Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan and
Kinser, JJ., and Poff, Senior Justice
JERRY LOUIS COCHRAN
OPINION BY
v. Record No. 982476 SENIOR JUSTICE RICHARD H. POFF
November 5, 1999
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
We granted this appeal to consider whether the Court of
Appeals of Virginia erred in affirming a trial court's judgment
finding Jerry Louis Cochran guilty of possession of
phencyclidine (PCP) with intent to distribute. The principal
issue raised by five of six assignments of error is whether, as
Cochran contends, the trial court erred in overruling his motion
"to suppress the evidence of PCP because it was obtained as a
result of an unreasonable seizure of his person in violation of
his Fourth Amendment rights 1 under the United States
Constitution."
Confirming the jury's verdict, the trial court sentenced
Cochran to a term of seven years in the penitentiary and a fine
of $10,000.00. The Court of Appeals granted Cochran's appeal
1
The Amendment provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and
limited to the principal issue. On January 26, 1993, two of the
three members of a panel of that Court reversed the conviction
on the ground that "appellant discarded the PCP while subject to
an illegal seizure". Cochran v. Commonwealth, 15 Va. App. 619,
624, 426 S.E.2d 144, 147 (1993). The panel denied the
Commonwealth's request for a rehearing, but by order entered
February 25, 1993, the Court of Appeals granted a petition for
rehearing en banc and stayed the mandate. By order entered July
13, 1993, an equally divided court sitting en banc affirmed the
judgment of the trial court, withdrew the opinion of the three-
judge panel, and vacated the mandate dated January 26, 1993. By
order entered October 2, 1998 in response to Cochran's habeas
corpus petition, this Court awarded Cochran leave to petition
for appeal. We granted his petition by order entered April 22,
1999. Finding no error in the decision of the Court of Appeals
sitting en banc, we will affirm its judgment.
First, we consider Cochran's sixth assignment of error
concerning appellate procedure. Cochran argues on brief that
the Court of Appeals "erred in reversing the judgment of a panel
. . . because a majority of the judges sitting en banc did not
vote to reverse the judgment of the panel". Cochran relies upon
particularly describing the place to be searched, and
the persons or things to be seized.
2
Code § 17-116.02 (now recodified as § 17.1-402) which provides
in pertinent part as follows:
(D). … The Court sitting en banc shall consider and decide
the case and may overrule any previous decision by any
panel or of the full Court.
(E). … In all cases decided by the Court en banc, the
concurrence of at least a majority of the judges sitting
shall be required to reverse a judgment, in whole or in
part.
The language chosen by the General Assembly is plain. The
"judgment" subject to reversal "in whole or in part" by a
majority of the Court sitting en banc includes the judgment
entered by the trial court. 2 Hence, absent a majority vote of
the Court of Appeals sitting en banc reversing the judgment of
the trial court, that judgment is affirmed.
This Court has reviewed both civil and criminal cases in
which the Court of Appeals has applied that interpretation of
the statute. See, e.g., White v. White, 257 Va. 139, 143-144,
509 S.E.2d 323, 325 (1999); Granados v. Windson Development
Corp., 257 Va. 103, 106, 509 S.E.2d 290, 291 (1999); Husske v.
Commonwealth, 252 Va. 203, 206, 476 S.E.2d 920, 921-22 (1996),
cert. denied, 519 U.S. 1154 (1997); Lockhart v. Commonwealth,
251 Va. 184, 184, 466 S.E.2d 740, 740 (1996).
2
The panel decision was not a judgment because "the clerk
of the Court of Appeals [had not forwarded] its mandate . . . to
the clerk of the trial court" as required by Rule 5A:31.
3
The decisions of an equally divided Court of Appeals
sitting en banc and applying that interpretation include
Stevenson v. Commonwealth, 28 Va. App. 562, 507 S.E.2d 625
(1998)(en banc); Hebden v. Commonwealth, 26 Va. App. 727, 496
S.E.2d 169 (1998)(en banc); Brown v. Commonwealth, 24 Va. App.
1, 480 S.E.2d 112 (1997)(en banc), cert. denied, ___ U.S. ___,
118 S.Ct. 1073 (1998); Carter v. Extra's, Inc., 15 Va. App. 648,
427 S.E.2d 197 (1993)(en banc); McIntosh v. Commonwealth, 15 Va.
App. 314, 399 S.E.2d 27 (1990)(en banc); Diehl v. Commonwealth,
10 Va. App. 139, 390 S.E.2d 550 (1990)(en banc).
In the face of these decisions, the General Assembly has
not rejected or modified judicial interpretation of the statute
in issue. "Under these circumstances, the construction given to
the statute is presumed to be sanctioned by the legislature and
therefore becomes obligatory upon the courts." Vansant and
Gusler, Inc. v. Washington, 245 Va. 356, 361, 429 S.E.2d 31, 33-
34 (1993).
Overruling the assignment of procedural error, we turn to
the principal question in issue. There is no consequential
dispute in the facts relevant to that issue.
Deputy Sheriff Earl D. Chewning, Jr., on patrol in a marked
car, was dispatched to a parking lot to meet an unknown person
who had called concerning recovery of stolen property. When
Chewning arrived at the lot that night, he noticed a car parked
4
near a public telephone booth. The parking lot was well
lighted, and Chewning could see the driver standing outside the
car and two persons seated inside.
Chewning asked the driver if anyone had called the
sheriff's department. Before he received a response, Cochran,
the front seat passenger, started to get out of the car.
Chewning asked Cochran to remain in the car while he "talked to
the driver." The deputy sheriff testified that he did so "[f]or
my safety, because I didn't know exactly what was going on at
that time." Cochran complied, and Chewning escorted the driver
to the rear of the vehicle where he had a better view of the two
passengers. As Chewning was talking with the driver, Cochran
again opened the door of the car. Chewning instructed him to
remain in the car, he complied, and Chewning resumed his
conversation with the driver. Almost immediately, Cochran began
to get out of the car again.
Chewning testified that "[a]s he got out of the vehicle, he
shoved a bluish colored bag up underneath the car and started
back towards me." Chewning twice asked for Cochran's name, but
Cochran's only response was "urrrrr, like that." Cochran was
"very wobbly on his feet, his eyes were very watery and red, and
his speech was very slurred." Chewning asked Cochran "to turn
around and place his hands on top of the roof of the car."
Chewning conducted a "pat down" search for weapons. Finding
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none, he retrieved the blue bag. Inside, he found three small
plastic bags and a film canister. Each contained a strong
smelling substance which Chewning recognized as likely to be
illegal drugs. He placed Cochran under arrest.
Relying on the Supreme Court's decision in California v.
Hodari D., 499 U.S. 621 (1991) and its progeny, including this
Court's decision in Woodson v. Commonwealth, 245 Va. 401, 429
S.E.2d 27 (1993), the Commonwealth contends that the trial court
correctly found that Cochran "abandoned the bag containing the
illegal drugs prior to any seizure of his person." We agree.
As this Court made clear in Woodson, it must first be
determined "when [the defendant] was 'seized' within the meaning
of the Fourth Amendment." Id. at 404, 429 S.E.2d at 29. "[A]
person has been 'seized' within the meaning of the Fourth
Amendment only if, in view of all 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, 554 (1980). This test is not applicable until the person
submits to the officer's show of authority. Woodson, 245 Va. at
404-05, 429 S.E.2d at 29.
In our view, as evidenced by Cochran's repeated attempts to
get out of the car, he did not submit to Deputy Chewning's
authority until after he had attempted to hide the bag under the
6
car, Chewning had identified its contents, and Cochran had been
searched for weapons and placed under arrest.
Finding no merit in the assignments of error, we will
affirm the judgment of the Court of Appeals affirming the
judgment of the trial court.
Affirmed.
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