                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia


REGINALD LEON GRAVES
                                            MEMORANDUM OPINION * BY
v.   Record No. 0611-00-1                   JUDGE WILLIAM H. HODGES
                                                 APRIL 3, 2001
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                     Randolph T. West, Judge

            Robert W. Jones, Jr. (Jones & Jones, P.C., on
            brief), for appellant.

            Susan M. Harris, Assistant Attorney General
            (Mark L. Earley, Attorney General, on brief),
            for appellee.


     Reginald Leon Graves appeals his conviction after a bench

trial of carrying a concealed weapon, second offense.     He argues

that the trial court erred in admitting the Commonwealth's

evidence.   Graves contends that the evidence was obtained as a

result of an illegal search.    For the reasons that follow, we

disagree and affirm his conviction.

                               BACKGROUND

     Viewed in the light most favorable to the Commonwealth,

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991), the evidence proved that on January 18, 1999 several



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
police units were dispatched to the Courthouse Green area of

Newport News in response to a report that several black males were

standing on the corner using and selling narcotics.     Among the

officers at the scene was Officer J.S. Collins, who testified that

the Courthouse Green area is known as a high crime area and that

in the past he had responded to several shootings and robberies in

the neighborhood.   When Collins arrived, there were already

several other officers on the scene, so he took a position in the

nearby parking lot to watch.

Graves began to walk across the parking lot, away from the scene.

A fellow officer motioned to Collins that he should stop Graves.

Collins got out of his car as Graves was walking towards him.

Collins asked if he could speak with Graves when they were still

some distance apart.    Graves had his right hand in the pocket of

the jacket he wore.    Concerned for his safety, Collins asked

Graves to remove his hand from his pocket.     Graves hesitated for a

moment, but then removed his hand.      Immediately, Collins noticed

that Graves carried something heavy in the pocket.     Collins saw

that the lightweight jacket Graves wore was being stretched down

by the weight of the object.   Believing the object to be a gun,

Collins explained to Graves that he was not under arrest, but that

Collins needed to pat him down for weapons.     Graves objected and

then tried to run away.   Collins then grabbed Graves' right arm

and handcuffed him with the assistance of another officer.

Collins found a loaded pistol in Graves' pocket.

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                               ANALYSIS

     Collins' meeting with Graves began as a consensual encounter.

When Collins first saw Graves he said, "Hey, how are you doing"

and asked if he could speak to Graves for "just a second."    Graves

continued to walk towards the police officer.

           A law enforcement officer does not implicate
           the Fourth Amendment by approaching a
           citizen in a public place for the purpose of
           asking the individual his name and address.
           Furthermore, a consensual encounter between
           the police and a citizen becomes a seizure
           for Fourth Amendment purposes "only if, in
           view of all the circumstances surrounding
           the incident, a reasonable person would have
           believed that he was not free to leave." 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, 141-42, 474

S.E.2d 848, 850 (1996) (citations omitted); see also United

States v. Mendenhall, 446 U.S. 544, 554-55 (1980) (holding that

Fourth Amendment rights are not implicated by consensual

encounters between citizens and the police).    Collins did not

block Graves' departure, command him to stop or draw his weapon.

     Graves did not respond to Collins' initial questions and

continued to walk towards the officer with his hand in his

pocket.   Concerned for his safety, Collins asked Graves to

remove his hand from his pocket.   Graves hesitated, increasing

Collins' belief that Graves carried a weapon.   When Graves

removed his hand, Collins could see that the object in Graves'


                               - 3 -
pocket was heavy and bulky.   Collins then told Graves that he

needed to pat him down to check for weapons.

           It is not unreasonable for a police officer to
           conduct a limited pat-down search for weapons
           when the officer can point to "specific and
           articulable facts" "which reasonably lead[] him
           to conclude, in light of his experience, that
           'criminal activity may be afoot' and that the
           suspect 'may be armed and presently dangerous.'"

James v. Commonwealth, 22 Va. App. 740, 745, 473 S.E.2d 90,

92 (1996) (quoting Lansdown v. Commonwealth, 226 Va. 204,

209, 308 S.E.2d 106, 110 (1983) (quoting Terry v. Ohio, 392

U.S. 1, 30 (1968))).

      "An officer is entitled to view the circumstances

confronting him in light of his training and experience . . . ."

Id.   Among the circumstances to be considered in such situations

are

           "the 'characteristics of the area' where the
           stop occurs, the time of the stop, whether
           late at night or not, as well as any
           suspicious conduct of the person accosted
           such as an obvious attempt to avoid officers
           or any nervous conduct on the discovery of
           their presence[,]" . . . [and] the character
           of the offense which the individual is
           suspected of committing . . . .

Williams v. Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 87

(1987) (quoting United States v. Bull, 565 F.2d 869, 870-01 (4th

Cir. 1977)).

      In light of the police dispatch of illegal drug activity in

a known high-crime area, appellant's hesitance in removing his

hand from his pocket, and Collins' subsequent observation that

                               - 4 -
a heavy object was located in appellant's jacket, the officer

"had specific and articulable facts giving rise to the

reasonable belief appellant 'might be armed and dangerous.'"

Welshman v. Commonwealth, 28 Va. App. 20, 35, 502 S.E.2d 122,

129 (1998).    As a result, Collins properly performed a pat-down

search of Graves.   Accordingly, the decision of the trial court

is affirmed.

                                                          Affirmed.




                                - 5 -
Benton, J., dissenting.

     "The right of the people to be secure in their persons,

. . . and effects, against unreasonable searches and seizures,

shall not be violated . . . ."    U.S. Const. amend. IV.   "The

Fourth Amendment applies to all seizures of the person,

including seizures that involve only a brief detention short of

traditional arrest."   United States v. Brignoni-Ponce, 422 U.S.

873, 878 (1975).   "In a long line of cases, [the United States

Supreme] Court has stressed that 'searches conducted outside the

judicial process, without prior approval by judge or magistrate,

are per se unreasonable under the Fourth Amendment -- subject

only to a few specifically established and well delineated

exceptions.'"   Thompson v. Louisiana, 469 U.S. 17, 19-20 (1984)

(citation omitted).

     "While law enforcement officers may engage in consensual

encounters with citizens, the Supreme Court has limited such

encounters to those in which 'a reasonable person would feel

free "to disregard the police and go about his business."'"

Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27

(2000) (citation omitted).

             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." United
          States v. Wilson, 953 F.2d 116, 121 (4th
          Cir. 1991) (quoting Florida v. Bostick, 501
          U.S. 429, 431 (1991)); see also Richards v.
          Commonwealth, 8 Va. App. 612, 615, 383

                                 - 6 -
          S.E.2d 268, 270 (1989). Such encounters
          . . . remain consensual "as long as the
          citizen voluntarily cooperates with the
          police." Wilson, 953 F.2d at 121. Fourth
          Amendment scrutiny is triggered, however,
          the moment an encounter "'loses its
          consensual nature.'" Id. (quoting Florida
          v. Bostick, 501 U.S. 429, 434 (1991)).

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

(1992).

     At its most fundamental level, a consensual encounter only

occurs when a person approached by the police has "the ability

to ignore the police and to walk away from them."    Wilson, 953

F.2d at 122.    Clearly then, when a person rebuffs a police

officer's attempt at a consensual encounter, that action

standing alone evinces a lack of consent.   Any resulting

detention is a seizure that implicates constitutional

requirements.   Moreover, when the existence or validity of any

consent is at issue, "the State has the burden of proving that

the necessary consent was obtained and that it was freely and

voluntarily given."    Florida v. Royer, 460 U.S. 491, 497 (1983).

"This burden cannot be discharged by showing no more than

acquiescence to a claim of lawful authority."    Bumper v. North

Carolina, 391 U.S. 543, 548-49 (1968).

     The majority opinion misperceives the nature of the

encounter when it states the encounter began consensually.     The

testimony of the officer who stopped Reginald Leon Graves

clearly established that Graves merely happened to be walking


                                - 7 -
near an area where the police had detained other persons.    He

described the initial detention as follows:

             I was dispatched -- there were several
          units dispatched to the area . . . in
          reference to several . . . subjects standing
          on the corner using and/or selling
          narcotics. When I arrived to that location
          to investigate -- the other officer had
          arrived prior to my arrival, and he was
          engaged in a conversation with several of
          the subjects. At that time, I took up a
          position in the parking lot just to observe
          because it appeared that they had everything
          under control.

             As I sat in the parking lot, Officer
          Matthews motioned to me to stop a subject
          who was walking through the parking lot
          towards my location, subsequently identified
          as Mr. Graves.

     The officer then approached and detained Graves.     The fact

that he subjectively wanted to engage Graves in a consensual

encounter did not make it so.   Graves' conduct clearly

demonstrates that he did not consent to the encounter.    Graves

continued to walk as the officer spoke to him.   The officer

"[did not] recall if [Graves] stopped" as he called to Graves.

Thus, the evidence established no indication of Graves'

willingness to stop and converse with the officer.

     When the officer commanded Graves to remove his hand from

his pocket, Graves hesitantly did so but resisted when the

officer told him that he "needed to pat him down for weapons."

The officer testified that "Graves took several steps backwards

and stated, 'For What?   You're not touching me.'"   The officer


                                - 8 -
then grabbed Graves' arm.   If there could be any doubt that the

detention was not consensual, this evidence undisputedly proves

that when the officer gave these commands and met resistance the

encounter was not consensual.

     The Fourth Amendment protects a person's privacy from

unreasonable interference by the police, even when the police

seek only to engage in a brief stop and questioning concerning a

person's identity.   Brignoni-Ponce, 422 U.S. at 878.    Indeed,

the principle is well settled that "while the police have the

right to request citizens to answer voluntarily questions

concerning unsolved crimes they have no right to compel them to

answer."   Davis v. Mississippi, 394 U.S. 721, 727 n.6 (1969).

Terry v. Ohio, 392 U.S. 1, 19 (1968), teaches that "[o]nce a

citizen withdraws his consent to further questioning by the

police, the reasonableness of any subsequent 'governmental

invasion of a citizen's personal security' is gauged by the

Fourth Amendment."   Wilson, 953 F.2d at 121.

     The evidence proved the officer detained Graves in a "Terry

stop" without the necessary articulable facts supporting a

reasonable suspicion that Graves had committed a criminal

offense, was engaging in a criminal offense, or was about to

engage in a criminal offense.   "[A] reasonable suspicion [is

one, which must be] based on objective facts, that the

individual is involved in criminal activity."   Brown v. Texas,

443 U.S. 47, 51 (1979).   "A reasonable suspicion is more than an

                                - 9 -
'unparticularized suspicion or "hunch."'"    Bass v. Commonwealth,

259 Va. 470, 475, 525 S.E.2d 921, 923 (2000) (quoting Terry, 392

U.S. at 27).

     The detention was unlawful because the evidence fails to

establish a reasonable suspicion that Graves had any connection

to criminal activity.    The officer's testimony proved only that

Graves was walking in a neighborhood known for crime, that he

had a heavy object in one of his pockets, that he hesitated to

take his hand out of that pocket, and that he refused to show

the object to the officer.   These facts fail to establish a

reasonable suspicion of criminal activity.

     Graves' hesitation demonstrates only his lack of consent.

Indeed, he more stridently manifested his lack of consent when

he said "You're not touching me."   I disagree with the

majority's suggestion that Graves' refusal qualifies as an

"obvious attempt to avoid officers or [as] nervous conduct on

the discovery of their presence."    Williams v. Commonwealth, 4

Va. App. 53, 67, 354 S.E.2d 79, 87 (1987).   This lack of consent

cannot provide the officer with a reason to search Graves.

Otherwise, citizens would face a Catch-22 situation in which

their refusal to consent to a search forms the basis for a

reasonable suspicion that they are engaged in criminal activity.

     The officer claimed he wanted to search Graves because he

feared for his safety.   The Commonwealth asserts that a

reasonable officer would fear being shot in this situation.    No

                               - 10 -
evidence proved, however, that Graves threatened the officer.

Graves merely walked across the parking lot and was detained by

the officer.    The officer could not reasonably suspect that an

individual walking through a neighborhood with an unknown object

in his pocket wanted to shoot a police officer.    No evidence

connected Graves to the men the officers had detained.      Graves'

conduct indicated only that he was passing through the area.       He

was free to ignore the officers, who had detained other men, and

walk away.

     That Graves was walking in a neighborhood while the police

were detaining suspected drug users was not a basis for

concluding that Graves was engaged in criminal conduct.      See

Brown, 443 U.S. at 52.    Reasonable suspicion is more than a mere

hunch.   Bass, 259 Va. at 477-78, 525 S.E.2d at 925.

                When the officers detained appellant for
             the purpose of requiring him to identify
             himself, they performed a seizure of his
             person subject to the requirements of the
             Fourth Amendment. . . . The Fourth
             Amendment, of course, "applies to all
             seizures of the person, including seizures
             that involve only a brief detention short of
             traditional arrest. '[W]henever a police
             officer accosts an individual and restrains
             his freedom to walk away, he has "seized"
             that person,' and the Fourth Amendment
             requires that the seizure be 'reasonable.'"

Brown, 443 U.S. at 50 (citations omitted).

     I would hold that at the moment Graves ignored the

officer's inquiry and continued on his path, he demonstrated his



                                - 11 -
refusal to engage in a consensual encounter.   His subsequent

words and conduct reinforced his lack of consent.

             In this context, freedom to leave means
          fundamentally the freedom to break off
          contact, in which case officers must, in the
          absence of objective justification, leave a
          [person] alone. [Graves] possessed at a
          minimum the right to refuse to speak with
          the officers, who in turn possess no right
          to detain citizens who decline to talk or
          otherwise identify themselves. . . . To
          hold otherwise would begin to transform this
          free society into one where [persons] must
          present papers or proffer explanations to be
          on their way.

United States v. Flowers, 912 F.2d 707, 712 (4th Cir. 1990)

(citation omitted).

     For these reasons, I would hold that the resulting search

was violative of the Fourth Amendment.   Therefore, I would

reverse the conviction and dismiss the indictment.




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