Richmond v. Commonwealth

                   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).



                                 -4-
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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