Reittinger v. Commonwealth

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.

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 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)).

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 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.

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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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