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 . . . . 15 Va. App.
Questions of fact are binding on appeal unless plainly wrong.
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.