COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 1364-98-3 JUDGE RUDOLPH BUMGARDNER, III 

 NOVEMBER 24, 1998 

DOUGLAS JEROME SMITH 

FROM THE CIRCUIT COURT OF ROANOKE COUNTY 

Roy B. Willett, Judge 

 Kathleen B. Martin, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellant. 

 Robert C. Hagan, Jr., for appellee. 

 The Commonwealth appeals the suppression of drugs seized 

after a search of the defendant. It argues that the defendant 

consented to the search, but we conclude that the police 

illegally seized the defendant before he consented. After that 

seizure, the Commonwealth could prove neither that the evidence 

was unconnected to the seizure nor that the defendant freely and 

voluntarily consented to the search. Accordingly, we affirm the 

trial court's decision to suppress the evidence. 

 "In an appeal by the Commonwealth of an order of the trial 

court suppressing evidence, the evidence must be viewed in the 

light most favorable to the defendant . . . ." Commonwealth v. 

Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992) 

(citations omitted). While we are bound to review de novo the 

 

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

designated for publication. 
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ultimate questions of reasonable suspicion and probable cause, we 

"review findings of historical fact only for clear error, 

and . . . give due weight to inferences drawn from those facts by 

resident judges and local law enforcement officers." Ornelas v. 

United States, 517 U.S. 690, 699 (1996). Questions of fact are 

binding on appeal unless plainly wrong. See McGee v. 

Commonwealth, 25 Va. App. 193, 198 n.1, 487 S.E.2d 259, 261 n.1 

(1997) (en banc). 

 Officer Terwilliger was on routine patrol when he saw the 

defendant standing behind a Food Lion store near a no trespassing 

sign. He turned his car around and parked about thirty feet from 

the defendant to see if he was all right and what he was doing 

there. Terwilliger did not suspect the defendant of criminal 

behavior, nor did he call for any assistance. 

 As Officer Terwilliger got out of his car, the defendant 

walked toward him carrying a large nylon bag. Terwilliger asked 

the defendant what he was doing, and the defendant replied that 

he had fought with his girlfriend. The defendant added that he 

had left her apartment, although he could not give her address, 

was waiting for a ride, and that she was probably at a nearby pay 

phone. Terwilliger continued talking with the defendant because 

he was suspicious of what he perceived as conflicting stories 

regarding the girlfriend. Eventually, he asked the defendant if 

he could look in his bag. The defendant set it down on the 

ground, lifted his hands, and said, "go ahead." Terwilliger took 

the bag to his vehicle to use the headlights and began looking in 
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it. 

 While Terwilliger was inspecting the bag, Officer Hoover 

arrived. He heard the radio message that Terwilliger was marking 

off to check a suspicious person. Without asking whether 

Terwilliger needed assistance or being asked to assist, Hoover 

patted down the defendant and asked him if he had any weapons. 

The defendant replied that he had none and added that he had 

never been in any trouble. 

 The defendant put his hands in his pockets, and Hoover told 

him to keep his hands out of his pockets. When the defendant 

continued to put his hands in his pockets because it was cold, 

Hoover said he wanted to know what the defendant had in his 

pockets. After repeated requests, the defendant emptied his 

pockets onto the hood of the police car, but he kept a change 

purse in his hand. Hoover asked to see the purse, and the 

defendant handed it to him. When asked what it contained, the 

defendant replied it held only money. Hoover asked if he could 

look inside, and the defendant responded, "do you have to look in 

it?" Hoover replied that he just wanted to see what was in it. 

The defendant replied "go ahead." Hoover first found a small 

baggy corner with residue and then found two more baggies in a 

side compartment that contained a white powdery substance. The 

officers formally arrested and placed the defendant in custody 

because of the items found in the change purse. Those are the 

items that the defendant sought to suppress. 

 Not every police-citizen encounter implicates the Fourth 
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Amendment. See McGee, 25 Va. App. at 198, 487 S.E.2d at 261; 

Iglesias v. Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173 

(1988) (en banc). A consensual encounter occurs where a 

defendant voluntarily responds to an officer's request. See

McGee, 25 Va. App. at 198, 487 S.E.2d at 261. Such an encounter 

becomes a seizure "[o]nly when the officer, by means of physical 

force or show of authority, has restrained the liberty of a 

citizen. . . ." Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). A 

person is seized if in view of all the circumstances, a 

reasonable person would believe he is not free to leave. See

Ford v. City of Newport News, 23 Va. App. 137, 142, 474 S.E.2d 

848, 850 (1996) (citation omitted). Factors to consider when 

determining whether a seizure occurred are "the threatening 

presence of several officers, . . . , some physical touching of 

the [suspect], or the use of language or tone of voice indicating 

that compliance with the officer's request might be compelled." 

United States v. Mendenhall, 446 U.S. 544, 554 (1980). See

Thomas v. Commonwealth, 24 Va. App. 49, 54, 480 S.E.2d 135, 137 

(1997) (en banc) (a seizure requires some physical restraint or 

submission to an officer's authority). 

 We conclude that the encounter between Officer Terwilliger 

and the defendant was consensual. As Terwilliger exited his 

vehicle, the defendant approached him. The initial encounter was 

entirely consensual. Neither the initial encounter nor the 

search of the large nylon bag implicated the Fourth Amendment. 

The defendant consented freely and voluntarily to both actions, 
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and the circumstances were not coercive. 

 The second officer arrived and immediately frisked the 

defendant. He had no basis to conduct a Terry frisk because he 

had no knowledge about the situation he was approaching. He had 

no facts that would articulate a reasonable suspicion that the 

defendant was engaged in criminal activity because even the 

officer who knew the facts did not suspect the defendant was so 

engaged. Hoover had no facts that would articulate a reasonable 

suspicion that the defendant was armed and dangerous because 

Officer Terwilliger did not suspect the defendant posed a threat. 

 Officer Terwilliger's actions imply that he did not feel he 

had reasonable grounds to suspect the defendant. Although 

Terwilliger stopped to investigate because the defendant was in a 

suspicious location under suspicious circumstances, he was not 

worried about the defendant being a threat, and he did not 

suspect criminal activity. The defendant was within a few feet 

of him. Terwilliger was talking with the defendant, but his 

attention was focused on his search of the defendant's bag. 

Terwilliger never felt the need to frisk the defendant before 

returning to the cruiser to search the bag. Cf. Pennsylvania v. 

Mimms, 434 U.S. 106, 112 (1977) ("any man of 'reasonable caution' 

would likely have conducted the 'pat down'" (citation omitted)). 

 Officer Hoover lacked reasonable suspicion to conduct a Terry

search, and when he did, he seized the defendant and implicated 

the Fourth Amendment. A person is seized by a laying on of hands 

or an application of physical force to restrain movement. See
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California v. Hordari D., 499 U.S. 621, 626 (1991). 

 The Commonwealth argues that the defendant consented to 

Officer Hoover searching in the change purse. In reply to 

Hoover's initial request to look inside the purse, the defendant 

asked, "do you have to?" but finally said "go ahead." "'Consent 

to a search . . . must be unequivocal, specific and intelligently 

given . . . and it is not lightly to be inferred.'" Elliotte v. 

Commonwealth, 7 Va. App. 234, 239, 372 S.E.2d 416, 419 (1988) 

(quoting Via v. Peyton, 284 F. Supp. 961, 967 (W.D. Va. 1968)). 

The burden is on the Commonwealth to prove the voluntariness of 

the consent and a lack of duress. See Bumper v. North Carolina, 

319 U.S. 543, 548 (1968); Schneckloth v. Bustamonte, 412 U.S. 

218, 248-49 (1973); Lowe v. Commonwealth, 218 Va. 670, 678, 239 

S.E.2d 112, 117 (1977), cert. denied, 435 U.S. 930 (1978). This 

burden "cannot be discharged by showing no more than acquiescence 

to a claim of lawful authority." See Bumper, 319 U.S. at 548-49. 

 Whether a consent to search is voluntary is a question of fact. 

See Gray v. Commonwealth, 233 Va. 313, 327, 356 S.E.2d 157, 164, 

cert. denied, 484 U.S. 873 (1987). 

 The defendant gave consent under circumstances similar to 

those in Satchell v. Commonwealth, 20 Va. App. 641, 460 S.E.2d 

253 (1995) (en banc). An officer who suspected that Satchell was 

selling drugs followed the defendant up the steps of a house. 

When Satchell could not get inside because the door was locked, 

the officer asked, "What's in your hand pal?" Satchell opened 

his hand in response to the question and revealed illegal drugs. 
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Satchell held that the police officer illegally seized the 

defendant and discovered the drugs only upon that unlawful 

seizure. See id. at 650, 460 S.E.2d at 257. In this case, the 

officer illegally seized the defendant and discovered the drugs 

in the coin purse only when the defendant responded to the 

officer's request upon this unlawful seizure. As in Satchell, 

the evidence must be suppressed. 

 We find no evidence that the defendant's consent was 

voluntary and unconnected to the seizure. After seizing the 

defendant, Officer Hoover asked about weapons, got the defendant 

to empty his pockets, and then persisted in searching the coin 

purse. Hoover was not authorized to do that even if he 

reasonably suspected that the defendant had a weapon because the 

change purse could not conceal one. When the defendant complied 

with Hoover's entreaties, he was responding to pressure created 

by the seizure. He did not voluntarily consent to the search of 

his coin purse, and the evidence found in it is not admissible. 

 We affirm the suppression of the evidence. 

 Affirmed.