COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Overton and Senior Judge Baker 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 1298-98-1 JUDGE NELSON T. OVERTON 

 OCTOBER 6, 1998 

ROBERT LEE TAYLOR 

FROM THE CIRCUIT COURT OF YORK COUNTY 

N. Prentis Smiley, Jr., Judge 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellant. 

 Karen M. Vannan (Buxton, Lasris & Vannan, on 

brief), for appellee. 

 The Commonwealth of Virginia appeals the suppression of a 

cocaine smoking device found in the pocket of Robert Lee Taylor 

(defendant). The Commonwealth contends the trial court 

erroneously classified the police-citizen encounter which led to 

the defendant's search and arrest as a Terry stop. Because we 

agree and hold that the encounter was consensual, we reverse. 

 The parties are fully conversant with the facts of the case 

and because this memorandum opinion has no precedental value, no 

recitation of the facts is necessary. 

 On an appeal from a trial court's ruling on a suppression 

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

party prevailing below, in this case the defendant. See

 

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

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

48 (1991). However, "'[u]ltimate questions of reasonable 

suspicion and probable cause . . . are reviewed de novo on 

appeal.'" McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 

S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United 

States, 517 U.S. 690, 691 (1996)). Similarly, whether a seizure 

occurred at all is a question for this Court to review de novo. 

See id. at 198, 487 S.E.2d at 261. 

 In Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 

S.E.2d 744, 747 (1995), this Court summarized the three types of 

police-citizen encounters: 

 Fourth Amendment jurisprudence recognizes 

three categories of police-citizen 

confrontations: (1) consensual encounters, 

(2) brief, minimally intrusive investigatory 

detentions, based upon specific, articulable 

facts, commonly referred to as Terry stops, 

and (3) highly intrusive arrests and searches 

founded on probable cause. 

A Terry stop occurs "only if, in view of all of 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). "As long as the person to whom questions 

are put remains free to disregard the questions and walk away, 

there has been no intrusion upon that person's liberty or privacy 
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as would under the Constitution require some particularized and 

objective justification." Id. 

 The trial court ruled that when Police Officer Mattis 

approached the defendant and asked him questions, defendant was 

seized. However, Officer Mattis's actions did not create a 

seizure but were only an invitation to talk. "[L]aw enforcement 

officers do not violate the Fourth Amendment by merely 

approaching an individual on the street or in another public 

place, by asking him if he is willing to answer some questions, 

[or] by putting questions to him if the person is willing to 

listen . . . ." Florida v. Royer, 460 U.S. 491, 497 (1983). 

 Officer Mattis asked the defendant whether he had drugs, 

weapons or illegal contraband. Mattis did not touch him or draw 

his weapon. Mattis did not tell the defendant to remain where he 

was. Defendant can point to no act which, either implicitly or 

expressly, restrained his liberty. In these circumstances, the 

defendant was not seized for purposes of the Fourth Amendment. 

 Because the defendant was not seized, and the defendant 

consented to the subsequent search of his person, the defendant's 

crack pipe should not have been excluded. The trial court's 

ruling on the motion to suppress is reversed. 

 Reversed.