COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges O’Brien, AtLee and Malveaux Argued at Norfolk, Virginia
ALLEN W. POULSON MEMORANDUM OPINION* BY v. Record No. 1199-22-1 JUDGE RICHARD Y. ATLEE, JR. DECEMBER 28, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY W. Revell Lewis, III, Judge
S. Mario Lorello (Zoby & Broccoletti, P.C., on brief), for appellant.
Suzanne Seidel Richmond, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Under a written plea agreement, Allen W. Poulson entered a conditional guilty plea to one
charge of misdemeanor driving while intoxicated (“DWI”). On appeal, he contends that the circuit
court erred by denying his motion to suppress, arguing that he was seized when law enforcement
spoke with and arrested him within the curtilage of his property and that he was not provided timely
Miranda1 warnings. We find no merit to Poulson’s arguments and affirm the circuit court’s
judgment.
I. BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Poole v. Commonwealth,
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Miranda v. Arizona, 384 U.S. 436 (1966). doing so, we discard any of Poulson’s conflicting evidence, and regard as true all credible evidence
favorable to the Commonwealth and all inferences that may reasonably be drawn from that
evidence. Gerald, 295 Va. at 473.
Just after midnight on December 23, 2021, Accomack County police received an
anonymous call that a maroon pickup truck was stuck in a ditch on Guard Shore Road. The caller,
who was later identified, was concerned that the driver might be intoxicated and possibly injured.
The caller saw the driver throw bottles out of the truck window. He reported seeing another vehicle
arrive and attempt to help remove the truck from the ditch. Poulson, the driver of the truck, also
called 911 and stated that he had run off the road and into a ditch. He reported that he was not
injured, did not require help, and had already called someone to help him extract the truck.
Nevertheless, Virginia State Trooper Flynn responded to the scene of the reported crash.
There, he saw tire marks near the ditch, beer bottles on the ground, and damage to a culvert. Flynn
and other officers drove to Poulson’s house and saw Poulson’s truck, which matched the description
of the crashed vehicle the anonymous caller had provided, parked in Poulson’s driveway.
Furthermore, the truck’s license plate was a custom vanity plate that read “Poulson.” The front end
of the driver’s side was damaged, and there were beer cans in the bed of the truck. While the
officers stood outside near the truck, Poulson exited his house and approached them. Poulson spoke
to Flynn and acknowledged that he was the driver at the crash scene and that he struck the culvert.
He explained that a deer had run in front of him and he swerved off the road.
Flynn testified that Poulson’s speech was slurred and that he smelled of alcohol. Poulson
admitted to Flynn that he had consumed “four or five beers [and] three to four shots” but denied
drinking prior to the accident. Poulson agreed to perform field sobriety tests. It was “[v]ery very
cold” out and Poulson wore only boxers and a tee-shirt, so Flynn told him to go get dressed.
Poulson went back inside his house to put on more clothes while the officers waited outside.
-2- Poulson returned outside and submitted to a preliminary breath test. The result was .121, above the
legal limit. Flynn then arrested Poulson for DWI. A later blood analysis measured Poulson’s blood
alcohol concentration at .141%.
Poulson moved to suppress the evidence obtained during his interaction with the police,
arguing that the police violated his Fourth Amendment rights by entering the curtilage of his home
and questioning him and that he was unlawfully detained and questioned without being advised of
his rights under Miranda. The circuit court denied the motion, and Poulson then entered his
conditional guilty plea to DWI. This appeal followed.
II. ANALYSIS
Poulson argues that the circuit court erred in denying his motion to suppress because the
police seized him in violation of his Fourth Amendment rights and subjected him to custodial
interrogation without the benefit of Miranda warnings.
A. Standard of Review
“The law regarding appellate review of a trial court’s decision on a motion to suppress is
well settled. The appellant bears the burden of establishing that reversible error occurred.”
Williams v. Commonwealth, 71 Va. App. 462, 474 (2020). “[A]n appellate court must give
deference to the factual findings of the circuit court and give due weight to the inferences drawn
from those factual findings; however, the appellate court must determine independently whether
the manner in which the evidence was obtained meets the requirements of the Fourth
Amendment.” Moore v. Commonwealth, 69 Va. App. 30, 36 (2018) (alteration in original)
(quoting Commonwealth v. Robertson, 275 Va. 559, 563 (2008)). “On appeal, a ‘defendant’s
claim that evidence was seized in violation of the Fourth Amendment presents a mixed question
of law and fact that we review de novo.’” Cole v. Commonwealth, 294 Va. 342, 354 (2017)
(quoting Cost v. Commonwealth, 275 Va. 246, 250 (2008)).
-3- B. Poulson consented to his interactions with the police, and no Fourth Amendment or Miranda violation occurred.2
While the analyses as to whether an individual is “seized” for Fourth Amendment
purposes and “in custody” under Miranda differ, an individual is neither when he voluntarily
initiates, and continues, his encounter with law enforcement. That is what occurred here.
“Fourth Amendment jurisprudence recognizes three categories of police-citizen
[contacts]: (1) consensual encounters, (2) brief, minimally intrusive investigatory detentions
based upon specific, articulable facts, commonly referred to as Terry[3] stops, and (3) highly
intrusive arrests and searches founded on probable cause.” Middlebrooks v. Commonwealth, 52
Va. App. 469, 476 (2008) (first alteration in original) (quoting Blevins v. Commonwealth, 40
Va. App. 412, 420-21 (2003), aff’d, 267 Va. 291 (2004)). “‘So long as a reasonable person
would feel free “to disregard the police and go about his business,” the encounter is consensual’
and no reasonable suspicion is required to justify the encounter.” Jones v. Commonwealth, 279
Va. 521, 528 (2010) (quoting Dickerson v. Commonwealth, 266 Va. 14, 17 (2003)). “The
‘reasonable person’ test is an objective test and presumes an innocent person.” Id. For a Fourth
Amendment seizure to occur, the defendant must either be under some physical restraint by the
police or have complied with a police officer’s show of authority. See Woodson v.
Commonwealth, 245 Va. 401, 405 (1993) (finding no Fourth Amendment seizure when
2 As a preliminary matter, Poulson argues that the police were unlawfully present on the curtilage of his residence.
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COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges O’Brien, AtLee and Malveaux Argued at Norfolk, Virginia
ALLEN W. POULSON MEMORANDUM OPINION* BY v. Record No. 1199-22-1 JUDGE RICHARD Y. ATLEE, JR. DECEMBER 28, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY W. Revell Lewis, III, Judge
S. Mario Lorello (Zoby & Broccoletti, P.C., on brief), for appellant.
Suzanne Seidel Richmond, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Under a written plea agreement, Allen W. Poulson entered a conditional guilty plea to one
charge of misdemeanor driving while intoxicated (“DWI”). On appeal, he contends that the circuit
court erred by denying his motion to suppress, arguing that he was seized when law enforcement
spoke with and arrested him within the curtilage of his property and that he was not provided timely
Miranda1 warnings. We find no merit to Poulson’s arguments and affirm the circuit court’s
judgment.
I. BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Poole v. Commonwealth,
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Miranda v. Arizona, 384 U.S. 436 (1966). doing so, we discard any of Poulson’s conflicting evidence, and regard as true all credible evidence
favorable to the Commonwealth and all inferences that may reasonably be drawn from that
evidence. Gerald, 295 Va. at 473.
Just after midnight on December 23, 2021, Accomack County police received an
anonymous call that a maroon pickup truck was stuck in a ditch on Guard Shore Road. The caller,
who was later identified, was concerned that the driver might be intoxicated and possibly injured.
The caller saw the driver throw bottles out of the truck window. He reported seeing another vehicle
arrive and attempt to help remove the truck from the ditch. Poulson, the driver of the truck, also
called 911 and stated that he had run off the road and into a ditch. He reported that he was not
injured, did not require help, and had already called someone to help him extract the truck.
Nevertheless, Virginia State Trooper Flynn responded to the scene of the reported crash.
There, he saw tire marks near the ditch, beer bottles on the ground, and damage to a culvert. Flynn
and other officers drove to Poulson’s house and saw Poulson’s truck, which matched the description
of the crashed vehicle the anonymous caller had provided, parked in Poulson’s driveway.
Furthermore, the truck’s license plate was a custom vanity plate that read “Poulson.” The front end
of the driver’s side was damaged, and there were beer cans in the bed of the truck. While the
officers stood outside near the truck, Poulson exited his house and approached them. Poulson spoke
to Flynn and acknowledged that he was the driver at the crash scene and that he struck the culvert.
He explained that a deer had run in front of him and he swerved off the road.
Flynn testified that Poulson’s speech was slurred and that he smelled of alcohol. Poulson
admitted to Flynn that he had consumed “four or five beers [and] three to four shots” but denied
drinking prior to the accident. Poulson agreed to perform field sobriety tests. It was “[v]ery very
cold” out and Poulson wore only boxers and a tee-shirt, so Flynn told him to go get dressed.
Poulson went back inside his house to put on more clothes while the officers waited outside.
-2- Poulson returned outside and submitted to a preliminary breath test. The result was .121, above the
legal limit. Flynn then arrested Poulson for DWI. A later blood analysis measured Poulson’s blood
alcohol concentration at .141%.
Poulson moved to suppress the evidence obtained during his interaction with the police,
arguing that the police violated his Fourth Amendment rights by entering the curtilage of his home
and questioning him and that he was unlawfully detained and questioned without being advised of
his rights under Miranda. The circuit court denied the motion, and Poulson then entered his
conditional guilty plea to DWI. This appeal followed.
II. ANALYSIS
Poulson argues that the circuit court erred in denying his motion to suppress because the
police seized him in violation of his Fourth Amendment rights and subjected him to custodial
interrogation without the benefit of Miranda warnings.
A. Standard of Review
“The law regarding appellate review of a trial court’s decision on a motion to suppress is
well settled. The appellant bears the burden of establishing that reversible error occurred.”
Williams v. Commonwealth, 71 Va. App. 462, 474 (2020). “[A]n appellate court must give
deference to the factual findings of the circuit court and give due weight to the inferences drawn
from those factual findings; however, the appellate court must determine independently whether
the manner in which the evidence was obtained meets the requirements of the Fourth
Amendment.” Moore v. Commonwealth, 69 Va. App. 30, 36 (2018) (alteration in original)
(quoting Commonwealth v. Robertson, 275 Va. 559, 563 (2008)). “On appeal, a ‘defendant’s
claim that evidence was seized in violation of the Fourth Amendment presents a mixed question
of law and fact that we review de novo.’” Cole v. Commonwealth, 294 Va. 342, 354 (2017)
(quoting Cost v. Commonwealth, 275 Va. 246, 250 (2008)).
-3- B. Poulson consented to his interactions with the police, and no Fourth Amendment or Miranda violation occurred.2
While the analyses as to whether an individual is “seized” for Fourth Amendment
purposes and “in custody” under Miranda differ, an individual is neither when he voluntarily
initiates, and continues, his encounter with law enforcement. That is what occurred here.
“Fourth Amendment jurisprudence recognizes three categories of police-citizen
[contacts]: (1) consensual encounters, (2) brief, minimally intrusive investigatory detentions
based upon specific, articulable facts, commonly referred to as Terry[3] stops, and (3) highly
intrusive arrests and searches founded on probable cause.” Middlebrooks v. Commonwealth, 52
Va. App. 469, 476 (2008) (first alteration in original) (quoting Blevins v. Commonwealth, 40
Va. App. 412, 420-21 (2003), aff’d, 267 Va. 291 (2004)). “‘So long as a reasonable person
would feel free “to disregard the police and go about his business,” the encounter is consensual’
and no reasonable suspicion is required to justify the encounter.” Jones v. Commonwealth, 279
Va. 521, 528 (2010) (quoting Dickerson v. Commonwealth, 266 Va. 14, 17 (2003)). “The
‘reasonable person’ test is an objective test and presumes an innocent person.” Id. For a Fourth
Amendment seizure to occur, the defendant must either be under some physical restraint by the
police or have complied with a police officer’s show of authority. See Woodson v.
Commonwealth, 245 Va. 401, 405 (1993) (finding no Fourth Amendment seizure when
2 As a preliminary matter, Poulson argues that the police were unlawfully present on the curtilage of his residence. Yet there is an implied license that permits law enforcement to briefly enter the curtilage of a home “in the hopes of speaking with a resident [a]bsent affirmative steps to rescind the invitation by the homeowner.” Ingram v. Commonwealth, 74 Va. App. 59, 69-70 (2021) (internal citation omitted). At no point did Poulson tell the police to leave, refuse to speak to Flynn, or otherwise assert any expectation of privacy. Nor did the interaction evolve into an unlawful seizure, given that Poulson voluntarily spoke with the police and the encounter remained consensual up to the point of Poulson’s lawful arrest. Accordingly, any argument that there was a Fourth Amendment violation based upon the interaction taking place on the curtilage of Poulson’s home fails. 3 Terry v. Ohio, 392 U.S. 1 (1968). -4- defendant failed to comply with order to show his hands); Thomas v. Commonwealth, 24
Va. App. 49, 54 (1997) (en banc) (finding no seizure at point when defendant stopped ahead of
approaching a roadblock checkpoint).
Poulson’s encounter with the police began consensually, and it remained so. He was not
detained for purposes of the Fourth Amendment until after he voluntarily spoke with Flynn and
submitted to the preliminary breath test. “Under the Fourth Amendment, any seizure of a person,
no matter how brief, must have an objective justification related to law enforcement.” Montague
v. Commonwealth, 278 Va. 532, 538 (2009). But “a voluntary encounter between the police and
a citizen does not constitute a seizure prohibited by the Fourth Amendment.” Id. “Thus, even
when the police do not have a reasonable suspicion that an individual may be engaged in
criminal activity, they may approach that person and request information regarding the person’s
identity without violating the Fourth Amendment.” Id. “As long as the police do not convey, by
word or deed, that compliance with their request is mandatory, there is no requirement that these
encounters be based on an objective or particularized suspicion regarding the person
approached.” Id. “If the person to whom the police questions are directed objectively ‘remains
free to disregard the questions and walk away,’ there is no demonstrable restriction on the
person’s liberty and the encounter does not result in a seizure.” Id. at 539 (quoting United States
v. Mendenhall, 446 U.S. 544, 554 (1980)).
Poulson’s choice to voluntarily approach and speak with law enforcement also is fatal to
his Miranda claim. “Whether a suspect is ‘in custody’ under Miranda is determined by the
circumstances of each case, and ‘the ultimate inquiry is simply whether there is a “formal arrest
or restraint on freedom of movement” of the degree associated with formal arrest.’” Harris v.
Commonwealth, 27 Va. App. 554, 564 (1998) (quoting California v. Beheler, 463 U.S. 1121,
1125 (1983)). “Absent the combination of both custody and interrogation, there is no
-5- presumption of compulsion and there is, therefore, no call for Miranda’s implementing
countermeasures.” Thomas v. Commonwealth, 72 Va. App. 560, 579 (2020).
Here, after the police arrived at his house to investigate the reported crash, Poulson exited
his residence and approached the officers as they stood away from the house and near his
vehicle. The police had not even knocked on Poulson’s door or otherwise summoned him out of
the house. Poulson exited his house and voluntarily spoke with Flynn and responded to his
questions. Before continuing the conversation and submitting to the preliminary blood test and
field sobriety tests, Poulson returned inside, dressed, and again voluntarily exited his residence
and continued his interaction with the officers. Contrary to Poulson’s assertion, he was not
seized until after he voluntarily submitted to the tests and was placed under arrest. Because the
encounter remained consensual until the police arrested him, the police did not subject Poulson
to custodial interrogation before the arrest. Thus, he was not entitled to be advised of his
Miranda rights at the time of his statements to the police. Accordingly, the circuit court did not
err in denying Poulson’s motion to suppress.
III. CONCLUSION
Because Poulson’s interactions with the police were consensual prior to the time of his
lawful arrest, there was no violation of his Fourth Amendment or Miranda rights. Therefore, we
affirm the circuit court’s judgment.
Affirmed.
-6-