                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia


WESTLEY LEE HAYES
                                         MEMORANDUM OPINION * BY
v.   Record No. 1210-99-3             JUDGE JERE M. H. WILLIS, JR.
                                             APRIL 18, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                      James F. Ingram, Judge

          S. Jane Chittom, Appellate Counsel (Elwood
          Earl Sanders, Jr.; Public Defender
          Commission, on briefs), for appellant.

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


     On appeal from his conviction of possession of a firearm

while in possession of cocaine, in violation of Code

§ 18.2-308.4; possession of cocaine with the intent to

distribute, in violation of Code § 18.2-248; possession of a

firearm by a previously convicted felon, in violation of Code

§ 18.2-308.2; and carrying a concealed weapon, in violation of

Code § 18.2-308, Westley Lee Hayes contends that the trial court

erred in denying his motion to suppress.   We affirm the judgment

of the trial court.



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                  In reviewing a trial court's denial of
             a motion to suppress, "[t]he burden is upon
             [the defendant] to show that th[e] ruling,
             when the evidence is considered most
             favorably to the Commonwealth, constituted
             reversible error." "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. 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
             . . . . We analyze a trial [court'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) (en banc) (citations omitted).

        On October 31, 1998, Danville Police Officer David Austin

was ordered to investigate neighbor complaints about drug sales

occurring on Short Street.    When he arrived at the address, he

saw a large group of people standing in the yard of Hayes'

sister's home.    As Officer Austin exited his police cruiser, the

group began dispersing.    Officer Austin, noticing Hayes pouring

something out of a bottle, walked up to Hayes to get a closer

look.

        Officer Austin asked Hayes to "hold up," and then asked

what was in the bottle.    Hayes admitted it was beer, handed the

bottle to Officer Austin, and then "turned to the side and put

his hands up under the front of his coat . . . with his back

slightly turned to [the officer]."       Officer Austin asked Hayes


                                 - 2 -
to remove his hands from his coat.     When Hayes did not, Officer

Austin asked whether Hayes was carrying a gun or other weapon.

     Hayes lifted the front of his coat toward Officer Austin,

exposing a gun tucked into the front waistband of his pants.

When Hayes admitted that he did not have a concealed weapon

permit, Officer Austin placed him under arrest for carrying a

concealed weapon and for possession of an open alcohol

container.   Officer Austin handcuffed Hayes and searched him,

finding fifty-one rocks of crack cocaine in Hayes' socks.

     The trial court denied Hayes' motion to suppress the

evidence found on his person and convicted him of possession of

a firearm while possessing cocaine, in violation of Code

§ 18.2-308.4, possession of cocaine with the intent to

distribute, in violation of Code § 18.2-248, possession of a

firearm by a previously convicted felon, in violation of Code

§ 18.2-308.2, and carrying a concealed weapon, in violation of

Code § 18.2-308.

     Hayes contends that his motion to suppress should have been

granted, because the evidence was discovered as the result of an

unlawful seizure of his person.

     Hayes relies on Knowles v. Iowa, 525 U.S. 113 (1998).       In

Knowles, the United States Supreme Court reversed a conviction

based upon evidence seized during a traffic stop.    The state

defended the search as a reasonable "search incident to a

summons," equating it to a search incident to arrest.    The

                               - 3 -
Supreme Court held that a non-custodial arrest, wherein the

accused is released on a summons, does not justify an incidental

search as an exception to the Fourth Amendment warrant

requirement.     See Knowles, 525 U.S. at 118-19.   Hayes argues

that drinking in public is a Class 4 misdemeanor, not supporting

an incidental search.    Hayes, however, misstates the chronology

of events.

     Officer Austin arrested Hayes after seeing his concealed

weapon.   If that arrest was lawful, the subsequent search, in

which Officer Austin found the cocaine, was a search incident to

a custodial arrest, an exception to the warrant requirement.

See United States v. Robinson, 414 U.S. 218, 235-36 (1973);

Hayes v. Commonwealth, 29 Va. App. 647, 656, 514 S.E.2d 357, 361

(1999).   Thus, the issue in this case is whether Officer

Austin's initial encounter with Hayes was consensual, rather

than an unlawful seizure.

     The trial court ruled:

             I think the fact that the officer saw the
             defendant pouring something from a bottle in
             the front yard, he walked over to him, the
             defendant told him it was a beer and that he
             was pouring it out. He handed the bottle to
             the officer and then the defendant reached
             up and pulled his coat up. The Officer saw
             the weapon and then he was, thereafter,
             arrested for having an open bottle and
             carrying a concealed weapon. He was then
             searched and that's when the drugs were
             found on him. I don't think there's a
             Fourth Amendment violation here. The Motion
             to Suppress will be overruled.


                                 - 4 -
     "Whether a seizure occurs must be determined by evaluating

the facts of each case to determine whether the manner in which

the police identified the individual as a suspect conveys to the

person that he or she is a suspect and is not free to leave."

McGee, 25 Va. App. at 200-01, 487 S.E.2d at 262-63.   The seizure

in McGee and in similar cases occurred not merely because the

police approached a citizen, but rather because the police

informed the citizen specifically that he was under suspicion of

criminal activity, thus giving rise to a reasonable apprehension

of restraint.   See McGee, 25 Va. App. at 201, 487 S.E.2d at 263.

At no time until Hayes voluntarily exposed the gun did Officer

Austin tell Hayes that he was suspected of illegal activity.

     Hayes relies upon Parker v. Commonwealth, 255 Va. 96, 496

S.E.2d 47 (1998).    In Parker, a police cruiser followed Parker

as he attempted to walk away from a suspicious activity.    The

cruiser followed him into a housing project, where an officer,

in uniform and with weapons clearly visible, detained him.   The

Virginia Supreme Court held that such a display of authority

clearly constituted a restraint of liberty.    See id. at 103, 496

S.E.2d at 51.

     Parker and McGee are distinguishable from this case.

Officer Austin's display of authority more resembles the

officer's conduct in Baldwin v. Commonwealth, 243 Va. 191, 413

S.E.2d 645 (1992).   Officer Austin parked his vehicle on the

street, exited the vehicle, and walked into the open yard to

                                - 5 -
speak with Hayes.   Officer Austin did not curtail Hayes' liberty

until Hayes voluntarily revealed the weapon.   At that point,

Officer Austin lawfully placed Hayes under arrest.   Only

incident to that arrest did Officer Austin search Hayes and

discover the cocaine.

     Accordingly, the judgment of the trial court is affirmed.

                                                        Affirmed.




                               - 6 -
Benton, J., dissenting.

     The evidence proved that the police officer saw several

people in the front yard of a private residence.    When the

officer walked onto the yard, he saw Westley Lee Hayes holding a

bottle.    As the officer approached, Hayes began pouring liquid

from the bottle and walked away from the officer.   The officer

told Hayes to "hold up," walked next to Hayes, and asked Hayes

what he was pouring.    When Hayes responded "beer," the officer

asked for the bottle.

     These facts prove a seizure because they establish that "a

reasonable person would have believed he was not free to leave."

United States v. Mendenhall, 446 U.S. 544, 554 (1980).    When the

officer went onto the private property, told Hayes to "hold up"

as Hayes walked away from him, and then asked Hayes for the beer

bottle, the officer was acting under his badge of authority to

effect a detention for what he perceived to be a violation of

the law.    See Parker v. Commonwealth, 255 Va. 96, 103, 496

S.E.2d 47, 51 (1998) (holding that a police officer, who drives

onto private property to pursue an individual and then

encounters that person, has exercised his authority to restrain

the liberty of that individual).   As the Supreme Court noted in

Parker, its decision in "Baldwin [v. Commonwealth, 243 Va. 191,

195, 413 S.E.2d 645, 647 (1992),] is readily distinguishable

[from these circumstances] and is limited to its unique facts."

Parker, 255 Va. at 103, 496 S.E.2d at 51.    Significantly, the

                                - 7 -
facts in Baldwin did not establish that Baldwin was walking away

to avoid the officer when the officer called to him.     See 243

Va. at 194, 413 S.E.2d at 647.    The evidence proved that Baldwin

was going toward a residence when the officer entered the

parking lot.   Id. at 194, 413 S.E.2d at 646.

     The seizure was unlawful because the officer had no

reasonable basis to detain Hayes.    The officer wrongfully

believed that Hayes was violating a local ordinance, which only

prohibited "possession of an opened alcoholic beverage container

in any public park, playground, or street."     City of Danville,

Ordinance No. 98-11.15 (or City of Danville Code § 23-12.1).

Hayes was in the yard of a private residence; therefore, his

conduct did not violate the ordinance.   An officer's detention

of an individual based on a mistaken view that he or she has

witnessed a violation of law is not objectively reasonable and,

therefore, is unlawful.   See United States v. Lopez-Valdez, 178

F.3d 282, 288-89 (5th Cir. 1999) (holding that an officer's

detention of the accused for what the officer mistakenly

believed was a violation of the Code was unreasonable).

     Because the detention was unlawful, the cocaine that the

officer discovered should have been suppressed.     See McGee v.

Commonwealth, 25 Va. App. 193, 203-04, 487 S.E.2d 259, 264

(1997) (en banc).   For these reasons, I would hold that the

trial judge erred in failing to suppress the evidence.    I

dissent.

                                 - 8 -
