                       COURT OF APPEALS OF VIRGINIA


Present: Judges Koontz * , Elder and Fitzpatrick
Argued at Salem, Virginia

RALEIGH MILTON DODSON

v.      Record No.    0838-94-3             MEMORANDUM OPINION BY**
                                         JUDGE LAWRENCE L. KOONTZ, JR.
COMMONWEALTH OF VIRGINIA                        AUGUST 22, 1995

              FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                          James F. Ingram, Judge

        John H. Heard (Sinclair & Heard, on brief), for appellant.
        Marla Lynn Graff, Assistant Attorney General (James S.
        Gilmore, III, Attorney General, on brief), for appellee.



        Raleigh Milton Dodson (Dodson) appeals his bench trial

conviction for possession of cocaine with intent to distribute.

 Dodson asserts that the trial court erred in finding his initial

confrontation with police was not a seizure and in finding that

the subsequent "pat down" was reasonable.          Dodson further asserts

that the evidence was insufficient to support a conviction for

possession of cocaine with intent to distribute.          We disagree and

affirm Dodson's conviction.

        On the evening of December 26, 1993, Danville Police

Officers Kennedy, Wallace, and Buzby were patrolling a high crime

area in response to citizen complaints of drug dealing in that

area.       The officers were aware that guns had been stolen from a

        *
      Justice Koontz prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
             **
          Pursuant to Code        §   17-116.010   this   opinion   is   not
designated for publication.
building in that area.   During their patrol, the officers

observed two men standing near a street corner in a dark area.

The week before, Officer Wallace and his partner had discovered a

gun about a block from where these two men stood.     The officers

parked their vehicles and approached the two men.     Officer

Kennedy asked them, "What's up?    How Ya'll doing?   What's your

names?"   The two men answered.   Kennedy then asked why they were

standing on the corner and if they were armed.    Officer Kennedy

engaged the second man in conversation while Officers Wallace and

Buzby spoke with Dodson.
     For safety reasons, Officer Buzby stood several steps behind

Dodson with a flashlight and Officer Wallace stood in front of

Dodson.   Officer Wallace informed Dodson of the drug and crime

problems in the area, requested identification, and asked Dodson

to explain his presence in the area.    Dodson could not produce

any identification.   He said he was visiting his girlfriend.

Wallace then asked whether Dodson was armed and requested

permission to conduct a "pat down."     Dodson refused to consent to

a "pat down," stating, "I don't have anything, and so there's no

need to do that."   Dodson then immediately reached into the left

pocket of his jogging suit.   Officer Wallace testified that he

thought Dodson might be reaching for a gun.    Wallace told Dodson,

"Don't do that.   You're making me nervous.   Don't do that.    I'm

going to pat you down, and make sure you don't have a weapon."

     Officer Wallace then pulled Dodson's hand out of the pocket

and began a "pat down" with Officer Buzby's assistance.    Dodson

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protested that he was not carrying any weapons.      During the "pat

down," Officer Buzby felt a hard lump in Dodson's sock.      When

Buzby touched the lump, Dodson jerked his leg back and took

flight.   The officers caught Dodson and discovered 40.1 grams of

cocaine in his sock.

       Dodson first contends that he was illegally seized during

the initial confrontation and questioning when Officer Buzby

stood behind him with a flashlight and Officer Wallace stood in

front of him.   "[A] person has been 'seized' within the meaning

of the Fourth Amendment only if, in view of all of the

circumstances surrounding the incident, a reasonable person would

have believed that he was not free to leave."       United States v.

Mendenhall, 446 U.S. 544, 554 (1980).       See Florida v. Royer, 460

U.S. 491, 500 (1983); Baldwin v. Commonwealth, 243 Va. 191, 196,

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

       Dodson's reliance on Moss v. Commonwealth, 7 Va. App. 305,

373 S.E.2d 170 (1988), is misplaced.      In that case, we held that

an individual was "seized" under the Fourth Amendment and not

free to leave when a police officer appeared suddenly from a

hidden location and shined a flashlight into the individual's

face, blinding and stunning him.       Id. at 306-08, 373 S.E.2d at

171.   In the present case, the officers approached Dodson from

their police vehicles and initiated a consensual encounter.

Furthermore, the officer used the flashlight to look over

Dodson's person, not to blind or stun him.

       Dodson also relies on Goodwin v. Commonwealth, 11 Va. App.

                                 -3-
363, 398 S.E.2d 690 (1990).    In Goodwin, the officer immediately

informed the individual that he would be searched for weapons.

Id. at 365, 398 S.E.2d at 691.     Unlike the present case, there

was no consensual aspect to the encounter.       Id.    Police officers

do not "seize" an individual by simply "asking him if he is

willing to answer some questions, by putting questions to him if

the person is willing to listen."       Florida v. Royer, 460 U.S.

491, 497 (1983); see Richards v. Commonwealth, 8 Va. App. 612,

615, 383 S.E.2d 268, 270 (1989).
     Although one officer was in front and another behind Dodson,

Dodson was not limited in his freedom of movement and could have

terminated the encounter by stepping to the side or asking the

officers to step aside.    The police officers did not indicate by

words or actions that Dodson was required to remain and answer

questions.    "Acquiescence in 'a police request, which most

citizens will do, does not negate the consensual nature of the

response.'"     Greene v. Commonwealth, 17 Va. App. 606, 610, 440

S.E.2d 138, 140-41 (1994) (citations omitted).         Considering the

totality of the circumstances, a reasonable person in Dodson's

situation would believe that he or she was free to walk away from

the officers.    Accordingly, because the initial confrontation

between Dodson and the officers was consensual, we hold that

Dodson was not seized at that point.

     Dodson further contends that he was illegally seized when

the police conducted the "pat down" search without a reasonable

"articulable suspicion" of criminal activity.      The dangerous
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nature of police work necessitates that the police take special

precautions to protect themselves and others from potentially

violent situations.   Terry v. Ohio, 392 U.S. 1, 24 (1968).

However, law enforcement agents without probable cause to arrest

may only conduct "pat downs" in those instances where they can

"point to specific and articulable facts which, taken together

with reasonable inferences from those facts, reasonably warrant

that intrusion."   Id. at 21.   In determining whether there are

specific and articulable facts to justify a pat down, we look at
the circumstances of the encounter including the

"'characteristics of the area' where the stop occurs, the time of

the stop, whether late at night or not, as well as any suspicious

conduct of the person accosted."       Williams v. Commonwealth, 4 Va.

App. 53, 67, 354 S.E.2d 79, 86-87 (1987) (quoting U.S. v. Bull,

565 F.2d 869, 870-71 (4th Cir. 1977), cert. denied, 435 U.S. 946

(1978)); see Nesbit v. Commonwealth, 15 Va. App. 391, 393, 424

S.E.2d 239, 240 (1992).

     Dodson was standing in a dark location in a high crime area.

The police were responding to a complaint of drug dealing.       In

this Commonwealth "suspicion of narcotics possession and

distribution is . . . recognized as a circumstance which,

standing alone, gives rise to an inference of dangerousness."

Williams, 4 Va. App. at 67, 354 S.E.2d at 87.      Furthermore, guns

had been stolen in the area a few months before the incident.

Only a week earlier, Officer Wallace had discovered a gun a block

away from where Dodson stood.   After refusing to consent to a
                                 -5-
"pat down" search, Dodson stated that he was not armed and

immediately reached into his pocket.   Under these facts, it was

reasonable for the police to be concerned for their safety.      We

hold that the "pat down" search of Dodson was justified and

involved no unlawful seizure.

     Finally, Dodson contends that the evidence was insufficient

to establish possession of cocaine with intent to distribute.     We

disagree.
     It is clear that "quantity, when greater than the supply

ordinarily possessed by a narcotics user for his personal use, is

a circumstance which, standing alone, may be sufficient to

support a finding of intent to distribute."    Hunter v.

Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 (1973)

(emphasis added); see Glenn v. Commonwealth, 10 Va. App. 150,

154-55, 390 S.E.2d 505, 508 (1990); Monroe v. Commonwealth, 4 Va.

App. 154, 156, 355 S.E.2d 336, 337 (1987).    Officer Wallace

testified that 0.7 grams of cocaine was a normal unit for

personal consumption and would sell for about $25.    The officers

found 40.1 grams of cocaine hidden in Dodson's sock.    The

quantity of cocaine found on Dodson and the manner in which it

was hidden are sufficient to raise a reasonable inference that

his intent was to distribute the cocaine.

     For these reasons, the conviction is affirmed.

                                                     Affirmed.




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