                  COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Elder
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                         MEMORANDUM OPINION * BY
v.   Record No. 0497-00-2                 JUDGE LARRY G. ELDER
                                              JULY 11, 2000
JAMISON JERALD MORTON


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Thomas N. Nance, Judge

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

          Gregory W. Franklin, Assistant Public
          Defender (Office of the Public Defender, on
          brief), for appellee.


     Jamison Jerald Morton (defendant) stands indicted for

possession of cocaine with intent to distribute.   The

Commonwealth appeals a pretrial ruling granting defendant's

motion to suppress all evidence seized from defendant.     On

appeal, the Commonwealth contends the trial court erroneously

suppressed the evidence because it was obtained during a

consensual encounter with defendant for which the police did not

need reasonable suspicion or probable cause.   We hold the trial

court did not err in concluding that the officer's retention of

defendant's identification converted the encounter into a

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
seizure under the facts of this case.      Because the officers

lacked reasonable suspicion or probable cause to justify the

seizure, as the Commonwealth concedes, we hold that the seizure

was unreasonable and that the trial court did not err in

granting the motion to suppress.

                                  I.

                              BACKGROUND

       On October 19, 1999, Richmond Police Officer Bruce

Gochenour and his partner were traveling in a marked patrol car.

Gochenour's partner was driving, and Gochenour rode in the front

passenger seat.   Each officer was in uniform, wore a badge, and

carried a firearm on his hip.

       Gochenour saw defendant standing on a street corner with

three or four other people.    As Gochenour and his partner drove

closer, the others left, but defendant remained.     The patrol car

pulled up beside defendant.    Gochenour rolled down his window,

and in a conversational tone, he asked defendant "what was going

on."   Defendant "didn't really give a reply," but remained

standing on the corner.   Gochenour got out of the car and said,

"[C]an I talk to you for a second?"     Again, defendant gave "no

real verbal reply.   He just stood there."

       Around this same time, Gochenour heard his partner exit the

police car.   Gochenour did not actually see him but assumed he

positioned himself at the rear of the vehicle.



                                - 2 -
        Gochenour, from a position of "about arm's length" from

defendant, asked, "[D]o you have an ID with you?"      Defendant

said "yes," "pulled an ID from his pants pocket" and "handed it

to [Gochenour]."    Gochenour took the identification card and

"looked at it to see that [it had] the blue and purple colors,

like . . . a DMV ID card," but he did not examine the

identifying information or "run [the] information in" at that

time.    Instead, he placed the ID card in his utility belt, as

was his usual practice, and asked, "[D]o you have any weapons on

you?"    Defendant then raised both hands, keeping one fist

closed, but gave no verbal response to Gochenour's question.

Gochenour said he "didn't know what [that] meant," so he asked

defendant, "[C]an I pat you down?"       Defendant said, "[Y]eah,

sure," "kind of shrugged his shoulders," and opened his left

hand, revealing two off-white rocks which Gochenour believed to

be crack cocaine.    Gochenour then took appellant into custody

and retrieved the rocks, which had fallen from defendant's hand.

Gochenour searched defendant incident to arrest and recovered

more suspected cocaine from his person.

        Gochenour testified that he never told defendant during the

encounter that he was free to leave but that his tone remained

conversational throughout and that he did not touch defendant

until after defendant had consented to a pat-down and dropped

the suspected rocks of crack cocaine.



                                 - 3 -
     The trial court, after hearing counsel's argument on the

motion to suppress, made the following observation:   "What

[defense counsel] is saying . . . , if I understand him

correctly, is that once [Gochenour] retained [defendant's]

identification card and didn't hand it back to him, the sequence

there is very crucial.    It's whether [Gochenour] took it, stuck

it in his belt and then asked to pat him down."   The court then

questioned Gochenour to clarify the sequence of events and made

the following findings:   "[Gochenour] said he took the card.

Didn't check the details.   Saw that it was an ID card.   Stuck it

in his belt.   Asked [defendant] if he had any weapons.

[Defendant] raised his hand, and one of his fists was closed."

Defense counsel then said, "And [Gochenour] said, do you mind if

I pat you down?" and the court responded, "And that's when

[defendant] dropped [the suspected rocks of crack cocaine]."

     The court gave counsel an opportunity to file legal

memoranda in support of and opposition to the motion.     Following

receipt of these memoranda, the trial court granted the motion

to suppress.

                                 II.

                              ANALYSIS

     At a hearing on a defendant's motion to suppress, the

Commonwealth has the burden of proving that a warrantless search

or seizure did not violate the defendant's Fourth Amendment

rights.   See Simmons v. Commonwealth, 238 Va. 200, 204, 380

                                - 4 -
S.E.2d 656, 659 (1989).    On appeal, we view the evidence in the

light most favorable to the prevailing party, here the

defendant, granting to it all reasonable inferences fairly

deducible therefrom.    See Commonwealth v. Grimstead, 12 Va. App.

1066, 1067, 407 S.E.2d 47, 48 (1991).   "[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 Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.

     Police-citizen encounters generally fall into one of three

categories.    See McGee, 25 Va. App. at 198, 487 S.E.2d at 261.

          First, there are consensual encounters which
          do not implicate the Fourth Amendment.
          Next, there are brief investigatory stops,
          commonly referred to as "Terry" stops, which
          must be based upon reasonable, articulable
          suspicion that criminal activity is or may
          be afoot. Finally, there are "highly
          intrusive, full-scale arrests" or searches
          which must be based upon probable cause to
          believe that a crime has been committed by
          the suspect.

Id. (citations omitted).    "The purpose of the Fourth Amendment

is not to eliminate all contact between the police and the

                                - 5 -
citizenry, but 'to prevent arbitrary and oppressive interference

by enforcement officials with the privacy and personal security

of individuals.'"    Greene v. Commonwealth, 17 Va. App. 606, 610,

440 S.E.2d 138, 140 (1994) (quoting United States v. Mendenhall,

446 U.S. 544, 553-54, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497

(1980) (citation omitted)).   Therefore, consensual 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.'"     Payne v.

Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870 (1992)

(quoting United States v. Wilson, 953 F.2d 116, 121 (4th Cir.

1991)).   "'As long as the person to whom questions are put

remains free to disregard the questions and walk away, there has

been no intrusion upon that person's liberty or privacy as would

under the Constitution require some particularized and objective

justification.'"    Greene, 17 Va. App. at 610, 440 S.E.2d at 140

(quoting Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877).     "A

seizure occurs when an individual is either physically

restrained or has submitted to a show of authority."     McGee, 25

Va. App. at 199, 487 S.E.2d at 262.

     "Whether a seizure has occurred . . . depends upon whether,

under the totality of the circumstances, a reasonable person

would have believed that he or she was not free to leave."     Id.

at 199-200, 487 S.E.2d at 262.    Other factors relevant under the

"totality of the circumstances" analysis include "'"the

                                 - 6 -
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 voice indicating

that compliance with the officer's request might be

compelled."'"     Greene, 17 Va. App. at 611 n.1, 440 S.E.2d at 141

n.1 (quoting Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877)

(other citation omitted).

     A request for identification made during an otherwise

consensual encounter does not, standing alone, convert the

encounter into a seizure.      See, e.g., INS v. Delgado, 466 U.S.

210, 216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247 (1984).

However, in the case of the driver of a stationary automobile,

we have held "that 'what began as a consensual encounter quickly

became an investigative detention once the [officer] received

[the individual's] driver's license and did not return it to

him.'"     Richmond v. Commonwealth, 22 Va. App. 257, 261, 468

S.E.2d 708, 710 (1996) (quoting United States v. Lambert, 46

F.3d 1064, 1068 (10th Cir. 1995)).        In Richmond, a uniformed

deputy approached Richmond as he was seated in his parked

vehicle at a gas station and asked for Richmond's driver's

license.     See id. at 259, 468 S.E.2d at 709.    Richmond complied

and waited while the deputy ran a record check at his police

vehicle.     See id.   Upon returning to Richmond's car, the deputy

observed drug paraphernalia inside the vehicle.        See id.   We

held that Richmond had been seized before the officer observed

                                  - 7 -
the drug paraphernalia because "[a] reasonable person in

[Richmond's] circumstances would not have believed that he could

terminate the encounter once the officer retained the driver's

license and returned to his police vehicle to run a record

check."   Id. at 261, 468 S.E.2d at 710.    We also noted that, "as

a practical matter, if [Richmond] left the scene in his vehicle

while [the deputy] had his driver's license, [Richmond] would

have violated Code § 46.2-104, which prohibits a vehicle

operator from driving without a license."     See id.

     We have not previously had occasion to consider the nature

of an encounter in which an officer requests and retains

identification from a pedestrian.   The Commonwealth contends on

brief, however, that our ruling in Richmond, and the earlier

case of Brown v. Commonwealth, 17 Va. App. 694, 440 S.E.2d 619

(1994), is limited to cases in which "the citizen is located in

a car and his driver's license is taken by the officer so that

the driver would not feel free to leave because to do so would

violate the law" prohibiting driving without a license.

(Emphasis added).   We disagree.   Our holding in Richmond, as

quoted above, did not rest solely upon the single causal

connection the Commonwealth asserts.   Rather we held that "[a]

reasonable person in [Richmond's] circumstances would not have

believed that he could terminate the encounter once the police

officer retained the driver's license and returned to his police

vehicle to run a record check" and "[f]urthermore, as a

                               - 8 -
practical matter, [that] if [Richmond] left the scene in his

vehicle while [the deputy] had his driver's license, [Richmond]

would have violated Code § 46.2-104, which prohibits a vehicle

operator from driving without a license."     Id. at 261, 468

S.E.2d at 710 (emphasis added).   That Richmond's departure by

car without his driver's license would have violated the law was

not the singular factor in that case.

     Under the reasoning of Richmond, we affirm the trial

court's ruling that appellant was seized when Officer Gochenour

requested appellant's identification and placed it in his belt

prior to asking appellant's permission to frisk him for weapons.

Other jurisdictions have reached this same conclusion.      In Salt

Lake City v. Ray, 998 P.2d 274 (Utah Ct. App. 2000), for

example, two uniformed officers engaged in a consensual

encounter with Ray, a pedestrian, asked her for identification,

and she complied with the request by producing a state

identification card.   See id. at 276.   However, "[r]ather than

viewing the information and returning the card, [one of the

officers] retained [the identification]" and stepped away "to

check for warrants on his portable radio" while the other

officer asked for permission to search Ray's bag.     Id.

     Although Ray acceded to a search of her bag, the court held

that the encounter became a seizure such that her accession to

the search was not truly consensual.     See id. at 276, 278.



                               - 9 -
           Given the totality of the circumstances, it
           is clear that a reasonable person in Ray's
           position would not feel free to just walk
           away, thereby abandoning her identification,
           let alone to approach [the officer], take
           back her identification, and then leave.
           Instead, [the officer's] retention of her
           identification during the warrant check
           sufficiently restrained Ray's freedom of
           movement that she was seized for purposes of
           the Fourth Amendment.

Id. at 278 (footnotes omitted).   Although the officer testified

he would have returned Ray's identification and allowed her to

leave if she had asked to do so, the court held that this fact

was irrelevant because it was not communicated to Ray.     See id.

at 268 n.1.   It observed that "although an officer is not

required to inform a person he or she is free to leave during a

[consensual] encounter, such a warning might aid the officer

from unwittingly escalating the encounter to a [seizure]."      Id.

     The Supreme Court of Tennessee reached a similar result in

State v. Daniel, 12 S.W.3d 420 (Tenn. 2000), in which an officer

approached four men standing around a vehicle in an unlighted

parking lot after dark.   See id. at 423.   The officer asked for

identification and retained it while he ran a computer check,

which revealed an outstanding warrant for Daniel.     See id.   The

court apparently placed no weight on whether the vehicle

belonged to any of the men or whether they were traveling in it.

See id.   In holding that the retention of Daniel's

identification constituted a seizure, the court noted that,



                              - 10 -
            [w]ithout his identification, Daniel was
            effectively immobilized. Abandoning one's
            identification is simply not a practical or
            realistic option for a reasonable person in
            modern society. . . . [W]hen an officer
            retains a person's identification for the
            purpose of running a computer check for
            outstanding warrants, no reasonable person
            would believe that he or she could simply
            terminate the encounter by asking the
            officer to return the identification.

Id. at 427.

       Although both Ray and Daniel involved an officer's

retention of an individual's identification for purposes of

running a check for outstanding warrants, the key issue in Ray

and Daniel was the retention itself and its effect on whether a

reasonable person in the owner's position would have believed

she or he was free to leave.    See Ray, 998 P.2d at 278 & nn.2-3;

Daniel, 12 S.W.3d at 427.   The court in Ray also noted that the

"critical time at issue [was] . . . when Ray consented to the

search."   998 P.2d at 278 n.3; see also Lambert, 46 F.3d at 1069

n.4.   In appellant's case, he consented to the search at a time

when Gochenour, a uniformed and armed police officer whose

similarly clad partner stood nearby, asserted control over

appellant's person by retaining possession of his

identification.   The evidence supports the trial court's

conclusion that a reasonable person in defendant's position

would have believed he was not free to leave.




                               - 11 -
     For these reasons, we affirm the ruling of the trial court

granting appellant's motion to suppress, and we dismiss the

indictment for possession of cocaine with intent to distribute.

                                                        Affirmed.




                             - 12 -
