Reittinger v. Com.

• Citation: 28 Va. App. 80,502 S.E.2d 151
• Decision Date: 21 July 1998
• Docket Number: Record No. 0246-97-3.
• Court: Court of Appeals of Virginia
• Parties: Christopher John REITTINGER v. COMMONWEALTH of Virginia.

502 S.E.2d 151

28 Va. App. 80

Christopher John REITTINGER v. COMMONWEALTH of Virginia.

Record No. 0246-97-3.

Court of Appeals of Virginia, Salem.

July 21, 1998.

Malcolm G. Crawford, Lexington, for appellant.

Marla Graff Decker, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Present: BENTON, COLEMAN and BUMGARDNER, JJ.

COLEMAN, Judge.

Christopher John Reittinger was convicted in a bench trial for possession of marijuana. On appeal, Reittinger contends: (1) he was "seized" in violation of the Fourth Amendment by the officer's show of authority in asking for consent to search the vehicle after having indicated that Reittinger was free to leave, and (2) the evidence was seized as the result of an illegal frisk that violated the Fourth Amendment. We find that the officer's encounter with Reittinger after concluding the motor vehicle equipment investigation was consensual in nature and, therefore, did not implicate the Fourth Amendment. Assuming, without deciding, that the officer reasonably suspected from the bulge in Reittinger's pocket and from Reittinger's conduct that Reittinger was armed, we find that the officer's frisk violated the Fourth Amendment because, at the time of the frisk, the officer was not investigating suspected criminal activity or protecting the public safety. Accordingly, we hold that the marijuana was seized as the result of an illegal frisk and that the trial court erred by admitting it into evidence.

I. BACKGROUND

Late one evening, Rockbridge County Police Officer Hugh Bolen stopped Reittinger's van when Bolen observed it being driven with an inoperable headlight. After giving Reittinger a verbal warning to have the headlight repaired, Bolen told Reittinger he was "free to go." Immediately thereafter, Bolen asked Reittinger if he had contraband, or drugs, or firearms in the vehicle. Reittinger eventually responded "no, that there wasn't anything illegal in the vehicle." Bolen then asked if he could search the vehicle for weapons or drugs. Reittinger "turned around in his seat and looked at his passenger[s] and ... whispered something." Bolen repeated the question several times. Reittinger remained silent but, eventually, without being requested to do so, exited the vehicle. Bolen testified that he did not have any particular reason to suspect that Reittinger was engaged in criminal activity.

As Reittinger alighted from the vehicle, Bolen observed a bulge in Reittinger's front pocket. Bolen then frisked Reittinger's outer clothing because he felt it was "a safety issue, out there in the dark." Bolen felt a large, hard bulge in Reittinger's pocket, which he believed might have been a weapon. Bolen asked Reittinger what was causing the bulge. Reittinger did not answer and "tried to cover [the pocket] up." After Bolen told Reittinger, "you need to bring that out of your pocket," Reittinger pulled out a smoking device that contained marijuana residue. Reittinger was charged with possession of marijuana.

At trial, Reittinger filed a motion to suppress the marijuana evidence on the ground that Bolen had seized it in violation of the Fourth Amendment. The trial court ruled that Bolen's requesting consent to search the van immediately after investigating the equipment violation and telling Reittinger he was "free to go" would have led a reasonable person to believe he or she was being further detained and was not free to leave. Thus, the trial court ruled that Bolen had illegally detained Reittinger without a reasonable, articulable suspicion that he was engaged in criminal activity. The trial court found that Reittinger exited the van without being asked to do so, in a rural setting, at night, and after Bolen had asked for permission to search the van. The trial court further found that although Reittinger consented to the search of the van "[i]t is not exactly clear whether [Reittinger] finally consented to [the] search after he exited the van and before the pat down or after the pat down." Thus, the court made no finding of fact that Reittinger had consented to his van being searched when Officer Bolen frisked him for weapons. Based on these findings, the court ruled that, although Bolen unlawfully detained Reittinger after the initial investigation, Bolen articulated a reason to suspect that Reittinger was armed and dangerous and, thus, that Bolen was justified in frisking Reittinger for the officer's own safety. The court denied Reittinger's motion to suppress and convicted him for possession of marijuana.

II. ANALYSIS

This appeal raises fundamental questions about the scope of the Fourth Amendment's protection against unreasonable searches and seizures. In resolving the questions presented, we examine: (1) the nature and constitutional dimensions of the encounter from the time Bolen completed the headlight investigation until the frisk and (2) the constitutionality of the frisk.

On appeal, the defendant bears the burden of establishing that the trial court's denial of 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 that implicated the Fourth Amendment and whether a police officer's protective weapons frisk was constitutionally valid involve questions of law and fact and are reviewed 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, 691, 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).

A. Encounter After Investigative Traffic Stop

Reittinger contends, and the trial court ruled, that Bolen unlawfully seized Reittinger in violation of the Fourth Amendment by subjecting Reittinger to a "new and unrelated inquiry" immediately following the officer's investigation of the motor vehicle equipment violation. We hold that Bolen's conduct in asking questions and seeking permission to search the van without a reasonable and articulable basis for doing so did not constitute a "seizure."

A person is "seized" under the Fourth Amendment "only if, in view of all of the circumstances surrounding an incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 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, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). A "voluntary or consensual encounter between a police officer and a citizen does not implicate the Fourth Amendment as long as `a reasonable person would understand that he or she could refuse to cooperate.'" Lawrence v. Commonwealth, 17 Va.App. 140, 144, 435 S.E.2d 591, 594 (1993) (quoting United States v. Wilson, 953 F.2d 116, 121 (4th Cir.1991)). Whether a person is "free to leave" must be measured by an "objective standard—looking to the reasonable man's interpretation of the conduct in question." Michigan v. Chesternut, 486 U.S. 567, 574, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).

Viewed in the light most favorable to the Commonwealth, Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980), the evidence established that Reittinger's encounter with Officer Bolen was consensual from the completion of the defective equipment investigation until the frisk and was not a "seizure" that implicated the Fourth Amendment. After completing the equipment investigation, Bolen admonished Reittinger to have the headlight repaired and told him he was "free to go." At the time, Officer Bolen was not physically restraining Reittinger in any manner and made no show of authority to indicate that Reittinger was not free to leave. Therefore, a reasonable person would have believed that the investigation had ended and that he or she was free to leave. See Wechsler v. Commonwealth, 20 Va.App. 162, 171, 455 S.E.2d 744, 748 (1995)

.

Officer Bolen's request for permission to search the van after telling Reittinger he was free to leave was not a show of authority that compelled Reittinger to consent to the search or to believe he had no choice but to stay and address Bolen's query. The officer did not draw his weapon, did not physically restrain Reittinger, and did not by show of force or authority restrict Reittinger's freedom of movement or indicate that Reittinger was not free to leave. See Baldwin v. Commonwealth, 243 Va. 191, 199, 413 S.E.2d 645, 649 (1992)

(noting that circumstances under which reasonable person may believe he was not free to leave include, but are not limited to, "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled"). Even though an individual may feel some trepidation during a consensual encounter with a police officer and some reluctance or discomfort in walking away from such an encounter, a police officer's conduct does not implicate the Fourth Amendment if the officer merely poses questions to an individual in a public place and the individual chooses to answer them. 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). 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). "As long as the [in...