                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Annunziata
Argued by teleconference


ANTOINE ANDRE WOODHOUSE
                                            MEMORANDUM OPINION * BY
v.   Record No. 1707-00-2                JUDGE JERE M. H. WILLIS, JR.
                                              NOVEMBER 13, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert W. Duling, Judge

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

          Michael T. Judge, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Antoine Andre Woodhouse was convicted in a bench trial of

possession of heroin and possession of cocaine, both in violation

of Code § 18.2-250.   On appeal, he contends that the trial court

erred in denying his motion to suppress certain evidence.    For the

following reasons, we reverse the judgment of the trial court and

order the charges dismissed.

                            I.   BACKGROUND

     On January 20, 2000, Richmond Police Officer John Cary

observed Woodhouse standing in front of 1979 Raven Street.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Posted on the property and above Woodhouse's head were "no

trespassing" signs.   For approximately one to two minutes

Officer Cary observed Woodhouse standing by himself on the

stoop.   When other officers approached the stoop, Woodhouse

walked away.

     Because Woodhouse made no contact with any occupant of the

residence and stood on the apartment stoop without going to the

door, Officer Cary approached and asked to speak with him.

Woodhouse replied, "What about?"   Officer Cary informed

Woodhouse that the property was posted "no trespassing,"

indicating the signs, and stated that he was investigating a

possible "no trespassing" violation.

     Woodhouse stated that he was visiting a man named J.J., who

lived in the apartment where he had been standing.    He stated

that he did not know any more of J.J.'s name.    When asked where

J.J. lived, Woodhouse pointed to the door in front of which he

had been standing.    Officer Cary had another officer knock on

the door.   No one answered.   The officers were unable to

determine whether J.J. lived there.     At that point, Officer Cary

arrested Woodhouse for trespassing.     Searching Woodhouse

incident to the arrest, Officer Cary recovered heroin and

cocaine.

     Woodhouse moved to suppress as evidence the drugs found on

his person, arguing that he had been unlawfully seized.       The

motion was denied.    At the conclusion of the Commonwealth's

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case, Woodhouse moved to strike the evidence as insufficient to

prove trespass or intent to distribute heroin or cocaine.       The

trial court granted the motion.     It convicted Woodhouse of

simple possession of heroin in violation of Code § 18.2-250 and

simple possession of cocaine in violation of Code § 18.2-250.

It dismissed the trespass charge.

                     II.     UNLAWFUL DETENTION

     Woodhouse contends on appeal that the trial court erred in

denying his motion to suppress the drugs found on his person.

He argues that he was unlawfully seized when Officer Cary

detained him to investigate a trespass and that the discovery of

the drugs flowed from that seizure.

                        A.   STANDARD OF REVIEW

     Upon a Fourth Amendment challenge on appeal, "[u]ltimate

questions of reasonable suspicion and probable cause to make a

warrantless search" involve questions of both law and fact and

are reviewed de novo.    McGee v. Commonwealth, 25 Va. App. 193,

197, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v.

United States, 517 U.S. 690, 691 (1996)).     The reviewing court

is 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."     Id. at

198, 487 S.E.2d at 261 (citing Ornelas, 517 U.S. at 699).



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                         B.   CONSENSUAL STOP

     A law enforcement officer does not violate the Fourth

Amendment "merely by approaching an individual on the street,

identifying [himself], and asking the individual questions."

Buck v. Commonwealth, 20 Va. App. 298, 301-02 (1995) (citing

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

647-48 (1992)).

     Officer Cary's initial encounter with Woodhouse was

consensual.    A consensual encounter need not be predicated on

suspicion of criminal activity and remains consensual so long as

the encountered citizen voluntarily cooperates with the police.

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

(1992) (quoting United States v. Wilson, 953 F.2d 116, 121 (4th

Cir. 1991)).   Officer Cary approached Woodhouse and asked to

speak with him.   Woodhouse stopped and asked, "what about?"

Officer Cary explained that he was investigating a possible

trespass and asked Woodhouse whether he had seen the "no

trespassing" signs.   Woodhouse replied that he was visiting J.J.

and pointed to the door in front of which he had been standing.

At no time during this questioning did Woodhouse attempt to

break off his contact with Officer Cary or decline to answer his

questions.    To that point, his encounter with Officer Cary was

consensual.




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                             C.    ARREST

     The evidence that Woodhouse sought to have suppressed and

upon which his convictions were based was discovered upon his

arrest for trespass.   The information gained by Officer Cary

from observation and from his conversation with Woodhouse was

insufficient to provide probable cause supporting that arrest.

Woodhouse's presence on the stoop was consistent with his

explanation that he was there for the legitimate purpose of

calling on a friend.   The officer did not see Woodhouse go onto

the stoop.   No evidence disclosed that Woodhouse had not knocked

on the door.   His remaining on the stoop for a minute or two

suggested no more than indecision.        His departure upon the

approach of the police officers could well have been

coincidental and, at most, suggested no more than a

disinclination to encounter the police, a motive not necessarily

criminal.    In sum, the totality of the circumstances afforded

Officer Cary no more than a hunch that Woodhouse was

trespassing.    See Harris v. Commonwealth, 262 Va. 407, 551

S.E.2d 606 (2001); Ewell v. Commonwealth, 254 Va. 214, 491

S.E.2d 721 (1997).

     The judgment of the trial court is reversed, and the

charges are ordered dismissed.

                                              Reversed and dismissed.




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