                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Bray
Argued at Richmond, Virginia


NATHANIEL LAMONT CARTWRIGHT
                                         MEMORANDUM OPINION * BY
v.   Record No. 1349-00-2                 JUDGE LARRY G. ELDER
                                              MAY 15, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge

          Gregory W. Franklin, Assistant Public
          Defender (Office of the Public Defender, on
          brief), for appellant.

          Susan M. Harris, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Nathaniel L. Cartwright (appellant) appeals from his bench

trial conviction for possession of cocaine pursuant to Code

§ 18.2-250.   On appeal, he contends the trial court erroneously

denied his motion to suppress because the evidence established

his purported consent to search was invalid in the face of his

illegal seizure.   We hold that, although appellant was on foot

inside a convenience store at the time of the encounter, the

officer's direction to appellant and others to "put their hands

up," coupled with the officer's subsequent retention of

appellant's driver's license without reasonable suspicion or

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
probable cause, vitiated appellant's consent to a search of his

person because a reasonable person in appellant's position would

have believed he was not free to leave at the time he

purportedly gave his consent for the search.     For these reasons,

we reverse appellant's conviction and remand for further

proceedings consistent with this opinion if the Commonwealth be

so advised.

                                  I.

                              BACKGROUND

     On December 30, 1999, three uniformed officers, LaMonte

Tucker, Robin Geck and a third person, responded to a call for

service which originated from the pay telephone in the parking

lot of a convenience store.    After completing the call, Officer

Tucker decided to enter the store.      Tucker frequented the store

and knew the clerks.   Upon entering, Tucker "said put your hands

up" in a "friendly joking manner."      Officer Tucker had his hands

in his pockets at the time, and none of the officers displayed a

weapon.   When Tucker "said put your hands up," appellant, a

store customer, put his hands up above his shoulders, as did one

or two other customers.

     Minutes later, Officer Tucker approached appellant and his

companion and "engaged [them] in a casual conversation" about

where they lived and what they were doing at the convenience

store.    Officer Geck and the third officer were standing about



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three feet behind Tucker at that time and did not participate in

the conversation.

     Officer Tucker then asked appellant and his companion

whether "they had anything on their person that they wanted to

tell [him] about," and they responded that they did not.    Tucker

asked appellant's companion if he minded if Tucker searched him,

to which appellant's companion responded that he did not mind.

After searching appellant's companion, Tucker asked appellant

the same question, and appellant, too, said, "yeah, I could

search him."    As Tucker walked toward appellant to search him,

"[appellant] started searching himself and went to his right

pocket" and "started pulling out items."   When he "pulled out a

large off-white rock-like substance, . . . [he] tried to put it

back in his pocket" in order "to conceal it."   Tucker said,

"come on, let me see it, let me see it, and [appellant] pulled

it back out."   Tucker then took the item away from appellant and

placed him in handcuffs.   Tucker gave confusing testimony about

whether he obtained appellant's identification during the

encounter and, if so, when.

     Appellant moved to suppress, contending his consent to the

search was not voluntary because he was subject to an illegal

seizure at the time he purportedly consented.   In denying the

motion, the trial court found that when Officer Tucker said,

"Put your hands up . . . [,] it was evident from his tone of



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voice that he did not expect anyone to comply" but that

appellant "did put his hands above his shoulders."

             As far as [Officer Tucker] coming in and
             saying put your hands up, that's all over
             with. I mean, everybody had their hands
             down. It's uncontradicted evidence he went
             over and talked to these two men rather
             friendly and nothing was said. It's just
             something about can I search you?
             [Appellant] could have said no.

It also found that during Tucker's subsequent conversation with

appellant, appellant produced his driver's license, and "[a]t

this point, Officer Tucker requested permission to perform a

patdown search of [appellant] for any weapons in order to insure

his safety."    Appellant consented to the search and then

produced a "white rock like substance" that he admitted was

crack cocaine.    The court said Officer Tucker did not have the

reasonable, articulable suspicion necessary to justify a

detention or pat-down search but concluded that appellant

consented to a search.

                                  II.

                               ANALYSIS

     "A seizure occurs when an individual is either physically

restrained or has submitted to a show of authority."      McGee v.

Commonwealth, 25 Va. App. 193, 199, 487 S.E.2d 259, 262 (1997)

(en banc).     "Whether a seizure has occurred . . . depends upon

whether, under the totality of the circumstances, a reasonable

person would have believed that he or she was not free to


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leave."    Id. at 199-200, 487 S.E.2d at 262.   Other factors

relevant under the "totality of the circumstances" analysis

include "the threatening presence of several officers, the

display of a weapon by an officer, some physical touching of the

person of the citizen, 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, 100

S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980).

     Whether a particular "consent to a search was in fact

voluntary or was the product of duress or coercion, express or

implied, is a question of fact to be determined from the

totality of all the circumstances."     Schneckloth v. Bustamonte,

412 U.S. 218, 227, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854

(1973)).   On appeal, we view the evidence in the light most

favorable to the prevailing party, here the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.    See Commonwealth v. Grimstead, 12 Va. App. 1066,

1067, 407 S.E.2d 47, 48 (1991).    "[W]e 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."    McGee, 25 Va. App. at 198, 487

S.E.2d at 261.   However, we review de novo the trial court's

application of defined legal standards such as probable cause

and reasonable suspicion to the particular facts of the case.

                                - 5 -
Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657,

1659, 134 L. Ed. 2d 911 (1996).

     Although the trial court, in its opinion, and the parties,

on brief, focused primarily on Officer Tucker's statement to the

occupants of the convenience store to "put [their] hands up," we

find the officer's retention of appellant's driver's license to

be another important factor in the totality-of-the-circumstances

analysis. 1   A request for identification made during an otherwise

consensual encounter does not, standing alone, convert the

encounter into a seizure.    See, e.g., INS v. Delgado, 466 U.S.

210, 216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247 (1984).

However, in the case of the driver of a stationary automobile,

we have held "that 'what began as a consensual encounter quickly

became an investigative detention once the [officer] received

[the individual's] driver's license and did not return it to

him.'"   Richmond v. Commonwealth, 22 Va. App. 257, 261, 468

S.E.2d 708, 710 (1996) (quoting United States v. Lambert, 46

F.3d 1064, 1068 (10th Cir. 1995)).

     Richmond turned on our conclusion that "[a] reasonable

person in [Richmond's] circumstances would not have believed


     1
       This approach is not barred by Rule 5A:18. Appellant
argued to the trial court that Officer Tucker's possible
retention of appellant's license when he requested permission
to search was a factor for consideration in the
totality-of-the-circumstances analysis. The trial court made
findings of fact on this issue but did not indicate what impact
it had on the court's ruling.


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that he could terminate the encounter once the officer retained

the driver's license and returned to his police vehicle to run a

record check."   Id.    Although we observed that Richmond's

departure by car without his driver's license would have

violated Code § 46.2-104, which prohibits driving without a

license, this observation was not a dispositive factor in our

analysis.   See id.    Rather, as we subsequently clarified in

Piggott v. Commonwealth, 34 Va. App. 45, 537 S.E.2d 618 (2000),

a case involving a passenger, by "retain[ing] [the passenger's]

identification [for a few minutes] while he ran a warrant check

. . . , [the officer] implicitly commanded [the passenger] to

stay."   Id. at 49, 537 S.E.2d at 619.   Under the totality of the

circumstances as they existed in Piggott, "[a] reasonable person

. . . would not have believed that he could terminate the

encounter and walk away."     Id. (emphasis added); see also

Lambert, 46 F.3d at 1069 n.4; Salt Lake City v. Ray, 998 P.2d

274, 276-78 (Utah Ct. App. 2000) (holding that first officer's

possession of pedestrian's i.d. to run warrant check when second

officer sought consent to search constituted seizure which

vitiated consent, noting that "critical time at issue [was]

. . . when [the pedestrian] consented to the search"). 2


     2
       We are aware of the Virginia Supreme Court's recent
decision in McCain v. Commonwealth, ___ Va. ___, ___ S.E.2d ___
(Apr. 20, 2001), but we conclude that it is factually
distinguishable from appellant's case. In McCain, the request
for identification occurred "without any show of force or
display of authority that would have led a reasonable person to

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     Here, the trial court found that appellant consented to the

search at a time when Tucker, a uniformed police officer whose

two similarly-clad partners stood nearby, retained possession of

appellant's identification.   That same officer, only moments

before, had told all occupants of the convenience store to "put

[their] hands up."   The trial court found as a fact that

appellant had responded to that statement by raising his hands

above his shoulders.   The store clerks apparently knew Officer

Tucker and did not comply because they may have believed he was

joking.    However, appellant did not know Officer Tucker, and

appellant responded in an objectively reasonable fashion by

attempting to comply with the command of a uniformed police

officer.   When Tucker subsequently obtained appellant's driver's

license, questioned him about what he had "on [his] person," and

asked if he could search appellant, Tucker's actions, viewed in

their entirety, escalated the consensual encounter into a

seizure and vitiated appellant's consent to be searched.    Thus,

the trial court erred in concluding that appellant validly

consented to the search and voluntarily removed from his pocket


believe that he was not free to leave the scene of the
encounter." Id. at ___, ___ S.E.2d at ___. Further, the
officer conducted a warrant check and returned McCain's driver's
license before seeking consent to search McCain's vehicle and
person. Id. at ___, ___ S.E.2d at ___. Finally, when the
officer said he needed to conduct a pat-down search for weapons,
McCain refused and walked away. Id. at ___, ___ S.E.2d at ___.
Under those circumstances, including McCain's refusal to submit
to the officer's show of authority, the Court held that McCain
was not seized. Id. at ___, ___ S.E.2d at ___.

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the cocaine on which his conviction was based.   Because

appellant's removal of the cocaine from his pocket stemmed from

the illegal seizure and de facto search, the exclusionary rule

required suppression of the cocaine.

     For these reasons, we hold that the trial court's denial of

appellant's motion to suppress was erroneous.    Therefore, we

reverse appellant's conviction and remand for further

proceedings consistent with this opinion.

                                            Reversed and remanded.




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