                    COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Elder and Senior Judge Cole
Argued at Richmond, Virginia

LEON JUNIUS McDANIELS, JR.,
  S/K/A LEON J. McDANIEL

v.   Record No. 0413-94-2                       MEMORANDUM OPINION *
                                                 BY MARVIN F. COLE
COMMONWEALTH OF VIRGINIA                          AUGUST 29, 1995

           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      James B. Wilkinson, Judge

           Maureen L. White, Assistant Public Defender
           (David J. Johnson, Public Defender, on
           brief), for appellant.
           Michael T. Judge, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.


     Leon Junius McDaniels, Jr. appeals his conviction for

possessing cocaine with the intent to distribute.     He contends

that the trial court erred in denying his motion to suppress the

cocaine.   Finding no error, we affirm.

     In considering a trial court's ruling on a suppression

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

. . . the prevailing party below," the Commonwealth in this

instance, and the decision of the trial judge will be disturbed

only if plainly wrong.     Commonwealth v. Grimstead, 12 Va. App.

1066, 1067, 407 S.E.2d 47, 48 (1991).     To prevail on appeal,

McDaniels must "show . . . that the denial of [his] motion to

suppress constitute[d] reversible error."     Motley v.
Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1993).

     The Commonwealth's evidence showed that Officer Samuels and

Trooper Clark were patrolling in the City of Richmond in an

unmarked vehicle on November 5, 1993.     At about 11:30 p.m.,

Samuels and Clark approached a group of people at a street

corner.    Other police cars followed.    McDaniels was among the

group.    Samuels recognized McDaniels.   McDaniels looked in the

direction of the police car, then turned and walked toward a

nearby residence.   Samuels and Clark left the police car and

followed McDaniels to the front of the residence.     McDaniels

stopped on the porch outside of the residence, and Samuels asked

McDaniels his name and where he lived.     As the two conversed,

McDaniels "kept placing his hand in his left front pocket . . .

like he was grabbing something from his pocket."     Samuels asked

McDaniels three times if Samuels could search McDaniels,

including "his pocket."   McDaniels agreed all three times.      When

Samuels reached for the pocket, McDaniels grabbed Samuels' hand

and said that he would remove anything out of the pocket.

McDaniels removed money and a clear plastic baggie from the

pocket.    Samuels grabbed the baggie, and McDaniels hit Samuels in

the eye.   McDaniels unsuccessfully tried to flee.
     The baggie that Samuels grabbed contained cocaine.      After

McDaniels' arrest, Samuels recovered two other bags of cocaine

from another of McDaniels' pockets, two packets of marijuana, a

"large plastic bag with six more baggies of off-white substance,"




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two pagers, and $115.

       McDaniels testified that he tried to enter the residence,

but Clark blocked his way.   He also testified that Samuels

"grabbed hold of my pocket," and that he consented to the search

because "I was kind of scared because of the way they came up to

me."

       In denying the motion to suppress, the trial judge made the

following factual findings:
          I find for a fact it was at the most three
          police cars, at the most eight policemen came
          to third and somewhere, I forget the same
          [sic] of the street, I'm very familiar with
          it. They got out. The defendant started
          walking towards the house and stopped.
          Apparently, curiosity, I don't know, he
          stopped. And the officer went up to him and
          was talking to him and he had put his hand in
          his pocket. He told him to take it out. He
          wanted some identification at that time and
          asked could he search him. He said yes. He
          asked him three times because he wanted to
          make sure he knew it wasn't a pat down, it
          was a search. And, the defendant readily
          consented. I find no threats or forms of
          violence or any statements that would
          intimidate whatsoever. And, then he said the
          officer grabbed him by the hand and he said I
          will get out of my pocket what you want.
          Then the cocaine comes out after the money.
          It was in clear open daylight or nighttime
          light. And it was stuck, as he said, to the
          money, down in the money. When he saw it I
          think it's his duty to arrest him. Those are
          the findings of fact . . . .

       The trial judge believed the Commonwealth's evidence, and

rejected McDaniels' version of the encounter.   "The weight which

should be given to evidence and whether the testimony of a




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witness is credible are questions which the fact finder must

decide."     Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351

S.E.2d 598, 601 (1986).    We cannot say that the testimony of

Samuels and Clark was inherently incredible.       Given that

testimony, and viewing the evidence in the light most favorable

to the Commonwealth, we cannot say that the trial judge erred in

denying the motion to suppress.        That testimony established that

the encounter between McDaniels and the officers was consensual,

and did not implicate the Fourth Amendment.        See Iglesias v.

Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988) (en

banc).     Furthermore, that testimony showed that McDaniels

consented to the search of his person, then voluntarily removed

cocaine from his pocket.    At that point, the officers had

probable cause to arrest McDaniels.

                                                   Affirmed.




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Elder, J., dissenting.



     I respectfully dissent and would hold that the trial court

erred in not suppressing the cocaine obtained from McDaniels.     I

believe McDaniels was unlawfully seized, and any consent given to

the officers was unlawfully obtained.

     First, contrary to the majority opinion, I believe that

McDaniels was "seized" for purposes of the Fourth Amendment.    A

person is seized when "his freedom of movement is restrained by

means of physical force or show of authority . . . ," Grinton v.
Commonwealth, 14 Va. App. 846, 849, 419 S.E.2d 860, 862 (1992)

(citing I.N.S. v. Delgado, 446 U.S. 210, 216 (1984)), or when the

circumstances "amount to a show of authority such that 'a

reasonable person would have believed that he was not free to

leave.'"    Moss v. Commonwealth, 7 Va. App. 305, 307, 373 S.E.2d

170, 171-72 (1988) (quoting Florida v. Royer, 460 U.S. 491, 502

(1983)).   Three police vehicles and eight officers approached the

group with which McDaniels was standing.   Officers Samuels and

Clark followed McDaniels to a residence and surrounded him on his

stoop, which was not meant to accommodate three persons.    Officer

Clark's leg was extended with his foot pressed against the front

door of the residence, preventing McDaniels' entrance into the

house.    These circumstances amounted to a show of force such that

"a reasonable person would have believed he was not free to

leave."    United States v. Mendenhall, 446 U.S. 544, 544 (1980);




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see Satchell v. Commonwealth, 20 Va. App. ___, ___ S.E.2d ___

(1995) (en banc) (finding a seizure where one officer confronted

defendant on his front stoop with three other officers in the

near vicinity).

     Furthermore, there is nothing in the record to show (nor did

the Commonwealth contend) that the officers had any reasonable,

articulable suspicion, based on objective facts, to believe that

McDaniels was engaging in criminal activity.       See Moss, 7 Va.

App. at 308, 373 S.E.2d at 172.       The illegality of the seizure

therefore tainted McDaniel's consent and was ineffective to

justify the search.   Royer, 460 U.S. at 507-08; Deer v.

Commonwealth, 17 Va. App. 730, 736, 441 S.E.2d 33, 37 (1994).




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