                  COURT OF APPEALS OF VIRGINIA


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


COMMONWEALTH OF VIRGINIA
                                       MEMORANDUM OPINION * BY
v.   Record No. 1364-98-3           JUDGE RUDOLPH BUMGARDNER, III
                                          NOVEMBER 24, 1998
DOUGLAS JEROME SMITH


            FROM THE CIRCUIT COURT OF ROANOKE COUNTY
                      Roy B. Willett, Judge
          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellant.

          Robert C. Hagan, Jr., for appellee.



     The Commonwealth appeals the suppression of drugs seized

after a search of the defendant.   It argues that the defendant

consented to the search, but we conclude that the police

illegally seized the defendant before he consented.    After that

seizure, the Commonwealth could prove neither that the evidence

was unconnected to the seizure nor that the defendant freely and

voluntarily consented to the search.   Accordingly, we affirm the

trial court's decision to suppress the evidence.

     "In an appeal by the Commonwealth of an order of the trial

court suppressing evidence, the evidence must be viewed in the

light most favorable to the defendant . . . ."     Commonwealth v.

Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992)

(citations omitted).   While we are bound to review de novo the
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
ultimate questions of reasonable suspicion and probable cause, we

"review findings of historical fact only for clear error,

and . . . give due weight to inferences drawn from those facts by

resident judges and local law enforcement officers."         Ornelas v.

United States, 517 U.S. 690, 699 (1996).       Questions of fact are

binding on appeal unless plainly wrong.       See McGee v.

Commonwealth, 25 Va. App. 193, 198 n.1, 487 S.E.2d 259, 261 n.1

(1997) (en banc).
        Officer Terwilliger was on routine patrol when he saw the

defendant standing behind a Food Lion store near a no trespassing

sign.    He turned his car around and parked about thirty feet from

the defendant to see if he was all right and what he was doing

there.    Terwilliger did not suspect the defendant of criminal

behavior, nor did he call for any assistance.

        As Officer Terwilliger got out of his car, the defendant

walked toward him carrying a large nylon bag.      Terwilliger asked

the defendant what he was doing, and the defendant replied that

he had fought with his girlfriend.       The defendant added that he

had left her apartment, although he could not give her address,

was waiting for a ride, and that she was probably at a nearby pay

phone.    Terwilliger continued talking with the defendant because

he was suspicious of what he perceived as conflicting stories

regarding the girlfriend.    Eventually, he asked the defendant if

he could look in his bag.    The defendant set it down on the

ground, lifted his hands, and said, "go ahead."      Terwilliger took

the bag to his vehicle to use the headlights and began looking in
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it.

       While Terwilliger was inspecting the bag, Officer Hoover

arrived.   He heard the radio message that Terwilliger was marking

off to check a suspicious person.   Without asking whether

Terwilliger needed assistance or being asked to assist, Hoover

patted down the defendant and asked him if he had any weapons.

The defendant replied that he had none and added that he had

never been in any trouble.
       The defendant put his hands in his pockets, and Hoover told

him to keep his hands out of his pockets.   When the defendant

continued to put his hands in his pockets because it was cold,

Hoover said he wanted to know what the defendant had in his

pockets.   After repeated requests, the defendant emptied his

pockets onto the hood of the police car, but he kept a change

purse in his hand.   Hoover asked to see the purse, and the

defendant handed it to him.   When asked what it contained, the

defendant replied it held only money.   Hoover asked if he could

look inside, and the defendant responded, "do you have to look in

it?"   Hoover replied that he just wanted to see what was in it.

The defendant replied "go ahead."   Hoover first found a small

baggy corner with residue and then found two more baggies in a

side compartment that contained a white powdery substance.    The

officers formally arrested and placed the defendant in custody

because of the items found in the change purse.   Those are the

items that the defendant sought to suppress.

       Not every police-citizen encounter implicates the Fourth

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Amendment.   See McGee, 25 Va. App. at 198, 487 S.E.2d at 261;

Iglesias v. Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173

(1988) (en banc).    A consensual encounter occurs where a

defendant voluntarily responds to an officer's request.       See

McGee, 25 Va. App. at 198, 487 S.E.2d at 261.      Such an encounter

becomes a seizure "[o]nly when the officer, by means of physical

force or show of authority, has restrained the liberty of a

citizen. . . ."     Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).      A

person is seized if in view of all the circumstances, a

reasonable person would believe he is not free to leave.       See

Ford v. City of Newport News, 23 Va. App. 137, 142, 474 S.E.2d

848, 850 (1996) (citation omitted).      Factors to consider when

determining whether a seizure occurred are "the threatening

presence of several officers, . . . , some physical touching of

the [suspect], or the use of language or tone of voice indicating

that compliance with the officer's request might be compelled."

United States v. Mendenhall, 446 U.S. 544, 554 (1980).       See
Thomas v. Commonwealth, 24 Va. App. 49, 54, 480 S.E.2d 135, 137

(1997) (en banc) (a seizure requires some physical restraint or

submission to an officer's authority).

     We conclude that the encounter between Officer Terwilliger

and the defendant was consensual.    As Terwilliger exited his

vehicle, the defendant approached him.     The initial encounter was

entirely consensual.    Neither the initial encounter nor the

search of the large nylon bag implicated the Fourth Amendment.

The defendant consented freely and voluntarily to both actions,

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and the circumstances were not coercive.

     The second officer arrived and immediately frisked the

defendant.   He had no basis to conduct a Terry frisk because he

had no knowledge about the situation he was approaching.    He had

no facts that would articulate a reasonable suspicion that the

defendant was engaged in criminal activity because even the

officer who knew the facts did not suspect the defendant was so

engaged.   Hoover had no facts that would articulate a reasonable

suspicion that the defendant was armed and dangerous because

Officer Terwilliger did not suspect the defendant posed a threat.

     Officer Terwilliger's actions imply that he did not feel he

had reasonable grounds to suspect the defendant.   Although

Terwilliger stopped to investigate because the defendant was in a

suspicious location under suspicious circumstances, he was not

worried about the defendant being a threat, and he did not

suspect criminal activity.   The defendant was within a few feet

of him.    Terwilliger was talking with the defendant, but his

attention was focused on his search of the defendant's bag.

Terwilliger never felt the need to frisk the defendant before

returning to the cruiser to search the bag.    Cf. Pennsylvania v.

Mimms, 434 U.S. 106, 112 (1977) ("any man of 'reasonable caution'

would likely have conducted the 'pat down'" (citation omitted)).

Officer Hoover lacked reasonable suspicion to conduct a Terry

search, and when he did, he seized the defendant and implicated

the Fourth Amendment.   A person is seized by a laying on of hands

or an application of physical force to restrain movement.     See

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California v. Hordari D., 499 U.S. 621, 626 (1991).

     The Commonwealth argues that the defendant consented to

Officer Hoover searching in the change purse.     In reply to

Hoover's initial request to look inside the purse, the defendant

asked, "do you have to?" but finally said "go ahead."     "'Consent

to a search . . . must be unequivocal, specific and intelligently

given . . . and it is not lightly to be inferred.'"     Elliotte v.

Commonwealth, 7 Va. App. 234, 239, 372 S.E.2d 416, 419 (1988)

(quoting Via v. Peyton, 284 F. Supp. 961, 967 (W.D. Va. 1968)).
The burden is on the Commonwealth to prove the voluntariness of

the consent and a lack of duress.      See Bumper v. North Carolina,

319 U.S. 543, 548 (1968); Schneckloth v. Bustamonte, 412 U.S.

218, 248-49 (1973); Lowe v. Commonwealth, 218 Va. 670, 678, 239

S.E.2d 112, 117 (1977), cert. denied, 435 U.S. 930 (1978).      This

burden "cannot be discharged by showing no more than acquiescence

to a claim of lawful authority."     See Bumper, 319 U.S. at 548-49.

Whether a consent to search is voluntary is a question of fact.
 See Gray v. Commonwealth, 233 Va. 313, 327, 356 S.E.2d 157, 164,

cert. denied, 484 U.S. 873 (1987).

     The defendant gave consent under circumstances similar to

those in Satchell v. Commonwealth, 20 Va. App. 641, 460 S.E.2d

253 (1995) (en banc).   An officer who suspected that Satchell was

selling drugs followed the defendant up the steps of a house.

When Satchell could not get inside because the door was locked,

the officer asked, "What's in your hand pal?"     Satchell opened

his hand in response to the question and revealed illegal drugs.

                               - 6 -
 Satchell held that the police officer illegally seized the

defendant and discovered the drugs only upon that unlawful

seizure.   See id. at 650, 460 S.E.2d at 257.   In this case, the

officer illegally seized the defendant and discovered the drugs

in the coin purse only when the defendant responded to the

officer's request upon this unlawful seizure.   As in Satchell,

the evidence must be suppressed.

     We find no evidence that the defendant's consent was

voluntary and unconnected to the seizure.   After seizing the

defendant, Officer Hoover asked about weapons, got the defendant

to empty his pockets, and then persisted in searching the coin

purse.   Hoover was not authorized to do that even if he

reasonably suspected that the defendant had a weapon because the

change purse could not conceal one.    When the defendant complied

with Hoover's entreaties, he was responding to pressure created

by the seizure.   He did not voluntarily consent to the search of

his coin purse, and the evidence found in it is not admissible.
     We affirm the suppression of the evidence.
                                                           Affirmed.




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