COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Elder and Annunziata

Argued at Richmond, Virginia

GLENN ANTONY BARCROFT, JR.

MEMORANDUM OPINION* BY

v. Record No. 0009-98-2 JUDGE LARRY G. ELDER

FEBRUARY 23, 1999

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Thomas N. Nance, Judge

Susan D. Hansen, Deputy Public Defender

(David J. Johnson, Public Defender, on

brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney

General (Mark L. Earley, Attorney General, on

brief), for appellee.

Glenn Antony Barcroft, Jr., (appellant) appeals from his

bench trial conviction for possession of cocaine in violation of

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

erroneously denied his motion to suppress. He argues that the

officers violated his rights under the United States and Virginia

Constitutions because they did not have the reasonable suspicion

necessary to justify a seizure and search. We hold that the

contact was a consensual encounter rather than a seizure and that

appellant consented to the search. Therefore, we affirm

appellant's conviction.

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. See Simmons v. Commonwealth, 238 Va. 200, 204, 380

S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va. App.

671, 674, 454 S.E.2d 39, 41 (1995). On appeal, we view the

evidence in the light most favorable to the prevailing party,

granting to it all reasonable inferences fairly deducible

therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066,

1067, 407 S.E.2d 47, 48 (1991). "[W]e 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 v. Commonwealth, 25 Va. App.

193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v.

United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1659, 134

L. Ed. 2d 911 (1996)). However, we review de novo the trial

court's application of defined legal standards such as probable

cause and reasonable suspicion to the particular facts of the

case. See Shears v. Commonwealth, 23 Va. App. 394, 398, 477

S.E.2d 309, 311 (1996); see also Ornelas, 517 U.S. at 699, 116

S. Ct. at 1659.

Appellant argues first that he was seized for purposes of

the Fourth Amendment prior to the frisk. We disagree.

Police-citizen encounters generally fall into one of three

categories. See 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). "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.'" Greene v. Commonwealth, 17 Va. App. 606, 610,

440 S.E.2d 138, 140 (1994) (quoting United States v. Mendenhall,

446 U.S. 544, 553-54, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497

(1980) (citation omitted)). Therefore, consensual 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.'" 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)). "'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.'" Greene, 17 Va. App. at 610, 440 S.E.2d at 140

(quoting Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877). "A

seizure occurs when an individual is either physically restrained

or has submitted to a show of authority." McGee, 25 Va. App. at

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

"Whether a seizure has occurred . . . depends upon whether,

under the totality of the circumstances, a reasonable person

would have believed that he or she was not free to leave." Id.

at 199-200, 487 S.E.2d at 262. Other factors relevant under the

"totality of the circumstances" analysis 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."'"

Greene, 17 Va. App. at 611 n.1, 440 S.E.2d at 141 n.1 (quoting

Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877) (other citation

omitted).

Here, Officers Ernst and Rogers asked appellant if he minded

their stopping him, to which he responded that he did not. The

officers did not touch appellant, block his exit route or

restrain him in any way before receiving his consent. Although

the officers activated their flashing lights, they did so only

for safety reasons and only after appellant had said he did not

mind talking to the officers and would consent to be searched.

Therefore, the evidence supports a finding that appellant

consented to a voluntary encounter. See Williams v.

Commonwealth, 21 Va. App. 263, 266, 463 S.E.2d 679, 681 (1995)).

Because the encounter was voluntary, the police did not need

reasonable articulable suspicion of criminal activity to justify

the encounter.

Our recent holding in McGee, 25 Va. App. 193, 487 S.E.2d

259, does not require a different result. In that case, we held

that where an officer indicates to a particular individual that

he has received information that the individual himself is

engaging in criminal activity, the encounter may become a

seizure. See id. at 200, 487 S.E.2d at 262. However, we also

noted that "[a]n encounter between a law enforcement officer and

a citizen in which the officer merely identifies himself and

states he is conducting a narcotics investigation, without more,

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

is, instead, a consensual encounter." Id. at 199, 487 S.E.2d at

262.

In McGee, one of the officers specifically told the suspect

that he was the object of their investigation, not merely that

they were conducting a general investigation. 25 Va. App. at

201, 487 S.E.2d at 263. Additional evidence in McGee "proved

that three uniformed officers arrived in two marked police

cruisers and confronted the [suspect]," and "the trial court,

which found that a seizure had occurred, had the opportunity to

evaluate the tone of voice that [the officer] said he used in

speaking to the [suspect]." Id.

In appellant's case, by contrast, two uniformed police

officers arrived in one marked police car, and appellant

consented to the encounter before the officers mentioned they

were conducting a narcotics investigation. Further, the evidence

is uncontradicted that the officers told appellant only that they

had received information "that there was a drug deal going on,"

not that appellant had been identified as a suspect. Finally,

based on this evidence, the trial court found that appellant was

not seized. These facts distinguish appellant's case from McGee.

Appellant also contends that he did not voluntarily consent

to the frisk. Again, we disagree.

"A consensual search is reasonable if the search is within

the scope of the consent given." Grinton v. Commonwealth, 14 Va.

App. 846, 850, 419 S.E.2d 860, 862 (1992). The scope of the

consent is viewed under a standard of "'objective'

reasonableness--what would the typical reasonable person have

understood by the exchange between the officer and the suspect?"

Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04,

114 L. Ed. 2d 297 (1991). A suspect may consent to an officer's

request to search simply by raising his hands to facilitate the

search. See Bynum v. Commonwealth, 23 Va. App. 412, 416, 417,

477 S.E.2d 750, 752, 753 (1996). "[T]he State has the burden of

proving that the necessary consent was obtained and that it was

freely and voluntarily given . . . ." Florida v. Royer, 460 U.S.

491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229 (1983). "Both

the presence of consent to search and any related limitations are

factual issues for the trial court to resolve after consideration

of the attendant circumstances." Bynum, 23 Va. App. at 418, 477

S.E.2d at 753.

Viewed in the light most favorable to the Commonwealth, the

evidence amply supported the finding that appellant voluntarily

consented to the search of his person. He did so, first, by

saying that he did not mind if the officers searched him and,

second, by dismounting his bicycle and placing his hands on the

police car without being asked in order to facilitate the frisk.

Although the officers mentioned their narcotics investigation

prior to obtaining appellant's consent to search, the evidence is

uncontradicted, as outlined above, that they told appellant only

that they had received information "that there was a drug deal

going on," not that appellant had been identified as a suspect.

Therefore, no evidence in the record invalidates the consent

appellant gave to the search. Pursuant to that search, Ernst

felt a lump in appellant's waistband, which appellant admitted

was "dope."

Because the evidence supports the trial court's finding that

the officers did not seize appellant and that he consented to the

search, we affirm appellant's conviction.

Affirmed.

*Pursuant to Code 17.1-413, recodifying Code 17-116.010,

this opinion is not designated for publication.

Appellant also relies on the recent decision in Parker v.

Commonwealth, 255 Va. 96, 496 S.E.2d 47 (1998) (plurality op.).

In Parker, however, only two justices joined Justice Hassell's

opinion. The remaining four justices concurred only "in the

result." Id. at 107, 496 S.E.2d at 53. In any event, the facts

in Parker are distinguishable from those in appellant's case.

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