                     COURT OF APPEALS OF VIRGINIA


Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
 Argued at Alexandria, Virginia


TYRONE EDGAR WATERS
                                           MEMORANDUM OPINION * BY
v.       Record No. 2239-95-4               JUDGE CHARLES H. DUFF
                                               NOVEMBER 5, 1996
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                        Thomas D. Horne, Judge
            Lorie E. O'Donnell, Assistant Public Defender
            (Office of the Public Defender, on brief),
            for appellant.

            Kathleen B. Martin, Assistant Attorney
            General (James S. Gilmore, III, Attorney
            General, on brief), for appellee.



     Tyrone Edgar Waters (appellant) was convicted, on his

conditional guilty pleas, of possession of cocaine and carrying a

concealed weapon.    Appellant contends that he was illegally

seized by the police officer and, therefore, the evidence

obtained from him was inadmissible.    We disagree and affirm the

convictions.

                                  I.

     On March 8, 1994, Detective Ricky Frye of the Leesburg

Police Department was on patrol at the Loudoun House apartment

complex, an area known for high drug traffic.       At around 10:15

p.m., Frye saw appellant in the apartment parking lot.      Appellant

was "very unsteady" on his feet, and Frye was concerned for
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appellant's safety.

        Frye followed appellant, tapped him on the shoulder, and

asked to speak to him.      At that point, Frye could smell a strong

odor of alcohol on appellant and appellant immediately began

making threatening gestures toward Frye, including flailing his

arms.       Frye saw a bulge, consistent with a concealed handgun, on

appellant's left side.      He asked appellant to consent to a

search.      Appellant responded, "sure, I don't mind if you search

me," and began emptying his pockets of his own accord.       During a

pat down search, Frye felt a gun and seized it. 1     A further

search revealed a corncob pipe which smelled of marijuana and

ultimately was shown to contain cocaine residue.      Appellant told

Frye that he had received the gun from his brother earlier that

night and that he used the pipe to smoke marijuana.

        At the suppression hearing, Frye testified that he

confronted appellant because he was concerned for appellant's

welfare, and he sought to search appellant because appellant had

made threatening gestures and had the suspicious bulge.

        Michael Hughes testified for appellant that he and appellant

were sitting on steps when Frye approached and "jacked" appellant

up off the steps, put him against a wall, told appellant and

Hughes they could not leave, and searched both men without asking

for their consent.      Appellant testified that Frye did not ask for

permission to search and stated that Frye told him "not to go
        1
         The gun was a carbon dioxide gas powered BB gun.




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nowhere."   Appellant admitted that he emptied his pockets on his

own.

       Following the suppression hearing, the trial judge issued a

letter opinion granting the motion to suppress.   In the opinion,

the judge found that the initial encounter between Frye and

appellant constituted a seizure. The judge wrote:
          When a person is followed by a police
          officer, approached, and tapped on the
          shoulder by the officer, a reasonable person
          would not feel at liberty to walk away. This
          seizure does not fall outside of Fourth
          Amendment protections on this basis.

The judge also rejected the community caretaker doctrine as a

basis for the stop, finding that the doctrine was limited to

incidents involving automobiles and would be inapplicable in this

case, in any event, because it was unreasonable for Frye to stop

appellant based upon his unsteadiness on his feet and apparent

intoxication.

       The Commonwealth appealed the trial judge's decision to

grant the suppression motion.   This Court reversed in

Commonwealth v. Waters, 20 Va. App. 285, 456 S.E.2d 527 (1995).

We stated that, assuming without deciding that Frye seized

Waters, the initial contact "was valid as a reasonable community

caretaker action."    Id. at 288, 456 S.E.2d at 529.   Appellant

thereafter entered conditional guilty pleas to charges of

possession of cocaine and possession of a concealed weapon.

                                 II.

       Frye's initial encounter with appellant, where the officer



                                 -3-
simply followed him, tapped him on the shoulder, and asked to

talk to him and search him, did not constitute a seizure under

the Fourth Amendment.   Appellant responded aggressively to Frye,

who saw the suspicious bulge on his hip.   After receiving

permission to search, Frye discovered the contraband.   At that

point, Frye seized appellant.
          [N]ot all personal intercourse between
          policemen and citizens involves "seizures" of
          persons. Only when the officer, by means of
          physical force or show of authority, has in
          some way restrained the liberty of a citizen
          may we conclude that a "seizure" has
          occurred.


Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).   A consensual

encounter between a police officer and a citizen has no Fourth

Amendment implications unless it is accompanied by coercion or a

show of authority which would cause the individual reasonably to

believe that he must comply with the officer's requests and may

not leave.   Greene v. Commonwealth, 17 Va. App. 606, 610, 440

S.E.2d 138, 140 (1994).

     In Baldwin v. Commonwealth, 243 Va. 191, 413 S.E.2d 645
(1992), instead of tapping the defendant on the shoulder, the

officer called to the defendant and shined a bright light on him.

The Supreme Court found that Baldwin was not seized until the

officer discovered evidence of intoxication and arrested him.

Id. at 199, 413 S.E.2d at 650.

     In Baldwin, the Court cited United States v. Burrell, 286

A.2d 845 (D.C. App. 1972).   In Burrell, no seizure occurred where



                                 -4-
an officer placed his hand on the defendant's elbow and asked to

speak to him.   The court noted that the officer "merely touched

appellee's elbow, an action used as a normal means of attracting

a person's attention."    Id. at 846.    Likewise, Frye's action of

tapping appellant on the shoulder was a normal means of

attracting appellant's attention.      Moreover, Frye's asking if he

could speak to appellant, and asking for permission to search,

did not transform the consensual encounter into a seizure.      See
Richards v. Commonwealth, 8 Va. App. 612, 615, 383 S.E.2d 268,

270 (1989).

                                III.

     The evidence of historical fact presented at the suppression

hearing was in dispute.   Appellant's witness testified that Frye

"jacked" appellant off of steps, threw him against a wall, and

told appellant and Hughes that neither could leave.     Frye

testified that he followed appellant, tapped him on the shoulder,

and asked to speak to him.   Frye testified that he told appellant

he could not leave, only after finding the gun.

     The trial judge did not accept appellant's version of what

occurred.   Rather, the judge found that by following appellant

and tapping him on the shoulder (Frye's version), Frye seized

appellant within the meaning of the Fourth Amendment.     Contrary

to appellant's argument, the judge's finding that a seizure

occurred is not a finding of fact, but involves a mixed question

of law and fact, and therefore is subject to de novo review by



                                 -5-
this Court.

     In Ornelas v. United States, 116 S. Ct. 1657 (1996), the

Supreme Court distinguished between a trial court's finding of

historical facts and the application of law to those facts.    The

Court held that a trial court's findings of historical fact are

reviewed only for clear error, while mixed questions of law and

fact, such as the ultimate question of reasonable suspicion and

probable cause, are reviewed de novo.   Id. at 1662.
     Upon such a de novo review, we conclude that the officer did

not seize appellant until after he discovered the contraband. 2

The evidence and statements, therefore, were not the fruit of an

illegal seizure, and appellant is not entitled to relief.

     We affirm the judgment of the trial court.

                                                   Affirmed.




     2
      We are not precluded from finding that no seizure occurred
by our earlier application of the community caretaker doctrine in
the pretrial appeal. In Commonwealth v. Waters, 20 Va. App. 285,
288, 456 S.E.2d 527, 529 (1995), we held "[a]ssuming without
deciding that [Waters] was seized by Frye, we agree with the
Commonwealth that, under these facts, Frye's initial contact with
[Waters] was valid as a reasonable community caretaker action."
(Emphasis added.) In that opinion, we did not make a finding on
the seizure question. Upon review of the issue in this appeal,
we find that Frye's initial contact with Waters did not
constitute a seizure.




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