                                               Tuesday        26th

           March, 2002.


William Damond Cheeks,                                        Appellant,

against       Record No. 1889-00-2
              Circuit Court Nos. 00-911-F through 00-913-F

Commonwealth of Virginia,                                     Appellee.


                          Upon a Rehearing En Banc

  Before Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
   Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements and
                               Agee


           Carolyn V. Grady (Carolyn V. Grady, P.C., on
           brief), for appellant.

           Eugene Murphy, Assistant Attorney General
           (Randolph A. Beales, Attorney General, on
           brief), for appellee.


           By memorandum opinion dated October 16, 2001, a

divided panel of this Court reversed the judgment of the trial

court.   We stayed the mandate of that decision and granted

rehearing en banc.

           Upon rehearing en banc, it is ordered that the October

16, 2001 mandate is vacated, and the judgment of the trial court

is affirmed for the reasons set forth in the panel dissent.    The

appellant shall pay to the Commonwealth of Virginia thirty

dollars damages.
          Judges Benton and Clements dissent for the reasons set

forth in the majority opinion of the panel.

          It is ordered that the trial court allow counsel for

the appellant a total fee of $925 for services rendered the

appellant on this appeal, in addition to counsel's costs and

necessary direct out-of-pocket expenses.

          The Commonwealth shall recover of the appellant the

amount paid court-appointed counsel to represent him in this

proceeding, counsel's costs and necessary direct out-of-pocket

expenses, and the fees and costs to be assessed by the clerk of

this Court and the clerk of the trial court.

          This order shall be certified to the trial court.

Costs due the Commonwealth
 by appellant in Court of
 Appeals of Virginia:

    Attorney's fee   $925.00    plus costs and expenses


                             A Copy,

                                 Teste:

                                           Cynthia L. McCoy,
Clerk

                                 By:

                                           Deputy Clerk




                                - 2 -
                                                 Thursday   6th

          December, 2001.


William Damond Cheeks,                                      Appellant,

against      Record No. 1889-00-2
             Circuit Court Nos. 00-911-F through 00-913-F

Commonwealth of Virginia,                                   Appellee.

                Upon a Petition for Rehearing En Banc

                         Before the Full Court


          On October 30, 2001 came the appellee, by the Attorney

General of Virginia, and filed a petition praying that the Court

set aside the judgment rendered herein on October 16, 2001, and

grant a rehearing en banc thereof.

          On consideration whereof, the petition for rehearing

en banc is granted, the mandate entered herein on October 16,

2001 is stayed pending the decision of the Court en banc, and

the appeal is reinstated on the docket of this Court.

          The parties shall file briefs in compliance with Rule

5A:35. The appellee shall attach as an addendum to the opening

brief upon rehearing en banc a copy of the opinion previously

rendered by the Court in this matter. It is further ordered that




                                 - 3 -
the appellee shall file with the clerk of this Court twelve

additional copies of the appendix previously filed in this case.


                          A Copy,

                               Teste:

                                        Cynthia L. McCoy, Clerk

                               By:

                                         Deputy Clerk




                              - 4 -
                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia


WILLIAM DAMOND CHEEKS
                                           MEMORANDUM OPINION * BY
v.   Record No. 1889-00-2               JUDGE JEAN HARRISON CLEMENTS
                                              OCTOBER 16, 2001
COMMONWEALTH OF VIRGINIA


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

          Carolyn V. Grady (Carolyn V. Grady, P.C., on
          brief), for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     William Damond Cheeks was convicted in a bench trial of

possession of cocaine with intent to distribute in violation of Code

§ 18.2-248, possession of a firearm while possessing cocaine in

violation of Code § 18.2-308.4, and possession of a firearm by a

convicted felon in violation of Code § 18.2-308.2.    On appeal, he

contends the trial court erred in denying his motion to suppress the

gun and cocaine because they were the products of a seizure that

violated his Fourth Amendment rights.    We agree and reverse the

convictions.




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


                              - 5 -
     As the parties are fully conversant with the record in this case

and because this memorandum opinion carries no precedential value, this

opinion recites only those facts and incidents of the proceedings as

necessary to the parties' understanding of the disposition of this

appeal.

                             I.    BACKGROUND

     Viewed in the light most favorable to the Commonwealth, the

party prevailing below, see Commonwealth v. Grimstead, 12 Va. App.

1066, 1067, 407 S.E.2d 47, 48 (1991), the evidence established that,

on April 6, 2000, Richmond City Police Officer Fred Bates was on

patrol when he received a radio call that a man had hit a woman in

the knee with the butt of a gun in the 3400 block of Semmes Avenue.

The call reported that the suspect's last name was "Cheeks" and that

he had run into Antonz's Barbershop.       No other information regarding

the suspect was provided.

     Officer Bates proceeded to Antonz's Barbershop, located at 3412

Semmes Avenue, and went inside.    There, he saw two people getting a

haircut and two others waiting to get a haircut.      Bates, who was in

uniform, informed the barber that he was investigating a crime that

had been committed by an armed suspect and asked him if anybody had

run into the barbershop "in the past couple minutes."      The barber

said that no one had.   No one in the barbershop, according to Bates,

appeared to be out of breath.     Bates did not tell those in the

barbershop that the suspect's last name was "Cheeks."



                                   - 6 -
     Bates asked the two customers waiting for haircuts for

identification, and they both provided it to the officer.      Bates then

asked one of the men getting a haircut for identification, and he

produced it.    Finally, Bates asked Cheeks, the other man getting a

haircut, what his name was and to see his identification.      Cheeks,

who, according to Bates, "was halfway through his haircut," gave the

officer a name other than Cheeks and informed him that he did not

have any identification.

     Bates then stood beside Cheeks, approximately three feet away,

for two to three minutes, "wait[ing] for [Cheeks] to get his

haircut."   Bates testified he did not know Cheeks at that time and

had no reason to think Cheeks had given him a false name.      He added

that Cheeks was not engaged in criminal conduct but was merely

getting a haircut.   However, because he had received a report that an

armed suspect had entered the barbershop and because Cheeks had not

produced identification, Bates stood next to Cheeks "just in case he

did have a gun."

     At the conclusion of his haircut, Cheeks started walking quickly

toward the front door of the barbershop.   Bates asked him, "Hey

buddy, can I talk to you outside."   Cheeks replied, "No problem," and

they went outside.   Bates told Cheeks he was investigating "an armed

suspect call" and asked him if he could pat him down for the safety

of them both.   Cheeks responded affirmatively.   Bates asked Cheeks to

turn around.    Cheeks turned around to face the door of the

barbershop, put his hands up, and ran into the barbershop.

                                  - 7 -
     Officer Bates pursued Cheeks and tackled him inside the

barbershop.   Cheeks got up and started running again.   Bates again

tackled him inside the barbershop and hung on while Cheeks dragged

him through the barbershop toward the back door.    Freeing himself,

Cheeks fled out the back door of the barbershop, with Bates in

pursuit.   The back door opened onto Forest Hill Avenue.   After

crossing Forest Hill Avenue, Cheeks ran behind a building, where

Bates, "just a couple feet behind him," saw Cheeks throw a gun

against a brick wall as he ran.     Eventually, Bates and another

officer apprehended Cheeks.   They found cocaine on his person and

retrieved the gun he had thrown.

     Prior to trial, Cheeks moved to suppress the cocaine and gun,

arguing that their discovery stemmed from the unlawful seizure of his

person.    The trial court denied the motion, ruling that the encounter

was consensual until Cheeks fled, at which point the officer had

reasonable suspicion to detain him.

                              II.   ANALYSIS

     "In reviewing a trial court's denial of a motion to suppress,

'[t]he burden is upon [the defendant] to show that th[e] ruling, when

the evidence is considered most favorably to the Commonwealth,

constituted reversible error.'"     McGee v. Commonwealth, 25 Va. App.

193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (alterations in

original) (quoting 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

                                    - 8 -
questions of both law and fact and are reviewed de novo on appeal."

Id. (quoting Ornelas v. United States, 517 U.S. 690, 691 (1996)).

"Similarly, the question whether a person has been seized in

violation of the Fourth Amendment is reviewed de novo on appeal."

Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27

(2000).    However, "we 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 (citing Ornelas, 517 U.S. at 699).

        Cheeks contends on appeal that he was effectively seized by

Officer Bates in Antonz's Barbershop when the officer, after telling

the barber that he was investigating a crime, stood next to Cheeks

for several minutes waiting for the barber to finish cutting Cheeks'

hair.    Cheeks further contends the seizure violated his Fourth

Amendment rights because it was not based on a reasonable,

articulable suspicion.    Thus, he concludes, the trial court erred in

refusing to suppress the gun and cocaine, the discovery of which

derived from the police's unlawful seizure of him.

        The Commonwealth argues that Officer Bates seized Cheeks only

after Cheeks ran away from the officer.        Up to that point, the

Commonwealth asserts, the encounter was consensual.

                                A.   Seizure




                                     - 9 -
       Encounters between the police and citizens "generally fall into

one of three categories."    McGee, 25 Va. App. at 198, 487 S.E.2d at

261.

            First, there are consensual encounters which do
            not implicate the Fourth Amendment. Next, there
            are brief investigatory stops, commonly referred
            to as "Terry" stops, which must be based upon
            reasonable, articulable suspicion that criminal
            activity is or may be afoot. Finally, there are
            "highly intrusive, full-scale arrests" or
            searches which must be based upon probable cause
            to believe that a crime has been committed by the
            suspect.

Id. (citations omitted).

       Thus, a detention that is not consensual is a seizure requiring

Fourth Amendment scrutiny.    See id. at 198-99, 487 S.E.2d at 261-62;

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

(1992).   "An encounter is not consensual 'if, in view of all of the

circumstances surrounding the incident, a reasonable person would

have believed that he was not free to leave.'"     Piggott v.

Commonwealth, 34 Va. App. 45, 49, 537 S.E.2d 618, 619 (2000) (quoting

United States v. Mendenhall, 446 U.S. 544, 554 (1980)).    "A seizure

occurs when an individual is either physically restrained or has

submitted to a show of authority" by the police.     McGee, 25 Va. App.

at 199, 487 S.E.2d at 262.

                 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. 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.
                                  - 10 -
Payne, 14 Va. App. at 88, 414 S.E.2d at 870 (internal quotations and

citations omitted).

        However, a consensual encounter loses its consensual nature and

becomes a seizure for Fourth Amendment purposes when, in light of the

totality of the circumstances encompassing the encounter, a

reasonable person would have believed that he or she was no longer

free to walk away from the police, disregard their questions, ignore

or decline their requests, or otherwise end the encounter with them.

See Piggott, 34 Va. App. at 49, 537 S.E.2d at 619; Payne, 14 Va. App.

at 88-89, 414 S.E.2d at 870.    For a seizure to occur, "[t]here must

be some coercion or show of force or authority by the officer,

measured by objective standards, that would cause a person so

situated reasonably to have believed that he or she was required to

comply with the officer's request."     Commonwealth v. Satchell, 15 Va.

App. 127, 131, 422 S.E.2d 412, 414-15 (1992).

        Applying these principles to the circumstances of this case, we

find that the encounter between Officer Bates and Cheeks was

initially consensual.    Upon entering the barbershop, Bates, who was

in uniform, told the barber merely that a crime involving an armed

suspect had been committed.    He did not mention the suspect's last

name.    He then asked Cheeks, along with the other customers in the

barbershop, for his name and identification.    Cheeks voluntarily gave

Bates a name (not "Cheeks") and informed the officer that he did not

have identification.    "An encounter between a law enforcement officer

and a citizen in which the officer merely identifies himself and

                                   - 11 -
states that he is conducting a[n] . . . investigation, without more,

is not a seizure within the meaning of the Fourth Amendment but is,

instead, a consensual encounter."   McGee, 25 Va. App. at 199, 487

S.E.2d at 262.

     We further find, however, that the encounter between Bates and

Cheeks lost its consensual nature when the officer, having made it

known that he was investigating a crime involving an armed suspect

and having been told by Cheeks that he did not have identification,

stood beside Cheeks for two to three minutes waiting for him while

the barber finished cutting his hair.    That action, we conclude,

conveyed the unmistakable message to Cheeks that Bates was no longer

conducting a general investigation but had made Cheeks the focus of

his investigation.

     As we noted in Langston v. Commonwealth, 28 Va. App. 276, 282,

504 S.E.2d 380, 383 (1998), "[t]he circumstances of the encounter may

indicate, even without physical restraint, a suspect is not free to

leave."

          [W]hen 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.

McGee, 25 Va. App. at 200, 487 S.E.2d at 262.

     Here, even though Bates did not inform those in the barbershop

that the last name of the suspect was "Cheeks" or directly accuse

Cheeks of committing the crime, we find that, by standing next to
                                - 12 -
Cheeks, and Cheeks alone, while Cheeks got his hair cut, Bates

specifically identified Cheeks as a suspect and implicitly informed

him that he was being detained to investigate his criminal activity.

Such a show of authority, we believe, would cause a reasonable person

in Cheeks' position to have reasonably believed that he or she was

not free to terminate the encounter with the officer and walk away.

     We conclude, therefore, based on our de novo review of all of

the circumstances surrounding the encounter, that the evidence proves

that Cheeks was seized under the Fourth Amendment when Officer Bates

stood beside him in the barbershop.




                                - 13 -
                          B.    REASONABLE SUSPICION

     "In order to justify such a seizure, an officer must have a

'reasonable and articulable suspicion of criminal activity on the

part of the defendant.'"        Hatcher v. Commonwealth, 14 Va. App. 487,

490, 419 S.E.2d 256, 258 (1992) (quoting Commonwealth v. Holloway, 9

Va. App. 11, 15, 384 S.E.2d 99, 101 (1989)).       "[I]f there are

articulable facts supporting a reasonable suspicion that a person has

committed a criminal offense, that person may be stopped in order to

identify him, to question him briefly, or to detain him briefly while

attempting to obtain additional information."          Hayes v. Florida, 470

U.S. 811, 816 (1985).    However, the justification for the seizure

"must be more than an 'inchoate and unparticularized suspicion or

hunch.'"   McGee, 25 Va. App. at 202, 487 S.E.2d at 263 (quoting Terry

v. Ohio, 392 U.S. 1, 27 (1968) (internal quotes omitted)).         In

reviewing whether an officer had reasonable suspicion to justify the

seizure, we must consider the "totality of the circumstances and view

those facts objectively through the eyes of a reasonable police

officer with the knowledge, training, and experience of the

investigating officer."        Murphy v. Commonwealth, 9 Va. App. 139, 144,

384 S.E.2d 125, 128 (1989).

     Here, the evidence established that Officer Bates received

information from his radio dispatch that an assault with a gun had

been committed in the 3400 block of Semmes Avenue and that the

suspect, a man named Cheeks, had run into Antonz's Barbershop,

located in that block.    No other information regarding the suspect

                                      - 14 -
was provided.   Likewise, no information was transmitted as to when

the alleged assault had occurred or when the suspect had run into the

barbershop.    Bates testified that he "thought it was just right

then."

     Based on the information from dispatch, Bates went to the

barbershop.    Nothing in the record indicates the time of the radio

call, Bates' location when he received the call, or how long it took

him to arrive at the barbershop.

     Inside the barbershop, Bates found the barber and four

customers.    Cheeks, along with another customer, was getting his hair

cut, while the two other customers waited.    Cheeks was "halfway

through his haircut."   None of the customers was out of breath.    In

response to Bates' inquiry, the barber told Bates that no one had run

into the shop in "the past couple minutes."

     When Bates confronted Cheeks to determine his identity, Cheeks

readily told the officer his name, which was not "Cheeks," and said

he had no identification.   Bates testified that he did not know

Cheeks and had no reason to think Cheeks had given him a false name.

He also testified that Cheeks was not engaged in criminal activity,

and there was no indication that Cheeks acted in a suspicious manner.

     On these facts, we find that Officer Bates lacked an objectively

reasonable or articulable basis for suspecting that Cheeks was or had

recently been engaged in criminal activity.   Bates had no description

of the suspect and observed nothing that suggested that Cheeks was

the suspect.    At most, Bates had an inchoate and unparticularized

                                   - 15 -
suspicion or hunch that Cheeks might have been the suspect because he

was unable or unwilling to provide identification.    Such a hunch,

however, does not rise to the level of reasonable suspicion necessary

to justify the seizure.    See McGee, 25 Va. App. at 202, 487 S.E.2d at

263.

       We conclude, therefore, based on our de novo review of the

totality of the circumstances, that, because the circumstances

provided Bates no objective basis for suspecting Cheeks was or had

been engaged in criminal activity, Cheeks was seized in violation of

his Fourth Amendment rights.   Hence, we hold that the trial court

erred in denying Cheeks' motion to suppress the gun and the cocaine,

both of which were discovered as a direct consequence of the unlawful

detention.    See Warlick v. Commonwealth, 215 Va. 263, 265, 208 S.E.2d

746, 747-48 (1974) (noting that exclusionary rule bars admission of

"derivative evidence" discovered as a result of an unlawful search or

seizure).

       Accordingly, we reverse Cheeks' convictions and dismiss the

charges.

                                           Reversed and dismissed.




                                  - 16 -
Frank, J. dissenting.

     I would find the police did not seize appellant while he was

seated in the barber chair.

     A seizure occurs "only when, by means of physical force or a

show of authority, [a person's] freedom of movement is restrained.

Only when such restraint is imposed is there any foundation whatever

for invoking constitutional safeguards."

United States v. Mendenhall, 446 U.S. 544, 553 (1980).      "[I]f, in

view of all of the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave,"

then a seizure has occurred.     Id. at 554.

          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. See Terry
          v. Ohio, [392 U.S. 1, 19 n.16 (1968)]; Dunaway v.
          New York, 442 U.S. 200, 207, and n. 6; 3 W.
          LaFave, Search and Seizure 53-55 (1978). In the
          absence of some such evidence, otherwise
          inoffensive contact between a member of the
          public and the police cannot, as a matter of law,
          amount to a seizure of that person.

Id. at 554-55.     See also Ford v. City of Newport News, 23 Va. App.

137, 142, 474 S.E.2d 848, 850 (1996).

     Officer Bates was in uniform.    However, he was the only police

officer in the barbershop.    He did not display his gun.   He did not

touch appellant.    The officer did not tell appellant he had to remain

in the chair and did not tell appellant he was a suspect in a crime.

                                   - 17 -
Nothing in the record suggests Bates' tone of voice indicated

compliance was mandatory.

       The officer did remain in the shop, approximately three feet

away from appellant while the barber cut his hair.    I believe this

circumstance is similar to Clarke v. Commonwealth, 32 Va. App. 286,

527 S.E.2d 484 (2000).   In Clarke, an officer approached a stopped

vehicle and asked the passenger, Clarke, some questions.   We found

the police are "permitted to ask [a suspect] questions without

violating his Fourth Amendment rights."    Id. at 303, 527 S.E.2d at

492.

       Officer Bates simply asked appellant for identification.   The

officer then stood aside, asked nothing, and waited for

the barber to finish cutting appellant's hair.   Appellant was already

seated in the chair when approached by the officer.   Appellant

continued to sit there until the haircut was completed and then

started to leave the shop.   The only "restraint" resulted from

appellant's desire to remain where he was and get his hair cut.

       I do not believe a "show of authority" occurred nor would a

reasonable person feel seized by anything Officer Bates did.

Therefore, I would affirm the convictions.




                                  - 18 -
