COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
TYRONE EDGAR WATERS
MEMORANDUM OPINION * BY
v. Record No. 2239-95-4 JUDGE CHARLES H. DUFF
NOVEMBER 5, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Lorie E. O'Donnell, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Tyrone Edgar Waters (appellant) was convicted, on his
conditional guilty pleas, of possession of cocaine and carrying a
concealed weapon. Appellant contends that he was illegally
seized by the police officer and, therefore, the evidence
obtained from him was inadmissible. We disagree and affirm the
convictions.
I.
On March 8, 1994, Detective Ricky Frye of the Leesburg
Police Department was on patrol at the Loudoun House apartment
complex, an area known for high drug traffic. At around 10:15
p.m., Frye saw appellant in the apartment parking lot. Appellant
was "very unsteady" on his feet, and Frye was concerned for
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appellant's safety.
Frye followed appellant, tapped him on the shoulder, and
asked to speak to him. At that point, Frye could smell a strong
odor of alcohol on appellant and appellant immediately began
making threatening gestures toward Frye, including flailing his
arms. Frye saw a bulge, consistent with a concealed handgun, on
appellant's left side. He asked appellant to consent to a
search. Appellant responded, "sure, I don't mind if you search
me," and began emptying his pockets of his own accord. During a
pat down search, Frye felt a gun and seized it. 1 A further
search revealed a corncob pipe which smelled of marijuana and
ultimately was shown to contain cocaine residue. Appellant told
Frye that he had received the gun from his brother earlier that
night and that he used the pipe to smoke marijuana.
At the suppression hearing, Frye testified that he
confronted appellant because he was concerned for appellant's
welfare, and he sought to search appellant because appellant had
made threatening gestures and had the suspicious bulge.
Michael Hughes testified for appellant that he and appellant
were sitting on steps when Frye approached and "jacked" appellant
up off the steps, put him against a wall, told appellant and
Hughes they could not leave, and searched both men without asking
for their consent. Appellant testified that Frye did not ask for
permission to search and stated that Frye told him "not to go
1
The gun was a carbon dioxide gas powered BB gun.
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nowhere." Appellant admitted that he emptied his pockets on his
own.
Following the suppression hearing, the trial judge issued a
letter opinion granting the motion to suppress. In the opinion,
the judge found that the initial encounter between Frye and
appellant constituted a seizure. The judge wrote:
When a person is followed by a police
officer, approached, and tapped on the
shoulder by the officer, a reasonable person
would not feel at liberty to walk away. This
seizure does not fall outside of Fourth
Amendment protections on this basis.
The judge also rejected the community caretaker doctrine as a
basis for the stop, finding that the doctrine was limited to
incidents involving automobiles and would be inapplicable in this
case, in any event, because it was unreasonable for Frye to stop
appellant based upon his unsteadiness on his feet and apparent
intoxication.
The Commonwealth appealed the trial judge's decision to
grant the suppression motion. This Court reversed in
Commonwealth v. Waters, 20 Va. App. 285, 456 S.E.2d 527 (1995).
We stated that, assuming without deciding that Frye seized
Waters, the initial contact "was valid as a reasonable community
caretaker action." Id. at 288, 456 S.E.2d at 529. Appellant
thereafter entered conditional guilty pleas to charges of
possession of cocaine and possession of a concealed weapon.
II.
Frye's initial encounter with appellant, where the officer
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simply followed him, tapped him on the shoulder, and asked to
talk to him and search him, did not constitute a seizure under
the Fourth Amendment. Appellant responded aggressively to Frye,
who saw the suspicious bulge on his hip. After receiving
permission to search, Frye discovered the contraband. At that
point, Frye seized appellant.
[N]ot all personal intercourse between
policemen and citizens involves "seizures" of
persons. Only when the officer, by means of
physical force or show of authority, has in
some way restrained the liberty of a citizen
may we conclude that a "seizure" has
occurred.
Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). A consensual
encounter between a police officer and a citizen has no Fourth
Amendment implications unless it is accompanied by coercion or a
show of authority which would cause the individual reasonably to
believe that he must comply with the officer's requests and may
not leave. Greene v. Commonwealth, 17 Va. App. 606, 610, 440
S.E.2d 138, 140 (1994).
In Baldwin v. Commonwealth, 243 Va. 191, 413 S.E.2d 645
(1992), instead of tapping the defendant on the shoulder, the
officer called to the defendant and shined a bright light on him.
The Supreme Court found that Baldwin was not seized until the
officer discovered evidence of intoxication and arrested him.
Id. at 199, 413 S.E.2d at 650.
In Baldwin, the Court cited United States v. Burrell, 286
A.2d 845 (D.C. App. 1972). In Burrell, no seizure occurred where
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an officer placed his hand on the defendant's elbow and asked to
speak to him. The court noted that the officer "merely touched
appellee's elbow, an action used as a normal means of attracting
a person's attention." Id. at 846. Likewise, Frye's action of
tapping appellant on the shoulder was a normal means of
attracting appellant's attention. Moreover, Frye's asking if he
could speak to appellant, and asking for permission to search,
did not transform the consensual encounter into a seizure. See
Richards v. Commonwealth, 8 Va. App. 612, 615, 383 S.E.2d 268,
270 (1989).
III.
The evidence of historical fact presented at the suppression
hearing was in dispute. Appellant's witness testified that Frye
"jacked" appellant off of steps, threw him against a wall, and
told appellant and Hughes that neither could leave. Frye
testified that he followed appellant, tapped him on the shoulder,
and asked to speak to him. Frye testified that he told appellant
he could not leave, only after finding the gun.
The trial judge did not accept appellant's version of what
occurred. Rather, the judge found that by following appellant
and tapping him on the shoulder (Frye's version), Frye seized
appellant within the meaning of the Fourth Amendment. Contrary
to appellant's argument, the judge's finding that a seizure
occurred is not a finding of fact, but involves a mixed question
of law and fact, and therefore is subject to de novo review by
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this Court.
In Ornelas v. United States, 116 S. Ct. 1657 (1996), the
Supreme Court distinguished between a trial court's finding of
historical facts and the application of law to those facts. The
Court held that a trial court's findings of historical fact are
reviewed only for clear error, while mixed questions of law and
fact, such as the ultimate question of reasonable suspicion and
probable cause, are reviewed de novo. Id. at 1662.
Upon such a de novo review, we conclude that the officer did
not seize appellant until after he discovered the contraband. 2
The evidence and statements, therefore, were not the fruit of an
illegal seizure, and appellant is not entitled to relief.
We affirm the judgment of the trial court.
Affirmed.
2
We are not precluded from finding that no seizure occurred
by our earlier application of the community caretaker doctrine in
the pretrial appeal. In Commonwealth v. Waters, 20 Va. App. 285,
288, 456 S.E.2d 527, 529 (1995), we held "[a]ssuming without
deciding that [Waters] was seized by Frye, we agree with the
Commonwealth that, under these facts, Frye's initial contact with
[Waters] was valid as a reasonable community caretaker action."
(Emphasis added.) In that opinion, we did not make a finding on
the seizure question. Upon review of the issue in this appeal,
we find that Frye's initial contact with Waters did not
constitute a seizure.
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Tyrone Edgar Waters v. Commonwealth
Combined Opinion