                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia


COMMONWEALTH OF VIRGINIA
                                            MEMORANDUM OPINION * BY
v.   Record No. 0340-00-1                  JUDGE SAM W. COLEMAN III
                                                 JUNE 29, 2000
LUIS ENRIQUE MERCED


           FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                        Edward L. Hubbard, Judge

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

             Leon R. Sarfan (Sarfan & Nachman, L.L.C., on
             brief), for appellee.


     Luis Enrique Merced was charged with possession of heroin.

The trial judge granted Merced's motion to suppress the evidence,

finding that Merced was illegally seized in violation of the

Fourth Amendment.    Pursuant to Code § 19.2-398, the Commonwealth

appeals.    For the reasons that follow, we reverse the trial

court's suppression order and remand the case to the circuit court

for further proceedings.

                              BACKGROUND

     At approximately 11:25 a.m., Newport News Police Detectives

Stevenson and Best were patrolling in an unmarked patrol car an

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
area on 23rd Street, which Best described as "one of the largest

open-air drug markets in the Southeast Community."    Stevenson and

Best observed a "hand-to-hand transaction" between Merced and

another individual.   Best testified that she observed Merced give

the other individual money and, in return, the individual placed a

small object, which he had cupped in his hands, in Merced's hand.

Stevenson only saw Merced hand the other person some money.

     After observing the transaction, Stevenson, who was in plain

clothes, stepped out of his vehicle, displayed his badge,

identified himself, and asked to speak with Merced.    Merced said,

"Yes" and asked why Stevenson wanted to talk to him.    Stevenson

informed Merced that he had observed the "hand-to-hand drug

transaction," to which Merced responded that he had only received

a phone number.   Stevenson then asked Merced if "he commonly

[paid] for phone numbers at 23rd and Chestnut."    Merced did not

respond.   Stevenson requested to see the phone number, but Merced

stated that he had dropped it.   Stevenson asked Merced if he could

show him where he had dropped the phone number.    As the two walked

towards the area where Stevenson observed the hand-to-hand

transaction, Merced stated, "I bought heroin from that guy."

Stevenson asked Merced to produce the heroin, but Merced told him

that he thought he dropped it.   While searching for the heroin,

Stevenson noticed drugs in Merced's vest pocket.   Stevenson

reached into Merced's pocket, retrieved the heroin, placed Merced


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under arrest, and advised him of his Miranda rights.   Merced

stated that he had been a heroin addict for ten years and was glad

that he was caught.

     Stevenson testified that he did not block Merced's path and

that Merced was free to leave at any time.    However, Best

testified that Merced was "detained" and not free to leave.

     Relying upon our decision in McGee v. Commonwealth, 25 Va.

App. 193, 487 S.E.2d 259 (1997) (en banc), the trial court granted

Merced's motion to suppress.    The trial judge noted that when

Stevenson approached Merced and stated that he saw Merced engaged

in a drug transaction, a reasonable person would not have believed

that he was free to leave.   The trial judge stated that, "a

reasonable person, once they have been told that they have been

observed engaging in a crime, they're seized, and they pretty well

know they're seized at that point."

                               ANALYSIS

     In reviewing a trial court's ruling on a motion to

suppress, "[w]e view the evidence in a light most favorable to

. . . the prevailing party below, and we grant all reasonable

inferences fairly deducible from that evidence."     Commonwealth

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

(citation omitted).   "[W]e are bound by the trial court's

findings of historical fact unless 'plainly wrong' or without

evidence to support them."     McGee, 25 Va. App. at 198, 487


                               - 3 -
S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690,

699 (1996)).    "However, we consider de novo whether those facts

implicate the Fourth Amendment and, if so, whether the officers

unlawfully infringed upon an area protected by the Fourth

Amendment."     Hughes v. Commonwealth, 31 Va. App. 447, 454, 524

S.E.2d 155, 159 (2000) (en banc) (citation omitted).

                  Police-citizen confrontations generally
             fall into one of three categories. 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.

McGee, 25 Va. App. at 198, 487 S.E.2d at 261 (citations

omitted).

     We find that the defendant's encounter with the police was

consensual and, therefore, did not implicate the Fourth

Amendment.

                  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." 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."




                               - 4 -
Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870

(1992) (emphasis added) (citations omitted).

     On the other hand, a person is "seized" for Fourth

Amendment purposes "if, in view of all of the circumstances

surrounding the incident, a reasonable person would have

believed that he was not free to leave."    United States v.

Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J.).

"In order for a seizure to occur, the police must restrain a

citizen's freedom of movement by the use of physical force or

show of authority."   Ford v. City of Newport News, 23 Va. App.

137, 142, 474 S.E.2d 848, 850 (1996) (citation omitted).       Police

officers, however, are permitted to address questions to persons

on the street.   See Mendenhall, 446 U.S. at 552-54.   "As long as

the person to whom the questions are put remains free to

disregard the questions and walk away," no Fourth Amendment

violation has occurred.   Id. at 554; see Florida v. Royer, 460

U.S. 491, 497 (1983) (plurality opinion).    "Acquiescence in 'a

police request, which most citizens will do, does not negate the

"consensual nature of the response."'"     Greene v. Commonwealth,

17 Va. App. 606, 610, 440 S.E.2d 138, 140-41 (1994) (citations

omitted).   Therefore, what begins as a consensual encounter will

generally continue to be consensual until the person, by word or

action, withdraws his or her consent to continue the discussion,

or the officer, by word or action, makes clear that the person


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is being detained and is not free to leave regardless of the

initial consent.

     In determining the nature of any encounter, we consider the

totality of the circumstances.   In determining whether a person

is detained for Fourth Amendment purposes, we consider several

factors, including "'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 voice indicating that compliance with the officer's

request might be compelled.'"    Commonwealth v. Satchell, 15 Va.

App. 127, 131, 422 S.E.2d 412, 414-15 (1992) (quoting

Mendenhall, 446 U.S. at 554).    However, where a person

voluntarily consents to cooperate with police officers in their

investigation or to discuss a situation, the fact that the

person has agreed to talk with the officers is a significant

factor in determining whether the subsequent conduct, words, or

show of force or authority from the officers will transform the

consensual encounter into a detention.

     The defendant, relying on McGee, argues that he was

unlawfully seized at the moment Stevenson informed him that he

observed Merced in a "hand-to-hand drug transaction."      On these

facts, Merced's reliance on McGee is misplaced.

     In McGee, police officers received a tip from an anonymous

informant that a "black male wearing a white t-shirt, black


                            - 6 -
shorts, and white tennis shoes" was selling drugs on a

particular street corner.   Three uniformed and armed police

officers were dispatched to the area in two marked police

cruisers.   One of the officers approached McGee and "stated to

him that I had received a call that [he] was on this corner

selling drugs and [that he] matched the description" of the

individual who had been reported as selling drugs.   The officer

then requested permission from McGee to "pat [him] down."    McGee

stood and extended his arms in front of him with both fists

clenched.   Believing that McGee might be concealing a weapon in

his closed fists, the officer asked him to open his hands.

McGee was holding money, a torn ziplock bag, and a "little piece

of white substance."   The officers arrested McGee and, in a

search conducted incident to the arrest, the officer found

twenty-five bags containing crack cocaine in McGee's trousers.

     We held that McGee was illegally seized when the three

officers approached him on the porch and told him that they had

a report that he was "on the corner selling drugs and [that he]

matched the description."   We found that the encounter was not

consensual.   We stated that "[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,'

Florida v. Bostick, 501 U.S. 429, 435 (1991), and 'that failure


                             - 7 -
to cooperate would lead only to formal detention.'"    McGee, 25

Va. App. at 200, 487 S.E.2d at 262.    We held that "when a police

officer confronts a person and informs the individual that he or

she has been specifically identified as a suspect in a

particular crime which the officer is investigating, that fact

is significant among the 'totality of the circumstances' to

determine whether a reasonable person would feel free to leave."

Id.   McGee, unlike the situation in the present case, did not

consent or agree to talk with the police officers.    From the

outset, McGee was detained when he was informed that he had been

reported as having committed a crime of selling drugs.

      McGee is distinguishable from and does not control the case

before us.   Here, the encounter was consensual.   It began as

consensual and continued to be such.   After Merced agreed to

talk with Stevenson, Stevenson asked Merced about the drug

transaction that the officers had observed.   That inquiry was

the purpose for which they had sought and obtained Merced's

consent.    The officers were in plain clothes, and they had

displayed their badges to identify themselves as police

officers.    The officers did not touch Merced, display their

weapons, block his path, or use threatening or intimidating

language or tone of voice.    Cf. Langston v. Commonwealth, 28 Va.

App. 276, 282-83, 504 S.E.2d 380, 382-83 (1998) (holding that

encounter not consensual where three uniformed police officers


                              - 8 -
on bicycle patrol pursued defendant, who was on foot, asking

repetitive and redundant questions until he stopped to talk with

them, at which time he was surrounded by the officers).     Had

Merced not voluntarily agreed to talk with Stevenson and Best or

had Stevenson first confronted Merced with the accusation that

he had observed the "hand-to-hand drug transaction," the

situation may well have been controlled by our holding in McGee.

However, the encounter began as consensual and remained

consensual.   Merced did not by words or actions withdraw his

consent, and the officers did nothing to indicate that he was

compelled or required to continue to talk with them.   During the

conversation to which he had consented, he voluntarily offered

an explanation for the "hand-to-hand drug transaction" that

Stevenson observed.   Merced did not refuse to answer any

questions or attempt to leave.   See generally Richmond v.

Commonwealth, 22 Va. App. 257, 261, 468 S.E.2d 708, 709-10

(1996) (holding that consensual encounter between police officer

and defendant, who was lawfully parked in a parking lot, became

a seizure when officer retained defendant's driver's license

after running a check); Payne, 14 Va. App. at 88, 414 S.E.2d at

870 (holding that consensual encounter became a seizure when

defendant refused officer's request to open his fist and officer

grabbed defendant's hand, forcing it open).   Stevenson continued

to ask questions of an investigatory nature, to which Merced


                             - 9 -
voluntarily responded.   See Royer, 460 U.S. at 497 (stating that

"law enforcement officers do not violate the Fourth Amendment by

merely approaching an individual on the street . . . by asking

him if he is willing to answer some questions, [or] by putting

questions to him if the person is willing to listen").

Moreover, the encounter continued to be consensual and

cooperative even while Merced accompanied Stevenson back to the

area where the transaction occurred.   See generally Grinton v.

Commonwealth, 14 Va. App. 846, 849-50, 419 S.E.2d 860, 862

(1992) (holding that encounter consensual where defendants

remained at a toll booth to answer questions and subsequently

moved their vehicle off the road pursuant to officer's request

in order to search the vehicle).

     We hold that where a citizen consents or agrees to talk

with a police officer and does not withdraw his or her consent,

either expressly or implicitly, the encounter remains consensual

until the officer, by physical force or show of authority,

restrains the citizen's freedom of movement and the reasonable

person would not feel free to leave.

     Accordingly, we hold that the encounter was consensual and

did not implicate the Fourth Amendment.   We, therefore, reverse

the trial court's ruling and remand for further proceedings.

                                             Reversed and remanded.




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