusive investigatory detentions, based upon

specific, articulable facts, commonly referred to as Terry stops,

                              - 4 -
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).   "'[L]aw enforcement officers do not

violate the Fourth Amendment by merely approaching an individual

on the street or in another public place, by asking him if he is

willing to answer some questions . . . .'"   Washington v.

Commonwealth, 29 Va. App. 5, 10, 509 S.E.2d 512, 514 (1999) (en

banc) (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)).

                A consensual encounter occurs when
           police officers approach persons in public
           places "to ask them questions," provided "a
           reasonable person would understand that he or
           she could refuse to cooperate." United
           States v. Wilson, 953 F.2d 116, 121 (4th Cir.
           1991) (quoting Florida v. Bostick, 501 U.S.
           429, 431, 111 S. Ct. 2382, 2384, 115 L.Ed.2d
           389 (1991)); see also Richards v.
           Commonwealth, 8 Va. App. 612, 615, 383 S.E.2d
           268, 270 (1989). Such encounters "need not
           be predicated on any suspicion of the
           person's involvement in wrongdoing," and
           remain consensual "as long as the citizen
           voluntarily cooperates with the police."
           Wilson, 953 F.2d at 121.

Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870

(1992).

                "[A] person is 'seized' only when, by
           means of physical force or show of authority,
           his freedom of movement is restrained. . . .

                . . . Examples of circumstances that
           might indicate a seizure, even where the
           person did not attempt to leave, would be the
           threatening presence of several officers, the
           display of a weapon by an officer, some
           physical touching of the person of the
           citizen, or the use of language or tone of


                               - 5 -
            voice indicating that compliance with the
            officer's request might be compelled."

Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 648

(1992) (quoting United States v. Mendenhall, 446 U.S. 544, 553-54

(1980)).

                 "[L]aw enforcement officers do not
            violate the Fourth Amendment by merely
            approaching an individual on the street or in
            another public place, by asking him if he is
            willing to answer some questions, by putting
            questions to him if the person is willing to
            listen, or by offering in evidence in a
            criminal prosecution his voluntary answers to
            such questions. Nor would the fact that the
            officer identifies himself as a police
            officer, without more, convert the encounter
            into a seizure requiring some level of
            objective justification."

Id. at 196-97, 413 S.E.2d at 648 (quoting Royer, 460 U.S. at 497).

     "Voluntarily responding to a police request, which most

citizens will do, does not negate 'the consensual nature of the

response' even if one is not told that he or she is free not to

respond."   Grinton v. Commonwealth, 14 Va. App. 846, 849, 419

S.E.2d 860, 862 (1992) (quoting I.N.S. v. Delgado, 466 U.S. 210,

216 (1984)).   "[T]he subjective beliefs of the person approached

are irrelevant to whether a seizure has occurred."      United States

v. Winston, 892 F.2d 112, 116 (D.C. Cir. 1989) (citation omitted).

     Appellant contends he was "seized" without a showing of

probable cause or reasonable suspicion.   We disagree and find that

the encounter between appellant and the officers was consensual

from inception because appellant consented to the search of his


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person that resulted in the discovery of the cocaine in his

pocket.

      Appellant argues our decision in McGee, 25 Va. App. 193, 487

S.E.2d 259, applies.   We disagree.     In McGee, Officer Loperl

received a radio dispatch that a "black male wearing a white

t-shirt, black shorts, and white tennis shoes was selling drugs on

a corner near 5001 Government Road in Richmond."       Id. at 196, 487

S.E.2d at 260.    Within minutes, Officer Loperl and two other

officers arrived at 5001 Government Road in marked police

vehicles.   Id.   The officers approached McGee and a female who

were sitting on a porch in front of a store.     Id.   McGee and the

woman were the only people in the vicinity.     Id.    The officers did

not observe McGee's activity prior to approaching him, and Officer

Loperl testified he did not know whether McGee was wearing the

clothing described in the dispatch.     Id.   Officer Loperl

approached McGee and told him that the police had received a

report that he was selling drugs on the corner and that he matched

the description of the person described as selling the drugs.      Id.

Officer Loperl testified that McGee was free to leave but stated

that the officers did not expressly communicate that to McGee.

Id.   Officer Loperl also testified that the officers did not block

McGee's path or draw their weapons.     Id.

      Then, Officer Loperl asked McGee if he could pat him down to

check for weapons.    Id. at 197, 487 S.E.2d at 261.    The officer

testified that he used "the same tone of voice he was using in

                                - 7 -
court" to ask the question.     Id.    McGee "responded by standing up

and extending his arms in front of him with both fists clenched."

Id.   Finding no weapons on appellant's person, Officer Loperl

stated he asked McGee to open his fists because he "believed

[McGee] could have been holding a 'small pocket knife' or 'a

razor . . . .'"    Id.    Officer Loperl stated he asked, not told,

McGee to open his hands.      Id.   When McGee opened his fists he was

holding money, a torn ziplock bag, and "'a little piece of white

substance.'"     Id.   Officer Loperl arrested McGee and found

twenty-five bags of crack cocaine during a search incident to the

arrest.   Id.

      Sitting en banc, we held that the encounter between McGee and

the officers was not consensual because "[w]hen the police

expressly inform an individual that they have received information

that the individual is engaging in criminal activity, the police

'convey a message that compliance with their requests is

required.'"     Id. at 200, 487 S.E.2d at 262.    We held that

Officer's Loperl's statement to McGee did not convey the message

that the officers were conducting a general investigation of

reported drug dealing.      Id. at 201, 487 S.E.2d at 263.   Rather,

McGee specifically was identified as the subject of the

investigation.     Id.   We additionally noted that three officers, in

marked police vehicles, confronted McGee and that the trial court,

which had the opportunity to evaluate Officer Loperl's tone of

voice, found that a seizure occurred.       Id.   Thus, we concluded

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that "[t]he officers did not by their words or actions suggest

that [McGee] was free to leave."   Id.

     In this case, when the officers approached appellant,

Detective Lindemeyer spoke with him in the of tone of voice he

used in court.   The detective testified he did not use strong

language or "cuss words."   The officers did not accuse appellant

of a crime.   The detective testified appellant stopped voluntarily

and provided his personal information voluntarily.   Neither

officer handcuffed appellant, drew a weapon, or otherwise placed

appellant in custody.   In fact, while Detective Lindemeyer spoke

with appellant, Officer Banks had his back to appellant while

using the radio to confirm appellant's information and check for

outstanding warrants.

     We, therefore, find that the encounter was unaccompanied by

any "'coercion or show of force or authority by the officer . . .

that would cause a person . . . reasonably to have believed that

he or she was required to comply' and 'not free to leave.'"

Wechsler, 20 Va. App. at 169, 455 S.E.2d at 747 (citation

omitted).   Thus, we find no error in the trial court's ruling

that the encounter was consensual and was not a seizure under

the Fourth Amendment.

     The Supreme Court of Virginia's recent decision in Parker

v. Commonwealth, 255 Va. 96, 496 S.E.2d 47 (2000), does not

alter our conclusion.   In Parker, a police officer, driving a

marked police vehicle, followed Parker for approximately forty

                               - 9 -
feet on private property after it became clear that Parker was

trying to avoid the police.      Id. at 99, 496 S.E.2d at 49.    The

officer stopped the car where Parker was standing.       Id.    In

finding a seizure, the Supreme Court distinguished its holding

in Baldwin, 243 Va. 191, 413 S.E.2d 645, because the officer in

Baldwin called the suspect to the police cruiser rather than

following him.      Id. at 103, 496 S.E.2d at 51.   In Parker, the

Court stated, "Without question, Officer Kurisky's acts

constituted a show of authority which restrained the defendant's

liberty."     Id.

     Unlike Parker, in this case, the police did not follow

appellant nor did appellant try to avoid the officers by

changing direction and walking away.      As in Baldwin, appellant

did not try to avoid a police encounter and was not pursued by

the police.

     For these reasons, we find the trial court did not err in

denying appellant's motion to suppress.     The judgment of the

trial court is, therefore, affirmed.

                                                               Affirmed.




                                 - 10 -
Benton, J., dissenting.

        The Commonwealth does not satisfy its burden of proving

consent "by showing a mere submission to a claim of lawful

authority."     Florida v. Royer, 460 U.S. 491, 497 (1983).    The

evidence proved just that.    Two police officers, at least one of

whom was in uniform, were conducting a surveillance of an

apartment building for drug activity at nighttime.    When Glenn

Mosley walked out of the building and reached the pavement, the

two officers walked toward him to determine whether he was

banned from the property.    As Mosley turned to walk to the

parking lot, the officers did the same.    They then "approached

him and asked him if he was a resident on the property."      When

Mosley said "no," the officers asked "if he had some kind of an

I.D."    When Mosley again said "no," the officer "asked him if he

could give [the officer] his personal information."    After

securing that information, one of the officers then began to

check "the ban list."    When the officer determined that Mosley

was not on it, he then "started radioing in to check to see if

[Mosley] gave . . . correct information" and "to see if there

were any outstanding warrants on him."

        Nothing about the circumstances of the encounter would have

objectively conveyed to a reasonable person that he was free to

leave after the officer asked if he lived in the apartment,

demanded identification, and produced a "ban list" to verify the

person's name.    At the outset, this conduct by the officers was

                                - 11 -
a confrontation with an accusation that Mosley was a trespasser.

See McGee v. Commonwealth, 25 Va. App. 193, 487 S.E.2d 259

(1997) (en banc).   The very nature of their inquiry "convey[ed]

a message that compliance with their requests [was] required."

Florida v. Bostick, 501 U.S. 429, 435 (1991).

     "Police need not physically drag a suspect to a halt before

an encounter will be characterized as a stop."     Langston v.

Commonwealth, 28 Va. App. 276, 282, 504 S.E.2d 380, 383 (1998).

"When the officers detained [Mosley] for the purpose of

requiring him to identify himself, they performed a seizure of

his person subject to the requirements of the Fourth Amendment."

Brown v. Texas, 443 U.S. 47, 50 (1979).     As we have noted,

"[t]he circumstances of the encounter may indicate, even without

physical restraint, a suspect is not free to leave."     Langston,

28 Va. App. at 282, 504 S.E.2d at 383.    Here, the officers

suspected that Mosley was a trespasser and put him on notice by

their inquiry that he was being investigated.    Their approach

and level of questioning of Mosley "surely amount to a show of

official authority such that 'a reasonable person would have

believed that he was not free to leave.'"     Royer, 460 U.S. at

502 (citation omitted).   See also Parker v. Commonwealth, 255

Va. 96, 103, 496 S.E.2d 47, 51 (1998) (holding that the manner

of the officer's approach established "a show of authority which

restrained the defendant's liberty").



                              - 12 -
     I would hold that the evidence proved a seizure, that the

seizure was not based on a reasonable, articulable suspicion as

required by Terry v. Ohio, 392 U.S. 1 (1968), and that the trial

judge erred in refusing to suppress the evidence.




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