                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia


DENNIS W. JOHNSON
                                     MEMORANDUM OPINION * BY
v.   Record No. 0878-99-1       CHIEF JUDGE JOHANNA L. FITZPATRICK
                                         MARCH 7, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                    E. Everett Bagnell, Judge

          Denise Winborne, Assistant Public Defender,
          for appellant.

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Dennis W. Johnson (appellant) was convicted in a bench

trial of driving after having been declared an habitual

offender, second or subsequent offense, in violation of Code

§ 46.2-357.   On appeal, he argues the trial court erred in

denying his motion to suppress the evidence because he was

"seized" in violation of the Fourth Amendment.     For the

following reasons, we affirm.

                                 I.

     On 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 a question for this Court to review de novo.

See id. at 198, 487 S.E.2d at 261.

     Viewed in this light, the evidence established that on June

10, 1998, at approximately 1:00 p.m., Officer Mark Deavers

(Deavers) of the Portsmouth Police Department was dispatched to

a residence in Portsmouth regarding a "domestic assault and

battery" involving "a person by the name of Dennis Johnson."

Before Deavers arrived at the scene, Portsmouth dispatchers

advised that the subject "[left] the scene, turned on Town Point

Road [and] headed towards the Suffolk city limits."    The

dispatcher provided a description of the vehicle.    At that time,

Deavers contacted Suffolk dispatch to broadcast a BOLO ("be on

the lookout") for the suspect so that the officer could "speak

to Mr. Johnson."

     According to the BOLO, if the Suffolk police came into

contact with the suspect, the Portsmouth police wanted him held

for questioning related to the domestic assault.    Dispatch

reported that a "domestic assault had taken place" in

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Portsmouth; that the suspect was Dennis Johnson; and that the

suspect had driven away in a 1985 Buick, license plate number

ZEN-5827.    No warrant was issued for appellant's arrest, and

Deavers never came in contact with appellant that day.

     Officer P.E. Araojo (Araojo) of the Suffolk Police

Department was on routine patrol when he received the BOLO from

dispatch.    At approximately 1:20 p.m., Araojo saw a blue Buick,

with license plate number ZEN-5827, driven by a black male, that

matched the description by dispatch.     The officer followed the

vehicle to a convenience store parking lot and the individual,

later identified as appellant, got out of his car and went into

the store.    Araojo notified "other units in the area that [he]

was out with that vehicle" described in the BOLO.    The officer

parked his car and as he was getting out appellant exited the

convenience store.

     Araojo approached appellant and asked to speak with him.

Appellant "agreed" and went back to the rear of his car.

Appellant said he had come from Portsmouth where he had been

"seeing his wife."    Araojo testified as follows:

                  I asked if he had any identification,
             driver's license, at which point he handed
             me a Virginia identification card. I asked
             him if he had any problems with me patting
             him down for any weapons, anything like
             that, at which point he said no. He turned
             around, and when I began to pat him down his
             hands were on the trunk of his vehicle. He
             looked over his shoulder, he started to
             turn. At which point I told him to go ahead


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             and keep his hands there.   He became a
             little resistant.

Concerned for his own safety, Araojo handcuffed appellant and

completed the pat-down frisk.    He found no weapons on

appellant's person.

        Araojo contacted dispatch to determine whether appellant

had any outstanding warrants.    When dispatch reported that there

were no warrants for appellant's arrest, the officer immediately

removed the handcuffs.    However, dispatch reported that "the

officer in Portsmouth did want some . . . field interview

information from Mr. Johnson [so they could] finish their

investigation."    Araojo advised appellant that he was not under

arrest but needed to get some field interview information,

including appellant's name, address, date of birth, social

security number, and "any kind of identifying information other

than what's on the license."    Appellant again agreed to speak

with the officer and stated that "he wanted to cooperate."

Araojo and appellant went to the officer's car, and they sat in

the front seat to complete the interview.

        Officer Araojo again advised appellant that he was not

under arrest, and he asked for appellant's driver's license.

Appellant told the officer that "he had a restricted license"

and "he was in the process of taking care of some problems with

DMV."    Araojo contacted dispatch and learned that appellant "was




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declared a habitual offender revoked."    The officer handcuffed

and arrested appellant.

     At trial, appellant moved to suppress the evidence, arguing

that he was "seized" in violation of the Fourth Amendment.

However, appellant did not allege what evidence should be

suppressed.    The trial court denied the motion, stating:

                  Well, in this case, the Court is going
             to rule that Officer Araojo acted on
             information that he had, made a reasonable
             stop of this vehicle. And the actions he
             took in the Court's opinion, based on the
             testimony I've heard, were reasonable under
             the facts and circumstances as they existed.

                  . . . [Appellant] was stopped for a
             reasonable basis by Officer Araojo. He was
             operating a motor vehicle. Officer Araojo
             certainly had the right to inquire as to who
             he was and was he properly licensed, and
             once he made that inquiry he found out that
             no, he wasn't properly licensed, that he was
             an habitual offender, and placed him under
             arrest for being so.

The trial court convicted appellant of driving after having been

declared an habitual offender, second or subsequent offense, in

violation of Code § 46.2-357.

                                  II.

     Appellant contends that once the officer placed him in

handcuffs, he was "illegally seized" for purposes of the Fourth

Amendment.    Araojo did not find any weapons as a result of the

pat-down frisk, and the officer subsequently learned that there

were no outstanding warrants for his arrest.    At that time,

appellant argues, he should have been free to leave, but was not

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because the officer still had possession of his identification

card.

        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).    "[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, [or] by putting questions to

him if the person is willing to listen . . . ."     Florida v.

Royer, 460 U.S. 491, 497 (1983) (plurality opinion); see also

Williams v. Commonwealth, 21 Va. App. 263, 266, 463 S.E.2d 679,

680 (1995); Buck v. Commonwealth, 20 Va. App. 298, 301-02, 456

S.E.2d 534, 535 (1995).

        "[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."     Payne v. Commonwealth, 14 Va. App.

86, 88, 414 S.E.2d 869, 870 (1992) (internal quotations and

citations omitted).    Consensual encounters "need not be

predicated on any suspicion of the person's involvement in

                                 - 6 -
wrongdoing, and remain consensual as long as the citizen

voluntarily cooperates with the police."        Id. (internal

quotations and citations omitted).

        In the instant case, the trial court concluded that Officer

Araojo made "a reasonable stop of [appellant's] vehicle" to

investigate the BOLO.    However, ultimate questions of reasonable

suspicion and probable cause involve questions of law and fact

that we review de novo on appeal.        See McGee, 25 Va. App. at

197-98, 487 S.E.2d at 261 (citations omitted).       Based on our de

novo review of the record, the evidence established that Officer

Araojo did not initiate a vehicle stop and that the initial

encounter with appellant was consensual in nature.       Accordingly,

the trial court correctly denied appellant's motion to suppress,

albeit for the wrong reason.     See Frye v. Commonwealth, 231 Va.

370, 389, 345 S.E.2d 267, 281 (1986).

        Officer Araojo's contact with appellant began as a

consensual encounter.    When the officer first approached

appellant and asked to speak with him, appellant "agreed" and

went back to the rear of his car.    Appellant said he had come

from Portsmouth where he had been "seeing his wife."       Araojo

asked appellant for his "identification, driver's license," at

which point he voluntarily handed the officer an identification

card.    Araojo then asked appellant for his consent to conduct a

pat-down frisk for weapons, and appellant consented.       These



                                 - 7 -
actions are entirely consistent with a consensual encounter,

which does not implicate the Fourth Amendment.

      Because appellant "became a little resistant" during the

pat-down frisk, out of concern for safety the officer handcuffed

him and completed the frisk.   After learning from dispatch that

there were no warrants for appellant's arrest, Officer Araojo

removed the handcuffs.   Although appellant was "seized" within

the meaning of the Fourth Amendment when the officer handcuffed

him, the brief seizure was part of what became an investigatory

detention on the heals of a consensual encounter.    See Thomas v.

Commonwealth, 16 Va. App. 851, 857, 434 S.E.2d 319, 323 (1993)

("Brief, complete deprivations of a suspect's liberty, including

handcuffing, 'do not convert a stop and frisk into an arrest so

long as the methods of restraint used are reasonable to the

circumstances.'"), aff'd en banc, 18 Va. App. 454, 444 S.E.2d

275 (1994).

     When the officer removed the handcuffs and continued to

speak with appellant, the consensual nature of the encounter did

not cease.    Araojo advised appellant that he was not under

arrest and proceeded to conduct a field interview based upon the

BOLO dispatch from Portsmouth.    Appellant again agreed to speak

with the officer and stated that "he wanted to cooperate."

Araojo and appellant went to the officer's car, and they sat in

the front seat to complete the interview.   It was during this



                                 - 8 -
consensual encounter Officer Araojo learned that appellant's

driver's license had been revoked.

     Nonetheless, appellant contends that he was not free to

leave after the handcuffs were removed because the officer had

possession of his identification card.   Assuming, without

deciding, that appellant was seized while the officer retained

his "identification" card, 1 there was no evidence subject to

suppression.   From the beginning of the initial consensual

encounter, Officer Araojo knew appellant's identity.   No

additional information or evidence was gained from any

subsequent seizure, and the officer could have learned from the

information received during the first consensual encounter that

appellant's license had been revoked.    See Bramblett v.

Commonwealth, 257 Va. 263, 275, 513 S.E.2d 400, 408 (1999)

(denying motion to suppress because "[e]ven assuming one of the

officers briefly entered the room [in violation of the Fourth

Amendment] . . ., no search was conducted and no evidence was

seized").   More importantly, the officer had reasonable

suspicion from the onset of the encounter to believe that

appellant had just left Portsmouth where he had been involved in


     1
       In Richmond v. Commonwealth, 22 Va. App. 257, 468 S.E.2d
708 (1996), we held that, despite the consensual nature of the
encounter, the defendant in that case was "seized" within the
meaning of the Fourth Amendment because the officer had the
defendant's driver's license and did not return it. Because Code
§ 46.2-104 prohibits a vehicle operator from driving without a
license, we concluded that the defendant was no longer free to
leave. See id. at 261, 468 S.E.2d at 710.

                               - 9 -
an assault and was wanted for questioning by Portsmouth police.

Thus, in light of the BOLO reported by the Portsmouth Police

Department, Officer Araojo had a reasonable, articulable

suspicion to detain appellant for investigatory purposes.     See

Layne v. Commonwealth, 15 Va. App. 23, 26, 421 S.E.2d 215, 217

(1988) (noting that "[a]n officer may, consistent with the

Fourth Amendment, detain a person, based on a reasonable and

articulable suspicion, to investigate past criminal activity").

     In sum, we conclude that the encounter between Officer

Araojo and appellant was not based upon a vehicle stop, but

rather was a consensual encounter.    The fact that Araojo

retained appellant's identification card does not require

reversal because there was no additional evidence to suppress.

Accordingly, we affirm the trial court's judgment.

                                                         Affirmed.




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