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. 
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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 

 1Code § 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. 
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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 
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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 
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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 
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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 
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(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 
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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 
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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, 
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and had been forbidden by the "No Trespassing" signs from being 

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

conviction. 

 Affirmed.