COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Annunziata 

Argued at Richmond, Virginia 

SEAN RODERIC BELL 

 MEMORANDUM OPINION* BY 

v. Record No. 2792-96-2 JUDGE ROSEMARIE ANNUNZIATA 

 FEBRUARY 3, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 John F. McGarvey for appellant. 

 Pamela A. Rumpz, Assistant Attorney General 

(Richard Cullen, Attorney General; Monica S. 

McElyea, Assistant Attorney General, on 

brief), for appellee. 

 Sean Roderic Bell (appellant) appeals his conviction for 

possession of cocaine with intent to distribute and trespassing 

on the basis that the trial court erroneously denied his motion 

to suppress evidence seized by the police in a search of 

appellant's person. 

 On March 14, 1996, Richmond police officers, including 

Officer John O'Connor, approached the Pinebrook Village apartment 

complex, an area marked "no trespassing." Officer O'Connor knew 

that appellant's grandmother lived in the complex and had warned 

appellant repeatedly that he was trespassing if he was not 

visiting his grandmother in or near her apartment. Officer 

O'Connor saw appellant "a long distance from" the building where 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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appellant's grandmother lived. 

 Officer O'Connor approached a group of people near open 

containers of alcohol, including appellant, and asked appellant 

what he was doing at the complex. Appellant answered that he was 

visiting a friend. However, upon further inquiry, Officer 

O'Connor determined that appellant's friend was not a resident of 

the complex; the single resident of the complex in the group 

denied that appellant was visiting her. 

 Officer O'Connor arrested appellant for trespassing and, as 

he placed appellant in handcuffs, he felt a chunk in the sleeve 

of appellant's sweatshirt. Officer O'Connor discovered several 

plastic bags containing what turned out to be cocaine, as well as 

a pager and over $400 in cash, in appellant's sleeve, pockets, 

and sweatpants. 

 On cross-examination at the suppression hearing, Officer 

O'Connor testified that either he or another officer patted down 

appellant and that appellant was not free to leave during the 

questioning. A witness for the defense testified that she was 

standing near appellant when she saw Officer O'Connor grab 

appellant's arm, pat him down, and continue to hold his arm while 

speaking to him. 

 The trial court ruled that the police had probable cause to 

arrest and search appellant. Appellant was convicted of 

possession of cocaine with intent to distribute and trespassing, 

and was sentenced to twelve years imprisonment, nine years three 
 3 

months suspended, on the cocaine charge. The court suspended the 

imposition of sentence on the trespassing charge. 

 Appellant contends that he was seized by Officer O'Connor 

without the reasonable articulable suspicion required by Terry v. 

Ohio, 392 U.S. 1 (1968). We disagree and affirm. 

 Appellant bears the burden of demonstrating that the trial 

court's denial of his motion to suppress, "'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) (quoting Fore v. 

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). 

We review "'[u]ltimate questions of reasonable suspicion and 

probable cause to make a warrantless search' . . . de novo on 

appeal," but "we are bound by the trial court's findings of 

historical fact unless 'plainly wrong' or without evidence to 

support them." Id. at 198, 487 S.E.2d at 261 (quoting Ornelas v. 

United States, __ U.S. __, __, 116 S. Ct. 1657, 1659 (1996)). 

 Viewing the evidence in the light most favorable to the 

Commonwealth, O'Connor's only interaction with appellant prior to 

arresting him was to ask him what he was doing in the complex. 

Questioning by a police officer, without more, does not implicate 

the Fourth Amendment "'as long as the citizen [being questioned] 

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)). O'Connor's 
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other questions were directed to individuals other than 

appellant.1

 O'Connor's arrest of appellant required probable cause to 

satisfy the Fourth Amendment. See, e.g., McGee, 25 Va. App. at 

198, 487 S.E.2d at 261 (citing United States v. Sokolow, 490 U.S. 

1, 7 (1939)). We find this constitutional standard has been met 

in this case. Officer O'Connor knew that appellant had a history 

of loitering in the posted "no trespassing" complex and had 

warned him several times about trespassing. Officer O'Connor 

also knew where appellant's grandmother lived in the complex and 

knew that appellant was not near the building in which his 

grandmother lived. Officer O'Connor properly questioned 

appellant briefly to determine if he was in fact trespassing. In 

the course of his questioning, Officer O'Connor learned that the 

person whom appellant claimed to be visiting was not a resident 

of the posted "no trespassing" apartment complex and that the 

 

 1Assuming that O'Connor's questioning of appellant rose to 

the level of a seizure, the seizure was justified by reasonable 

articulable suspicion. "'[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.'" DePriest v. 

Commonwealth, 4 Va. App. 577, 585, 359 S.E.2d 540, 544 (1987) 

(quoting Hayes v. Florida, 470 U.S. 811, 816 (1985)). Officer 

O'Connor had articulable facts supporting a reasonable suspicion 

that appellant was trespassing in the apartment complex, as 

described below. Furthermore, the challenged evidence was seized 

pursuant to a search incident to an arrest supported by probable 

cause, rendering moot the question of whether the brief detention 

for questioning was supported by reasonable suspicion. White v. 

Commonwealth, 24 Va. App. 234, 239, 481 S.E.2d 486, 488 (1997), 

reh'g en banc granted, April 1, 1997. 
 5 

only resident of the complex denied appellant was visiting her. 

Appellant, therefore, had no ostensibly lawful claim to be in the 

apartment complex. Because appellant committed the crime of 

trespassing in his presence, Officer O'Connor had the authority 

to arrest him under Code § 19.2-81. 

 "[A]n arresting officer may, without a warrant, search a 

person validly arrested." Michigan v. DiFillippo, 443 U.S. 31, 

35 (1979); see also, e.g., Farmer v. Commonwealth, 21 Va. App. 

111, 115, 462 S.E.2d 564, 566 (1995) ("[S]earches conducted 

incident to a lawful arrest are exempt from the warrant 

requirement."). Officer O'Connor discovered the challenged 

evidence during the arrest and incident search of appellant for 

trespassing. 

 Therefore, we find that the search of appellant and the 

seizure of appellant's contraband were reasonable under the 

meaning of the Fourth Amendment. See Jordan v. Commonwealth, 207 

Va. 591, 596, 151 S.E.2d 390, 394 (1966) (holding that a search 

incident to an arrest for trespassing was constitutional). 

 Affirmed.