                   COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia


ERIC MICHAEL JACKSON
                                          MEMORANDUM OPINION * BY
v.   Record No. 2734-01-2                  JUDGE G. STEVEN AGEE
                                              OCTOBER 8, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Learned D. Barry, Judge

          Craig W. Stallard, Assistant Public Defender
          (Office of the Public Defender, on briefs),
          for appellant.

          Amy L. Marshall, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Eric Michael Jackson (Jackson) was convicted in the

Richmond Circuit Court of possession of heroin, in violation of

Code § 18.2-250, and was sentenced to nine months incarceration.

On appeal, Jackson contends the trial court erred in denying his

motion to suppress evidence he alleges was gathered in violation

of the Fourth Amendment.    For the following reasons, we disagree

and affirm the judgment of the trial court.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. As the parties are fully conversant
with the record in this case and because this memorandum opinion
carries no precedential value, only those facts necessary to a
disposition of this appeal are recited.
                       I.   STANDARD OF REVIEW

     "At a hearing on a defendant’s motion to suppress, the

Commonwealth has the burden of proving that a warrantless search

or seizure did not violate the defendant's Fourth Amendment

rights."    Reel v. Commonwealth, 31 Va. App. 262, 265, 522 S.E.2d

881, 882 (2000).   "It[, however,] is well established that, on

appeal, appellant carries the burden to show, considering the

evidence in the light most favorable to the Commonwealth, that

the denial of a motion to suppress constitutes reversible error."
Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232,

233 (1993).   "Ultimate questions of reasonable suspicion and

probable cause . . . involve questions of both law and fact and

are reviewed de novo on appeal."       Neal v. Commonwealth, 27 Va.

App. 233, 237, 498 S.E.2d 422, 424 (1998) (citations omitted).

"A claim by a defendant that he was seized within the

contemplation of the Fourth Amendment 'presents a mixed question

of law and fact that is reviewed de novo on appeal.'"       Bolden v.
Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704 (2002)
(citations omitted).

                             II.   ANALYSIS

     "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."    Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455

S.E.2d 744, 747 (1995).     "'[L]aw enforcement officers do not

violate the Fourth Amendment by merely approaching an individual
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on the street or in another public place, by asking him if he is

willing to answer some questions . . . .'"   Washington v.

Commonwealth, 29 Va. App. 5, 10, 509 S.E.2d 512, 514 (1999) (en

banc) (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)).

                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." United
           States v. Wilson, 953 F.2d 116, 121 (4th Cir.
           1991) (quoting Florida v. Bostick, 501 U.S.
           429, 431, 111 S. Ct. 2382, 2384, 115 L. Ed.
           2d 389 (1991)); see also Richards v.
           Commonwealth, 8 Va. App. 612, 615, 383 S.E.2d
           268, 270 (1989). Such encounters "need not
           be predicated on any suspicion of the
           person's involvement in wrongdoing," and
           remain consensual "as long as the citizen
           voluntarily cooperates with the police."
           Wilson, 953 F.2d at 121.

Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870

(1992).

                "[A] person is 'seized' only when, by
           means of physical force or show of authority,
           his freedom of movement is restrained . . . .

                . . . Examples of circumstances that
           might indicate a seizure, even where the
           person did not attempt to leave, would be 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."
Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 648

(1992) (quoting United States v. Mendenhall, 446 U.S. 544, 553-54

(1980)).

     "Voluntarily responding to a police request, which most

citizens will do, does not negate 'the consensual nature of the

response' even if one is not told that he or she is free not to


                               - 3 -
respond."      Grinton v. Commonwealth, 14 Va. App. 846, 849, 419

S.E.2d 860, 862 (1992) (quoting I.N.S. v. Delgado, 466 U.S. 210,

216 (1984)).     "[T]he subjective beliefs of the person approached

are irrelevant to whether a seizure has occurred."      United States

v. Winston, 892 F.2d 112, 116 (D.C. Cir. 1989) (citation

omitted).

     Jackson contends he was "seized" without a showing of

reasonable suspicion and, therefore, the trial court erred by

denying his motion to suppress.     The Commonwealth argues the

trial court's decision to deny the motion to suppress should be

affirmed because no seizure occurred.
     On de novo review, we find that the encounter between

Jackson and the officers was consensual at its inception.

Therefore, there was no "seizure" during the initial conversation

between Officer Sprinkle and Jackson that implicated the Fourth

Amendment. 1

     Jackson argues we cannot consider the consensual encounter

grounds without a separate analysis to examine the application of

affirming the trial court when it reaches the right result for


     1
       We are not barred by Rule 5A:18 from addressing the issue
of whether Jackson had a consensual encounter with the police.
"Rule 5A:18 does not require an appellee[, the Commonwealth in
this instance,] to raise an issue at trial before it may be
considered on appeal where the issue is not offered to support
reversal of a trial court ruling." Driscoll v. Commonwealth, 14
Va. App. 449, 451-52, 417 S.E.2d 312, 313 (1992) (citing Mason
v. Commonwealth, 7 Va. App. 339, 346, 373 S.E.2d 603, 607
(1988)). Because the Commonwealth offers its contention that
Jackson's encounter with Officer Sprinkle was consensual in
support of the trial court's denial of the motion to suppress,
Rule 5A:18 does not apply.


                                  - 4 -
the wrong reason.   We disagree because in the context of a

determination of whether a seizure occurred under the Fourth

Amendment, the appellate court performs a de novo review of the

application of the law to the facts, unhindered by the trial

court's application of the law to those same facts.     See Sykes v.

Commonwealth, 37 Va. App. 262, 267, 556 S.E.2d 794, 796 (2001).

Moreover, the trial court found, at least by implication, that

Jackson was seized and in making that determination had to

consider whether the encounter was consensual.
     We find, in view of all the circumstances in the record

surrounding the incident, a reasonable person would have believed

that he was free to leave in this situation.    Here, although both

officers were in uniform, neither officer drew his weapon,

physically restrained Jackson, or by show of force or authority

indicated that Jackson was not free to leave.    Neither officer

initially approached Jackson, but rather, from approximately

fifty to seventy-five feet away, Officer Sprinkle called out to

Jackson, "Hey, come here.   I need to talk to you."   Jackson

stopped, and he subsequently answered Officer Sprinkle's

inquiries regarding identification.

     The fact that Jackson complied with Officer Sprinkle's

request to "come here" does not make the encounter a seizure.

There is no evidence that Jackson's compliance with the officer's

request was unwillingly compelled.     There is no evidence in the

record of a "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

                               - 5 -
compelled."     Mendenhall, 446 U.S. at 554; see also McCain v.

Commonwealth, 261 Va. 483, 545 S.E.2d 541 (2001).

     The fact that Jackson was not told he could ignore the

officer's request does not change our analysis.    "While most

citizens will respond to a police request, the fact that people

do so, and do so without being told that they are free not to

respond, hardly eliminates the consensual nature of the

response."     Delgado, 466 U.S. at 216.

     Our conclusion is supported by established case law.     The

Supreme Court of Virginia has held, under circumstances very

similar to this case, that no Fourth Amendment seizure occurred.

In Baldwin, 243 Va. 191, 413 S.E.2d 645, the police officer
observed the defendant and his companion at 11:30 p.m. standing

at one end of a parking lot near a dumpster.    About 15 feet away,

the officer "put a big floodlight on them . . . [and] said, 'you

two, come over here."     Id. at 194, 413 S.E.2d at 646-47.

     When they complied, the officer observed that Baldwin was

intoxicated.    While searching Baldwin incident to an arrest for

public intoxication, the officer discovered drugs.    Applying the
Mendenhall factors, the Court found that when the officer shined

the light on Baldwin and called for him and his companion to come

to him, the officer had not restrained Baldwin's liberty or

seized him for purposes of the Fourth Amendment.    The encounter

had been consensual.     Id. at 199, 413 S.E.2d at 649-50; see also,
Ford v. City of Newport News, 23 Va. App. 137, 142, 474 S.E.2d

848, 850 (1996) (holding a similar encounter to that in Baldwin

was consensual).



                                 - 6 -
     The mere calling to a citizen to approach does not amount to

a stop implicating the Fourth Amendment unless joined with other

factors similar to those identified in Mendenhall and its

progeny.   See Baldwin, 243 Va. at 196-99, 413 S.E.2d at 648-50;

see also, United States v. Moreno, 897 F.2d 26 (2d. Cir. 1990);

People v. King, 139 Cal. Rptr. 926 (Cal. Ct. App. 1977); People

v. Ortiz, 305 N.E.2d 418 (Ill. 1973).   There are no such factors

in the case at bar.

     Considering the totality of the circumstances and applying

the Mendenhall factors, we conclude Jackson was not seized within
the meaning of the Fourth Amendment until Officer Sprinkle placed

him under arrest for the outstanding warrants.   Prior to that

time the encounter was consensual.   Therefore, the discovery of

the heroin occurred in a legitimate and lawful search incident to

arrest.

     Accordingly, as Jackson was not seized under the Fourth

Amendment prior to his arrest, we affirm the judgment of the

trial court to deny Jackson's motion to suppress and affirm
                        2
Jackson's conviction.
                                                         Affirmed.




     2
       Having found Jackson was not seized, we do not address the
issue of reasonable suspicion because it is not relevant when a
consensual encounter occurs.
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