                  COURT OF APPEALS OF VIRGINIA


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


GERALD McGHEE
                                         MEMORANDUM OPINION * BY
v.        Record No. 0418-97-2          JUDGE SAM W. COLEMAN III
                                             MARCH 3, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Robert W. Duling, Judge
          Jonathan David (Joseph D. Morrissey; James T.
          Maloney; Morrissey, Hershner & Jacobs, on
          brief), for appellant.

          Ruth Ann Morken, Assistant Attorney General
          (Richard Cullen, Attorney General, on brief),
          for appellee.



     City of Richmond police detectives searched Gerald McGhee as

he disembarked from a bus at a bus terminal in Richmond and

recovered from him several rocks of cocaine.   McGhee was

convicted in a bench trial for possession of cocaine with the

intent to distribute.   On appeal, McGhee contends the trial court

erred in denying his motion to suppress the cocaine, because, he

asserts, he was unlawfully seized in violation of the Fourth

Amendment, and he did not voluntarily consent to the search.

Finding no error, we affirm the conviction.

                           I.   BACKGROUND

     When the evidence is viewed in the light most favorable to

the Commonwealth, the party prevailing at trial, see Greene v.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139-40

(1994), it proved that City of Richmond Police Detectives

Stephanie Ruffin and Ronnie Armstead observed McGhee, who was

carrying a blue duffel bag, and another person exit a bus at the

Richmond Greyhound Bus Terminal.    As he exited, McGhee looked

around the terminal platform in a manner that Ruffin thought

suspicious.   McGhee and the other man spoke briefly and then

separated.
       Ruffin approached McGhee, identified herself, displayed her

badge, and asked McGhee if she could speak with him.    McGhee

replied, "sure," and walked a few feet away from Ruffin.

Believing that McGhee was going to a place where he could speak

privately with her, Ruffin advised him that he "didn't have to go

anywhere" in order for them to talk.    Ruffin then asked where

McGhee was going, to which he responded Charlotte.    She next

asked McGhee for identification and observed McGhee's hand begin

to shake as he was handing it over.     Ruffin told McGhee that he

was not under arrest or under detention.    Ruffin then asked

McGhee if she could search his duffel bag.    In response, McGhee

removed the bag from his shoulder and handed it to the detective.

       Before searching the duffel bag, Ruffin asked McGhee if

Armstead could search his person while she searched the duffel

bag.   Without speaking, McGhee turned and stepped towards

Armstead, lifted his arms, and held them in a position parallel

to the ground.   Armstead told McGhee that he could put his arms



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down and that the search could be done behind the bus to avoid

embarrassment.   McGhee followed Armstead to the other side of the

bus where Armstead patted down McGhee's outer clothing and felt

chunky, irregular shapes in the left side of McGhee's jacket

which Armstead believed to be narcotics.   Armstead looked inside

the pocket and observed several rocks of cocaine.   McGhee was

arrested and charged with possession of cocaine with the intent

to distribute.   Ruffin testified that she did not complete a

search of McGhee's duffel bag because she heard McGhee being

handcuffed and arrested before getting into a search.
     The trial court denied McGhee's motion to suppress the

cocaine ruling that McGhee had not been seized for Fourth

Amendment purposes by the detectives and that he voluntarily

consented to the personal search.

                      II.   STANDARD OF REVIEW

     When a trial court's denial of a motion to suppress is

reviewed on appeal, the burden is upon the appellant to

demonstrate that the trial court's ruling, considering the

evidence and reasonable inferences fairly deducible therefrom in

the light most favorable to the Commonwealth, constituted

"reversible error."   Fore v. Commonwealth, 220 Va. 1007, 1010,

265 S.E.2d 729, 731 (1980).
          "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


                                - 3 -
          support it, and we give due weight to the
          inferences drawn from those facts by resident
          judges and local law enforcement officers.


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

261 (1997) (en banc) (quoting Ornelas v. United States, 116

S. Ct. 1657, 1659, 1663 (1996)).    "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, 25 Va. App. at 198, 487 S.E.2d

at 261.
                III.   INITIAL ENCOUNTER WITH POLICE

     A person is "seized" within the meaning of the Fourth

Amendment if, "'in view of all of the circumstances surrounding

the incident, a reasonable person would have believed that he was

free to leave.'"   Satchell v. Commonwealth, 20 Va. App. 641, 648,

460 S.E.2d 253, 256 (1995) (en banc) (quoting United States v.

Mendenhall, 446 U.S. 544, 554 (1980)).    A "voluntary or

consensual encounter between a police officer and a citizen does

not implicate the Fourth Amendment as long as 'a reasonable

person would understand that he or she could refuse to

cooperate.'"   Lawrence v. Commonwealth, 17 Va. App. 140, 144, 435

S.E.2d 591, 594 (1993) (quoting United States v. Wilson, 953 F.2d

116, 121 (4th Cir. 1991)).   In this vein, "[a]n encounter between

a law enforcement officer and a citizen in which the officer

merely identifies himself and states that he is conducting a

narcotics investigation, without more, is not a seizure within




                                - 4 -
the meaning of the Fourth Amendment, but is, instead, a

consensual encounter."    McGee, 25 Va. App. at 199, 487 S.E.2d at

262.   In order for a "seizure" to occur, there must be some

physical force used or threatened or some demonstrable show of

police authority that would reasonably connote or communicate to

the person that he was being detained and was not free to leave.

 Id.

       Considering the totality of the circumstances and granting

to the Commonwealth the reasonable inferences which flow from the

proven facts, we hold that McGhee's initial encounter with Ruffin

was consensual and was not a "seizure" that implicated the Fourth

Amendment.    Ruffin approached McGhee and asked him if he would

speak with her.   McGhee replied "sure."   Ruffin did not display

her weapon.   She did not touch McGhee or restrict his freedom of

movement.    She informed McGhee that was he not being arrested or

detained.    Although Ruffin did tell McGhee that he "didn't have

to go anywhere" when he moved away from her, the trial court

necessarily concluded that McGhee was attempting to leave but was

stepping to a place where he could speak privately with Ruffin.

Based on McGhee's response of "sure" and the fact that McGhee

remained there and cooperated, and in view of the fact that

Ruffin's statement "related that the conversation could take

place where they were [standing at the time] and there was no

need to move to another location for that conversation," we are

bound by the trial court's finding of historical fact.    Viewing



                                - 5 -
the evidence in the light most favorable to the Commonwealth,

there was no proof of use or threat of physical force or display

of authority from which a reasonable person could have believed

that he or she was not free to leave during Ruffin's inquiry, see

Baldwin v. Commonwealth, 243 Va. 191, 196-99, 413 S.E.2d 645,

648-49 (1992), nor did the evidence prove that McGhee withdrew or

intended to withdraw his consent to the encounter when he moved

away from Ruffin.    See Lawrence, 17 Va. App. at 146, 435 S.E.2d

at 595 (recognizing that withdrawal of consent requires an

"unequivocal act or statement of withdrawal").    Therefore, we

find, as did the trial court, that McGhee was not "seized" by

Ruffin within the meaning of the Fourth Amendment during their

initial encounter.
                       IV.   CONSENT TO SEARCH

     A search conducted with the free and voluntary consent of

the accused is permissible under the Fourth Amendment.     See

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).     "[C]onsent

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

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

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

Although consent may not be grounded on a person's failure to

resist police action, id., it may be inferred "from the actions

and behavior of the defendant," which connote agreement or a

willingness to cooperate.    McGee v. Commonwealth, 23 Va. App.

334, 343, 477 S.E.2d 14, 19 (1996), rev'd on other grounds, 25



                                - 6 -
Va. App. 193, 487 S.E.2d 259 (1997); see Hairston v.

Commonwealth, 216 Va. 387, 388-89, 219 S.E.2d 668, 669 (1975)

(per curiam).   The Commonwealth "bears the burden of establishing

consent [to search] and this burden is heavier where the consent

is based on implication."   Walls v. Commonwealth, 2 Va. App. 639,

645, 347 S.E.2d 175, 179 (1986).

     In this case, McGhee's voluntary consent to Armstead's

personal search may be inferred by his conduct.   Ruffin asked

McGhee if he would permit Armstead to search him.   In direct

response, McGhee turned and walked toward Armstead while raising

his arms parallel to the ground as if to permit and facilitate a

search.   McGhee's actions were an affirmative and unequivocal

grant of consent for Armstead to search him.   See United States

v. Wilson, 895 F.2d 168, 172 (4th Cir. 1990) (holding that

defendant, without speaking, affirmatively consented to search of

his person by shrugging his shoulders and extending his arms as

response to officer's request to search); McGee, 23 Va. App. at

343-44, 477 S.E.2d at 19 (holding that seated defendant

voluntarily consented to search of his person by standing up and

extending his arms).

     Upon de novo review, considering the evidence in the light
most favorable to the Commonwealth and according it all

reasonable inferences fairly deducible therefrom, we hold that

the cocaine was seized pursuant to McGhee's voluntary consent to

be searched after being approached by police detectives.




                               - 7 -
Accordingly, the trial court did not err when it denied McGhee's

motion to suppress, and we affirm the conviction.

                                                       Affirmed.




                              - 8 -
Benton, J., dissenting.


     Because I believe the evidence proved that the initial

encounter between Detective Ruffin and Gerald McGhee was a

seizure under the Fourth Amendment and that Ruffin did not have a

reasonable, articulable suspicion justifying the investigatory

stop, I would reverse the trial judge's refusal to suppress the

evidence.   Furthermore, I would hold that the Commonwealth did

not meet its burden of proving McGhee consented to the search of

his person.
                                I.

     "A consensual encounter occurs when police officers approach

persons in public places 'to ask them questions,' provided 'a

reasonable person would understand that he or she could refuse to

cooperate.'"   Payne v. Commonwealth, 14 Va. App. 86, 88, 414

S.E.2d 869, 870 (1992) (citations omitted).    "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 as would under the Constitution

require some particularized and objective justification."       United

States v. Mendenhall, 446 U.S. 544, 554 (1979).    Thus, the

encounter remains consensual only "as long as the citizen

voluntarily cooperates with the police."     United States v.

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

     An encounter is not consensual "if, in view of all of the

circumstances surrounding the incident, a reasonable person would



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have believed that he was not free to leave."    Mendenhall, 446

U.S. at 554.   "The 'principle embodied by the phrase "free to

leave" means the ability to ignore the police and to walk away

from them,' to '"feel free to decline the officers' requests or

otherwise terminate the encounter."'"    Payne, 14 Va. App. at 89,

414 S.E.2d at 870 (citations omitted).   "Fourth Amendment

scrutiny is triggered . . . the moment an encounter '"loses its

consensual nature."'"   Id. at 88, 414 S.E.2d at 870 (citations

omitted).
     The evidence proves that after McGhee gave his ticket to the

bus driver and was walking to board a bus at Gate 17, Detective

Ruffin approached him, displayed her badge, and asked if she

could speak with him.   Although McGhee said "sure," he moved away

from Ruffin.   When he had gone "approximately five feet," Ruffin

told McGhee that "he didn't have to go anywhere."   In response to

this comment, McGhee stopped walking.    Ruffin then began

questioning McGhee.

     Although Ruffin's initial approach to McGhee was an attempt

to have a consensual encounter, the consensual aspect of this

encounter disappeared when McGhee started to walk away from

Ruffin and Ruffin told McGhee not to "go anywhere."   Under such

circumstances, a reasonable person would not feel free to leave,

to ignore the officer, or to continue to walk away.   For Fourth

Amendment purposes, McGhee was then "seized" by the officer.       See
Payne, 14 Va. App. at 89, 414 S.E.2d at 870.    When McGhee stopped




                              - 10 -
a seizure occurred because he "submitted to [the officer's] show

of authority."   McGee v. Commonwealth, 25 Va. App. 193, 199, 487

S.E.2d 259, 262 (1997) (en banc).

     In characterizing these events, Ruffin said she spoke to

halt McGhee, "[b]elieving that McGhee was going to a place where

he could speak privately with her."      (Emphasis added).   The

officer's subjective belief must give way to the objective facts.

Ruffin stopped McGhee as he was walking to his bus.      He had the

right to walk away.   Indeed, the "'freedom to leave means

fundamentally the freedom to break off contact, in which case

officers must, in the absence of objective justification, leave

the passenger alone.'"   Wilson, 953 F.2d at 122 (citation

omitted).   Furthermore, Ruffin's subjective belief does not

negate the fact that she told McGhee not to walk away.       From this

evidence, it is just as likely that McGhee was walking away from

the officer to board his bus and terminate the attempted

consensual encounter.

     When Ruffin told McGhee "he didn't have to go anywhere,"

this was a show of authority such that McGhee was not free to

leave.   Whatever Ruffin may have subjectively believed, McGhee

did not tell her that he wanted a private conversation.      Acting

on her subjective belief, Ruffin made a demonstrable show of

authority when she told McGhee to remain.     She then asked him to

show her some identification.    These circumstances fail to prove

the encounter was consensual.    Therefore, I would hold that



                                - 11 -
McGhee was seized for purposes of the Fourth Amendment when he

started to walk away and Ruffin told him that he didn't have to

go anywhere.

                                 II.

     "The dispositive question then is whether the officers had a

reasonable basis to suspect [McGhee] of criminal activity to

justify the investigatory stop."       McGee, 25 Va. App. at 201, 487

S.E.2d at 263.   "It is well-established that an investigatory

stop may be initiated only when an officer has 'a reasonable

suspicion, based on objective facts, that the individual is

involved in criminal activity.'"       Riley v. Commonwealth, 13 Va.

App. 494, 496, 412 S.E.2d 724, 725 (1992) (citation omitted).

The officer's testimony of the facts and observations that gave

rise to the stop must amount to more than an "inchoate and

unparticularized suspicion or 'hunch.'"       Terry v. Ohio, 392 U.S.

1, 27 (1968).    "When examining the officer's articulable reasons

for stopping a person, we examine the objective reasonableness of

the officer's behavior rather than the officer's subjective

belief that the conduct indicates criminal activity."       Riley, 13

Va. App. at 496-97, 412 S.E.2d at 725.

     The seizure in this case was unlawful because Ruffin lacked

a reasonable articulable suspicion that criminal activity was

afoot to stop McGhee.   The officers did not testify as to any

conduct by McGhee that gave rise to a reasonable suspicion that

McGhee was engaged in criminal conduct.      Ruffin's stop of McGhee




                               - 12 -
stands only upon her observation of McGhee exiting a bus from

Washington, D.C. carrying a blue duffel bag.    After McGhee spoke

to another man who exited the same bus, McGhee went to board

another bus.    Ruffin had not received any tips about McGhee.    She

did not see anyone commit a crime in her presence.    She did not

suspect that McGhee had just committed a crime.    In fact, she

admitted that one of the reasons she decided to approach McGhee

was "because of the mannerisms and behavior of another

individual."
     "Manifestly, this conduct falls below activity necessary to

justify a reasonable suspicion that a violation of law had

occurred or was occurring."    Zimmerman v. Commonwealth, 234 Va.

609, 612, 363 S.E.2d 708, 710 (1988); see also Riley, 13 Va. App.

at 497-99, 412 S.E.2d at 726-27.    Accordingly, I would hold that

because the seizure was unlawful, any evidence obtained during

the subsequent "consent" search should have been suppressed as

"fruit of the poisonous tree."     Commonwealth v. Ealy, 12 Va. App.

744, 754, 407 S.E.2d 681, 687 (1991).

                                 III.

     I would also hold that McGhee did not consent to a search of

his person.    "It is well settled that the burden is on the

Commonwealth to establish an exception to the warrant

requirement."    Walls v. Commonwealth, 2 Va. App. 639, 645, 347

S.E.2d 175, 178 (1986).   "'Consent to a search . . . must be

unequivocal, specific and intelligently given . . . and it is not



                               - 13 -
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)).       While "consent need not be

given orally but can be determined from the actions and behavior

of the defendant," McGee v. Commonwealth, 23 Va. App. 334, 343,

477 S.E.2d 14, 19 (1996), rev'd on other grounds, 25 Va. App.

193, 487 S.E.2d 259 (1997), "the [Commonwealth] . . . bears the

burden of establishing consent and this burden is heavier where

the alleged consent is based on an implication."       Walls, 2 Va.

App. at 645, 374 S.E.2d at 178.    In this case, there is no

evidence that consent was ever given.

     Nothing in the record proves that McGhee consented to the

search of his person by Detective Armstead.      The evidence proves

that McGhee "never uttered a single word in regard to [Ruffin's]

inquiry to make a search."   When Ruffin ordered McGhee to stop

and asked to search the contents of McGhee's bag, McGhee did not

say anything.    "He took the duffel bag off his right shoulder and

handed it to [Ruffin]."   Ruffin then asked McGhee if her partner,

Detective Armstead, could search his person.      She pointed in the

direction of Armstead who was standing about twelve feet away

behind McGhee.   When McGhee turned and looked where Ruffin

pointed, Armstead "closed in" on McGhee, stopping when he was

about two to three feet away.    Ruffin said McGhee's "eyes

bulged."   This was the first time McGhee had seen Armstead who

was dressed in plain clothes.    McGhee then turned back to Ruffin.



                                - 14 -
     Ruffin identified Armstead to McGhee and told Armstead to

"check [McGhee's] person."    McGhee turned, spread his arms out so

that they were parallel to the ground, and "took a step" toward

Armstead.   Armstead never asked McGhee if he could search him.

McGhee made no statements to Armstead.     Armstead told McGhee to

put his arms down.   Armstead then asked McGhee "Do you want me to

do the search here or over in another area?"     McGhee did not

respond.    Armstead asked him to step to the other side of the bus

and walked toward an empty bus next to the one McGhee had been

standing in line to board.    McGhee followed.   Armstead said that

if McGhee had left instead of following him he would have

followed McGhee and detained him.    Armstead searched McGhee and

discovered cocaine in McGhee's pocket.
     Both officers testified that McGhee did not verbally assent

to Armstead's search of his person.      Furthermore, McGhee's

conduct did not give any objective, reasonable indication that

McGhee agreed to the officers' search.     Whenever consent is not

explicitly given, "the existence of consent to search is not

lightly to be inferred."     United States v. Patacchia, 602 F.2d

218, 219 (9th Cir. 1979).    The burden of proving consent "cannot

be discharged by showing no more than acquiescence to a claim of

lawful authority."    Bumper v. North Carolina, 391 U.S. 543,

548-49 (1967).    See Crosby v. Commonwealth, 6 Va. App. 193, 199,

367 S.E.2d 730, 733 (1980).    Although McGhee's conduct in turning

toward Armstead "may well have signaled acquiescence, it did not



                                - 15 -
show consent."   Miranda v. State, 375 S.E.2d 295, 298 (Ga. Ct.

App. 1988).   Ruffin told Armstead to "check [McGhee's] person."

At most, McGhee's conduct was a sign of passivity or a show of

respect for the newly discovered officer's authority.   "Conduct

that is questionable or clearly indicates mere acquiescence to

perceived police authority will not support a search based on the

party's alleged consent, regardless of the lack of coercion."

Evans v. State, 804 S.W.2d 730, 734 (Ark. Ct. App. 1991).
     Because the evidence proves that McGhee was "seized" for

purposes of the Fourth Amendment, that the officers did not have

a reasonable articulable suspicion to stop McGhee, and that

McGhee did not give his consent to a search of his person, I

would reverse the trial judge's refusal to suppress the evidence.




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