David Lee Jasper v. Commonwealth of Virginia

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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