                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia


GEORGE GREGORY BOONE
                                         MEMORANDUM OPINION * BY
v.        Record No. 2575-95-2          JUDGE SAM W. COLEMAN III
                                            FEBRUARY 4, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Thomas N. Nance, Judge
          Patricia P. Nagel, Assistant Public Defender
          (David J. Johnson, Public Defender, on
          brief), for appellant.

          Marla Graff Decker, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     George Gregory Boone was arrested for trespassing at

Whitcomb Court, which is a multi-unit housing development owned

by the City of Richmond Redevelopment and Housing Authority.   The

arresting officers searched Boone incident to the arrest and

discovered in his right pants pocket two plastic baggies

containing cocaine.    On appeal from the trespass and possession

of cocaine convictions, the issues are (1) whether Boone's

statements to the officers when they first approached him, which

statements led to the trespass charge, should have been

suppressed because they were given involuntarily in violation of

Miranda v. Arizona, (2) whether the officers illegally seized the

     *
      Pursuant to Code § 17-116.010 this opinion is not

designated for publication.
cocaine from Boone in violation of the Fourth and Fourteenth

Amendments, and (3) whether the evidence is sufficient to support

the trespass conviction.   We find no error and affirm the

trespass and possession of cocaine convictions.

     On June 9, 1995, around 6:45 p.m., two City of Richmond

uniformed police officers were on routine patrol near Whitcomb

Court.   After parking their patrol car, they walked into an area

in Whitcomb Court known as a "cut," which are areas shielded

between two apartment buildings known by police to be areas in

Whitcomb Court where drugs are bought and sold.   Due to the

considerable drug activity, a "No Trespassing" sign had been

placed on each apartment building in the Whitcomb Court complex.

As the officers walked into the "cut" a number of people who

were congregated there scattered and someone yelled "Five-O," a

common street warning that police are in the area.
     The defendant, who was in the vicinity where the people were

congregated, was walking toward the officers.   As he approached,

one of the officers "just walked up to [the defendant] and

started talking to him."   The officer greeted the defendant and

asked him whether he lived in Whitcomb Court.   The defendant

responded, "No."   The officer then asked if he was "visiting

anybody."   The defendant again said, "No."   After the officer

determined that the defendant neither lived nor was visiting

there, the officer asked the defendant if he had drugs.   When the

defendant responded that he did not, the officer asked if he




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could check the defendant's pockets for drugs.    The defendant

said "No," and turned and ran from the officer.

     The officer pursued the defendant and overtook him after

about forty or fifty feet.   The officer tackled the defendant,

handcuffed him, and placed him under arrest for trespassing. 1

After the arrest, the officer searched the defendant and found

     1
      Code § 18.2-119 provides as follows:

          Trespass after having been forbidden to do
          so; penalties.
              If any person without authority of law
          goes upon or remains upon the lands,
          buildings or premises of another, or any
          portion or area thereof, after having been
          forbidden to do so, either orally or in
          writing, by the owner, lessee, custodian or
          other person lawfully in charge thereof, or
          after having been forbidden to do so by a
          sign or signs posted by such persons or by
          the holder of any easement or other
          right-of-way authorized by the instrument
          creating such interest to post such signs on
          such lands, structures, premises or portion
          or area thereof at a place or places where it
          or they may be reasonably seen, or if any
          person, whether he is the owner, tenant or
          otherwise entitled to the use of such land,
          building or premises, goes upon, or remains
          upon such land, building or premises after
          having been prohibited from doing so by a
          court of competent jurisdiction by an order
          issued pursuant to Code §§ 16.1-253,
          16.1-253.1, 16.1-278.2 through 16.1-278.6,
          16.1-278.8, 16.1-278.14, 16.1-278.15, or Code
          § 16.1-279.1, or an ex parte order issued
          pursuant to Code § 20-103, and after having
          been served with such order, he shall be
          guilty of a Class 1 misdemeanor. This
          section shall not be construed to affect in
          any way the provisions of Code §§ 18.2-132
          through 18.2-136.




                               - 3 -
two plastic bags containing cocaine in the defendant's right

pants pocket. The defendant was then charged with possessing

cocaine in violation of Code § 18.2-250.



              SUPPRESSION OF DEFENDANT'S STATEMENTS

     The defendant contends that his responses to the police

officer's questions which led to the trespassing charge and the

fruits that flowed from his arrest for trespassing should have

been suppressed because he gave them involuntarily in violation

of his Fifth Amendment rights as defined in Miranda v. Arizona.
          Miranda warnings are required whenever a
          suspect is subjected to "custodial
          interrogation." Every detention does not
          necessarily constitute custodial
          interrogation for purposes of Miranda.
          A person is in custody for Miranda purposes
          only when the person's "freedom of action is
          curtailed to a 'degree associated with formal
          arrest.'" If an officer has a reasonable,
          articulable basis to suspect that an
          individual has committed or is about to
          commit a crime, the officer is justified in
          briefly detaining the suspect and asking him
          a limited number of questions without giving
          Miranda warnings in order to quell or confirm
          the officer's suspicion of criminal activity.
Cherry v. Commonwealth, 14 Va. App. 135, 140, 415 S.E.2d 242, 244

(1992) (citations omitted).

     The holding in Miranda was designed to provide a warning and

safeguard from those types of prolonged or intense interrogations

that are commonly associated with station house questioning.     See

Miranda v. Arizona, 384 U.S. 436, 438-39 (1966).   Miranda

warnings are not required when there has been a consensual



                              - 4 -
encounter or brief detention to investigate suspicious activity

or circumstances. Id.
          The brief detention and nature of the
          questioning in [Terry-type detentions] is
          dramatically different from the coercive
          influences in "police dominated, station
          house interrogations" which are frequently
          prolonged and against which Miranda was
          designed to protect. Miranda's prophylactic
          rule recognizes that a person questioned in a
          custodial situation is subjected to
          compelling influences which might induce him
          "to speak where he would not otherwise do so
          freely." Whether a suspect is "in custody"
          turns upon "how a reasonable man in the
          suspect's position would have understood his
          situation." Thus, a suspect is "in custody"
          when the objective circumstances would lead a
          reasonable person to believe he was under
          arrest, thereby subjecting him or her to
          pressure impairing the free exercise of the
          privilege against self-incrimination.

Cherry, 14 Va. App. at 140, 415 S.E.2d at 244.

     In the instant case, the confrontation between the defendant

and the officer, who inquired about the defendant's presence in

Whitcomb Court, was either a consensual encounter, see Baldwin v.

Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 647-48 (1992),

or, at most, a brief investigatory detention to determine whether

criminal activity may have been afoot, see Terry v. Ohio, 392
U.S. 1, 21 (1968).   The defendant, who ran, did not consider

himself to have been arrested; he did not submit to a show of

authority, nor did he feel that he did not have the right to

leave.   The initial encounter consisted of the officer asking the

defendant whether he lived in or was visiting someone in Whitcomb

Court or whether he possessed drugs or would consent to having



                               - 5 -
his pockets searched.   Regardless of the defendant's subjective

belief about whether he felt free to leave, no reasonable person

would have felt that he had been arrested or taken into custody

under these circumstances.   See Stansbury v. California, 511 U.S.

318, 323 (1994), and Berkemer v. McCarty, 468 U.S. 420, 442

(1984).   Accordingly, because the questioning of Boone concerning

his purpose for being in Whitcomb Court did not occur during a

custodial interrogation, but rather during a consensual encounter

or brief investigatory detention, the officers were not required

to give him the warnings as dictated by Miranda.      Thus, the trial

court did not err in refusing to suppress Boone's statements.

                                       SUPPRESSION OF THE COCAINE

We next consider the defendant's contention that the trial court

erred by refusing to suppress the cocaine which the officers

seized from the defendant because when they searched him they

violated his Fourth Amendment privacy protection as guaranteed by

the Fourteenth Amendment.

Critical to the inquiry is determining when Boone was seized for

purposes of the Fourth Amendment.      Boone contends that he was

seized when the officer first approached him and began asking him

questions relative to both trespass and drug charges.     He asserts

that, because the officer was in uniform, wearing a badge, and

carrying a weapon, no reasonable person would have felt free to

leave after the questioning began and, thus, he was seized.

Therefore, the defendant claims, because the officers had no



                               - 6 -
reason to suspect him of trespassing or engaging in drug activity

the detention was illegal.
          The purpose of the Fourth Amendment is not to
          eliminate all contact between the police and
          the citizenry, but "to prevent arbitrary and
          oppressive interference by enforcement
          officials with the privacy and personal
          security of individuals." As long as the
          person to whom questions are put remains free
          to disregard the questions and walk away,
          there has been no intrusion upon that
          person's liberty or privacy as would under
          the Constitution require some particularized
          and objective justification.


United States v. Mendenhall, 446 U.S. 544, 553-54 (1980)

(citation omitted).   For a police officer to merely approach a

citizen on the street and ask the individual questions is a

consensual encounter and does not implicate the Fourth Amendment.

 Buck v. Commonwealth, 20 Va. App. 298, 301-02, 456 S.E.2d 534,

535-36 (1995); see Baldwin v. Commonwealth, 243 Va. 191, 196, 413

S.E.2d 645, 647-48 (1992).   Unless a police-citizen encounter is

accompanied by some show of force or authority or some coercion

by the police officer that would cause the citizen reasonably to

believe that he was not free to leave and was required to comply,

then there has been no detention that implicates the Fourth

Amendment.   Greene v. Commonwealth, 17 Va. App. 606, 608, 440

S.E.2d 138, 139-40 (1994).

     Viewing the evidence in the light most favorable to the

Commonwealth, as we must do when reviewing a trial court's denial

of a motion to suppress evidence, Fore v. Commonwealth, 220 Va.

1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017



                               - 7 -
(1980), the police officer made no show of authority or force and

used no coercion that would cause a person reasonably to have

believed that he was not free to leave.     Although Boone's

subjective state of mind does not control the determination as to

whether he was seized, see Michigan v. Chesternut, 486 U.S. 567,

574 (1988), in making the objective determination whether a

person would feel free to leave, it is significant to note that

Boone did, in fact, leave.   At that point in time, the police

officer had not seized Boone.
     No seizure or detention of Boone occurred until after he

fled and when the officer physically tackled and subdued him.

See California v. Hodari D., 499 U.S. 621, 626-27 (1991); Woodson

v. Commonwealth, 245 Va. 401, 405-06, 429 S.E.2d 27, 29 (1993).

At that time the officer had probable cause to believe that Boone

was trespassing in Whitcomb Court.      "No Trespassing" signs were

posted on the apartment buildings and Boone told the officer that

he did not live there and was not visiting anyone there.       Even if

the officers had initiated the trespass investigation as a

pretext to allow them to further investigate whether Boone was

involved in drug activity, once the officers had probable cause

to believe that Boone was trespassing the legality of seizing and

charging him with that offense satisfies the Fourth Amendment

requirement that the seizure be reasonable.      See Whren v. United

States, 116 S. Ct. 1769 (1996).   Thereafter, the officer had the

right to search Boone incident to the arrest and the cocaine



                                - 8 -
found as a result of that search was legally seized.   See Warden

v. Hayden, 387 U.S. 294, 310 (1967).   Accordingly, the trial

court did not err by overruling the motion to suppress the

cocaine.

                SUFFICIENCY OF EVIDENCE -- TRESPASS
           A person is guilty of trespassing "if [that]
           person without authority of law goes upon or
           remains upon the lands, buildings or premises
           of another, or any portion or area thereof,
           after having been forbidden to do so, either
           orally or in writing, by the owner . . . or
           other person lawfully in charge thereof, or
           after having been forbidden to do so by a
           sign or signs posted by such persons." Code
           § 18.2-119. Although the criminal trespass
           statute does not contain an express
           requirement of intent, the statute has been
           construed to require proof of a willful
           trespass.

Jones v. Commonwealth, 18 Va. App. 229, 232, 443 S.E.2d 189, 190

(1994) (citations omitted).

     When reviewing whether the evidence is sufficient to support

a trespass conviction, we view the evidence in the light most

favorable to the prevailing party, which is the Commonwealth.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975).   Nevertheless, Boone contends that the testimony of

his friend, Henry Burns, who explained that he had dropped Boone

off and had given him directions to a bus stop which required

that Boone walk through Whitcomb Court, absolved Boone of having

a willful or criminal intent to trespass.   Boone argues that on

these facts he was in Whitcomb Court under a claim of right.

Even accepting as true Burns' explanation of why Boone was at



                               - 9 -
Whitcomb Court, that does not absolve him of trespass.

     Admittedly, if one enters or stays upon land under a bona

fide claim of right, the criminal intent necessary to convict of

criminal trespass is negated.     Reed v. Commonwealth, 6 Va. App.

65, 71, 366 S.E.2d 274, 278 (1988).       "[A] bona fide claim of

right is a sincere, although perhaps mistaken, good faith belief

that one has some legal right to be on the property.      The claim

need not be one of title or ownership, but it must rise to the

level of authorization."   Id.    The authorization or consent to be

on the property must be given by a person with authority to give

such consent in order for the claim of right to be in good faith.

 See, e.g., State v. Hoyt, 304 N.W.2d 884, 889 (Minn. 1981).

     Here, accepting Burns' explanation as true, which the fact

finder was not required to do, Boone knew that Burns did not own

property or live in Whitcomb Court, he was merely visiting his

girlfriend.   Burns was not an owner, tenant, or licensee of the

property.   He had no authority to consent to Boone's presence on

the property or to authorize him to disregard the "No

Trespassing" signs and to cross the property.      Boone could not

have had a good faith, reasonable belief that Burns' permission

to enter the property, which was clearly marked "No Trespassing,"

entitled him to enter the property.

     Accordingly, the trial court did not err in finding that

Boone was not in Whitcomb Court under a legitimate claim of

right; he did not live there, was not visiting a resident there,



                                 - 10 -
and had been forbidden by the "No Trespassing" signs from being

there.   Thus, the evidence is sufficient to support the trespass

conviction.

                                                   Affirmed.




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