COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Frank and Agee 

Argued at Chesapeake, Virginia 

BRUCE LAMARR SYKES 

 OPINION BY 

v. Record No. 2838-00-1 JUDGE ROBERT P. FRANK 

 DECEMBER 27, 2001 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

James A. Cales, Jr., Judge 

 Joseph R. Winston, Special Appellate Counsel 

(Public Defender Commission, on brief), for 

appellant. 

 Susan M. Harris, Assistant Attorney General 

(Randolph A. Beales, Attorney General, on 

brief), for appellee. 

 Bruce Lamarr Sykes (appellant) was convicted after a bench 

trial of possession of heroin, in violation of Code § 18.2-250. 

On appeal, appellant contends the trial court erred in denying his 

motion to suppress because he was detained without reasonable 

suspicion or probable cause. He argues, therefore, the search 

incident to arrest was illegal. For the reasons stated herein, we 

affirm the conviction. 

I. BACKGROUND 

 Several City of Portsmouth police officers, members of the 

tactical response unit, were on routine patrol in two or three 

unmarked vehicles on the night of February 19, 2000. They saw a 

group of males on Lancing Avenue who dispersed as the police cars 
rounded the corner. Appellant, a member of the group, began 

walking north. 

 Officer Steve T. Goldman exited his vehicle and approached 

appellant. Goldman was one of "at least three other" police 

officers who approached members of the group. All the officers 

were in plain clothes, but "most of [them] had a black vest on 

with police markings on it." No one activated any sirens or 

emergency lights. 

 Appellant was "probably ten yards at the most - maybe five 

yards - away from [the police] vehicles." Goldman approached 

appellant and "asked him if [he] could see his identification." 

Appellant agreed and "presented [Goldman] with what appeared to be 

a valid [identification card] that identified him as Bruce Lamarr 

Sykes." 

 After further conversation, Goldman asked appellant if he 

could search him, and appellant said, "Yes." Goldman then said, 

"You don't have any weapons on you?" and appellant said, "No." 

Goldman asked, "You don't mind if I check you for weapons?" 

Appellant again answered, "No." Finally, Goldman inquired, "What 

about drugs or narcotics; do you have any of that on you?" 

Appellant replied, "No." 

 Prior to sticking his hand in appellant's pocket, Goldman 

asked if there was anything sharp inside, "a needle, razor blade 

that might cut me?" Appellant said, "No." Goldman then put his 

hand in appellant's right rear pocket and felt a razor blade with 

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his fingers. He pulled it from the pocket. Appellant kept 

"changing his weight on either foot, which is, [in Goldman's] 

experience, characteristic of someone being nervous." Goldman 

then "asked [appellant] to walk back over to my vehicle" because 

appellant had "managed to maneuver the two of us [Goldman and 

appellant] away from the rest of the team at the site." 

 As they were walking toward the vehicle, appellant "broke 

from [Goldman's] grasp and began running." Officer R.D. Pisle, 

who was "some distance away with another officer" assisted Goldman 

in catching appellant. The officers then arrested appellant for 

carrying a concealed weapon -- the razor blade. 

 During a search incident to the arrest, Pisle recovered three 

heroin capsules inside "a little piece of paper" taken from 

appellant's pocket. Appellant was charged with possession of a 

concealed weapon, in violation of Code § 18.2-308, and possession 

of heroin, in violation of Code § 18.2-250. 

 At trial, appellant moved to suppress the heroin, arguing the 

police had no reasonable suspicion to seize him initially. He 

contended Goldman unconstitutionally seized him in violation of 

the Fourth Amendment when he asked for identification. The 

Commonwealth argued the encounter was consensual and, therefore, 

no seizure occurred.1

 1

 The Commonwealth did not argue the motion was 

inappropriate under Code § 19.2-266.2. 

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 Appellant also moved to strike the evidence on the concealed 

weapon charge, contending a razor is not a "weapon" under Code 

§ 18.2-308. The trial court then asked appellant's counsel: 

Even if I agree with your [argument], that 

the razor blade in this case they didn't 

prove was a concealed weapon, [sic] they 

still have probable cause based on the blade, 

don't they, and isn't that for the Court to 

decide and for the officer to act upon 

probable cause, and then I decide whether 

they've proven it beyond a reasonable doubt? 

If I rule they haven't proved beyond a 

reasonable doubt that a razor blade in this 

case was a concealed weapon, then don't they 

still have the second count? 

Appellant's counsel replied: 

I think they do. I think if you rule that 

this is a consensual encounter and that that 

search was a part of a consensual encounter, 

yes. I think even though if it turns out 

that the conviction falls, I think if you 

rule that they had probable cause to arrest 

him for that, then they have a valid arrest 

and a valid search incident to that arrest. 

 The trial court sustained the motion to strike the concealed 

weapon offense. The court then implicitly denied the motion to 

suppress the evidence as a result of an illegal detention when it 

convicted appellant of the possession of heroin offense. 

II. ANALYSIS 

 Appellant argues his encounter with Goldman was not 

consensual. Even if the initial encounter and search were 

consensual, he contends the second search during which the heroin 

was found was unconstitutional because the officer did not have 

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probable cause to arrest him and to search incident to that 

arrest. 

The standard of review for such cases is clear. 

An assertion that a person was "seized," 

within the meaning of the Fourth Amendment, 

presents a mixed question of law and fact 

that is reviewed de novo on appeal. 

Likewise, an assertion that the police 

lacked probable cause to arrest a defendant 

presents a question of both law and fact, 

which is reviewed de novo on appeal. 

In considering such questions, the appellate 

court is required to give deference to the 

factual findings of the trial court and to 

determine independently whether, under the 

law, the manner in which the evidence was 

obtained satisfies constitutional 

requirements. The burden is on the 

defendant to show that the denial of his 

suppression motion, when the evidence is 

considered in the light most favorable to 

the Commonwealth, was reversible error. 

McCain v. Commonwealth, 261 Va. 483, 489-90, 545 S.E.2d 541, 545 

(2001) (citations omitted). 

A. 

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, 

see Terry v. Ohio, 392 U.S. 1 (1968), and 

(3) highly intrusive arrests and searches 

founded on probable cause. 

Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744, 

747 (1995). If a reasonable person would feel free to ignore the 

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officer's questions and leave, then the encounter is consensual. 

United States v. Mendenhall, 446 U.S. 544, 555 (1980). 

 Whether a defendant gave an officer consent to search "is a 

factual question to be determined by the trier of fact," which 

receives great deference from this Court. Jean-Laurent v. 

Commonwealth, 34 Va. App. 74, 79, 538 S.E.2d 316, 318 (2000). 

Factors to examine when determining whether an encounter was 

consensual include 

the threatening presence of several 

officers, the display of a weapon by an 

officer, some physical touching of the 

person of the citizen, or the use of 

language or tone of voice indicating that 

compliance with the officer's request might 

be compelled. See Terry v. Ohio, [392 U.S. 

1,] 19, n. 16 [(1968)]; Dunaway v. New York, 

442 U.S. 200, 207, and n. 6; 3 W. LaFave, 

Search and Seizure 53-55 (1978). In the 

absence of some such evidence, otherwise 

inoffensive contact between a member of the 

public and the police cannot, as a matter of 

law, amount to a seizure of that person. 

Mendenhall, 446 U.S. at 554-55. See also Baldwin v. 

Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 648-49 (1992). 

 The initial encounter between appellant and Goldman was 

consensual. While the officers wore some insignia of their 

office, no show of force was used when the police approached the 

group. No weapons were drawn. Only Officer Goldman approached 

appellant, while the others remained five to ten yards away. 

Goldman asked for and received permission before he searched 

appellant and found the razor. Nothing in the record indicates 

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Goldman asked his questions with a commanding voice or tone. 

The trial court's finding of consent is not clearly wrong. 

 Appellant argues, even if the encounter was consensual, the 

request for identification and the taking of the license 

constituted a seizure under the principles enunciated in 

Reittinger v. Commonwealth, 260 Va. 232, 532 S.E.2d 25 (2000). 

We disagree. 

 In Reittinger, two armed deputies stopped and approached 

the car Reittinger was driving at night in a rural area. Id. at 

236, 532 S.E.2d at 27. One deputy asked three times for 

permission to search the vehicle. Id. at 237, 532 S.E.2d at 27. 

Reittinger never explicitly gave his permission for the search, 

but instead got out of the car, at which point the deputy 

observed a bulge and began a pat-down search of Reittinger. Id.

at 234, 532 S.E.2d at 26. 

 Unlike Reittinger, appellant was standing on the sidewalk, 

not driving a car. Appellant was approached by one officer in 

civilian clothing rather than by two uniformed officers standing 

on either side of him. Appellant was asked once if he would 

show the officer some identification, which he agreed to do and 

did; he was asked once for permission to search his person, 

which he immediately granted. Reittinger, on the other hand, 

was badgered with numerous requests for permission to search his 

car, which he never gave. Id. at 236-37, 532 S.E.2d at 27. 

This distinction is critical. See Dickerson v. Commonwealth, 35 

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Va. App. 172, 181, 543 S.E.2d 623, 628 (2001). While 

"'accusatory, persistent, and intrusive' questioning may turn an 

otherwise voluntary encounter into a coercive one if it conveys 

the message that compliance is required," appellant was not 

questioned in this manner. United States v. Hernandez, 93 F.3d 

1493, 1499 (10th Cir. 1996) (quoting United States v. Little, 60 

F.3d 708, 712 (10th Cir. 1995)). 

 Here, McCain is more analogous than Reittinger. In McCain, 

which involved an officer's request for and receipt of 

identification and permission to search a parked car, the 

Supreme Court held, "a police request made in a public place for 

a person to produce some identification, by itself, generally 

does not constitute a Fourth Amendment seizure." 261 Va. at 

491, 545 S.E.2d at 546. While appellant argues a request alone 

constitutes a seizure, McCain held it does not. 

 Like McCain, appellant was not seen driving a vehicle nor 

was he asked for identification pursuant to Code § 46.2-104. 

Only one officer approached McCain, as only Goldman approached 

appellant. 

 In McCain, the officer simply asked for some identification 

and then requested and received permission to search the car; 

the officer then requested permission to search McCain, which 

McCain would not give. Id. at 491, 545 S.E.2d at 546. Here, 

Officer Goldman asked once for some identification and for 

permission to search appellant, both of which were given. As 

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McCain concluded, this type of encounter does not constitute a 

seizure. Id. 

 Clearly, the search that led to the discovery of the razor 

did not violate the Fourth Amendment. However, that ruling does 

not necessarily apply to the second search, during which Goldman 

discovered the heroin. Appellant argues the officer did not 

have probable cause to arrest him for carrying a concealed 

weapon because the word, "razor," in the statute does not 

include individual razor blades. Therefore, he contends, 

Goldman's search was conducted without probable cause and 

incident to an unlawful arrest. 

 The trial court ruled, while the evidence did not prove 

appellant guilty of carrying a concealed weapon, the officer 

still had probable cause to arrest appellant because Goldman 

believed the razor blade was a concealed weapon. We find the 

officer had probable cause to arrest appellant because a razor 

blade is a "weapon" under Code § 18.2-308. 

 Code § 18.2-308(A) prohibits any person from carrying 

about his person, hidden from common 

observation, (i) any pistol, revolver, or 

other weapon designed or intended to propel 

a missile of any kind; (ii) any dirk, bowie 

knife, switchblade knife, ballistic knife, 

razor, slingshot, spring stick, metal 

knucks, or blackjack; (iii) any flailing 

instrument consisting of two or more rigid 

parts connected in such a manner as to allow 

them to swing freely, which may be known as 

a nun chahka, nun chuck, nunchaku, shuriken, 

or fighting chain; (iv) any disc, of 

whatever configuration, having at least two 

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points or pointed blades which is designed 

to be thrown or propelled and which may be 

known as a throwing star or oriental dart; 

or (v) any weapon of like kind as those 

enumerated in this subsection . . . . 

(Emphasis added.) 

 "'Although penal laws are to be construed strictly,'" 

Willis v. Commonwealth, 10 Va. App. 430, 441, 393 S.E.2d 405, 

411 (1990) (quoting Huddleston v. United States, 415 U.S. 814, 

831 (1974)), the plain language of a statute should not be 

ignored when examining the criminal code. As this Court 

explained in Krampen v. Commonwealth: 

"Where a statute is unambiguous, the plain 

meaning is to be accepted without resort to 

the rules of statutory interpretation." 

Last v. Virginia State Bd. of Med., 14 Va. 

App. 906, 910, 421 S.E.2d 201, 205 (1992). 

"'Courts are not permitted to rewrite 

statutes. This is a legislative function. 

The manifest intention of the legislature, 

clearly disclosed by its language, must be 

applied.'" Barr v. Town & Country 

Properties, Inc., 240 Va. 292, 295, 396 

S.E.2d 672, 674 (1990) (quoting Anderson v. 

Commonwealth, 182 Va. 560, 566, 29 S.E.2d 

838, 841 (1944)). Accordingly, we must 

"'take the words as written'" . . . and give 

them their plain meaning. Adkins v.

Commonwealth, 27 Va. App. 166, 169, 497 

S.E.2d 896, 897 (1998) (quoting Birdsong 

Peanut Co. v. Cowling, 8 Va. App. 274, 277, 

381 S.E.2d 24, 26 (1989)). 

29 Va. App. 163, 167, 510 S.E.2d 276, 278 (1999). 

 Here, the statute is clear on its face. "Any . . . razor" 

is explicitly included as a "weapon" in Code § 18.2-308. 

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Clearly, appellant carried a concealed weapon as prohibited by 

the statute. 

 Appellant does not deny he had a razor blade in his pocket, 

but rather contends a "razor" must have a handle to constitute a 

"weapon" under Code § 18.2-308. He bases this argument on 

O'Banion v. Commonwealth, 33 Va. App. 47, 531 S.E.2d 599 (2000). 

Neither the language of the statute nor O'Banion requires such a 

finding, however. 

 In O'Banion, after the police arrested O'Banion for 

trespassing, they found a steak knife and a box-cutter on his 

person. Id. at 54, 531 S.E.2d at 602-03. In finding both of 

these items were "weapons" under Code § 18.2-308, the Court 

noted, "[b]y its terms, the Code prohibits the carrying of a 

concealed razor or any weapon of like kind." Id. at 59, 531 

S.E.2d at 605. The Court continued, explaining that a 

box-cutter, by incorporating a razor, fit within the definition 

of "razor" as a "weapon" that cannot be concealed under the 

statute. Id. at 60, 531 S.E.2d at 605. The Court did not 

define "razor" as a box-cutter but instead found a box-cutter 

was an example of a razor. See id. O'Banion essentially held 

that the statute did not simply proscribe a razor blade, but was 

expansive enough to include an object that incorporated a razor. 

 Although the Court cited a "traditional dictionary 

definition" of razor that defined the word as an "'instrument 

made with the cutting blade and handle in one,'" id. (quoting 

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Webster's Third New International Dictionary 1888 (1981)), the 

opinion did not find that a handle is a defining characteristic 

of a "razor." O'Banion also did not hold that the Webster's

definition is the exclusive one for purposes of Code § 18.2-308, 

but rather used Webster's as an example of a generally accepted 

definition that would include a box-cutter as a "razor." Id.

 The officer had probable cause to arrest appellant for 

carrying a concealed weapon when he discovered a razor in 

appellant's pocket. The search incident to this arrest was 

valid. 

 For the reasons stated, we affirm the conviction for 

possession of heroin. 

 Affirmed. 

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