David Lee Jasper v. Commonwealth of Virginia ( 1999 )


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  •                    COURT OF APPEALS OF VIRGINIA
    Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
    Argued at Richmond, Virginia
    DAVID LEE JASPER
    MEMORANDUM OPINION * BY
    v.   Record No. 1833-98-2                  JUDGE RICHARD S. BRAY
    DECEMBER 28, 1999
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
    Paul M. Peatross, Jr., Judge
    J. Benjamin Dick for appellant.
    Marla Graff Decker, Assistant Attorney
    General (Mark L. Earley, Attorney General, on
    brief), for appellee.
    David Lee Jasper (defendant) was convicted in a bench trial
    for possession of marijuana in violation of Code § 18.2-250.1.      On
    appeal, he complains that the trial court erroneously denied his
    motion to suppress evidence obtained by police incident to an
    unlawful seizure of his person.
    "In reviewing a trial court's denial of a motion to suppress,
    'the burden is upon the defendant to show that the ruling, when
    the evidence is considered most favorably to the Commonwealth,
    constituted reversible error.'"   McGee v. Commonwealth, 
    25 Va. App. 193
    , 197, 
    487 S.E.2d 259
    , 261 (1997) (en banc) (quoting Fore
    v. Commonwealth, 
    220 Va. 1007
    , 1010, 
    265 S.E.2d 729
    , 731, cert.
    * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    denied, 
    449 U.S. 1017
     (1980)).    "Ultimate questions of reasonable
    suspicion and probable cause to make a warrantless search" involve
    issues of both law and fact, reviewable de novo on appeal.
    Ornelas v. United States, 
    517 U.S. 690
    , 699 (1996).   Similarly,
    whether a citizen/police encounter constitutes a seizure, thereby
    implicating the Fourth Amendment, presents a mixed question of law
    and fact which also requires independent appellate review.   See
    Watson v. Commonwealth, 
    19 Va. App. 659
    , 663, 
    454 S.E.2d 358
    , 361
    (1995).    "[I]n performing such analysis, we are bound by the trial
    court's findings of historical fact unless 'plainly wrong' or
    without evidence to support them and we give due weight to the
    inferences drawn from those facts by resident judges and local law
    enforcement officers."   McGee, 
    25 Va. App. at 198
    , 
    487 S.E.2d at 261
    .
    Here, the statement of facts recites that Albemarle County
    Officer J.G. Pistulka "approached" defendant and his companion and
    "began to speak to them about . . . inappropriate" "cat calls"
    directed to a "young female" pedestrian.   Although Pistulka was
    operating a "marked police vehicle," he was "alone, presented no
    weapons, made no threats, did not handcuff either of the two
    individuals and made no threatening displays or actions toward
    them."    Pistulka "advised the . . . subjects" that they were "free
    to leave at any time" and "requested" "to see identification."
    Each provided an unspecified "identification" to the officer, and
    he initiated a "check[]," which reported "within five minutes"
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    that defendant was "wanted" on "an outstanding warrant."   Pistulka
    immediately arrested defendant and discovered the offending
    marijuana in a trouser pocket incidental to a related search of
    his person.
    Defendant testified that, prior to arrest, "he did, in fact,
    feel free to leave at any time, but chose not to do so."
    In support of an unsuccessful motion to suppress before the
    trial court and, again, on appeal, defendant argues that Pistulka
    acted without the requisite "articulable suspicion of criminal
    activity" to justify an "investigatory stop" and attendant
    seizure.    However, "[a] voluntary police-citizen encounter becomes
    a seizure for Fourth Amendment purposes 'only if, in view of all
    circumstances . . . a reasonable person would have believed that
    he was not free to leave.'"   Wechsler v. Commonwealth, 
    20 Va. App. 162
    , 170, 
    455 S.E.2d 744
    , 747 (1995) (emphasis omitted) (citations
    omitted).    "As long as a person remains free to leave, no seizure
    has occurred.   Voluntarily responding to a police request, which
    most citizens will do, does not negate 'the consensual nature of
    the response' even if one is not told that he or she is free not
    to respond."    Grinton v. Commonwealth, 
    14 Va. App. 846
    , 849, 
    419 S.E.2d 860
    , 862 (1992) (citations omitted).   Thus, "a request for
    identification by the police does not, by itself, constitute a
    Fourth Amendment seizure."    INS v. Delgado, 
    466 U.S. 210
    , 216
    (1984).
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    Here, at the inception of the encounter, Pistulka advised
    defendant that he was free to leave "at any time," a circumstance
    clearly understood by defendant.   Nothing in the record suggests
    that defendant was threatened, intimidated, restrained, or coerced
    by the officer prior to arrest.    Pistulka's request for
    identification and the brief investigation which followed did not
    alter the consensual nature of the exchange.   Pistulka retained
    the unspecified identification for only five minutes, during which
    defendant could have requested him to return it or simply walked
    away. 1   He did neither.
    The trial court, therefore, correctly concluded that
    defendant was not seized by police until arrested upon probable
    cause emanating from the existing warrant.   Clearly, the
    incidental search infringed upon no constitutional rights.
    Accordingly, we affirm the conviction.
    Affirmed.
    1
    In Richmond v. Commonwealth, 
    22 Va. App. 257
    , 
    468 S.E.2d 708
     (1996), a police officer approached Richmond, seated alone
    in a car, and requested his operator's license. In reversing
    the conviction, we concluded that, "'what began as a consensual
    encounter quickly became an investigative detention once the
    officer received [the] license and did not return it'" for
    twenty minutes. Id. at 261, 
    468 S.E.2d at 710
     (citations
    omitted). Richmond was not advised that he was free to leave
    and was unable to do so without violating the law.
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