                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Coleman
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.   Record No. 1213-02-1               JUDGE JAMES W. BENTON, JR.
                                             OCTOBER 29, 2002
JURL VINCENT STERNS


           FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                       Louis R. Lerner, Judge

           Eugene Murphy, Assistant Attorney General
           (Jerry W. Kilgore, Attorney General, on
           brief), for appellant.

           Timothy G. Clancy (Moschel, Gallo & Clancy,
           L.L.C., on brief), for appellee.


     A grand jury indicted Jurl Vincent Sterns for possession of

cocaine and possession of a firearm while in possession of

cocaine.   At the conclusion of a pre-trial hearing, the trial

judge granted Sterns's motion to suppress evidence.    Pursuant to

Code § 19.2-398, the Commonwealth appeals and contends the trial

judge erred in ruling that the initial encounter between Sterns

and the officer was not consensual.   For the reasons that follow,

we reverse the suppression order.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                 I.

     On appeal from the order granting the motion to suppress, we

view the evidence in the light most favorable to Sterns.

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991).    So viewed, the evidence proved a police dispatcher

sent Officers Hake and Ewing to an apartment complex at night to

investigate a report from an anonymous complainant that persons

were selling and smoking drugs.       The uniformed officers arrived at

the apartment parking lot in separate police vehicles, exited

their vehicles, and began to walk to the rear of the apartments.

Four car lengths ahead of his vehicle, Officer Hake saw Sterns

exit a car and stand next to the car while eating.      Officer Hake

testified that he saw no other people in the parking lot, and he

described the events as follows:

                He was just standing there. At that
             point I approached him and I was several
             feet from him. I said, do you mind if I
             talk to you for a moment? Mr. Sterns agreed
             to speak to me. I approached him.

                I asked him -- I explained to him the
             complaint that we had in the area and why we
             were out there and I asked him if he
             observed anybody doing drugs or dealing
             drugs in the parking lot of the apartment
             complex. He said he did not and at this
             point I asked him if he had any weapons or
             narcotics on him. He said that he had his
             gun on him.

                At that point Officer Ewing was
             approaching also. He was on the other side
             and he started to walk towards us. He heard
             our conversation. He asked Mr. Sterns to
             place his hands on his head. . . .

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            *     *     *        *       *     *     *

             At that point I conducted a pat down of
          his outer clothing and located a weapon, a
          handgun on his left side. I'm not sure if
          it was in his coat or his pants pocket, but
          it was in one of those. He was placed in
          handcuffs at that time.

             Officer Ewing asked him if he had a
          concealed weapons permit and he said that he
          did not. At that point he was arrested and
          placed in the police vehicle.

In a search incident to this arrest, the officers seized cocaine

from Stern's pocket.

     In his motion to suppress, Sterns relied on McGee v.

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

and argued that he was unlawfully detained when the officers

approached and questioned him.       On that basis, the trial judge

granted the motion to suppress.

                                 II.

     In McGee, we held as follows:

             When the police expressly inform an
          individual that they have received
          information that the individual is engaging
          in criminal activity, the police "convey a
          message that compliance with their requests
          is required" and "that failure to cooperate
          would lead only to formal detention."

             Thus, when a police officer confronts a
          person and informs the individual that he or
          she has been specifically identified as a
          suspect in a particular crime which the
          officer is investigating, that fact is
          significant among the "totality of the
          circumstances" to determine whether a
          reasonable person would feel free to leave.
          When confronted with an accusation from


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          police, such as, "we know you are selling
          drugs from this location, let us search
          you," no reasonable person would feel free
          to leave. 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.

25 Va. App. at 200-01, 487 S.E.2d at 262-63 (citations and

footnote omitted).

     Although we held that a detention occurred under those

circumstances, we specifically noted that the officer's

"statement to [McGee] did not merely convey a message that the

officers were conducting a general investigation in response to

a report of drug dealing."   Id. at 201, 487 S.E.2d at 263.

Moreover, in contrast to the factual circumstances in McGee, we

have consistently held that "'[l]aw enforcement officers do not

violate the Fourth Amendment merely by approaching an individual

on the street, identifying themselves and asking the individual

questions.'"   Garrison v. Commonwealth, 36 Va. App. 298, 307,

549 S.E.2d 634, 638 (2001) (quoting Buck v. Commonwealth, 20

Va. App. 298, 301-02, 456 S.E.2d 534, 535-36 (1995)).

     Accordingly, we hold that the initial encounter between the

officers and Sterns was consensual.    We do not address, because

the trial judge did not, whether the ensuing "pat down" search




                               - 4 -
was lawful.   For these reasons, we reverse the order suppressing

the evidence.

                                                   Reversed.




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