COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and Haley
Argued at Chesapeake, Virginia
LARRY MARTIN HAYES
MEMORANDUM OPINION* BY
v. Record No. 0041-05-1 JUDGE JAMES W. HALEY, JR.
MARCH 7, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Stephen C. Mahan, Judge
Ben Pavek for appellant.
Susan M. Harris, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General; Paul C. Galanides, Assistant Attorney
General, on brief), for appellee.
Found guilty of possession of a firearm by a convicted felon and possession with intent to
distribute less than one-half ounce of marijuana, appellant maintains the trial court erred in
finding his encounter with police consensual, rather than an illegal seizure, and, accordingly,
erred in denying his motion to suppress. We affirm.
I.
In determining whether or not the trial court properly denied appellant’s motion to suppress,
“we consider the evidence and all reasonable inferences flowing from that evidence in the light
most favorable to the Commonwealth, the prevailing party at trial.” Jackson v. Commonwealth,
267 Va. 666, 672, 594 S.E.2d 595, 598 (2004) (citing Bass v. Commonwealth, 259 Va. 470, 475,
525 S.E.2d 921, 923-24 (2000)).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
II.
The uncontradicted facts can be succinctly stated.
At approximately 6:20 p.m. on March 23, 2004, Officer James Thorson of the Virginia
Beach Police Department received an anonymous phone call advising him that two males were
selling drugs outside of 5739 East Hastings Arch. The caller told Officer Thorson that one of the
males was “wearing a black coat and a blue hat and [had] braided hair.” Thorson and Officer
Durkee, both in uniform, responded to the scene and saw appellant, precisely matching that
description, “standing on the curb talking on his cell phone” in front of 5739 East Hastings Arch.
The front yard at that address was filled with trash. Other individuals, some “juveniles” and
“some of [appellant’s] siblings,” were in the immediate vicinity.
The officers approached appellant, one standing five feet to his left and the other five feet
to his right. Officer Thorson said, “I need to talk to you for a second. Please get off the phone.”
Appellant briefly continued his phone conversation and said “some goodbyes.” The officer
asked appellant if he lived at 5739 East Hastings Arch, and appellant replied, “Yes.” After
inquiring about the trash in the yard, Officer Thorson asked appellant for identification, which he
produced. Officer Thorson then asked appellant “if he had anything illegal on him.” Appellant
immediately responded that “he had a .38 in his back pocket.” The foregoing constitutes the
entire conversation between Officer Thorson and the appellant. Officer Durkee said nothing to
appellant. Though armed, neither officer had displayed his weapon.
When the appellant stated he had a gun, Officer Thorson “grabbed his hands just so he
wouldn’t reach for the gun. Then I asked him if he had a concealed weapon permit. He said No,
-2-
and at that time I placed him under arrest.”1 The subsequent search produced the firearm, a
knife, marijuana, and over $500 cash.
Appellant moved to suppress the firearm and the drugs, alleging they were the product of
an illegal seizure “in violation of the Fourth Amendment.” The trial court denied the motion,
finding the interaction with the police was “a consensual encounter on the sidewalk” in front of
5739 East Hastings Arch. Appellant was sentenced to five years in the penitentiary on the
weapons charge, with three years suspended, and to twelve months in jail on the drug charge,
fully suspended.
III.
“On appeal, we apply a de novo standard of review in determining whether a person has
been seized in violation of the Fourth Amendment.” Harris v. Commonwealth, 266 Va. 28, 32,
581 S.E.2d 206, 209 (2003) (citing McCain v. Commonwealth, 261 Va. 483, 489, 545 S.E.2d
541, 545 (2001)). “However, we also must review findings of historical fact for clear error and
give due weight to inferences drawn from those facts.” Id. (citing Ornelas v. United States, 517
U.S. 690, 699 (1996) (additional citation omitted)).
A consensual encounter between a citizen and law enforcement officers does not
constitute a seizure and, accordingly, does not actuate Fourth Amendment protections. Florida v.
Bostic, 501 U.S. 429, 434-35 (1991); Londono v. Commonwealth, 40 Va. App. 377, 399, 579
S.E.2d 641, 651 (2003); McGee v. Commonwealth, 25 Va. App. 193, 199, 487 S.E.2d 259, 262
(1997) (en banc). Generally speaking, “a consensual encounter does not require any justification
1
Appellant does not challenge the constitutional propriety of Officer Thorson grabbing
appellant’s “hands just so he wouldn’t reach for the gun.” Indeed, appellant advised he was
carrying a concealed weapon. Accordingly, the officer had more than a reasonable suspicion
“that appellant was in possession of a concealed weapon and thus reasonably feared for his
safety.” Hatcher v. Commonwealth, 14 Va. App. 487, 492, 419 S.E.2d 256, 259 (1997).
-3-
and may be terminated at will by the individual.” White v. Commonwealth, 267 Va. 96, 104,
591 S.E.2d 662, 665 (2004).
It is established “that a seizure does not occur simply because a police officer approaches
an individual and asks a few questions.” Bostic, 501 U.S. at 434. Likewise, “interrogation
relating to one’s identity or a request for identification by the police does not, by itself, constitute
a Fourth Amendment seizure.” INS v. Delgado, 466 U.S. 210, 216 (1984). “Law enforcement
officers do not violate the Fourth Amendment’s prohibition of unreasonable searches merely by
approaching individuals on the street or in other public places and putting questions to them if
they are willing to listen.” United States v. Drayton, 536 U.S. 194, 200 (2002). Such encounters
are consensual.
While an encounter initially consensual may evolve into a seizure, such a transformation
does not occur unless “‘a reasonable person would have believed that he was not free to leave.’”
California v. Hodari D., 499 U.S. 621, 628 (1991) (quoting United States v. Mendenhall, 446
U.S. 544, 554 (1980)). The “reasonable person” analysis provides an objective measure that
does not “vary with the state of mind of the particular individual being approached by law
enforcement officers.” Weschler v. Commonwealth, 20 Va. App. 162, 170, 455 S.E.2d 744, 747
(1995) (citations omitted). Such analysis involves consideration of “all the circumstances
surrounding the encounter to determine whether police conduct would have communicated to a
reasonable person that the person was not free to decline the officers’ request or otherwise
terminate the encounter.” Bostic, 501 U.S. at 439. The inquiry is one into “the
totality-of-the-circumstances.” United States v. Ringold, 335 F.3d 1168, 1173 (10th Cir.)
(citations omitted), cert. denied, 540 U.S. 1026 (2003).
Relevant circumstances include “the threatening presence of several officers, the display
of a weapon by an officer, some physical touching of the person of the citizen, or the use of
-4-
language or tone of voice indicating that compliance with the officer’s request might be
compelled.” Mendenhall, 446 U.S. at 554. This Court has recognized the constitutional import
of Mendenhall circumstances, as has the Supreme Court of Virginia. See Baldwin v.
Commonwealth, 243 Va. 191, 196-98, 413 S.E.2d 645, 647-49 (1992); Londono, 40 Va. App. at
398-99, 579 S.E.2d at 651; Andrews v. Commonwealth, 37 Va. App. 479, 490, 559 S.E.2d 401,
407 (2002); Dickerson v. Commonwealth, 35 Va. App. 172, 179, 543 S.E.2d 623, 627 (2001),
aff’d, 266 Va. 14, 581 S.E.2d 195 (2003).
Additional circumstances for consideration include the following: (1) the duration of
police inquiry, United States v. Place, 462 U.S. 696, 709 (1983); (2) “the number of police
officers . . . [and] . . . the retention of documents requested by an officer,” Harris, 266 Va. at 32,
581 S.E.2d at 209; (3) the proximity of the police to the citizen, Sykes v. Commonwealth, 37
Va. App. 262, 268, 556 S.E.2d 794, 797 (2001); (4) “the manner in which [incriminating]
questions were posed,” Ringold, 335 F.3d at 1173; (5) whether, “a law enforcement officer, by
physical force, or some display of authority, restrains in some manner a citizen’s freedom of
movement,” McCain, 261 Va. at 490-91, 545 S.E.2d at 545;2 (6) whether the questions are
accusatory, Davis v. Commonwealth, 37 Va. App. 421, 431-32, 559 S.E.2d 374, 379 (2002)
(“Where the police direct a specific allegation of criminal wrongdoing . . . is highly significant
among the totality of factors in determining whether an encounter . . . is consensual.”); see also
McGee, 25 Va. App. at 200, 487 S.E.2d at 262; and finally, (7) “the failure to affirmatively
inform [a citizen] that he was free to go does not by itself require a finding that the ensuing
encounter was non-consensual.” Harris, 266 Va. at 32, 581 S.E.2d at 209. See also Ohio v.
Robinette, 519 U.S. 33, 39-40 (1996).
2
Restraint of a citizen’s freedom of movement includes blocking access to a home or to a
street. Barkley v. Commonwealth, 39 Va. App. 682, 694, 576 S.E.2d 234, 239-40 (2003).
-5-
IV.
We apply these indicators to the facts of this case.
We initially note that the encounter occurred in a public place, that is, on the “curb” in
front of 5739 East Hastings Arch, and, as the trial court found, “on the sidewalk” before that
address. Several children were playing in the front yard. Only two officers, Thorson and
Durkee, were involved, each standing five feet from the appellant. The latter officer had no
conversation whatsoever with the appellant.3 Even though the officers were in uniform and
armed, neither displayed a weapon.4 Officer Thorson’s first words to appellant were not by
“language or tone of voice” commanding or intimidating. Indeed, he merely told appellant he
wanted to talk and said to him, “Please get off the phone.” (Emphasis added).5 Thereafter,
Officer Thorson asked appellant if he lived at that address and requested identification. As noted
above, “ a request for identification . . . does not . . . constitute a Fourth Amendment seizure.”
3
Apparently a third officer was somewhere on the scene, but not in any proximity to
appellant.
4
In Drayton, 536 U.S. at 204-05, the Court noted that:
Officers are often required to wear uniforms and in many instances
this is a cause for assurance, not discomfort. Much the same can
be said of sidearms. That most law enforcement officers are armed
is a fact well known to the public. The presence of a holstered
firearm is thus unlikely to contribute to the coerciveness of the
encounter absent active brandishing of the weapon.
5
In Baldwin, the Virginia Supreme Court held that a police officer had not seized two
individuals by “call[ing] towards” them and asking them to walk back toward him. At trial, the
officer “acknowledged that ‘maybe [he] did call towards - - call for them’ as they were ‘walking
back towards the apartments.’” 243 Va. at 194, 413 S.E.2d at 646. A defense witness who had
left a party with the defendant testified that “‘the officer . . . asked [them] to come towards . . .
him and [] asked [them] some questions and he asked [them] if [they] had any ID.’” Id. The
defendant testified that “[t]he officer ‘put a big floodlight on [them] . . . and told [them] to come
here, said you two, come over here.’” Id. at 194, 413 S.E.2d at 646-47. The Court held, “[W]e
find no evidence of . . . ‘the language or tone of voice indicating that compliance with the
officer’s request might be compelled.’” Id. at 199, 413 S.E.2d at 649 (quoting Mendenhall, 446
U.S. at 554).
-6-
Delgado, 466 U.S. at 216. See also Florida v. Royer, 460 U.S. 491, 501 (1983) (plurality
opinion); McCain, 261 Va. at 492, 545 S.E.2d at 546; McLellan v. Commonwealth, 37 Va. App.
144, 152, 554 S.E.2d 699, 703 (2001).
Officer Thorson next asked appellant whether “he had anything illegal on him.” Courts
have repeatedly held that that question does not render an encounter non-consensual. “[L]aw
enforcement officers do not violate the Fourth Amendment by merely . . . putting questions to
[an individual] if the person is willing to listen, or by offering in evidence in a criminal
prosecution his voluntary answers to such questions.” Royer, 460 U.S. at 497. This specific
inquiry, by itself, or a related one as to drugs or weapons, does not render an encounter
non-consensual. See Dickerson, 35 Va. App. at 176, 543 S.E.2d at 625 (asked if there was
anything in his car, such as “dope, marijuana, roaches in the ashtray”); see also United States v.
Wilson, 953 F.2d 116, 118 (4th Cir. 1991) (asked “if he was carrying guns”); United States v.
Wilson, 895 F.2d 168, 169-70 (4th Cir. 1990) (asked if he was “carrying any drugs”); United
States v. Gray, 883 F.2d 320, 321 (4th Cir. 1989) (asked “whether he was carrying drugs”).
As the foregoing demonstrates, Officer Thorson only asked appellant three or four
questions, and the duration of the questioning was limited. At that point, Officer Thorson had
not touched appellant. Neither Officer Thorson nor Officer Durkee indicated or commanded that
appellant was not free to terminate the encounter and leave. The officers did not physically
impede or block appellant’s access to the public street or to his residence.
Appellant asserts that Officer Thorson’s inquiry as to the trash in the yard may have left
the “impression” that some sort of summons “might be forthcoming” and, accordingly, he
reasonably felt that he was not free to leave. On brief, appellant relies on Harris, 266 Va. 28, 581
S.E.2d 28, and maintains his “situation is the same” as that defendant. That reliance is
misplaced.
-7-
In Harris, the defendant was lawfully stopped for driving with a broken license plate
light, and he produced only his social security card when asked for his driver’s license and
registration. The police officer returned the social security card. Thereafter, however, and
without any probable cause to suspect the vehicle contained contraband, the officer asked Harris
for permission to search the vehicle. The officer found stolen items in the vehicle. The issue
before the Harris Court was whether “the officer extended a lawful detention for a traffic
violation into an unlawful non-consensual seizure.” Id. at 32, 581 S.E.2d at 209. That Court
determined the encounter was not consensual, because “a reasonable person would not have
known the investigation of the traffic offense had terminated and, thus, would not have felt free
to disregard the officer’s questions or felt free to leave.” Id. at 33, 581 S.E.2d at 210. The Court
specifically noted, nonetheless, “the failure to affirmatively inform Harris that he was free to
leave does not by itself require a finding that the ensuing encounter was non-consensual.” Id.
Dickerson v. Commonwealth, 266 Va. 14, 581 S.E.2d 195 (2003), was decided the same
day as Harris. There the defendant had likewise been lawfully detained after a traffic stop for
speeding. No citation was issued, and Dickerson was told he could leave. “Dickerson returned
to his car, opened the driver’s side door, and started to get back in the vehicle.” Id. at 16, 581
S.E.2d at 196. At that point, the officer initiated questions concerning drugs, and Dickerson’s
answers provided probable cause to search the vehicle. The Court found the encounter
consensual because “a reasonable person” would have felt free to leave. As the Court explained:
The mere presence of officers who are uniformed and armed does
not constitute a “show of force” that transforms a consensual
encounter into a seizure. . . . 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.
Id. at 18, 581 S.E.2d at 197-98 (citation omitted).
-8-
In the instant case, the inquiry is whether the initial encounter was a seizure. In both
Harris and Dickerson there was an initial seizure, but the question in each was whether the
subsequent encounter was consensual. Here, Officer Thorson did not mention any potential
violation of the law involving the trash. Moreover, there is no evidence that there is, in fact, any
law or ordinance dealing with trash, and the officer did not say anything about issuing a
summons for any reason. In short, Officer Thorson asked no incriminatory questions of
appellant and made no accusatory statements towards him concerning the trash.
Applying the “reasonable person” standard, the totality of circumstances revealed by the
evidence and relevant to the inquiry shows that the encounter here was consensual. Ending the
phone conversation, acknowledging his address, and producing identification all show that
appellant consented. In essence, “he agreed to talk with” the police officer. Lawrence v.
Commonwealth, 17 Va. App. 140, 144, 435 S.E.2d 591, 593 (1993), aff’d per curiam, 247 Va.
339, 443 S.E.2d 160 (1994). Nothing in this record, as in Dickerson, “supports a conclusion that
[appellant] was not free to go.” Dickerson, 266 Va. at 18, 581 S.E.2d at 198. An encounter does
not become non-consensual because a citizen “voluntarily” says something incriminating which
is later “offer[ed] in evidence in a criminal prosecution.” Royer, 460 U.S. at 497.
Affirmed.
-9-
Larry Martin Hayes v. Commonwealth
Combined Opinion