COURT OF APPEALS OF VIRGINIA 

Present: Judges Felton, Kelsey and Senior Judge Willis 

Argued at Richmond, Virginia 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 0256-03-2 JUDGE WALTER S. FELTON, JR. 

 JUNE 10, 2003 

ELWOOD F. HAMLET, JR. 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Timothy J. Hauler, Judge 

 Amy L. Marshall, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General; 

Margaret W. Reed, Assistant Attorney General, 

on brief), for appellant. 

 Gregory R. Sheldon (Goodwin, Sutton & DuVal, 

P.L.C., on brief), for appellee. 

 Pursuant to Code § 19.2-398, the Commonwealth appeals the 

judgment of the trial court granting Elwood Hamlet's motion to 

suppress evidence. The Commonwealth contends that Officer Culp 

engaged Hamlet in a consensual encounter, which led to his arrest 

for being drunk in public. As a result, the Commonwealth argues 

the search and seizure of Hamlet was incident to a lawful arrest. 

For the following reasons, we reverse the judgment of the trial 

court. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
I. BACKGROUND

 On August 6, 2002, Chesterfield County Police Officer 

Robert Culp, in uniform and displaying his badge of authority, 

was operating a marked police unit around midnight. Officer 

Culp was patrolling an area where there had been several recent 

larcenies, including one the previous evening, when he observed 

Hamlet walking down the street. 

 Officer Culp followed Hamlet for approximately thirty 

seconds. During that period, Hamlet turned his head and 

realized an officer was following him. Thereafter, Hamlet 

briefly put his hands down his pants and continued walking. 

Officer Culp did not notice anything in Hamlet's hands at any 

time. At the suppression hearing, Officer Culp testified that 

when he observed Hamlet placing his hands in his pants, he 

believed he was reaching for a weapon. 

 Without activating his emergency equipment, Officer Culp 

pulled over and approached Hamlet on foot. When he approached 

Hamlet, Officer Culp asked him what he had in his pants. Hamlet 

responded that he was urinating and he was placing his private 

parts back in. Officer Culp testified at the suppression 

hearing that Hamlet "clearly was not" urinating and this 

misrepresentation added to his suspicions. 

 During the encounter, Officer Culp noticed that there was a 

"strong odor of alcohol" emanating from Hamlet. In addition, 

Hamlet was uneasy on his feet and was swaying back and forth. 

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Officer Culp arrested Hamlet for being drunk in public and 

conducted a search.1 Cocaine was discovered in Hamlet's right 

pants pocket and a smoking pipe in the crotch of his pants. 

 A suppression hearing was held on December 18, 2002. 

Hamlet contended that he was unlawfully seized and searched by 

Officer Culp, in violation of his Fourth and Fourteenth 

Amendment rights. Consequently, he asked the court to suppress 

all evidence obtained as a result. Officer Culp was the only 

witness called to testify and following his testimony, the trial 

court granted Hamlet's motion simply holding, "[t]he motion to 

suppress is granted." The Commonwealth appeals the judgment of 

the trial court. 

II. ANALYSIS

 In reviewing a pretrial appeal, we "view the evidence in 

[the] light most favorable to [the defendant], the prevailing 

party below, and we grant all reasonable inferences fairly 

deducible from that evidence. We will not reverse the trial 

judge's decision unless it is plainly wrong." Commonwealth v. 

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991) 

(citing Commonwealth v. Holloway, 9 Va. App. 11, 20, 384 S.E.2d 

99, 104 (1989)). 

 The Commonwealth argues on appeal that the trial court erred 

in granting Hamlet's motion to suppress because the seizure of 

 1

 The record does not indicate at what point Officer Culp 

conducted the search. 

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evidence was a result of a lawful search incident to an arrest for 

being drunk in public. We agree. 

"Ultimate questions of reasonable suspicion 

and probable cause to make a warrantless 

search" involve questions of both law and 

fact and are reviewed de novo on appeal. 

Ornelas v. United States, 517 U.S. 690, 

[691], 116 S. Ct. 1657, 1659, 134 L. Ed. 2d 

911 (1996). In performing such analysis, we 

are bound by the trial court's findings of 

historical fact unless "plainly wrong" or 

without evidence to support them and we give 

due weight to the inferences drawn from 

those facts by resident judges and local law 

enforcement officers. Id. at [699], 116 

S. Ct. at 1663. We analyze a trial judge's 

determination whether the Fourth Amendment 

was implicated by applying de novo our own 

legal analysis of whether based on those 

facts a seizure occurred. 

McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 

261 (1997) (footnote omitted). 

A. CONSENSUAL ENCOUNTER

 A police officer does not violate the Fourth Amendment 

"merely by approaching an individual on the street, identifying 

[himself], and asking the individual questions." Buck v. 

Commonwealth, 20 Va. App. 298, 301-02, 456 S.E.2d 534, 535 

(1995) (citing Baldwin v. Commonwealth, 243 Va. 191, 196, 413 

S.E.2d 645, 647-48 (1992)). 

 The initial engagement between Officer Culp and Hamlet was 

a consensual encounter. A consensual encounter need not be 

predicated on suspicion of criminal activity and remains 

consensual so long as the encountered citizen voluntarily 

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cooperates with the police. Payne v. Commonwealth, 14 Va. App. 

86, 88, 414 S.E.2d 869, 870 (1992) (citing United States v. 

Wilson, 953 F.2d 116, 121 (4th Cir. 1991)). Hamlet voluntarily 

cooperated with Officer Culp. At no point during this encounter 

did Officer Culp indicate that Hamlet was not free to leave, nor 

did Hamlet attempt to leave or refuse to answer Officer Culp's 

questions. In voluntarily responding to questions, Hamlet 

consented to the encounter with police. See United States v. 

Mendenhall, 446 U.S. 544 (1980). 

B. SEARCH INCIDENT TO ARREST

 At oral argument, Hamlet's attorney conceded that if the 

initial encounter was consensual, the officer had probable cause 

to arrest Hamlet for being drunk in public. 

One of the established exceptions to the 

Fourth Amendment's warrant requirement is 

for a "search incident to a lawful arrest." 

United States v. Robinson, 414 U.S. 218, 

224, 226, 94 S. Ct. 467, 471, 472, 38 

L. Ed. 2d 427 (1973) (also holding that 

searches incident to arrest "meet the Fourth 

Amendment's requirement of reasonableness"); 

see also Chimel v. California, 395 U.S. 752, 

762-63, 89 S. Ct. 2034, 2039-2040, 23 

L. Ed. 2d 685 (1969). 

When delineating the permissible scope of a 

warrantless search incident to arrest, the 

United States Supreme Court has stated that 

a lawful arrest of a suspect authorizes the 

police to conduct "a full search of the 

[arrestee's] person." Robinson, 414 U.S. at 

235, 94 S. Ct. at 477. In addition, the 

police may search the area within the 

arrestee's immediate control, see Chimel, 

395 U.S. at 763, 89 S. Ct. at 2040, and 

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seize his or her personal effects that are 

evidence of the crime. 

Commonwealth v. Gilmore, 27 Va. App. 320, 327-28, 498 S.E.2d 

464, 468 (1998). 

 The search of Hamlet, conducted by Officer Culp, was a 

lawful search incident to an arrest. Officer Culp developed 

probable cause to arrest Hamlet for being drunk in public during 

the course of the consensual encounter. During their 

conversation, Officer Culp noticed that Hamlet had a "strong 

odor of alcohol" about him, he was uneasy on his feet, and was 

swaying back and forth. These factors were sufficient to 

establish probable cause for Officer Culp to arrest Hamlet for 

being drunk in public. The lawful arrest permitted Officer Culp 

to conduct a full search of Hamlet and seize any evidence of 

criminal activity. The trial court erred in suppressing the 

evidence seized from Hamlet. 

 The judgment of the trial court is reversed. 

 Reversed.

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