                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia


LEON A. WALKER
                                          MEMORANDUM OPINION * BY
v.          Record No. 2224-96-2          JUDGE NELSON T. OVERTON
                                               JULY 22, 1997
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
                       James A. Luke, Jr., Judge
            Brad P. Butterworth (Butterworth & Waymack,
            on brief), for appellant.

            Marla Graff Decker, Assistant Attorney
            General (James S. Gilmore, III, Attorney
            General, on brief), for appellee.



     Leon Walker was convicted in a bench trial of possession of

cocaine in violation of § 18.2-250.    He appeals, contending that

the trial court erred in denying his motion to suppress the

evidence.    For the following reasons, we affirm his conviction.

     The parties are fully conversant with the record in the

cause, and because this memorandum opinion carries no

precedential value, no recitation of the facts is necessary.

     At a suppression hearing, Walker claimed that the police

officer had conducted an illegal stop and search of his person.

The trial judge denied his motion to suppress the evidence on the

ground that the community caretaker exception applied.       Walker

appeals that decision.    While we agree that the trial judge erred

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
in applying the community caretaker exception, we find that the

encounter between the police officer and Walker was consensual

and that the evidence was properly admitted.

     "[C]haracterizing every street encounter between a citizen

and the police as a 'seizure,' while not enhancing any interest

secured by the Fourth Amendment, would impose wholly unrealistic

restrictions upon a wide variety of legitimate law enforcement

practices."    United States v. Mendenhall, 446 U.S. 544, 555

(1980).   "As 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.   The facts must demonstrate "coercion or

show of force or authority by the officer . . . that would cause

a person . . . reasonably to have believed that he or she was

required to comply."     Commonwealth v. Satchell, 15 Va. App. 127,

131, 422 S.E.2d 412, 415 (1992).       These facts might include the

threatening presence of several officers, the display of a

weapon, some physical touching, or the use of a tone of voice

indicating that compliance with the officer's request might be

compelled.    See Mendenhall, 446 U.S. at 554.     Absent evidence of

this type, otherwise inoffensive contact between the officer and

the defendant "cannot, as a matter of law, constitute a seizure

of that person."    Id. at 555.

      The facts in the instant case are not sufficient to



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constitute a seizure.   The officer approached Walker on a public

street and engaged him in benign conversation.      In the course of

this conversation he asked if Walker had any illegal contraband

in his possession.    Walker said that he did not.    The officer

then reiterated that Walker was not under arrest and that he did

not have to cooperate in any way, and asked for permission to

search Walker.   Walker consented without any questions.

     Although Walker testified at the hearing that he did not

feel free to leave, "a seizure does not occur whenever an

individual senses that police activity has restrained his liberty

but 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.'"       Greene v. Commonwealth, 17 Va.

App. 606, 610-11, 440 S.E.2d 138, 141 (1994) (quoting Mendenhall,

446 U.S. at 554).    The officer was alone, did not draw his

weapon, and did not threaten Walker.      He testified that he did

not touch Walker.    He spoke in a normal tone, and informed Walker

several times that he was not under arrest and that he did not

have to cooperate.   The evidence further shows that Walker's

consent was given freely and voluntarily.      Walker himself

testified that he said the officer could "check him" without any

hesitation.   These facts do not indicate coercion or show of

force such that a reasonable person would have felt that

compliance with the officer's requests would be compelled.

     Upon review of the record, we find that the motion to



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suppress was properly denied.   Although the trial judge based his

decision on flawed legal reasoning, no further factual resolution

is required in order for this Court to reach its conclusion.   We

therefore affirm the decision of the trial court because it was

the right result, even though based on a wrong reason.   See

Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312,

313-14 (1992).

                                         Affirmed.




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Benton, J., dissenting.

     The evidence proved that the police officer approached Leon

A. Walker and informed him that he was trespassing on property

owned by the public housing authority.   Although the officer

testified that he decided that he would only give Walker a

warning, his accusation was sufficient to render his detention of

Walker a seizure for purposes of the Fourth Amendment.     See McGee

v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___

(1997) (en banc) ("The unmistakable message conveyed to the

defendant was that the officers . . . were detaining him to

investigate his activities.").
     Furthermore, the trial judge based his ruling on the

decision in Commonwealth v. Waters, 20 Va. App. 285, 456 S.E.2d

527 (1995), and the community caretaking doctrine.    When properly

applied, that doctrine is stated as follows:
          Local police officers, unlike federal
          officers, frequently investigate vehicle
          accidents in which there is no claim of
          criminal liability and engage in what, for
          want of a better term, may be described as
          community caretaking functions, totally
          divorced from the detection, investigation,
          or acquisition of evidence relating to the
          violation of a criminal statute.


Cady v. Dombrowski, 413 U.S. 433, 441 (1973) (emphasis added).

     The evidence in this case proved that the officer approached

Walker because he suspected that Walker was in violation of the

criminal trespass law.    He so informed Walker.   That conduct is

clearly beyond the scope of the community caretaking doctrine.




                                  5
See id.

     I would hold that the officer conducted a Terry detention

and that the evidence failed to support a reasonable, articulable

suspicion that Walker was engaged in criminal conduct.   See Terry

v. Ohio, 392 U.S. 1, 22 (1968).   Accordingly, I would hold that

the consent obtained as a result of the illegal detention was

"not an independent source of the evidence, but rather was an

exploitation of the unlawful [detention]."   Commonwealth v. Ealy,

12 Va. App. 744, 757, 407 S.E.2d 681, 689 (1991).




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