                    COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Overton and Senior Judge Baker
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                         MEMORANDUM OPINION * BY
v.        Record No. 1298-98-1          JUDGE NELSON T. OVERTON
                                            OCTOBER 6, 1998
ROBERT LEE TAYLOR


               FROM THE CIRCUIT COURT OF YORK COUNTY
                   N. Prentis Smiley, Jr., Judge
          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellant.

          Karen M. Vannan (Buxton, Lasris & Vannan, on
          brief), for appellee.



     The Commonwealth of Virginia appeals the suppression of a

cocaine smoking device found in the pocket of Robert Lee Taylor

(defendant).   The Commonwealth contends the trial court

erroneously classified the police-citizen encounter which led to

the defendant's search and arrest as a Terry stop.     Because we

agree and hold that the encounter was consensual, we reverse.

     The parties are fully conversant with the facts of the case

and because this memorandum opinion has no precedental value, no

recitation of the facts is necessary.

     On an appeal from a trial court's ruling on a suppression

motion, we view the evidence in the light most favorable to the

party prevailing below, in this case the defendant.     See

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991).    However, "'[u]ltimate questions of reasonable

suspicion and probable cause . . . are reviewed de novo on

appeal.'"     McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487

S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United

States, 517 U.S. 690, 691 (1996)).        Similarly, whether a seizure

occurred at all is a question for this Court to review de novo.

See id. at 198, 487 S.E.2d at 261.
     In Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455

S.E.2d 744, 747 (1995), this Court summarized the three types of

police-citizen encounters:

             Fourth Amendment jurisprudence recognizes

             three categories of police-citizen

             confrontations:   (1) consensual encounters,

             (2) brief, minimally intrusive investigatory

             detentions, based upon specific, articulable

             facts, commonly referred to as Terry stops,

             and (3) highly intrusive arrests and searches

             founded on probable cause.

A Terry stop 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."      United States v. Mendenhall, 446

U.S. 544, 554 (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




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as would under the Constitution require some particularized and

objective justification."    Id.

       The trial court ruled that when Police Officer Mattis

approached the defendant and asked him questions, defendant was

seized.   However, Officer Mattis's actions did not create a

seizure but were only an invitation to talk.        "[L]aw enforcement

officers do not violate the Fourth Amendment by merely

approaching an individual on the street or in another public

place, by asking him if he is willing to answer some questions,

[or] by putting questions to him if the person is willing to

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

       Officer Mattis asked the defendant whether he had drugs,

weapons or illegal contraband.      Mattis did not touch him or draw

his weapon.   Mattis did not tell the defendant to remain where he

was.   Defendant can point to no act which, either implicitly or

expressly, restrained his liberty.         In these circumstances, the

defendant was not seized for purposes of the Fourth Amendment.

       Because the defendant was not seized, and the defendant

consented to the subsequent search of his person, the defendant's

crack pipe should not have been excluded.        The trial court's

ruling on the motion to suppress is reversed.
                                                              Reversed.




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