COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia
MARK E. RICHMOND
OPINION BY
v. Record No. 2481-94-2 JUDGE LARRY G. ELDER
APRIL 9, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
C. David Whaley (Anthony G. Spencer;
Morchower, Luxton & Whaley, on briefs), for
appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Mark E. Richmond (appellant) appeals his conviction for
possession of cocaine in violation of Code § 18.2-250. Appellant
contends that the trial court erred in denying his motion to
suppress the evidence based upon an unlawful search of his car.
Because the police lacked reasonable and articulable suspicion to
seize appellant when they asked for and retained his driver's
license, the trial court erred in not suppressing the drug
paraphernalia found thereafter.
I.
FACTS
On April 8, 1994, at approximately 9:51 p.m., Deputy Sheriff
J. S. Sizemore of the Hanover County Sheriff's Department
observed appellant sitting alone in an automobile lawfully parked
in a public lot behind a gas station. Deputy Sizemore's
attention was drawn to the automobile, which had its lights off,
because people did not normally park behind the gas station.
Deputy Sizemore testified that he had no reason to suspect
appellant was engaged in any criminal conduct. However, because
Deputy Sizemore noticed appellant's head tilted downward, he
decided to ascertain if appellant was sleeping or sick.
Deputy Sizemore, wearing his uniform and badge, approached
appellant's automobile and asked for his driver's license, to
which appellant consented. After returning to his patrol car and
running a record check on appellant, Deputy Sizemore went back to
appellant's automobile to return the license. He used his
flashlight to illuminate the automobile's interior as he asked
for appellant's consent to search it. Appellant told Deputy
Sizemore that he could not search the vehicle. During this brief
conversation, Deputy Sizemore noticed an object commonly used for
smoking marijuana or crack cocaine located on the automobile's
floorboard. Deputy Sizemore asked appellant to hand him the
object. After confirming his suspicions about the object's
function, Sizemore arrested appellant. In response to
questioning after his arrest, appellant told police that a
Tylenol bottle containing crack cocaine was also located in the
glove compartment.
Appellant moved to suppress the Commonwealth's drug
evidence. The trial court denied the motion, ruling that the
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police discovered the evidence in plain view after a consensual
encounter. At a bench trial, the court found appellant guilty of
possessing cocaine.
II.
SEARCH AND SEIZURE
On appeal, the burden is on appellant to show, considering
the evidence in the light most favorable to the Commonwealth,
that the denial of his motion to suppress constituted reversible
error. Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729,
731, cert. denied, 449 U.S. 1017 (1980). This Court will not
disturb the trial court's ruling unless it was plainly wrong.
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991); Code § 8.01-680. We hold that the evidence does not
support the court's ruling in this case.
It is well established that a person is not seized for
purposes of the Fourth Amendment of the United States
Constitution until restrained by means of physical force or a
show of police authority. Brown v. Commonwealth, 17 Va. App.
694, 696, 440 S.E.2d 619, 620 (1994). "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, 545 (1980);
see Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d
744, 747 (1995).
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Here, appellant was seated in his parked vehicle in a gas
station parking lot. Deputy Sizemore, wearing his uniform and
badge, approached appellant's vehicle and asked him for his
driver's license. Appellant complied with Deputy Sizemore's
request and waited while the officer ran a record check at his
police vehicle. When Deputy Sizemore returned appellant's
driver's license, he spotted drug paraphernalia in appellant's
vehicle.
The initial encounter between the officer and appellant was
permissible and did not implicate the Fourth Amendment. 1 See
Florida v. Bostick, 501 U.S. 429 (1991). We hold, however, that
"what began as a consensual encounter quickly became an
investigative detention once the [officer] received [appellant's]
driver's license and did not return it to him." United States v.
Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995)(police confronted
defendant next to his car, requested his driver's license, and
retained the license for twenty minutes in order to run a
computer check). A reasonable person in appellant's
circumstances would not have believed that he could terminate the
1
Police officers do not violate the Fourth Amendment by
approaching an individual in a public place and asking questions.
Florida v. Royer, 460 U.S. 491, 497 (1983)(holding Fourth
Amendment not implicated when police officers asked defendant to
see his airline ticket, asked for identification, and requested
consent to search him); Richards v. Commonwealth, 8 Va. App. 612,
615, 383 S.E.2d 268, 270 (1989)(holding Fourth Amendment not
implicated when police officers approached defendant, who was
standing outside of an airport terminal, and asked to see his
airline ticket and identification).
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encounter once the officer retained the driver's license and
returned to his police vehicle to run a record check.
Furthermore, as a practical matter, if appellant left the
scene in his vehicle while Deputy Sizemore had his driver's
license, appellant would have violated Code § 46.2-104, which
prohibits a vehicle operator from driving without a license. See
Brown, 17 Va. App. at 697, 440 S.E.2d at 621 (under circumstances
where police observed the defendant operating a motor vehicle,
when an officer asked the defendant for his operator's license,
the defendant "was no longer free to leave").
For these reasons, we hold that the trial court erred in
denying appellant's motion to suppress. Accordingly, we reverse
and dismiss appellant's conviction.
Reversed and dismissed.
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