Present: All the Justices
VINCENT DICKERSON
v. Record No. 021968 OPINION BY JUSTICE ELIZABETH B. LACY
June 6, 2003
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal we again consider whether, following the
conclusion of a valid stop for a traffic violation, the
continued encounter between a police officer and the driver of
the vehicle was consensual or an illegal seizure in violation
of the driver's Fourth Amendment rights.
On August 20, 1999, Pittsylvania Sheriff's Deputy B.K.
Parker received a radio dispatch giving him the license plate
number and description of a motor vehicle traveling westbound
on Route 58. The vehicle, driven by Vincent Dickerson, had
failed to yield the right of way to a Danville Life Saving
Crew truck. Soon thereafter, Deputy Parker saw the vehicle
traveling at a speed of 65 miles-per-hour in a 55 mile-per-
hour zone. He activated his vehicle's emergency lights and
siren and initiated a traffic stop. A second officer, Deputy
Morrison, arrived on the scene and parked his patrol car
behind Deputy Parker's vehicle.
As Deputy Parker approached Dickerson's vehicle, he
noticed that Dickerson had "a slight odor of alcohol about his
person." Deputy Parker asked Dickerson to get out of the car
and perform some field sobriety tests. The tests were
conducted at the rear of Dickerson's vehicle. After
conducting these tests, Deputy Parker decided not to arrest
Dickerson for any alcohol-related violations. He told
Dickerson he was free to go but that he might be subpoenaed
later for the failure-to-yield traffic infraction.
Dickerson returned to his car, opened the driver's side
door, and started to get back into the vehicle when Deputy
Parker asked Dickerson "if there was anything in the car [he]
should know about, dope, marijuana, roaches in the ashtray,
something, anything like that." Dickerson said "no." Deputy
Parker then asked Dickerson whether he smoked marijuana.
Dickerson replied that he did smoke marijuana but not while he
was driving. Dickerson also volunteered that there were "some
roaches in the ashtray."
Deputy Parker asked if he could look in the car.
Dickerson said "no," but pulled out the ashtray from the
vehicle's console and handed it to Deputy Parker. The ashtray
contained "numerous hand-rolled cigarette roaches" which
Dickerson said were the remains of marijuana cigarettes.
Deputy Parker again asked Dickerson for permission to
search the vehicle. Although Dickerson again refused
permission to search the vehicle, Deputy Parker told Dickerson
to step away from the vehicle and began to search it. Deputy
2
Parker found three plastic bags of cocaine and a plastic box
containing scales under the driver's side floormat. At Deputy
Parker's direction, Deputy Morrison retrieved the keys from
the vehicle's ignition, opened the trunk, and found several
additional plastic bags of cocaine and another set of scales.
Deputy Parker placed Dickerson under arrest.
Dickerson was subsequently charged with violating Code
§ 18.2-248, possession of cocaine with intent to distribute.
The Circuit Court of Pittsylvania County denied Dickerson's
motion to suppress the evidence obtained in the search of his
vehicle and convicted him of the crime charged. Dickerson was
sentenced to six years' imprisonment, with three years
suspended. The Court of Appeals affirmed Dickerson's
conviction. See Dickerson v. Commonwealth, 35 Va. App. 172,
543 S.E.2d 623 (2001). This Court granted Dickerson's
petition for appeal. *
Dickerson claims that, like the encounter in Reittinger
v. Commonwealth, 260 Va. 232, 532 S.E.2d 25 (2000), Deputy
Parker's questions regarding criminal activity were unrelated
to the traffic offense and constituted a seizure in violation
of his Fourth Amendment rights. Continuing, Dickerson asserts
*
Dickerson's original appeal was dismissed because his
attorney at the time failed to file an opening brief.
Dickerson filed a petition for habeas corpus seeking a belated
appeal, which was granted.
3
that because the evidence taken from his vehicle was obtained
through an illegal seizure, it should have been suppressed.
The Fourth Amendment protects persons against
unreasonable searches and seizures by the police, but the
protections afforded by this Amendment are not implicated
simply because a police officer approaches an individual and
asks a few questions. Florida v. Bostick, 501 U.S. 429, 434
(1991). So long as a reasonable person would feel free "to
disregard the police and go about his business," the encounter
is consensual and there is no violation of the Fourth
Amendment. Id. (quoting California v. Hodari D., 499 U.S.
621, 628 (1991)).
Dickerson argues that Deputy Parker's persistent
questioning regarding criminal activity, after telling
Dickerson that he was free to go, would lead a reasonable
person to believe that Deputy Parker "had decided to continue
the detention and that the officer had revoked his consent for
the driver to leave." Dickerson further asserts that, during
the questioning, he was "effectively cornered between the door
and the passenger compartment of his car, blocked in by at
least one uniformed police officer." We disagree.
The record in this case shows not only that a reasonable
person would have felt free "to disregard the police and go
about his business" but also that Dickerson believed that his
4
detention had ended, that he could leave, and that he was no
longer required to remain with the officers or answer their
questions. When Deputy Parker told Dickerson that he was free
to go, Dickerson returned to his vehicle and started to get
inside. This course of action is not consistent with a belief
that one is under police detention or subject to police
control.
The events of the original encounter resulting in
Dickerson's initial detention and release were complete and
the ensuing events constituted a new, and consensual,
encounter. As the Court of Appeals noted, Deputy Parker's
questions sought information and did not implicate restraint
or the need to restrain. Dickerson, 35 Va. App. at 182, 543
S.E.2d at 628. Dickerson responded to Deputy Parker's
questions by freely indicating that he had used marijuana in
the past and by showing Deputy Parker what Dickerson admitted
were the remnants of marijuana cigarettes.
Dickerson's claim that the positioning of the officers
created such a show of force that he was prevented from
leaving the scene is not supported by the evidence in this
case. According to the record, the officers were standing
behind Dickerson's car while Dickerson was performing the
field sobriety tests. Dickerson implies that the officers
followed him as he was returning to his vehicle. The record
5
does not show when the officers moved from the rear of
Dickerson's vehicle or where they were standing when Deputy
Parker asked Dickerson about his possession and use of
marijuana. The mere presence of officers who are uniformed
and armed does not constitute a "show of authority" that
transforms a consensual encounter into a seizure. United
States v. Drayton, 536 U.S. 194, 204 (2002).
When the detention based on the traffic violation and
suspicion of an alcohol-related offense terminated, both the
police officers and Dickerson understood that Dickerson was
free to leave. Nothing in this record indicates that the
officers acted in any manner that threatened Dickerson or that
supports a conclusion that he was not free to go. Any further
interaction was on a consensual basis until Dickerson's
answers to Deputy Parker's inquiries gave rise to a reasonable
suspicion regarding possible drug-related criminal activity.
Thus, Deputy Parker's questions seeking information did not
constitute a seizure in violation of Dickerson's Fourth
Amendment rights.
Finally, contrary to Dickerson's assertions, the facts in
Reittinger are materially different from the facts here. The
defendant in that case, unlike Dickerson, never took any
action to leave or indicated, in any way, that he was going to
leave, even after being told he was free to go. Neither the
6
defendant nor the police officer had changed position from the
initiation of the encounter through the officer's repeated,
unanswered questions. At that point, the defendant, without
direction from the police, got out of his vehicle,
demonstrating that he did not think he was free to leave.
Reittinger, 260 Va. at 234-35, 532 S.E.2d at 26. Nor would a
reasonable person have believed he was free to leave.
For the reasons stated above, the questions posed to
Dickerson by Deputy Parker after Dickerson was told he was
free to leave were asked in the context of a consensual
encounter, and, therefore, Dickerson was not seized in
violation of his Fourth Amendment rights. Accordingly, the
trial court did not err in denying Dickerson's motion to
suppress the evidence seized from his vehicle, and we will
affirm the judgment of the Court of Appeals.
Affirmed.
7