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 

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 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 

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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 

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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. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 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. 
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 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." 
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 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. 
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 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 
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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 
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 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. 
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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 
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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 
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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. 
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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 
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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 
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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.
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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. 
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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.