Reittinger v. Com.

• Decision Date: 25 May 1999
• Docket Number: Record No. 0246-97-3.
• Court: Virginia Court of Appeals
• Parties: Christopher John REITTINGER v. COMMONWEALTH of Virginia.

514 S.E.2d 775

29 Va. App. 724

Christopher John REITTINGER v. COMMONWEALTH of Virginia.

Record No. 0246-97-3.

Court of Appeals of Virginia, Richmond.

May 25, 1999.

Malcolm G. Crawford, Lexington, for appellant.

Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on briefs), for appellee. Present: FITZPATRICK, C.J., BENTON, COLEMAN, WILLIS, ELDER, BRAY, ANNUNZIATA, BUMGARDNER and LEMONS, JJ., and OVERTON,¹ Senior Judge.

UPON A REHEARING EN BANC

BUMGARDNER, Judge.

A panel of this Court reversed the conviction of Christopher John Reittinger for possession of marijuana. See Reittinger v. Commonwealth, 28 Va.App. 80, 502 S.E.2d 151 (1998)

. Upon a rehearing en banc, we conclude that the deputy sheriff developed a reasonable, articulable suspicion that the defendant was armed and dangerous during a consensual encounter which immediately followed a lawful detention of the defendant. The frisk for weapons that the deputy conducted was reasonable under the circumstances of this case and did not violate the Fourth Amendment. Accordingly, we affirm the conviction.

A deputy sheriff stopped the defendant for driving his 1990 Volkswagen van with a broken headlight at 10:30 p.m. in rural Rockbridge County. The deputy determined that the defendant had already bought a replacement bulb, though he had not yet installed it. The deputy warned the defendant not to drive at night until he fixed the light but told him that he was "free to go." Immediately thereafter, although the deputy did not have any particular reason to suspect criminal activity, he asked if the defendant had any contraband or firearms in the vehicle. Eventually, the defendant responded that he did not have any. The deputy then asked if he could search the vehicle for weapons or drugs. The deputy stated that he routinely asks for consent to search after most traffic stops and that he receives permission to do so in a majority of cases. The defendant turned around in his seat, looked at his two passengers, and whispered something the deputy could not hear. The deputy repeated his question several times, but the defendant did not answer. A second deputy was standing beside the passenger's door. Finally, without being asked to get out, the defendant opened the van door and started getting out.

As the defendant climbed out of the van, the deputy observed a bulge in his right front pocket. The deputy asked if the defendant had anything illegal on his person. The defendant replied that he did not but "moved his hand to cover up the bulge." The deputy patted the defendant's outer clothing, and felt a large, hard bulge in the pocket, which he thought might be a weapon. Again he asked the defendant what was causing the bulge, but the defendant did not answer. The deputy told him to empty the pocket, but the defendant emptied his left pocket, not the right one with the bulge. Increasingly suspicious that the defendant was hiding something, the deputy said, "you need to bring that out of your pocket," and the defendant pulled out a smoking device. It contained marijuana residue and was the basis for the charge placed against the defendant.

The defendant filed a motion to suppress the evidence arguing that the deputy illegally searched him. The trial court ruled the deputy was justified in frisking the defendant for his own safety, denied the motion to suppress, and convicted the defendant of possession of marijuana.

On appeal, the defendant bears the burden to establish that denying the motion to suppress was reversible error. See Greene v. Commonwealth, 17 Va.App. 606, 608, 440 S.E.2d 138, 139-40 (1994)

. Whether a seizure occurred and whether a frisk for weapons was constitutionally valid involve questions of law and fact which we review de novo on appeal. See McGee v. Commonwealth, 25 Va.App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). "In performing such analysis, we are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them...." Id. (citing Ornelas, 517 U.S. at 699,

116 S.Ct 1657). We view the evidence in the light most favorable to the Commonwealth.

See Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980).

The initial stop of the defendant was a valid stop for driving with a broken headlight at night, which the defendant concedes. Following the deputy's investigation for that offense, the defendant was free to leave, but before he left, the deputy asked for permission to search the defendant's van. The defendant contends that the deputy's request and subsequent actions constituted a seizure. We disagree and hold that the lawful detention flowed immediately into a consensual encounter.

A consensual encounter can follow a legitimate detention. See Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996)

(holding that consensual encounter may begin after legitimate detention has ended even if detainee is not told he is free to go). Consensual encounters "`need not be predicated on any suspicion of the person's involvement in wrongdoing,' and remain consensual `as long as the citizen voluntarily cooperates with the police.'" Payne v. Commonwealth, 14 Va.App. 86, 88, 414 S.E.2d 869, 870 (1992) (quoting United States v. Wilson, 953 F.2d 116, 121 (4th Cir.1991)). See McGee, 25 Va.App. at 198,

487 S.E.2d at 261; Iglesias v. Commonwealth, 7 Va.App. 93, 99, 372 S.E.2d 170, 173 (1988). Without some indicated restraint, mere questioning by officers when a routine traffic stop is over and its purpose served does not amount to a seizure under the Fourth Amendment. See United States v. Sullivan, 138 F.3d 126, 131 (4th Cir.1998).

A person is "seized" under the Fourth Amendment when "a reasonable person would have believed that he was not free to leave." Mendenhall v. United States, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In order for a seizure to occur, a police officer "must restrain a citizen's freedom of movement by the use of physical force or show of authority." Ford v. City of Newport News, 23 Va.App. 137, 142, 474 S.E.2d 848, 850 (1996) (citing California v. Hodari D., 499 U.S. 621, 625, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). See Thomas v. Commonwealth, 24 Va.App. 49, 54, 480 S.E.2d 135, 137 (1997) (en banc)

. Questions alone do not amount to a seizure. See Mendenhall, 446 U.S. at 553-54,

100 S.Ct. 1870. "So long as the [individual] to whom the questions are put remains free to disregard the questions and walk away," no Fourth Amendment violation has occurred. Id. See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Buck v. Commonwealth, 20 Va.App. 298, 301-02, 456 S.E.2d 534, 535 (1995).

Under the circumstances of this case, a reasonable person would have believed that the investigation had ended and that he was free to leave. See Wechsler v. Commonwealth, 20 Va.App. 162, 171, 455 S.E.2d 744, 748 (1995)

. The deputy engaged the defendant in a consensual encounter following a lawful detention for defective equipment. Immediately after telling the defendant he was "free to go," the deputy asked the defendant whether he had any contraband or weapons and whether he would permit the deputy to search the vehicle. The defendant eventually exited the vehicle without being asked to do so. Under these facts, the continued encounter did not constitute a seizure. The deputy did not seize the defendant when he began asking to search. Compliance with a police request does not negate the consensual nature of the response. See Baldwin v. Commonwealth, 243 Va. 191, 197, 413 S.E.2d 645, 648 (1992); Greene, 17 Va.App. at 610,

440 S.E.2d at 140-41. Considering the totality of the circumstances, we hold that a reasonable person would have believed he was free to leave and could have declined to stay and answer the deputy's questions.

The trial court ruled that the deputy could frisk for weapons because he had a reasonable, articulable suspicion that the defendant was armed and dangerous. However, the defendant argues that the frisk was not permissible unless the deputy had reasonable suspicion that the defendant was engaged in criminal activity as well as a reasonable suspicion that he was armed and dangerous. We disagree.

A protective frisk for weapons is an intrusion upon an individual's personal privacy that implicates the Fourth Amendment. See Adams v. Williams, 407 U.S. 143, 147 n. 2, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)

; Toliver v. Commonwealth, 23 Va.App. 34, 36, 473 S.E.2d 722, 724 (1996). The reasonableness of an intrusion is determined by "balancing an individual's right to be free from arbitrary government intrusions against society's countervailing interest in preventing or detecting crime and in protecting its law enforcement officers." Bethea v. Commonwealth, 14 Va.App. 474, 476, 419 S.E.2d 249, 250 (1992) (en banc) (citation omitted), aff'd on other grounds, 245 Va. 416, 429 S.E.2d 211 (1993). Officer safety is among those interests against which personal rights must be balanced. See Knowles v. Iowa, 525 U.S. 113, ___-___, 119 S.Ct. 484, 487-88, 142 L.Ed.2d 492 (1998) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); Maryland v. Wilson, 519 U.S. 408, 412-13, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

Virginia's appellate courts have confirmed on several prior occasions that an officer need not have a reasonable suspicion that a person is engaged in criminal activity before protecting himself with a carefully limited frisk for weapons. Courts have approved frisks under circumstances in which an officer developed a reasonable suspicion that the person he lawfully confronted was armed and...