COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Baker, Barrow*, Benton, 

Koontz, Willis, Elder, Bray and Fitzpatrick 

Argued at Richmond, Virginia 

MAURICE CLAY SATCHELL 

v. Record No. 2186-92-2 OPINION BY 

 JUDGE JERE M. H. WILLIS, JR. 

COMMONWEALTH OF VIRGINIA AUGUST 15, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Craig S. Cooley for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Stephen D. Rosenthal, Attorney 

General, on brief), for appellee. 

 In Commonwealth v. Satchell, 15 Va. App. 127, 422 S.E.2d 412 

(1992) (Satchell I), an appeal by the Commonwealth pursuant to 

Code § 19.2-398, a panel of this Court reversed the trial court's 

suppression of evidence relating to cocaine found on Satchell's 

person and remanded the case for trial. In obedience to that 

mandate, the trial court admitted the cocaine, and a description 

of its seizure, into evidence. On appeal from his resulting 

conviction of possession of cocaine and invoking Code § 19.2-409, 

Satchell contends that the cocaine and the circumstances of its 

discovery should have been excluded because they derived from an 

unlawful seizure of his person. We agree and reverse the 

judgment of the trial court. 

 

 *Judge Bernard G. Barrow participated in the hearing of this 

case and voted to reverse the judgment prior to his death. 
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 This appeal was assigned initially to a three judge panel. 

However, thinking that the issues concerning the effect of our 

decision on interlocutory appeals and the review mandate of Code 

§ 19.2-409 required a prompt full-Court decision, on motion of 

two members of the panel, we decided to consider this case en

banc. Code § 17-116.02(D). 

 The evidence adduced at the pretrial hearing on Satchell's 

initial motion to suppress disclosed that: 

 In mid-afternoon on December 18, 1991, Sergeant John 

Buckovich, who was dressed in plain clothes and 

traveling in an unmarked police car, saw [Satchell] 

standing with two other individuals on a Richmond 

street corner known to Buckovich as an area for 

narcotics trafficking. Buckovich saw [Satchell] hand 

money to one man and receive something in return. The 

three men saw the police car as it approached and 

immediately started to walk away in separate 

directions. [Satchell] walked to a door stoop, but was 

unable to enter the locked door. 

 From these observations, Buckovich believed that 

criminal activity was transpiring. Buckovich, who had 

a badge around his neck, approached [Satchell] on the 

stoop and identified himself. He asked [Satchell], 

"What's in your hand, pal?" [Satchell] showed his left 

hand, which was empty. Buckovich then asked [Satchell] 

what was in his other hand. [Satchell] opened his 

right hand, which contained two packages of cocaine. 

Buckovich arrested [Satchell]. Buckovich testified 

that until he observed the cocaine and made the arrest, 

Satchell was free to leave at any time or to ignore 

Buckovich's questions. 

Satchell I, 15 Va. App. at 129, 422 S.E.2d at 413. The trial 

court ruled that Buckovich's observations were insufficient to 

establish the level of suspicion required to justify a seizure of 

Satchell's person. The Commonwealth did not contest that ruling 

in Satchell I and does not contest it in this appeal. 
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 The trial court found that a person in Satchell's position 

would reasonably have believed that he was not free to leave or 

to disregard Buckovich's questions. It ruled that Satchell had 

been seized and that the seizure, being unsupported by the 

requisite reasonable suspicion, was unlawful. It suppressed 

evidence of the cocaine and the circumstances surrounding its 

discovery. 

 The Commonwealth appealed the suppression ruling pursuant to 

Code § 19.2-398. Holding that, under the recited circumstances, 

Buckovich had not seized Satchell, a panel of this Court reversed 

the suppression ruling and remanded the case for trial. The 

panel noted: 

 [A] law enforcement officer does not violate the fourth 

amendment by merely approaching an individual in a 

public place and asking questions of the person if the 

individual is willing or chooses to remain and answer 

them. There 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 requests. 

Id. at 131, 422 S.E.2d at 415 (citation omitted). The panel 

analyzed the facts as follows: 

 Sergeant Buckovich approached Satchell in midday in 

public and asked him what was in his hand. The officer 

made no show of authority other than his presence, he 

was not in uniform, he displayed no weapon, he was a 

lone officer, and, insofar as the record reflects, he 

made no command nor adopted a threatening tone. A 

question, as directed by Buckovich, is less coercive 

than a demand, as made by the officer in Baldwin [243 

Va. 191, 413 S.E.2d 645 (1992)]. In Baldwin, the 

police officer's demand, coupled with the shining of a 

floodlight and a request for identification, was held 

not to constitute a seizure. The Court found that a 

reasonably prudent person under those circumstances 
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would not have believed his freedom of movement was 

restrained. In this case, the trial court ruled that a 

reasonably prudent person in Satchell's position, when 

approached by an officer and asked what was in his 

hand, would have believed he was not free to leave. 

 . . . Absent factors of coerciveness or factors that 

would have confined Satchell, we find no evidence to 

support the ruling by the trial judge. 

Id. at 132, 422 S.E.2d at 415. 

 At trial upon remand, the trial court reopened the 

admissibility issue concerning the cocaine and the circumstances 

of its discovery. The evidence at trial established, in addition 

to the scenario described in Satchell I, that four officers 

exited the police vehicle, that Buckovich walked swiftly toward 

Satchell and followed him onto the porch of a nearby building, 

that Satchell attempted to enter the building but was prevented 

from doing so by a locked door, and that Buckovich, although 

wearing plain clothes, displayed a visible firearm. Buckovich 

testified that he "hoped" Satchell would comply with his request. 

 He said that he would have pressed Satchell for compliance, 

although "if he wanted to leave there was no way that I could 

keep him. I didn't have any right to hold him . . . ." 

Buckovich acknowledged that he was attempting to conduct an 

investigative detention. Adhering to its previous factual 

findings and reaffirming its earlier conclusion that a reasonable 

person would not have felt free to leave under the circumstances, 

the trial court ruled, "I am fully aware of my obligation to 

follow the holdings of the Court [of Appeals], and for that 

reason I deny [the objection to the evidence]." 
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 Before addressing the merits of the case, we confront three 

threshold questions: (1) the reviewability of the issue decided 

in Satchell I, (2) the context of review, and (3) the standard of 

review. 

Reviewability

 Relying on Commonwealth v. Burns, 240 Va. 171, 173-74, 395 

S.E.2d 456, 457 (1990), and Robinson v. Commonwealth, 13 Va. App. 

540, 543, 413 S.E.2d 661, 662 (1992), the Commonwealth contends 

that the holding in Satchell I is stare decisis as to the 

admissibility issue raised in this appeal. We find this argument 

unpersuasive. Burns and Robinson concerned rules of law 

developed in the normal appellate process. The holding in 

Satchell I addressed the admissibility of specific items of 

evidence, not in the context of the normal appellate process, but 

in the context of a special, prospective, interlocutory, and 

limited appellate review. 

 Code § 19.2-408 provides: 

 The decision of the Court of Appeals shall be final 

for purposes of an appeal pursuant to § 19.2-398 . . . 

and no further pretrial appeal shall lie to the Supreme 

Court. 

No provision is made for rehearing en banc. Code § 19.2-409 

provides, in pertinent part: 

 Such finality of the Court of Appeals' decision shall 

not preclude a defendant, if he is convicted, from 

requesting the Court of Appeals or Supreme Court on 

direct appeal to reconsider an issue which was the 

subject of the pretrial appeal. 

The purpose of Chapter 25 of Title 19.2 of the Code (§§ 19.2-398, 
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et seq.) is to afford the Commonwealth a limited right of appeal 

under certain carefully specified circumstances. Those appeals 

are pre-trial, and the statutory scheme plainly contemplates that 

rulings on such appeals are interlocutory and reversible, as are 

the reviewed trial court rulings. This conclusion is made plain 

by the early finality and limitation of appellate review set 

forth in Code § 19.2-408 and by the express provision for 

reconsideration on direct appeal set forth in Code § 19.2-409. 

Thus, the holding in Satchell I is not stare decisis as to the 

admissibility issue raised in this appeal, and that issue is 

fully reviewable. 

The Context of Review

 Although we consider in this appeal the same issue of 

admissibility considered in Satchell I, this case is not a 

rehearing of Satchell I. The error assigned is to the trial 

court's admission of the questioned evidence at trial, following 

remand under Satchell I. Thus, our inquiry is not confined to 

the facts before the trial court when it made its initial 

suppression ruling. Rather, we consider all the facts underlying 

the ruling admitting the evidence. Had the trial court heard no 

further evidence on the subject but simply admitted the evidence 

in obedience to the mandate of Satchell I, our inquiry would, of 

necessity, address only the circumstances underlying the holding 

in Satchell I. However, because the trial court heard further 

evidence on the matter, our inquiry must address the full context 
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in which the trial court ruled, and we must consider the 

additional evidence adduced at trial. 

The Standard of Review

 Upon review of an evidentiary suppression ruling, we view 

the evidence in the light most favorable to the party prevailing 

below, 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). 

 This well-established standard is based on deference to the 

peculiar fact finding capability of the trial court. In 

appraising the evidence, the trial court is not limited to the 

stark, written record. The trial court has before it the living 

witnesses and can observe their demeanors and inflections. In 

assessing the credibility of witnesses and the weight and 

significance to be given their testimony, the trial court enjoys 

advantages not available on appeal. 

 This case presents an anomaly on review. The trial court 

made factual findings but ruled contrary to those findings in 

obedience to the mandate of Satchell I. Under those 

circumstances, we adopt for this case a standard of review 

deferential to the trial court's factual findings and confine our 

inquiry to whether those findings are supported by credible 

evidence. Those findings, if supported by credible evidence, 

constitute the factual predicate to which we must apply our legal 

analysis. 
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Seizure Issue

 A person is seized "only if, in view of all the 

circumstances surrounding the incident, a reasonable person would 

have believed that he was not free to leave." United States v. 

Mendenhall, 446 U.S. 544, 554 (1980); see also Florida v. Royer, 

460 U.S. 491, 502 (1983). 

 Although the Mendenhall test "is necessarily imprecise" 

and "flexible enough to be applied to the whole range 

of police conduct in an equally broad range of 

settings, it calls for consistent application from one 

police encounter to the next, regardless of the 

particular individual's response to the action of the 

police." Whether a person who encounters a police 

officer believes he is free to leave must be measured 

under all the circumstances by an "objective standard - 

looking to the reasonable man's interpretation of the 

conduct in question." Whether a seizure has taken 

place involves factual determinations which bear upon 

whether a reasonably prudent person would feel that he 

or she is not free to leave, but whether the evidence 

is sufficient to support a finding that a seizure has 

occurred is ultimately a question of law. 

Satchell I, 15 Va. App. at 130, 422 S.E.2d at 414 (citations 

omitted). 

 Buckovich was one of four officers who exited the police 

car. Although Buckovich wore plain clothes, he announced his 

status as a police officer. He wore a badge on a chain around 

his neck and carried a visible firearm. Walking swiftly, he 

pursued Satchell onto private property. When Satchell was unable 

to enter the locked door of the house, he turned and, with his 

back to the locked door, was confronted by Buckovich on the 

confines of the porch. This record alone discloses Buckovich in 

an authoritative and aggressive posture and reveals Satchell, in 
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effect, being brought to bay. Furthermore, the trial court had 

the advantage, denied to us, of seeing Buckovich in person, of 

observing his demeanor, and of assessing his inflection as he 

described his conduct and questions. The trial court was 

peculiarly well placed to determine whether those questions took 

the tone of simple inquiry or of command. The trial court found 

that a reasonable person in Satchell's situation would not have 

believed himself free to ignore Buckovich's inquiries and leave. 

 The evidence supports this finding and the trial court's 

determination that Satchell was seized. 

 In support of its contention that the circumstances did not 

effect a seizure of Satchell, the Commonwealth relies on Baldwin 

v. Commonwealth, 243 Va. 191, 413 S.E.2d 645 (1992). We find 

Baldwin distinguishable from this case in two major respects. 

 First, in Baldwin, the Supreme Court, according deference to 

the trial court's findings of fact, held the evidence sufficient 

to support those findings, and affirmed the trial court's holding 

that no seizure had occurred. The same standard of review 

requires us to affirm the trial court's holding that Satchell was 

seized. 

 Second, in Baldwin, the police officers, in a police car, 

shined a light on Baldwin and directed him to come to them. 

Baldwin complied, but he could as well have walked the other way. 

 Satchell was confronted by Officer Buckovich in close quarters 

with his back to a locked door. He lacked the alternative 
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departure route that was available to Baldwin. 

 The evidence supports the trial court's holding that 

Satchell was unlawfully seized. Because the cocaine in his 

possession was discovered only upon that unlawful seizure, the 

trial court should have suppressed it as evidence. Without the 

cocaine, the evidence was insufficient as a matter of law to 

support Satchell's conviction. Accordingly, we reverse his 

conviction and order the charge dismissed. 

 Reversed and dismissed. 
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BENTON, J., concurring. 

 I concur in the opinion, except the section titled, "The 

Context of Review," and I concur in the judgment reversing the 

conviction. I do not join in the section titled "The Context of 

Review" because I believe it too narrowly interprets the language 

of Code § 19.2-409, the statute that controls the scope of our 

review.1

 This appeal follows Satchell's conviction for possession of 

cocaine. Following an interlocutory appeal prior to that trial, 

 1I also disagree with the process by which this appeal was 

considered en banc. Following Satchell's conviction, this appeal 

followed the usual procedure. When a panel granted the petition 

for appeal, the appeal was assigned to a panel of three judges 

who considered the appeal on the record after briefing and oral 

argument. An opinion was prepared with one judge dissenting. 

When the opinions were filed in the clerk's office, the 

dissenting judge requested that the entire Court reconsider the 

appeal en banc. The Court determined to withhold release of the 

panel's decision and to consider the appeal anew en banc. I 

believe that there are sound jurisprudential reasons to avoid a 

mechanism that allows a dissenting judge to initiate an en banc

consideration after a panel has decided a case and before the 

panel releases its decision. 

 Although the statutory provisions for hearing a case en banc

state that "[t]he Court may sit en banc . . . at any time," Code 

§ 17-116.02(D), the procedure employed to take this case en banc

squandered scarce judicial resources. More importantly, however, 

the procedure employed in this case graphically demonstrates the 

need for this Court to set standards for en banc review that are 

published and available to all litigants. All members of the Bar 

should be informed that assignment of a case to a panel and the 

panel's consideration of an appeal do not preclude en banc

consideration before the panel renders its decision. Although I 

believe that this process negates the efficiency of the panel 

process, I also believe that this Court has an obligation to 

inform the Bar of the procedures that it employs to consider 

cases en banc. 
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this Court reversed the trial judge's decision to suppress 

unlawfully seized evidence. See Satchell v. Commonwealth, 15 Va. 

App. 127, 422 S.E.2d 412 (1992). 

 In pertinent part, Code § 19.2-409 states that "the Court of 

Appeals' decision [following a pretrial appeal by the 

Commonwealth] shall not preclude a defendant, if he is convicted, 

from requesting the Court of Appeals or Supreme Court on direct 

appeal to reconsider an issue which was the subject of the 

pretrial appeal." Consistent with the statute, Satchell asked 

this Court to review both the trial judge's initial ruling on the 

suppression motion and the trial judge's decision on remand 

following the interlocutory appeal. In particular, the issues 

presented for review are whether "[t]he . . . [previous] panel 

erred by reversing the April 10, 1992 ruling of the trial judge 

granting the original motion to suppress" and whether "[t]he 

trial court erred in not granting the renewed motion to suppress 

made October 28, 1992." 

 This appeal, which invokes the review granted by Code 

§ 19.2-409, requires this Court to conduct a two-step review. 

First, because Satchell requests it, the Court must conduct a 

review of the pretrial suppression ruling that was the subject of 

the initial Commonwealth's appeal. Code § 19.2-409 by its very 

terms mandates that review. On this review, when we "reconsider 

[the] issue which was the subject of the pretrial appeal," Code 

§ 19.2-409, we must view the evidence from the initial 
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suppression hearing in the light most favorable to Satchell, who 

prevailed at that hearing. See Commonwealth v. Grimstead, 12 Va. 

App. 1066, 1067, 407 S.E.2d 47, 48 (1991). 

 Second, if that initial review results in a renewed holding 

that the trial judge erred in suppressing pretrial evidence that 

was the subject of the prior interlocutory appeal, the Court must 

then review the appeal from the trial judge's denial of the 

renewed suppression motion made following remand. At the hearing 

when the renewed motion to suppress was considered, the trial 

judge considered new evidence that Satchell presented, and the 

trial judge ruled anew on the motion to suppress. Our review of 

the trial judge's decision following the remand from the 

interlocutory ruling is consistent with the review in which the 

majority opinion engages. This is the review that must be taken 

even in the absence of a statute such as Code § 19.2-409. 

 Because this two-step review is statutorily mandated and 

because it preserves the appropriate standard of review, I would 

first review the decision of the trial judge initially 

suppressing the evidence, and I would uphold the trial judge's 

decision to suppress the evidence. See, e.g., Satchell v. 

Commonwealth, 15 Va. App. 127, 132-34, 422 S.E.2d 412, 415-17 

(1992) (Benton, J., dissenting). However, because I believe that 

the majority's analysis properly decides the second prong of the 

review, I concur in the judgment reversing the conviction. 
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BAKER, J., dissenting. 

 For the reasons set forth in the panel decision, 

Commonwealth v. Satchell, 15 Va. App. 127, 422 S.E.2d 412 (1992), 

I respectfully disagree with the majority and would affirm 

Satchell's conviction.