                     COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Senior Judge Hodges
Argued at Chesapeake, Virginia


ANTOINE EUGENE RIDLEY
                                          MEMORANDUM OPINION * BY
v.   Record No. 2311-02-1                JUDGE ROBERT J. HUMPHREYS
                                               JULY 15, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                  Everett A. Martin, Jr., Judge

          William P. Robinson, Jr. (Robinson, Neeley &
          Anderson, on brief), for appellant.

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


     Antoine Eugene Ridley appeals his conviction, upon a

conditional plea of guilty, for possession of heroin, possession

of cocaine with intent to distribute, and assault.    Ridley

contends the trial court erred in finding police possessed the

requisite reasonable suspicion to support his detention and

subsequent search.    For the reasons that follow, we affirm the

judgment of the trial court.

     In accordance with settled principles of appellate review,

on appeal of a trial court's denial of a motion to suppress, we


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
review the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible from it.   Sabo v. Commonwealth, 38 Va. App. 63, 69,

561 S.E.2d 761, 764 (2002).

     On or about October 29, 1999, 1 at approximately 6:20 p.m.,

Officer Mark Daniel Laino, of the Norfolk Police Department, was

driving his marked patrol car "in the 7100 block of Sewells

Point when [he] was flagged down by a citizen on the side of the

road."   The citizen informed Officer Laino that "there was a

black male wearing a black nylon jogging suit," "in the 7100

block of Sewells Point in the Johnson Square Apartment Complex,"

"selling narcotics in the parking lot."   Officer Laino and the

citizen were approximately 500-1,000 yards from the Johnson

Square apartments at that time, and did not have a view of the

parking lot from their location.

     Based upon the information provided by the citizen, Officer

Laino drove to the apartment complex and "pull[ed] into the

parking lot."   He immediately observed "an individual fitting

the description exactly standing [sic] right in the middle of

the parking lot of the 7100 block of Sewells Point Road.   There

wasn't anybody else around him at that time."   The individual

was later determined to be Ridley.




                              - 2 -
     Officer Laino "pulled [his] police car into the middle of

the lot," and Ridley walked past him.     Ridley then "turned

around from [Laino] and he started walking the other way."

Officer Laino asked Ridley if he lived in the apartment complex

and Ridley replied, "No, no.    I'm just cutting through."

Officer Laino then stated, "well, you're trespassing.     You're

not supposed to be in here."    Ridley again stated that he was

"just cutting through," and walked back toward Officer Laino.

     At that time, Officer Laino got out of his patrol car and

asked Ridley where he lived.    Ridley told him he lived on

Cutrell Street.   This statement "drew" Laino's suspicion because

the apartment complex was a "gated community."     Although there

were holes in some of the gates, Officer Laino knew that "[i]t

wouldn't make sense to go from Cutrell Street to cut through

that area to go somewhere."

     Officer Laino then asked Ridley to remove his hands from

his pockets, and Ridley complied.      Laino asked Ridley if he had

"any guns, knives, drugs or anything like that on [him]," and

Ridley stated, "[N]o."   Nevertheless, Officer Laino asked, "[D]o

you mind if I pat you down?"    Ridley then walked to the hood of

Laino's police car and placed his hands on the car.     "He was

being cooperative."   When Officer Laino began "patting him

     1
       We note that the warrants designate the date of the
offense as October 29, 1999. However, one of the corresponding

                               - 3 -
down," Ridley removed one of his hands from the car.   Laino

asked him to put his hand back on the car.   Ridley said, "[O]h,

I'm, [sic] sorry," "I didn't mean anything by it," and put his

hand back on the car.   Officer Laino then continued "patting

[Ridley] down."

     A few moments later, Ridley removed his hand from the car

once again.    Officer Laino said, "[S]ir, keep your hand on the

police car."    Ridley again apologized and placed his hand back

on the car.    When Officer Laino continued the pat-down, he

"moved [Ridley's] feet back a little bit further to get his feet

off balance."   At that point, Ridley "pushed off the car, swung

around and took a swing at [Laino]."   Laino moved to "miss the

punch" and "grabbed [Ridley's] jacket."   Ridley tried to "wiggle

his way out of the jacket," and eventually "broke free from

[Laino's] grasp" and began running.    Officer Laino chased

Ridley, stopped him, and "wrestled him down to the ground."

Laino then called for assistance.

     While Officer Laino was waiting for assistance, Ridley

continued to struggle, striking Laino in the "chestplate area"

"several times."   When another officer arrived, the two officers

were able to handcuff Ridley and place him in custody.

     Upon a search of Ridley's person, incident to arrest,

Officer Laino recovered a "plastic like wax paper" containing


indictments designates the date of the offense as October 30,
                              - 4 -
"powder material which was suspected heroin," a "rock like

substance suspected to be crack cocaine," and "a large quantity

of [U.S.] currency."

        Prior to his trial on charges of possession of heroin,

possession of cocaine with intent to distribute, and assault,

Ridley moved to suppress the evidence against him.    Ridley

contended the "interrogation and search" "was unreasonable and

in violation of the 4th, 5th and 6th Amendments to the United

States Constitution."

        During the hearing on the motion, Officer Laino testified

to the events set forth above.    He further testified that, at

the time of the incident, he knew the area to be a "high-crime

area, a high-drug area."    After hearing the evidence and

considering arguments of counsel, the trial court overruled the

motion to suppress. 2   Ridley subsequently pled guilty to the

charges at issue, conditioned upon the preservation of his right

to appeal.    The trial court sentenced Ridley to eight years and

six months in prison, with two years suspended upon certain

conditions.

        On appeal, Ridley contends the trial court erred in denying

his motion to suppress.    Ridley argues that the "detention and

search" violated the Fourth and Fourteenth Amendments to the


1999.


                               - 5 -
United States Constitution because "said detention and search

were predicated entirely upon a tip from an unknown citizen."

"[U]ltimate questions of reasonable suspicion and probable

cause" involve questions of both law and fact and are reviewed

de novo on appeal.   Ornelas v. United States, 517 U.S. 690, 691

(1996).   In performing this analysis, 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.   Id. at 699.    We analyze a trial

court'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.     See Satchell v.

Commonwealth, 20 Va. App. 641, 648, 460 S.E.2d 253, 256 (1995)

(en banc); see also Watson v. Commonwealth, 19 Va. App. 659,

663, 454 S.E.2d 358, 361 (1995).

     It is well settled that the Fourth Amendment "does not

proscribe all seizures, only those that are 'unreasonable.'"

Hodnett v. Commonwealth, 32 Va. App. 684, 690, 530 S.E.2d 433,

436 (2000) (quoting Welshman v. Commonwealth, 28 Va. App. 20,

30, 502 S.E.2d 122, 126-27 (1998) (en banc)).

           Well established fourth amendment
           jurisprudence has placed police-citizen

     2
       The arguments of counsel were not included in the
transcript and/or the appendix on appeal.
                             - 6 -
           confrontations into three categories.
           First, there are communications between
           police officers and citizens that are
           consensual and, therefore, do not implicate
           the fourth amendment. Second, there are
           brief investigatory stops which must be
           based on specific and articulable facts
           which, taken together with rational
           inferences from these facts, reasonably
           warrant a limited intrusion. Third, there
           are highly intrusive, full-scale arrests,
           which must be based on probable cause.

Iglesias v. Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173

(1988).   The Commonwealth contends we do not need to reach

Ridley's assertion pertaining to the legality of the detention

and search based upon the information provided by the informant,

because the detention and search here were consensual.

      As stated above, the United States Supreme Court has long

held that searches made by the police pursuant to a valid

consent do not implicate the Fourth Amendment.   See Schneckloth

v. Bustamonte, 412 U.S. 218, 222 (1973); Iglesias, 7 Va. App. at

99, 372 S.E.2d at 173.   "At trial, the Commonwealth bears the

burden of proving that consent was in fact given."   Hargraves v.

Commonwealth, 37 Va. App. 299, 307, 557 S.E.2d 737, 741 (2002).

The Commonwealth must also prove that, under the totality of the

circumstances, the consent was freely and voluntarily given.

Id.   "The presence of consent is, however, a factual question."

Id.   In the case at bar, the record reflects no explicit factual

determination that the detention and search at issue were

conducted pursuant to Ridley's consent.   Therefore, we review

                             - 7 -
the totality of the circumstances to determine whether a finding

that this was a consensual encounter is implicit in the trial

court's denial of the motion to suppress.

               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 (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. Fourth Amendment
          scrutiny is triggered, however, the moment
          an encounter "'loses its consensual
          nature.'" Id. (quoting [Bostick, 501 U.S.
          at 434]).

               In Wilson, the Fourth Circuit
          considered "the effect of a person's
          unsuccessful attempt to terminate what began
          as a consensual encounter." Wilson, 953
          F.2d at 121. The Court opined that a
          voluntary police-citizen encounter "should
          be placed in the realm of [a] Fourth
          Amendment 'seizure '" when "a reasonable
          person would have believed that he was not
          free to leave." Id.; see also Richards, 8
          Va. App. at 615, 383 S.E.2d at 270 (quoting
          United States v. Mendenhall, 446 U.S. 544,
          554 (1980)); Goodwin v. Commonwealth, 11
          Va. App. 363, 365, 398 S.E.2d 690, 691
          (1990); Moss v. Commonwealth, 7 Va. App.
          305, 307, 373 S.E.2d 170, 171 (1988). 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.'" Wilson, 953 F.2d at 122
                            - 8 -
           (quoting [Bostick, 501 U.S. at 436]).

Payne v. Commonwealth, 14 Va. App. 86, 88-89, 414 S.E.2d 869, 870

(1992).   "'Thus, a seizure occurs when a law enforcement officer,

by physical force or some display of authority, restrains in some

manner a citizen's freedom of movement.   Only when such restraint

is imposed is there a basis for invoking Fourth Amendment

safeguards.'"   McLellan v. Commonwealth, 37 Va. App. 144, 152,

554 S.E.2d 699, 703 (2001) (quoting McCain v. Commonwealth, 261

Va. 483, 490-91, 545 S.E.2d 541, 545-46 (2001)).

           The [United States] Supreme Court has
           detailed examples of circumstances that may
           indicate that a seizure has occurred. Such
           examples include "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." Mendenhall, 446 U.S. at 554;
           [Parker v. Commonwealth, 255 Va. 96, 101,
           496 S.E.2d 47, 50 (1998)]; [Baldwin v.
           Commonwealth, 243 Va. 191, 196, 413 S.E.2d
           645, 648 (1992)].

McCain, 261 Va. at 491, 545 S.E.2d at 545-46.
     In McGee v. Commonwealth, 25 Va. App. 193, 487 S.E.2d 259

(1997) (en banc), we further recognized that:

           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," [Bostick, 501 U.S. at 435],
           and "that failure to cooperate would lead




                             - 9 -
           only to formal detention." United States v.
           Berry, 670 F.2d 583, 597 (5th Cir. 1982).

25 Va. App. at 200, 487 S.E.2d at 262 (other citations omitted).

     In McGee, three police officers approached the defendant,

who was sitting on a porch in front of a store, after receiving a

radio dispatch that a black male wearing a white T-shirt, black

shorts, and white tennis shoes was selling drugs on a corner

nearby.   Id. at 196, 487 S.E.2d at 260.   The officers informed

the defendant that they "had received a call that [he] was on

this corner selling drugs and [that he] matched the description"

of the individual who had been reported as selling drugs.     Id.

(alterations in original).   We found that the officers'

subsequent search of the defendant, although consensual, was

unlawful because the officers detained the defendant when they

approached him and specifically identified him as the subject of

their drug investigation.    Id. at 201, 487 S.E.2d at 263.   This

Court found that detention was unlawful because it was not based

upon sufficient evidence to support a reasonable articulable

suspicion of criminal activity.    Id. at 203, 487 S.E.2d at 264.
     We emphasized that "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."   Id. at 200, 487 S.E.2d at 262 (emphasis

added).   We went on to note that "[w]hether 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
                              - 10 -
as a suspect conveys to the person that he or she is a suspect

and is not free to leave."     Id. at 200-01, 487 S.E.2d at 262-63

(emphases added). 3

     Ridley contends that, under McGee, his initial detention

was unlawful, thus the evidence obtained as a result thereof

should have been suppressed.    We disagree.

     Unlike the facts in McGee, the record in this case

demonstrates that Ridley was approached by only one officer, who

initially remained seated in his patrol car.     Further, Officer

Laino did not inform Ridley that he was the subject of a police

investigation, but while still seated in his police car, merely

asked him if he lived in the apartment complex and informed him

that he was "trespassing" and "not supposed to be there," when

Ridley replied that he did not live there.     The "totality" of

these circumstances fall far short of those with which we were

concerned in McGee.   Indeed, although Officer Laino accused




     3
       In a footnote, we specifically noted    that "[o]ther factors
that could be considered include the number    of officers present,
whether the officers displayed weapons, and    physical
circumstances of the encounter." McGee, 25     Va. App. at 200 n.2,
487 S.E.2d at 262 n.2.
                               - 11 -
Ridley of committing the crime of trespass, the record reflects

that he did so in the context of a conversation between the two

men concerning Ridley's reason for being in the parking lot -

not in the context of a criminal investigation or arrest for

that particular criminal offense.      Moreover, Officer Laino

engaged in no conduct which even arguably conveyed to Ridley

that he was not free to leave and that compliance with Officer

Laino's requests was required.

     Thus, the circumstances at issue here establish that the

initial meeting between Ridley and Officer Laino was not a

detention, but was a consensual encounter, implicating no Fourth

Amendment interests.    Laino merely called out to Ridley,

approached him, then inquired if he lived in the apartment

complex.   Ridley was cooperative and remained so, even when

Officer Laino asked him if he was carrying any drugs or weapons.

When Officer Laino asked Ridley if he could pat him down, Ridley

placed his own hands against Laino's patrol car.

     However, our analysis cannot end here.      The record reflects

that the consensual aspect of this encounter soon disappeared.

When Ridley tried to take his hands off of Laino's patrol car,

Officer Laino first asked, but then later ordered Ridley to keep

his hands on the car.   Officer Laino then "moved" Ridley's feet

back to place him off balance, so that he could complete the

pat-down search.   Under the restraint demonstrated by this

                              - 12 -
course of conduct, a "reasonable person" clearly would not have

"fe[lt] free to leave," to "ignore" the officer and "walk away,"

at that point in time.   Thus, for Fourth Amendment purposes, we

find that Ridley was "seized" by Officer Laino at that time.

Payne, 14 Va. App. at 88-89, 414 S.E.2d at 870.

     Due to the unique circumstances of this case, however, our

analysis does not now require us to consider the lawfulness of

that detention, because immediately after the encounter became a

detention, Ridley "took a swing" at Officer Laino, in an effort

to leave.   The Supreme Court of Virginia has held that "a person

in this Commonwealth does not have the right to use force to

resist an unlawful detention or 'pat down' search."

Commonwealth v. Hill, 264 Va. 541, 548, 570 S.E.2d 805, 809

(2002).   In Hill, the Court reasoned that

            [b]ecause a detention is, by its nature, a
            brief intrusion on an individual's liberty,
            the provocation resulting from an illegal
            detention is far less significant than the
            provocation that attends an illegal arrest.
            Thus, recognition of a right to resist an
            unlawful detention would not advance the
            rationale supporting the common law right to
            use reasonable force to resist an unlawful
            arrest, but would only serve to increase the
            danger of violence inherent in such
            detentions.

Id. at 548, 570 S.E.2d at 808-09.

     Accordingly, because Ridley had no right to resist the

detention by use of force, Officer Laino possessed the requisite

probable cause to arrest Ridley at that point in time.     See
                              - 13 -
Bennett v. Commonwealth, 35 Va. App. 442, 449, 546 S.E.2d 209,

212 (2001) (defining assault as "'[a]n attempt or offer, with

force and violence, to do some bodily hurt to another, . . . as

by striking at him with a stick or other weapon, or without a

weapon, though he be not struck, or even by raising up the arm

or a cane in a menacing manner . . . or any similar act

accompanied with circumstances denoting an intention coupled

with a present ability, of using actual violence against the

person of another'" (quoting Harper v. Commonwealth, 196 Va.

723, 733, 85 S.E.2d 249, 255 (1955))); see also Bryson v.

Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250 (1970)

("[T]he test of constitutional validity [of a warrantless arrest

and incidental search] is whether . . . the arresting officer

had knowledge of sufficient facts and circumstances to warrant a

reasonable man in believing that an offense has been

committed.").   Therefore, the subsequent search conducted by

Laino was proper, as incident to that arrest.    United States v.

Robinson, 414 U.S. 218, 224 (1973); Wright v. Commonwealth, 222

Va. 188, 192-93, 278 S.E.2d 849, 852 (1981).    Because we find

the search at issue here was proper, as incident to a lawful

arrest, we need not address Ridley's argument that the

information provided to Officer Laino by the unknown citizen

informant was insufficient to provide him with the necessary



                             - 14 -
reasonable suspicion to detain Ridley, and we affirm the

judgment of the trial court.

                                                           Affirmed.




                               - 15 -
