                        COURT OF APPEALS OF VIRGINIA


Present: Judges Felton, Kelsey and Senior Judge Willis
Argued at Richmond, Virginia


COMMONWEALTH OF VIRGINIA
                                           MEMORANDUM OPINION * BY
v.   Record No. 0256-03-2                JUDGE WALTER S. FELTON, JR.
                                                JUNE 10, 2003
ELWOOD F. HAMLET, JR.


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    Timothy J. Hauler, Judge

          Amy L. Marshall, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General;
          Margaret W. Reed, Assistant Attorney General,
          on brief), for appellant.

          Gregory R. Sheldon (Goodwin, Sutton & DuVal,
          P.L.C., on brief), for appellee.


     Pursuant to Code § 19.2-398, the Commonwealth appeals the

judgment of the trial court granting Elwood Hamlet's motion to

suppress evidence.   The Commonwealth contends that Officer Culp

engaged Hamlet in a consensual encounter, which led to his arrest

for being drunk in public.    As a result, the Commonwealth argues

the search and seizure of Hamlet was incident to a lawful arrest.

For the following reasons, we reverse the judgment of the trial

court.




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

        On August 6, 2002, Chesterfield County Police Officer

Robert Culp, in uniform and displaying his badge of authority,

was operating a marked police unit around midnight.       Officer

Culp was patrolling an area where there had been several recent

larcenies, including one the previous evening, when he observed

Hamlet walking down the street.

        Officer Culp followed Hamlet for approximately thirty

seconds.    During that period, Hamlet turned his head and

realized an officer was following him.        Thereafter, Hamlet

briefly put his hands down his pants and continued walking.

Officer Culp did not notice anything in Hamlet's hands at any

time.    At the suppression hearing, Officer Culp testified that

when he observed Hamlet placing his hands in his pants, he

believed he was reaching for a weapon.

        Without activating his emergency equipment, Officer Culp

pulled over and approached Hamlet on foot.       When he approached

Hamlet, Officer Culp asked him what he had in his pants.       Hamlet

responded that he was urinating and he was placing his private

parts back in.    Officer Culp testified at the suppression

hearing that Hamlet "clearly was not" urinating and this

misrepresentation added to his suspicions.

        During the encounter, Officer Culp noticed that there was a

"strong odor of alcohol" emanating from Hamlet.       In addition,

Hamlet was uneasy on his feet and was swaying back and forth.

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Officer Culp arrested Hamlet for being drunk in public and

conducted a search. 1   Cocaine was discovered in Hamlet's right

pants pocket and a smoking pipe in the crotch of his pants.

     A suppression hearing was held on December 18, 2002.

Hamlet contended that he was unlawfully seized and searched by

Officer Culp, in violation of his Fourth and Fourteenth

Amendment rights.   Consequently, he asked the court to suppress

all evidence obtained as a result.        Officer Culp was the only

witness called to testify and following his testimony, the trial

court granted Hamlet's motion simply holding, "[t]he motion to

suppress is granted."    The Commonwealth appeals the judgment of

the trial court.

                            II.    ANALYSIS

     In reviewing a pretrial appeal, we "view the evidence in

[the] light most favorable to [the defendant], the prevailing

party below, and we grant all reasonable inferences fairly

deducible from that evidence.     We will not reverse the trial

judge's decision unless it is plainly wrong."        Commonwealth v.

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

(citing Commonwealth v. Holloway, 9 Va. App. 11, 20, 384 S.E.2d

99, 104 (1989)).

     The Commonwealth argues on appeal that the trial court erred

in granting Hamlet's motion to suppress because the seizure of


     1
       The record does not indicate at what point Officer Culp
conducted the search.

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evidence was a result of a lawful search incident to an arrest for

being drunk in public.    We agree.

          "Ultimate questions of reasonable suspicion
          and probable cause to make a warrantless
          search" involve questions of both law and
          fact and are reviewed de novo on appeal.
          Ornelas v. United States, 517 U.S. 690,
          [691], 116 S. Ct. 1657, 1659, 134 L. Ed. 2d
          911 (1996). In performing such analysis, we
          are bound by the trial court's findings of
          historical fact unless "plainly wrong" or
          without evidence to support them and we give
          due weight to the inferences drawn from
          those facts by resident judges and local law
          enforcement officers. Id. at [699], 116
          S. Ct. at 1663. We analyze a trial judge's
          determination whether the Fourth Amendment
          was implicated by applying de novo our own
          legal analysis of whether based on those
          facts a seizure occurred.

McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,

261 (1997) (footnote omitted).

                     A.    CONSENSUAL ENCOUNTER

     A police officer does not violate the Fourth Amendment

"merely by approaching an individual on the street, identifying

[himself], and asking the individual questions."    Buck v.

Commonwealth, 20 Va. App. 298, 301-02, 456 S.E.2d 534, 535

(1995) (citing Baldwin v. Commonwealth, 243 Va. 191, 196, 413

S.E.2d 645, 647-48 (1992)).

     The initial engagement between Officer Culp and Hamlet was

a consensual encounter.    A consensual encounter need not be

predicated on suspicion of criminal activity and remains

consensual so long as the encountered citizen voluntarily


                                 - 4 -
cooperates with the police.      Payne v. Commonwealth, 14 Va. App.

86, 88, 414 S.E.2d 869, 870 (1992) (citing United States v.

Wilson, 953 F.2d 116, 121 (4th Cir. 1991)).     Hamlet voluntarily

cooperated with Officer Culp.     At no point during this encounter

did Officer Culp indicate that Hamlet was not free to leave, nor

did Hamlet attempt to leave or refuse to answer Officer Culp's

questions.    In voluntarily responding to questions, Hamlet

consented to the encounter with police.      See United States v.

Mendenhall, 446 U.S. 544 (1980).

                     B.   SEARCH INCIDENT TO ARREST

     At oral argument, Hamlet's attorney conceded that if the

initial encounter was consensual, the officer had probable cause

to arrest Hamlet for being drunk in public.

             One of the established exceptions to the
             Fourth Amendment's warrant requirement is
             for a "search incident to a lawful arrest."
             United States v. Robinson, 414 U.S. 218,
             224, 226, 94 S. Ct. 467, 471, 472, 38
             L. Ed. 2d 427 (1973) (also holding that
             searches incident to arrest "meet the Fourth
             Amendment's requirement of reasonableness");
             see also Chimel v. California, 395 U.S. 752,
             762-63, 89 S. Ct. 2034, 2039-2040, 23
             L. Ed. 2d 685 (1969).

             When delineating the permissible scope of a
             warrantless search incident to arrest, the
             United States Supreme Court has stated that
             a lawful arrest of a suspect authorizes the
             police to conduct "a full search of the
             [arrestee's] person." Robinson, 414 U.S. at
             235, 94 S. Ct. at 477.   In addition, the
             police may search the area within the
             arrestee's immediate control, see Chimel,
             395 U.S. at 763, 89 S. Ct. at 2040, and


                                  - 5 -
          seize his or her personal effects that are
          evidence of the crime.

Commonwealth v. Gilmore, 27 Va. App. 320, 327-28, 498 S.E.2d

464, 468 (1998).

     The search of Hamlet, conducted by Officer Culp, was a

lawful search incident to an arrest.    Officer Culp developed

probable cause to arrest Hamlet for being drunk in public during

the course of the consensual encounter.   During their

conversation, Officer Culp noticed that Hamlet had a "strong

odor of alcohol" about him, he was uneasy on his feet, and was

swaying back and forth.   These factors were sufficient to

establish probable cause for Officer Culp to arrest Hamlet for

being drunk in public.    The lawful arrest permitted Officer Culp

to conduct a full search of Hamlet and seize any evidence of

criminal activity.   The trial court erred in suppressing the

evidence seized from Hamlet.

     The judgment of the trial court is reversed.

                                                         Reversed.




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