COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

GERALD McGHEE 

 MEMORANDUM OPINION* BY 

v. Record No. 0418-97-2 JUDGE SAM W. COLEMAN III 

 MARCH 3, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Jonathan David (Joseph D. Morrissey; James T. 

Maloney; Morrissey, Hershner & Jacobs, on 

brief), for appellant. 

 Ruth Ann Morken, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 City of Richmond police detectives searched Gerald McGhee as 

he disembarked from a bus at a bus terminal in Richmond and 

recovered from him several rocks of cocaine. McGhee was 

convicted in a bench trial for possession of cocaine with the 

intent to distribute. On appeal, McGhee contends the trial court 

erred in denying his motion to suppress the cocaine, because, he 

asserts, he was unlawfully seized in violation of the Fourth 

Amendment, and he did not voluntarily consent to the search. 

Finding no error, we affirm the conviction. 

I. BACKGROUND

 When the evidence is viewed in the light most favorable to 

the Commonwealth, the party prevailing at trial, see Greene v. 

 

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

designated for publication. 
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Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139-40 

(1994), it proved that City of Richmond Police Detectives 

Stephanie Ruffin and Ronnie Armstead observed McGhee, who was 

carrying a blue duffel bag, and another person exit a bus at the 

Richmond Greyhound Bus Terminal. As he exited, McGhee looked 

around the terminal platform in a manner that Ruffin thought 

suspicious. McGhee and the other man spoke briefly and then 

separated. 

 Ruffin approached McGhee, identified herself, displayed her 

badge, and asked McGhee if she could speak with him. McGhee 

replied, "sure," and walked a few feet away from Ruffin. 

Believing that McGhee was going to a place where he could speak 

privately with her, Ruffin advised him that he "didn't have to go 

anywhere" in order for them to talk. Ruffin then asked where 

McGhee was going, to which he responded Charlotte. She next 

asked McGhee for identification and observed McGhee's hand begin 

to shake as he was handing it over. Ruffin told McGhee that he 

was not under arrest or under detention. Ruffin then asked 

McGhee if she could search his duffel bag. In response, McGhee 

removed the bag from his shoulder and handed it to the detective. 

 Before searching the duffel bag, Ruffin asked McGhee if 

Armstead could search his person while she searched the duffel 

bag. Without speaking, McGhee turned and stepped towards 

Armstead, lifted his arms, and held them in a position parallel 

to the ground. Armstead told McGhee that he could put his arms 
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down and that the search could be done behind the bus to avoid 

embarrassment. McGhee followed Armstead to the other side of the 

bus where Armstead patted down McGhee's outer clothing and felt 

chunky, irregular shapes in the left side of McGhee's jacket 

which Armstead believed to be narcotics. Armstead looked inside 

the pocket and observed several rocks of cocaine. McGhee was 

arrested and charged with possession of cocaine with the intent 

to distribute. Ruffin testified that she did not complete a 

search of McGhee's duffel bag because she heard McGhee being 

handcuffed and arrested before getting into a search. 

 The trial court denied McGhee's motion to suppress the 

cocaine ruling that McGhee had not been seized for Fourth 

Amendment purposes by the detectives and that he voluntarily 

consented to the personal search. 

II. STANDARD OF REVIEW

 When a trial court's denial of a motion to suppress is 

reviewed on appeal, the burden is upon the appellant to 

demonstrate that the trial court's ruling, considering the 

evidence and reasonable inferences fairly deducible therefrom in 

the light most favorable to the Commonwealth, constituted 

"reversible error." Fore v. Commonwealth, 220 Va. 1007, 1010, 

265 S.E.2d 729, 731 (1980). 

 "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. In 

performing such analysis, we are bound by the 

trial court's findings of historical fact 

unless "plainly wrong" or without evidence to 
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support it, and we give due weight to the 

inferences drawn from those facts by resident 

judges and local law enforcement officers. 

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

261 (1997) (en banc) (quoting Ornelas v. United States, 116 

S. Ct. 1657, 1659, 1663 (1996)). "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, 25 Va. App. at 198, 487 S.E.2d 

at 261. 

III. INITIAL ENCOUNTER WITH POLICE

 A person is "seized" within the meaning of the Fourth 

Amendment if, "'in view of all of the circumstances surrounding 

the incident, a reasonable person would have believed that he was 

free to leave.'" Satchell v. Commonwealth, 20 Va. App. 641, 648, 

460 S.E.2d 253, 256 (1995) (en banc) (quoting United States v. 

Mendenhall, 446 U.S. 544, 554 (1980)). A "voluntary or 

consensual encounter between a police officer and a citizen does 

not implicate the Fourth Amendment as long as 'a reasonable 

person would understand that he or she could refuse to 

cooperate.'" Lawrence v. Commonwealth, 17 Va. App. 140, 144, 435 

S.E.2d 591, 594 (1993) (quoting United States v. Wilson, 953 F.2d 

116, 121 (4th Cir. 1991)). In this vein, "[a]n encounter between 

a law enforcement officer and a citizen in which the officer 

merely identifies himself and states that he is conducting a 

narcotics investigation, without more, is not a seizure within 
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the meaning of the Fourth Amendment, but is, instead, a 

consensual encounter." McGee, 25 Va. App. at 199, 487 S.E.2d at 

262. In order for a "seizure" to occur, there must be some 

physical force used or threatened or some demonstrable show of 

police authority that would reasonably connote or communicate to 

the person that he was being detained and was not free to leave. 

Id.

 Considering the totality of the circumstances and granting 

to the Commonwealth the reasonable inferences which flow from the 

proven facts, we hold that McGhee's initial encounter with Ruffin 

was consensual and was not a "seizure" that implicated the Fourth 

Amendment. Ruffin approached McGhee and asked him if he would 

speak with her. McGhee replied "sure." Ruffin did not display 

her weapon. She did not touch McGhee or restrict his freedom of 

movement. She informed McGhee that was he not being arrested or 

detained. Although Ruffin did tell McGhee that he "didn't have 

to go anywhere" when he moved away from her, the trial court 

necessarily concluded that McGhee was attempting to leave but was 

stepping to a place where he could speak privately with Ruffin. 

Based on McGhee's response of "sure" and the fact that McGhee 

remained there and cooperated, and in view of the fact that 

Ruffin's statement "related that the conversation could take 

place where they were [standing at the time] and there was no 

need to move to another location for that conversation," we are 

bound by the trial court's finding of historical fact. Viewing 
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the evidence in the light most favorable to the Commonwealth, 

there was no proof of use or threat of physical force or display 

of authority from which a reasonable person could have believed 

that he or she was not free to leave during Ruffin's inquiry, see

Baldwin v. Commonwealth, 243 Va. 191, 196-99, 413 S.E.2d 645, 

648-49 (1992), nor did the evidence prove that McGhee withdrew or 

intended to withdraw his consent to the encounter when he moved 

away from Ruffin. See Lawrence, 17 Va. App. at 146, 435 S.E.2d 

at 595 (recognizing that withdrawal of consent requires an 

"unequivocal act or statement of withdrawal"). Therefore, we 

find, as did the trial court, that McGhee was not "seized" by 

Ruffin within the meaning of the Fourth Amendment during their 

initial encounter. 

IV. CONSENT TO SEARCH

 A search conducted with the free and voluntary consent of 

the accused is permissible under the Fourth Amendment. See

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). "[C]onsent 

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

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

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

Although consent may not be grounded on a person's failure to 

resist police action, id., it may be inferred "from the actions 

and behavior of the defendant," which connote agreement or a 

willingness to cooperate. McGee v. Commonwealth, 23 Va. App. 

334, 343, 477 S.E.2d 14, 19 (1996), rev'd on other grounds, 25 
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Va. App. 193, 487 S.E.2d 259 (1997); see Hairston v. 

Commonwealth, 216 Va. 387, 388-89, 219 S.E.2d 668, 669 (1975) 

(per curiam). The Commonwealth "bears the burden of establishing 

consent [to search] and this burden is heavier where the consent 

is based on implication." Walls v. Commonwealth, 2 Va. App. 639, 

645, 347 S.E.2d 175, 179 (1986). 

 In this case, McGhee's voluntary consent to Armstead's 

personal search may be inferred by his conduct. Ruffin asked 

McGhee if he would permit Armstead to search him. In direct 

response, McGhee turned and walked toward Armstead while raising 

his arms parallel to the ground as if to permit and facilitate a 

search. McGhee's actions were an affirmative and unequivocal 

grant of consent for Armstead to search him. See United States 

v. Wilson, 895 F.2d 168, 172 (4th Cir. 1990) (holding that 

defendant, without speaking, affirmatively consented to search of 

his person by shrugging his shoulders and extending his arms as 

response to officer's request to search); McGee, 23 Va. App. at 

343-44, 477 S.E.2d at 19 (holding that seated defendant 

voluntarily consented to search of his person by standing up and 

extending his arms). 

 Upon de novo review, considering the evidence in the light 

most favorable to the Commonwealth and according it all 

reasonable inferences fairly deducible therefrom, we hold that 

the cocaine was seized pursuant to McGhee's voluntary consent to 

be searched after being approached by police detectives. 
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Accordingly, the trial court did not err when it denied McGhee's 

motion to suppress, and we affirm the conviction. 

 Affirmed.
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Benton, J., dissenting. 

 Because I believe the evidence proved that the initial 

encounter between Detective Ruffin and Gerald McGhee was a 

seizure under the Fourth Amendment and that Ruffin did not have a 

reasonable, articulable suspicion justifying the investigatory 

stop, I would reverse the trial judge's refusal to suppress the 

evidence. Furthermore, I would hold that the Commonwealth did 

not meet its burden of proving McGhee consented to the search of 

his person. 

 I. 

 "A consensual encounter occurs when police officers approach 

persons in public places 'to ask them questions,' provided 'a 

reasonable person would understand that he or she could refuse to 

cooperate.'" Payne v. Commonwealth, 14 Va. App. 86, 88, 414 

S.E.2d 869, 870 (1992) (citations omitted). "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 as would under the Constitution 

require some particularized and objective justification." United 

States v. Mendenhall, 446 U.S. 544, 554 (1979). Thus, the 

encounter remains consensual only "as long as the citizen 

voluntarily cooperates with the police." United States v. 

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

 An encounter is not consensual "if, in view of all of the 

circumstances surrounding the incident, a reasonable person would 
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have believed that he was not free to leave." Mendenhall, 446 

U.S. at 554. "The 'principle embodied by the phrase "free to 

leave" means the ability to ignore the police and to walk away 

from them,' to '"feel free to decline the officers' requests or 

otherwise terminate the encounter."'" Payne, 14 Va. App. at 89, 

414 S.E.2d at 870 (citations omitted). "Fourth Amendment 

scrutiny is triggered . . . the moment an encounter '"loses its 

consensual nature."'" Id. at 88, 414 S.E.2d at 870 (citations 

omitted). 

 The evidence proves that after McGhee gave his ticket to the 

bus driver and was walking to board a bus at Gate 17, Detective 

Ruffin approached him, displayed her badge, and asked if she 

could speak with him. Although McGhee said "sure," he moved away 

from Ruffin. When he had gone "approximately five feet," Ruffin 

told McGhee that "he didn't have to go anywhere." In response to 

this comment, McGhee stopped walking. Ruffin then began 

questioning McGhee. 

 Although Ruffin's initial approach to McGhee was an attempt 

to have a consensual encounter, the consensual aspect of this 

encounter disappeared when McGhee started to walk away from 

Ruffin and Ruffin told McGhee not to "go anywhere." Under such 

circumstances, a reasonable person would not feel free to leave, 

to ignore the officer, or to continue to walk away. For Fourth 

Amendment purposes, McGhee was then "seized" by the officer. See

Payne, 14 Va. App. at 89, 414 S.E.2d at 870. When McGhee stopped 
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a seizure occurred because he "submitted to [the officer's] show 

of authority." McGee v. Commonwealth, 25 Va. App. 193, 199, 487 

S.E.2d 259, 262 (1997) (en banc). 

 In characterizing these events, Ruffin said she spoke to 

halt McGhee, "[b]elieving that McGhee was going to a place where 

he could speak privately with her." (Emphasis added). The 

officer's subjective belief must give way to the objective facts. 

 Ruffin stopped McGhee as he was walking to his bus. He had the 

right to walk away. Indeed, the "'freedom to leave means 

fundamentally the freedom to break off contact, in which case 

officers must, in the absence of objective justification, leave 

the passenger alone.'" Wilson, 953 F.2d at 122 (citation 

omitted). Furthermore, Ruffin's subjective belief does not 

negate the fact that she told McGhee not to walk away. From this 

evidence, it is just as likely that McGhee was walking away from 

the officer to board his bus and terminate the attempted 

consensual encounter. 

 When Ruffin told McGhee "he didn't have to go anywhere," 

this was a show of authority such that McGhee was not free to 

leave. Whatever Ruffin may have subjectively believed, McGhee 

did not tell her that he wanted a private conversation. Acting 

on her subjective belief, Ruffin made a demonstrable show of 

authority when she told McGhee to remain. She then asked him to 

show her some identification. These circumstances fail to prove 

the encounter was consensual. Therefore, I would hold that 
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McGhee was seized for purposes of the Fourth Amendment when he 

started to walk away and Ruffin told him that he didn't have to 

go anywhere. 

 II. 

 "The dispositive question then is whether the officers had a 

reasonable basis to suspect [McGhee] of criminal activity to 

justify the investigatory stop." McGee, 25 Va. App. at 201, 487 

S.E.2d at 263. "It is well-established that an investigatory 

stop may be initiated only when an officer has 'a reasonable 

suspicion, based on objective facts, that the individual is 

involved in criminal activity.'" Riley v. Commonwealth, 13 Va. 

App. 494, 496, 412 S.E.2d 724, 725 (1992) (citation omitted). 

The officer's testimony of the facts and observations that gave 

rise to the stop must amount to more than an "inchoate and 

unparticularized suspicion or 'hunch.'" Terry v. Ohio, 392 U.S. 

1, 27 (1968). "When examining the officer's articulable reasons 

for stopping a person, we examine the objective reasonableness of 

the officer's behavior rather than the officer's subjective 

belief that the conduct indicates criminal activity." Riley, 13 

Va. App. at 496-97, 412 S.E.2d at 725. 

 The seizure in this case was unlawful because Ruffin lacked 

a reasonable articulable suspicion that criminal activity was 

afoot to stop McGhee. The officers did not testify as to any 

conduct by McGhee that gave rise to a reasonable suspicion that 

McGhee was engaged in criminal conduct. Ruffin's stop of McGhee 
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stands only upon her observation of McGhee exiting a bus from 

Washington, D.C. carrying a blue duffel bag. After McGhee spoke 

to another man who exited the same bus, McGhee went to board 

another bus. Ruffin had not received any tips about McGhee. She 

did not see anyone commit a crime in her presence. She did not 

suspect that McGhee had just committed a crime. In fact, she 

admitted that one of the reasons she decided to approach McGhee 

was "because of the mannerisms and behavior of another 

individual." 

 "Manifestly, this conduct falls below activity necessary to 

justify a reasonable suspicion that a violation of law had 

occurred or was occurring." Zimmerman v. Commonwealth, 234 Va. 

609, 612, 363 S.E.2d 708, 710 (1988); see also Riley, 13 Va. App. 

at 497-99, 412 S.E.2d at 726-27. Accordingly, I would hold that 

because the seizure was unlawful, any evidence obtained during 

the subsequent "consent" search should have been suppressed as 

"fruit of the poisonous tree." Commonwealth v. Ealy, 12 Va. App. 

744, 754, 407 S.E.2d 681, 687 (1991). 

 III. 

 I would also hold that McGhee did not consent to a search of 

his person. "It is well settled that the burden is on the 

Commonwealth to establish an exception to the warrant 

requirement." Walls v. Commonwealth, 2 Va. App. 639, 645, 347 

S.E.2d 175, 178 (1986). "'Consent to a search . . . must be 

unequivocal, specific and intelligently given . . . and it is not 
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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)). While "consent need not be 

given orally but can be determined from the actions and behavior 

of the defendant," McGee v. Commonwealth, 23 Va. App. 334, 343, 

477 S.E.2d 14, 19 (1996), rev'd on other grounds, 25 Va. App. 

193, 487 S.E.2d 259 (1997), "the [Commonwealth] . . . bears the 

burden of establishing consent and this burden is heavier where 

the alleged consent is based on an implication." Walls, 2 Va. 

App. at 645, 374 S.E.2d at 178. In this case, there is no 

evidence that consent was ever given. 

 Nothing in the record proves that McGhee consented to the 

search of his person by Detective Armstead. The evidence proves 

that McGhee "never uttered a single word in regard to [Ruffin's] 

inquiry to make a search." When Ruffin ordered McGhee to stop 

and asked to search the contents of McGhee's bag, McGhee did not 

say anything. "He took the duffel bag off his right shoulder and 

handed it to [Ruffin]." Ruffin then asked McGhee if her partner, 

Detective Armstead, could search his person. She pointed in the 

direction of Armstead who was standing about twelve feet away 

behind McGhee. When McGhee turned and looked where Ruffin 

pointed, Armstead "closed in" on McGhee, stopping when he was 

about two to three feet away. Ruffin said McGhee's "eyes 

bulged." This was the first time McGhee had seen Armstead who 

was dressed in plain clothes. McGhee then turned back to Ruffin. 
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 Ruffin identified Armstead to McGhee and told Armstead to 

"check [McGhee's] person." McGhee turned, spread his arms out so 

that they were parallel to the ground, and "took a step" toward 

Armstead. Armstead never asked McGhee if he could search him. 

McGhee made no statements to Armstead. Armstead told McGhee to 

put his arms down. Armstead then asked McGhee "Do you want me to 

do the search here or over in another area?" McGhee did not 

respond. Armstead asked him to step to the other side of the bus 

and walked toward an empty bus next to the one McGhee had been 

standing in line to board. McGhee followed. Armstead said that 

if McGhee had left instead of following him he would have 

followed McGhee and detained him. Armstead searched McGhee and 

discovered cocaine in McGhee's pocket. 

 Both officers testified that McGhee did not verbally assent 

to Armstead's search of his person. Furthermore, McGhee's 

conduct did not give any objective, reasonable indication that 

McGhee agreed to the officers' search. Whenever consent is not 

explicitly given, "the existence of consent to search is not 

lightly to be inferred." United States v. Patacchia, 602 F.2d 

218, 219 (9th Cir. 1979). The burden of proving consent "cannot 

be discharged by showing no more than acquiescence to a claim of 

lawful authority." Bumper v. North Carolina, 391 U.S. 543, 

548-49 (1967). See Crosby v. Commonwealth, 6 Va. App. 193, 199, 

367 S.E.2d 730, 733 (1980). Although McGhee's conduct in turning 

toward Armstead "may well have signaled acquiescence, it did not 
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show consent." Miranda v. State, 375 S.E.2d 295, 298 (Ga. Ct. 

App. 1988). Ruffin told Armstead to "check [McGhee's] person." 

At most, McGhee's conduct was a sign of passivity or a show of 

respect for the newly discovered officer's authority. "Conduct 

that is questionable or clearly indicates mere acquiescence to 

perceived police authority will not support a search based on the 

party's alleged consent, regardless of the lack of coercion." 

Evans v. State, 804 S.W.2d 730, 734 (Ark. Ct. App. 1991). 

 Because the evidence proves that McGhee was "seized" for 

purposes of the Fourth Amendment, that the officers did not have 

a reasonable articulable suspicion to stop McGhee, and that 

McGhee did not give his consent to a search of his person, I 

would reverse the trial judge's refusal to suppress the evidence.