COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Coleman 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 1213-02-1 JUDGE JAMES W. BENTON, JR. 

 OCTOBER 29, 2002 

JURL VINCENT STERNS 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Louis R. Lerner, Judge 

 Eugene Murphy, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellant. 

 Timothy G. Clancy (Moschel, Gallo & Clancy, 

L.L.C., on brief), for appellee. 

 A grand jury indicted Jurl Vincent Sterns for possession of 

cocaine and possession of a firearm while in possession of 

cocaine. At the conclusion of a pre-trial hearing, the trial 

judge granted Sterns's motion to suppress evidence. Pursuant to 

Code § 19.2-398, the Commonwealth appeals and contends the trial 

judge erred in ruling that the initial encounter between Sterns 

and the officer was not consensual. For the reasons that follow, 

we reverse the suppression order. 

 

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

designated for publication.
 I. 

 On appeal from the order granting the motion to suppress, we 

view the evidence in the light most favorable to Sterns. 

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 

48 (1991). So viewed, the evidence proved a police dispatcher 

sent Officers Hake and Ewing to an apartment complex at night to 

investigate a report from an anonymous complainant that persons 

were selling and smoking drugs. The uniformed officers arrived at 

the apartment parking lot in separate police vehicles, exited 

their vehicles, and began to walk to the rear of the apartments. 

Four car lengths ahead of his vehicle, Officer Hake saw Sterns 

exit a car and stand next to the car while eating. Officer Hake 

testified that he saw no other people in the parking lot, and he 

described the events as follows: 

 He was just standing there. At that 

point I approached him and I was several 

feet from him. I said, do you mind if I 

talk to you for a moment? Mr. Sterns agreed 

to speak to me. I approached him. 

 I asked him -- I explained to him the 

complaint that we had in the area and why we 

were out there and I asked him if he 

observed anybody doing drugs or dealing 

drugs in the parking lot of the apartment 

complex. He said he did not and at this 

point I asked him if he had any weapons or 

narcotics on him. He said that he had his 

gun on him. 

 At that point Officer Ewing was 

approaching also. He was on the other side 

and he started to walk towards us. He heard 

our conversation. He asked Mr. Sterns to 

place his hands on his head. . . . 

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 * * * * * * * 

 At that point I conducted a pat down of 

his outer clothing and located a weapon, a 

handgun on his left side. I'm not sure if 

it was in his coat or his pants pocket, but 

it was in one of those. He was placed in 

handcuffs at that time. 

 Officer Ewing asked him if he had a 

concealed weapons permit and he said that he 

did not. At that point he was arrested and 

placed in the police vehicle. 

In a search incident to this arrest, the officers seized cocaine 

from Stern's pocket. 

 In his motion to suppress, Sterns relied on McGee v. 

Commonwealth, 25 Va. App. 193, 487 S.E.2d 259 (1997) (en banc), 

and argued that he was unlawfully detained when the officers 

approached and questioned him. On that basis, the trial judge 

granted the motion to suppress. 

 II. 

 In McGee, we held as follows: 

 When the police expressly inform an 

individual that they have received 

information that the individual is engaging 

in criminal activity, the police "convey a 

message that compliance with their requests 

is required" and "that failure to cooperate 

would lead only to formal detention." 

 Thus, when 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. 

When confronted with an accusation from 

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police, such as, "we know you are selling 

drugs from this location, let us search 

you," no reasonable person would feel free 

to leave. Whether a seizure occurs must be 

determined by evaluating the facts of each 

case to determine whether the manner in 

which the police identified the individual 

as a suspect conveys to the person that he 

or she is a suspect and is not free to 

leave. 

25 Va. App. at 200-01, 487 S.E.2d at 262-63 (citations and 

footnote omitted). 

 Although we held that a detention occurred under those 

circumstances, we specifically noted that the officer's 

"statement to [McGee] did not merely convey a message that the 

officers were conducting a general investigation in response to 

a report of drug dealing." Id. at 201, 487 S.E.2d at 263. 

Moreover, in contrast to the factual circumstances in McGee, we 

have consistently held that "'[l]aw enforcement officers do not 

violate the Fourth Amendment merely by approaching an individual 

on the street, identifying themselves and asking the individual 

questions.'" Garrison v. Commonwealth, 36 Va. App. 298, 307, 

549 S.E.2d 634, 638 (2001) (quoting Buck v. Commonwealth, 20 

Va. App. 298, 301-02, 456 S.E.2d 534, 535-36 (1995)). 

 Accordingly, we hold that the initial encounter between the 

officers and Sterns was consensual. We do not address, because 

the trial judge did not, whether the ensuing "pat down" search 

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was lawful. For these reasons, we reverse the order suppressing 

the evidence. 

 Reversed. 

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