                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                     MEMORANDUM OPINION * BY
v.   Record No. 0661-99-1      CHIEF JUDGE JOHANNA L. FITZPATRICK
                                         AUGUST 19, 1999
ANTHONY LAP BROWN


              FROM THE CIRCUIT COURT OF YORK COUNTY
                  N. Prentis Smiley, Jr., Judge

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

          Deborah Wagner (David Holland's Law Group,
          L.L.C., on brief), for appellee.


     Anthony Lap Brown (Brown) was indicted for possession of

cocaine, in violation of Code § 18.2-250.   Brown filed a

pretrial motion to suppress evidence of a crack-cocaine pipe

found in his pocket, contending that it was discovered as a

result of an unlawful search of his person.   The trial court

granted the motion, and the Commonwealth appealed pursuant to

Code § 19.2-398(2).   For the following reasons, we reverse the

trial court's decision and remand for further proceedings.




     *
       Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
                                 I.

     On an appeal from a trial court's ruling on a suppression

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

party prevailing below, in this case the defendant.      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, 116 S. Ct. 1657, 1659, 134 L.Ed.2d

911 (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.

     The evidence established that on October 2, 1998, at

approximately 10:15 p.m., Brown was walking through the

Yorkshire Townhouse complex in York County, Virginia.     Deputy

Sheriff Mattis (Mattis) approached Brown and asked him where he

was going.   Brown stated that he was walking home.    The deputy

knew from prior experience that Brown was not walking in the

direction of his house and that he also did not live in the

Yorkshire Townhouse complex.

     Mattis asked Brown "if he had any drugs, weapons, or

illegal contraband" on his person.      The defendant told Mattis

that he had a knife in his back pants pocket.     Mattis asked the

defendant if he "could search him," and the defendant said

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"yes."    During the search, Mattis found a pocketknife inside

Brown's back pocket.   He also found a cigarette box inside the

left front pocket.   Inside the cigarette box, Mattis found a

"three-inch crack pipe."   During the encounter, the deputy used

a flashlight to "illuminate" Brown.     Mattis did not draw his

weapon nor did he tell the defendant to remain where he was.

     The trial court found that there was no evidence of

criminal activity and, therefore, the deputy did not have a

reasonable articulable suspicion to stop the defendant.

Although the trial court recognized that "this Court's been

reversed on this issue before on an appeal by the Commonwealth,"

the court suppressed the evidence because it concluded the

search constituted an unreasonable seizure.    Pursuant to Code

§ 19.2-398(2), the Commonwealth appealed the trial court's

ruling.

                                 II.

     The Commonwealth argues that the trial court erroneously

focused on whether there was a reasonable suspicion of criminal

activity when the officer approached the defendant.    The

Commonwealth contends that the evidence established a consensual

encounter between Deputy Mattis and the defendant, "followed by

defendant's knowing and voluntary consent to a search of his

person."   Because the search was consensual, the Commonwealth

concludes there was no Fourth Amendment violation.    We agree.



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     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).    As the United States Supreme Court noted in Terry,

             [o]bviously, not 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, 88 S. Ct. 1868, 1879 n.16,

20 L.Ed.2d 889 (1968).

     A Terry stop occurs "only 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, 100 S. Ct. 1870,

1876-77, 64 L.Ed.2d 497 (1980).    Examples of circumstances that

might indicate a Fourth Amendment "seizure" include the

following:

             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.

                                 - 4 -
Id. at 553-54, 100 S. Ct. at 1876-77.    Accordingly, "[a]s 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."   Id.

     In the instant case, the trial court ruled that when Deputy

Mattis approached Brown and asked him questions, he was seized

within the meaning of the Fourth Amendment.    However, Mattis's

actions did not create a seizure.    It is well settled that "law

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,

103 S. Ct. 1319, 1324, 75 L.Ed.2d 229 (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).

     Moreover, "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


                               - 5 -
and citations omitted).      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."         Id. (internal

quotations and citations omitted).

       Here, Deputy Mattis asked Brown whether he had drugs,

weapons or illegal contraband.      Mattis did not touch Brown or

draw his weapon.      Mattis did not tell Brown to remain where he

was.       Defendant can point to no act which, either implicitly or

expressly, restrained his liberty.         See Mendenhall, 446 U.S. at

554, 100 S. Ct. at 1877. 1     Brown gave his consent to the search,

which was not limited in scope, and he did not revoke that

consent.      In these circumstances, Brown was not seized for

purposes of the Fourth Amendment. 2

       Because the defendant was not seized, and the defendant

consented to the subsequent search of his person, the



       1
       Mattis's use of a flashlight does not affect the
consensual nature of his encounter with Brown. Contrary to the
trial court's ruling, the evidence established that Deputy
Mattis used the flashlight to "illuminate" the defendant because
it was dark. Even assuming that the deputy shone his flashlight
in Brown's face, this act does not compel a finding that a
Fourth Amendment seizure occurred. See Baldwin v. Commonwealth,
243 Va. 191, 199, 413 S.E.2d 645, 649-50 (1992) (holding that
the use of a floodlight "was no more an 'intimidating' show of
authority than the 'presence of a police officer driving
parallel to a running pedestrian'").
       2
       The same conclusion was reached by a panel of this Court in
Commonwealth v. Taylor, No. 1298-98-1 (October 6, 1998), a case
involving substantially similar facts.

                                   - 6 -
defendant's crack pipe should not have been excluded.   The trial

court's ruling on the motion to suppress is reversed.

                                                        Reversed.




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