PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Stephenson, Senior Justice
CHRISTOPHER REITTINGER
OPINION BY
v. Record No. 991417 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
June 9, 2000
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we determine whether the Court of Appeals
erred in holding that the trial court correctly refused to
suppress certain evidence found during a search of the defendant
by a deputy sheriff.
I
In a bench trial in the Circuit Court of Rockbridge County,
Christopher Reittinger was found guilty of possession of
marijuana, in violation of Code § 18.2-250.1, and fined $150.
The court also suspended Reittinger's driver's license for a
period of six months, pursuant to the provisions of Code § 18.2-
259.1.
On July 21, 1998, a panel of the Court of Appeals reversed
Reittinger's conviction. Reittinger v. Commonwealth, 28 Va.
App. 80, 502 S.E.2d 151 (1998). Upon a rehearing en banc,
however, the Court of Appeals affirmed the conviction.
Reittinger v. Commonwealth, 29 Va. App. 724, 514 S.E.2d 775
(1999) (en banc).
II
On May 3, 1996, about 10:30 p.m., Deputy Sheriff Hugh Bolen
stopped a van on Route 11 in Rockbridge County because the van
had "only one operable headlight." Deputy Bolen approached the
driver's side of the van, and Deputy Max Smith approached the
van's passenger side. Deputy Bolen asked Reittinger, the
driver, for his operator's license and vehicle registration and
informed Reittinger that the van had only one illuminated
headlight. Thereupon, Reittinger displayed a new headlight that
he said he planned to install the following day. Deputy Bolen,
having decided against issuing a citation, simply gave
Reittinger a verbal warning. Deputy Bolen then told Reittinger
that he was "free to go."
Immediately thereafter, however, Deputy Bolen asked
Reittinger whether he had any illegal weapons or drugs in the
vehicle, and Reittinger stated that there was nothing illegal in
the van. Deputy Bolen then asked Reittinger for permission to
search the van. The deputy twice repeated the request to search
while Reittinger appeared to consult with the passengers in the
van.
Rather than answer the deputy, Reittinger exited the van.
Deputy Bolen then saw a "large bulge" in Reittinger's right
pants pocket and conducted a "pat down" search of Reittinger.
The bulge felt "hard," and Deputy Bolen thought Reittinger might
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be carrying a weapon. Deputy Bolen then ordered Reittinger to
empty his pocket. Reittinger removed an object that proved to
be a smoking pipe containing marijuana residue. Deputy Bolen
testified that, when he requested consent to search the van, he
had no reasonable and articulable suspicion of criminal activity
on the part of Reittinger.
III
Reittinger contends that, under the facts of this case, the
search was the product of an unlawful seizure and, therefore,
was invalid. He further asserts that, assuming arguendo he was
engaged in a consensual encounter with the deputy when he exited
his vehicle, no legal justification existed for his seizure and
search.
The Commonwealth contends that Reittinger was not
unlawfully seized but that, after he was told that he was free
to leave, he and the deputy were engaged in a consensual
encounter following the completion of a lawful traffic stop.
The Commonwealth further contends that, after Reittinger exited
the vehicle and while the deputy and Reittinger continued to be
engaged in a consensual encounter, the deputy saw a bulge in
Reittinger's pocket that he believed could have been a weapon.
Therefore, the Commonwealth asserts, the search of Reittinger
was lawful because it was done for the deputies' protection.
3
In affirming the trial court's denial of Reittinger's
motion to suppress, the Court of Appeals essentially adopted the
Commonwealth's contentions. The Court of Appeals held that,
where a lawful encounter based on reasonable suspicion
or probable cause flows immediately into a consensual
encounter, an officer remains lawfully in the presence
of the individual previously detained for purposes of
conducting a pat-down search[, and, t]herefore, the
officer may frisk the individual for weapons if he
develops a reasonable suspicion that the individual
may be armed and dangerous.
Reittinger, 29 Va. App. at 733-34, 514 S.E.2d at 779-80.
IV
The Fourth Amendment to the Federal Constitution provides,
in pertinent part, that "[t]he right of the people to be secure
in their persons, . . . and effects, against unreasonable
searches and seizures, shall not be violated." It is firmly
established that warrantless searches and seizures are per se
unreasonable, subject only to a few specifically-established and
well-delineated exceptions. Thompson v. Louisiana, 469 U.S. 17,
19-20 (1984). Thus, "the Commonwealth has the burden of proving
the legitimacy of a warrantless search and seizure." Simmons v.
Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989).
Whether the Fourth Amendment has been violated "'is a question
of fact to be determined from all the circumstances.'" Ohio v.
Robinette, 519 U.S. 33, 40 (1996) (quoting Schneckloth v.
Bustamonte, 412 U.S. 218, 248-49 (1973)).
4
In considering a challenge under the Fourth Amendment,
questions of reasonable suspicion and probable cause involve
questions of both law and fact and are reviewed de novo on
appeal. Ornelas v. United States, 517 U.S. 690, 699 (1996);
Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924
(2000). Similarly, the question whether a person has been
seized in violation of the Fourth Amendment is reviewed de novo
on appeal. See Schneckloth, 412 U.S. at 226; see also United
States v. Mendenhall, 446 U.S. 544, 551 n.5 (1980). An
appellate court, however, "should take care both to review
findings of historical fact only for clear error and to give due
weight to inferences drawn from those facts by resident judges
and local law enforcement officers." Ornelas, 517 U.S. at 699.
In the present case, the trial court found that "[t]he
deputy effectively seized [Reittinger] without probable cause
∗
and without an articulable suspicion to investigate further."
The court further found that "[a] reasonable person . . . upon
immediately being subjected to a new and unrelated inquiry would
conclude his detention continued . . . and [that] the reasonable
inference to be drawn from [Reittinger's] voluntarily exiting
his vehicle is that [he] concluded he was not free to leave."
∗
A person is "seized" "only when, by means of physical force or
a show of authority, his freedom of movement is restrained."
Mendenhall, 446 U.S. at 553.
5
Despite the trial court's conclusion that "[t]he detention of
[Reittinger] after the investigation of the [traffic] violation
was completed was illegal," the court ruled that the subsequent
"pat down" search was justified for the deputies' protection.
While law enforcement officers may engage in consensual
encounters with citizens, the Supreme Court has limited such
encounters to those in which "a reasonable person would feel
free 'to disregard the police and go about his business.' "
Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California
v. Hodari D., 499 U.S. 621, 628 (1991)); accord Florida v.
Royer, 460 U.S. 491, 497-98 (1983) (plurality opinion). In the
present case, Reittinger had been stopped in a rural area in the
nighttime. He was in the presence of two armed deputies, one on
each side of the vehicle. Deputy Bolen asked Reittinger to
waive his Fourth Amendment right and consent to a search of the
vehicle. When Reittinger did not respond, the deputy asked a
second and then third time for consent to search. These
requests for permission to search were made even though Deputy
Bolen admitted that he "had no reasonable and articulable
suspicion of criminal activity on the part of [Reittinger]."
Although Deputy Bolen had told Reittinger that he was free
to go, we think that the events that transpired immediately
thereafter would suggest to a reasonable person that just the
opposite was the case. We do not think that a reasonable
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person, under the circumstances, would have considered that he
was free to disregard the deputies and simply drive away.
Therefore, we conclude, from our de novo review of the facts,
that Reittinger was unlawfully seized in violation of his Fourth
Amendment rights; that the trial court, though correct about the
seizure, erred in refusing to suppress the product of the
unlawful seizure and search of Reittinger; and that the Court of
Appeals erred in affirming the trial court's judgment.
Accordingly, we will reverse the judgment of the Court of
Appeals, vacate Reittinger's conviction, and remand the case to
the Court of Appeals with direction that the case be remanded to
the trial court for further proceedings if the Commonwealth be
so advised.
Reversed and remanded.
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