COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

LEON JUNIUS McDANIELS, JR., 

 S/K/A LEON J. McDANIEL 

v. Record No. 0413-94-2 MEMORANDUM OPINION*

 BY MARVIN F. COLE 

COMMONWEALTH OF VIRGINIA AUGUST 29, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Maureen L. White, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

brief), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Leon Junius McDaniels, Jr. appeals his conviction for 

possessing cocaine with the intent to distribute. He contends 

that the trial court erred in denying his motion to suppress the 

cocaine. Finding no error, we affirm. 

 In considering a trial court's ruling on a suppression 

motion, we view the evidence in the "light most favorable to 

. . . the prevailing party below," the Commonwealth in this 

instance, and the decision of the trial judge will be disturbed 

only if plainly wrong. Commonwealth v. Grimstead, 12 Va. App. 

1066, 1067, 407 S.E.2d 47, 48 (1991). To prevail on appeal, 

McDaniels must "show . . . that the denial of [his] motion to 

suppress constitute[d] reversible error." Motley v. 

Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233 

 

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

designated for publication. 
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(1993). 

 The Commonwealth's evidence showed that Officer Samuels and 

Trooper Clark were patrolling in the City of Richmond in an 

unmarked vehicle on November 5, 1993. At about 11:30 p.m., 

Samuels and Clark approached a group of people at a street 

corner. Other police cars followed. McDaniels was among the 

group. Samuels recognized McDaniels. McDaniels looked in the 

direction of the police car, then turned and walked toward a 

nearby residence. Samuels and Clark left the police car and 

followed McDaniels to the front of the residence. McDaniels 

stopped on the porch outside of the residence, and Samuels asked 

McDaniels his name and where he lived. As the two conversed, 

McDaniels "kept placing his hand in his left front pocket . . . 

like he was grabbing something from his pocket." Samuels asked 

McDaniels three times if Samuels could search McDaniels, 

including "his pocket." McDaniels agreed all three times. When 

Samuels reached for the pocket, McDaniels grabbed Samuels' hand 

and said that he would remove anything out of the pocket. 

McDaniels removed money and a clear plastic baggie from the 

pocket. Samuels grabbed the baggie, and McDaniels hit Samuels in 

the eye. McDaniels unsuccessfully tried to flee. 

 The baggie that Samuels grabbed contained cocaine. After 

McDaniels' arrest, Samuels recovered two other bags of cocaine 

from another of McDaniels' pockets, two packets of marijuana, a 

"large plastic bag with six more baggies of off-white substance," 
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two pagers, and $115. 

 McDaniels testified that he tried to enter the residence, 

but Clark blocked his way. He also testified that Samuels 

"grabbed hold of my pocket," and that he consented to the search 

because "I was kind of scared because of the way they came up to 

me." 

 In denying the motion to suppress, the trial judge made the 

following factual findings: 

 I find for a fact it was at the most three 

police cars, at the most eight policemen came 

to third and somewhere, I forget the same 

[sic] of the street, I'm very familiar with 

it. They got out. The defendant started 

walking towards the house and stopped. 

Apparently, curiosity, I don't know, he 

stopped. And the officer went up to him and 

was talking to him and he had put his hand in 

his pocket. He told him to take it out. He 

wanted some identification at that time and 

asked could he search him. He said yes. He 

asked him three times because he wanted to 

make sure he knew it wasn't a pat down, it 

was a search. And, the defendant readily 

consented. I find no threats or forms of 

violence or any statements that would 

intimidate whatsoever. And, then he said the 

officer grabbed him by the hand and he said I 

will get out of my pocket what you want. 

Then the cocaine comes out after the money. 

It was in clear open daylight or nighttime 

light. And it was stuck, as he said, to the 

money, down in the money. When he saw it I 

think it's his duty to arrest him. Those are 

the findings of fact . . . . 

 The trial judge believed the Commonwealth's evidence, and 

rejected McDaniels' version of the encounter. "The weight which 

should be given to evidence and whether the testimony of a 
4

witness is credible are questions which the fact finder must 

decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 

S.E.2d 598, 601 (1986). We cannot say that the testimony of 

Samuels and Clark was inherently incredible. Given that 

testimony, and viewing the evidence in the light most favorable 

to the Commonwealth, we cannot say that the trial judge erred in 

denying the motion to suppress. That testimony established that 

the encounter between McDaniels and the officers was consensual, 

and did not implicate the Fourth Amendment. See Iglesias v. 

Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988) (en 

banc). Furthermore, that testimony showed that McDaniels 

consented to the search of his person, then voluntarily removed 

cocaine from his pocket. At that point, the officers had 

probable cause to arrest McDaniels. 

 Affirmed.
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Elder, J., dissenting. 

 I respectfully dissent and would hold that the trial court 

erred in not suppressing the cocaine obtained from McDaniels. I 

believe McDaniels was unlawfully seized, and any consent given to 

the officers was unlawfully obtained. 

 First, contrary to the majority opinion, I believe that 

McDaniels was "seized" for purposes of the Fourth Amendment. A 

person is seized when "his freedom of movement is restrained by 

means of physical force or show of authority . . . ," Grinton v. 

Commonwealth, 14 Va. App. 846, 849, 419 S.E.2d 860, 862 (1992) 

(citing I.N.S. v. Delgado, 446 U.S. 210, 216 (1984)), or when the 

circumstances "amount to a show of authority such that 'a 

reasonable person would have believed that he was not free to 

leave.'" Moss v. Commonwealth, 7 Va. App. 305, 307, 373 S.E.2d 

170, 171-72 (1988) (quoting Florida v. Royer, 460 U.S. 491, 502 

(1983)). Three police vehicles and eight officers approached the 

group with which McDaniels was standing. Officers Samuels and 

Clark followed McDaniels to a residence and surrounded him on his 

stoop, which was not meant to accommodate three persons. Officer 

Clark's leg was extended with his foot pressed against the front 

door of the residence, preventing McDaniels' entrance into the 

house. These circumstances amounted to a show of force such that 

"a reasonable person would have believed he was not free to 

leave." United States v. Mendenhall, 446 U.S. 544, 544 (1980); 
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see Satchell v. Commonwealth, 20 Va. App. ___, ___ S.E.2d ___ 

(1995) (en banc) (finding a seizure where one officer confronted 

defendant on his front stoop with three other officers in the 

near vicinity). 

 Furthermore, there is nothing in the record to show (nor did 

the Commonwealth contend) that the officers had any reasonable, 

articulable suspicion, based on objective facts, to believe that 

McDaniels was engaging in criminal activity. See Moss, 7 Va. 

App. at 308, 373 S.E.2d at 172. The illegality of the seizure 

therefore tainted McDaniel's consent and was ineffective to 

justify the search. Royer, 460 U.S. at 507-08; Deer v. 

Commonwealth, 17 Va. App. 730, 736, 441 S.E.2d 33, 37 (1994).