COURT OF APPEALS OF VIRGINIA
Present: Judges Fulton, Ortiz and Raphael UNPUBLISHED
Argued by videoconference
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION* BY v. Record No. 0061-22-1 JUDGE DANIEL E. ORTIZ MAY 24, 2022 CHRISTOPHER FRANCIS MARTINEZ
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Leslie L. Lilley, Judge
Robert B. Humphreys, Assistant Commonwealth’s Attorney (Colin D. Stolle, Commonwealth’s Attorney, on briefs), for appellant.
James O. Broccoletti (Zoby, Broccoletti & Normile, P.C., on brief), for appellee.
Pursuant to Code § 19.2-398, the Commonwealth appeals the decision of the Circuit
Court of the City of Virginia Beach to grant Christopher Francis Martinez’s motion to suppress.
On appeal, the Commonwealth argues that the circuit court erred in suppressing evidence and
statements obtained by the Virginia Beach Police Department during a search because
(1) Martinez voluntarily consented to the search and (2) even if the search constituted a Fourth
Amendment violation, the circuit court improperly applied the exclusionary rule. Because the
record establishes that Martinez’s consent was involuntary and the application of the
exclusionary rule was the appropriate remedy for the Fourth Amendment violation, we affirm the
circuit court’s decision.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND
On February 13, 2021, Officer J.O. Brenya arrived at Laskin Road in the City of Virginia
Beach after receiving an emergency call for medical service. An Uber driver reported a potential
medical emergency because her passenger, Martinez, was passed out in the back of the vehicle.
When Brenya arrived, Martinez was alert and communicating. While Brenya spoke to Martinez,
another officer joined him on the passenger’s side of the vehicle but quickly left to respond to
another call because only one officer was necessary for an assist rescue call. Brenya then asked
Martinez to exit the Uber so that the driver could park out of the way of traffic. As Martinez
exited the Uber, Officers Michael A. Johndrow and Daniel Fogarty approached the vehicle.
Johndrow suggested they move under the overhang of an apartment building on the other side of
the street to get out of the rain. Brenya asked for Martinez’s identification, and Martinez gave
him his Colorado driver’s license.
The officers and Martinez moved under the overhang. Before Brenya identified Martinez
or handed the license to the other officers, Johndrow asked if Martinez was “Chris or Andrew”
Martinez. Fogarty recognized Martinez from his and Johndrow’s experience in “special
investigations” and believed that the situation “may have been narcotics related.” Johndrow
thought Martinez was living in Colorado and asked Martinez why he was in Virginia Beach.
Brenya returned Martinez’s Colorado driver’s license as Martinez handed Brenya his Virginia
license. Johndrow and Fogarty were standing next to Brenya as Martinez handed Brenya his
Virginia license. Brenya retained Martinez’s Virginia license and crossed the street to speak
with the Uber driver, while Johndrow and Fogarty remained with Martinez. While Brenya was
at the Uber, but before emergency personnel arrived, Fogarty asked to search Martinez’s pockets.
Martinez said yes. Fogarty obtained consent to search Martinez before the emergency personnel
arrived because he believed the situation “was potentially drug related.” In Fogarty’s experience
-2- “guns and drugs go together,” and he wanted to “keep everybody safe at that point.” No officer
read Martinez his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), told him he did
not have to consent to the search, or told him that he was free to leave.
When Brenya returned to the group after about a minute and a half, emergency medical
technicians (“EMT”) had arrived, and Fogarty was searching Martinez’s jacket. Over the radio,
Brenya used the information obtained from Martinez’s license to request police dispatch check if
Martinez had any outstanding warrants. The officers recovered marijuana and Xanax from
Martinez’s jacket. While Fogarty and Johndrow searched Martinez, an EMT asked if Martinez
wanted to go to the hospital to be evaluated. Martinez replied no. The EMTs left the scene, but
the police encounter continued. Brenya then began patting down Martinez and asked if Martinez
had “anything else on [him].” Fogarty said, “this is one of those moments where, if you be
honest man, and work with us now . . . we obviously know who you are.” Fogarty continued,
“let’s make some smart decisions now. Put him in handcuffs.” Martinez then told the officers
that he had cocaine in his socks. Brenya then handcuffed Martinez and recovered cocaine from
Martinez’s sock. Martinez was arrested and charged with one count of felony possession of a
Schedule I or II controlled substance and one count of misdemeanor possession of a Schedule IV
controlled substance.
Martinez moved to suppress the evidence and statements obtained by this search, arguing
that he had been seized and that the consent obtained by the officers was involuntary. The
Commonwealth argued that based on the totality of the circumstances, Martinez’s consent was
voluntary. During argument on the motion, the Commonwealth asserted that the “purpose of
suppression is to deter police misconduct” and that there was no police misconduct in this case.
The Commonwealth did not explicitly argue that the exclusionary rule was an improper remedy
if the circuit court found Martinez’s consent to be involuntary. On October 28, 2021, the circuit
-3- court heard and denied the motion to suppress, finding that no police misconduct occurred, and
the search was consensual.
Martinez filed a motion to reconsider, arguing that the search was nonconsensual. The
Commonwealth responded that the court properly denied the motion to suppress because
Martinez’s consent was voluntary. Neither party addressed the application of the exclusionary
rule if the court found a violation of the Fourth Amendment. On January 4, 2022, the circuit
court reversed its previous ruling in a letter opinion. Summarizing its ruling from the bench, the
circuit court found that it “[did] not believe that consent was voluntarily given under the facts
and circumstances” and granted the motion to suppress. The court’s letter opinion stated that
“[u]pon reconsideration and careful review of the testimony and the body camera footage, the
[c]ourt finds that [Martinez’s] consent to the search was involuntary and therefore invalid.” The
court found that “[b]ased on the totality of the circumstances, a reasonable person in [Martinez’s]
shoes would not have felt free to leave the scene, decline the request to search his person, or
terminate the encounter.”
The Commonwealth noted its pretrial appeal of the circuit court’s order pursuant to Code
§ 19.2-398.
ANALYSIS
The Commonwealth’s appeal arises from the circuit court’s decision to grant the motion
to suppress. When reviewing a trial court’s decision to suppress evidence, “[w]e view the
evidence in a light most favorable to [the defendant], the prevailing party below, and we grant all
reasonable inferences fairly deducible from that evidence.” Commonwealth v. Grimstead, 12
Va. App. 1066, 1067 (1991). This Court “must review findings of historical fact for clear error
and give due weight to inferences drawn from those facts.” Harris v. Commonwealth, 266 Va.
28, 32 (2003). We “review de novo the application of law to those facts,” including whether a
-4- Fourth Amendment violation occurred and whether the trial court properly applied the
exclusionary rule. See Jones v. Commonwealth, 71 Va. App. 375, 380-81, 383 (2019) (quoting
Collins v. Commonwealth, 297 Va. 207, 214 (2002)); see Harris, 266 Va. at 32.
A review of a trial court’s grant of a motion to suppress presents a two-step analysis:
(1) whether a Fourth Amendment violation occurred and (2) whether the application of the
exclusionary rule was the appropriate remedy. See Jones, 71 Va. App. at 383.
I. The officers illegally seized Martinez in violation of the Fourth Amendment.
“The Fourth Amendment protects individuals against unreasonable searches and
seizures.” Id. at 380. “Police-citizen confrontations generally fall into one of three categories.”
McGee v. Commonwealth, 25 Va. App. 193, 198 (1997) (en banc). These include
(1) “consensual encounters which do not implicate the Fourth Amendment,” (2) “brief
investigatory stops, commonly referred to as ‘Terry’1 stops,” and (3) arrests or searches based on
“probable cause to believe that a crime has been committed by the suspect.” Id. The
Commonwealth contends that the encounter at issue falls under the first category, and thus the
encounter did not constitute a seizure in violation of the Fourth Amendment.
If “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.” Florida v.
Bostick, 501 U.S. 429, 434 (1991) (citation omitted) (quoting California v. Hodari D., 499 U.S.
621, 628 (1991)). “The ‘reasonable person’ test is an objective test and presumes an innocent
person.” Jones v. Commonwealth, 279 Va. 521, 528 (2010). “The encounter will not trigger
Fourth Amendment scrutiny unless it loses its consensual nature.” Bostick, 501 U.S. at 434.
Factors relevant to whether a seizure has occurred include
the number of police officers present, the display of weapons by an officer, physical contact between an officer and a citizen, an
1 Terry v. Ohio, 392 U.S. 1 (1968). -5- officer’s language or tone of voice compelling compliance, the retention of documents requested by an officer, and whether a citizen was told that he or she was free to leave.
Jones, 279 Va. at 528-29. “The determination whether an encounter is consensual or is an illegal
seizure in violation of a defendant’s Fourth Amendment rights is not governed by a ‘litmus test,’
and requires consideration of all the circumstances surrounding the encounter.” Id. at 528.
An encounter that began as an emergency response evolved into an illegal seizure when
the police officers retained Martinez’s Virginia license. Reviewing all the circumstances of the
encounter, we conclude that a reasonable person would not have felt free to disregard the police.
The encounter between Martinez and the officers implicates three relevant factors from Jones:
the number of police officers present, the retention of Martinez’s Virginia driver’s license, and
the fact that no officer told Martinez that he was free to leave. 279 Va. at 528-29.
First, the number of officers on the scene grew from one to three in less than two
minutes. The United States Supreme Court found a seizure can occur with just one officer.
Terry v. Ohio, 392 U.S. 1, 19 (1968). The Supreme Court of Virginia found that a seizure
occurred when there were two armed, uniformed police officers. Harris, 266 Va. at 33. This
Court likewise found a seizure where three uniformed police officers confronted a defendant.
McGee, 25 Va. App. at 198-99.
Here, when Brenya approached the Uber and asked Martinez about the call for service, he
was the sole officer on the scene. According to Brenya, another officer came and quickly left
because “initially it didn’t appear it was going to need two officers to handle it if it’s going to be
an assist rescue call.” Yet immediately following Martinez’s exit from the Uber, Johndrow and
Fogarty approached Martinez, bringing the number of officers involved in the interaction to
three. Here, the three armed officers outnumbered the two officers in Harris. And like the
officers in McGee, all three officers here were uniformed and arrived in two police vehicles.
-6- Overall, in the time between Brenya’s first contact with Martinez and Fogarty’s obtaining
consent, Martinez interacted with four officers and was in the vicinity of three police vehicles
with flashing blue lights. Brenya himself acknowledged that for “an assist rescue call” only one
officer would be necessary, but the number of officers grew to three (not including the other
officer who had just left the scene). Brenya’s statement and the number of officers at the scene
indicate that the encounter was no longer a simple medical emergency response when Fogarty
obtained consent to search Martinez.
Second, Brenya retained Martinez’s Virginia license for the entire encounter and did not
return the license until Martinez was at the jail. Almost forty years ago in Florida v. Royer, 460
U.S. 491, 504 (1983) (plurality), the Supreme Court of the United States addressed how an
officer retaining a driver’s license effected a seizure. The Court reasoned that police officers’
retention of a plane ticket and driver’s license was “more intrusive than necessary to effectuate
an investigative detention.” Id. Justice Powell concurred, finding that “[n]either the evidence in
this case nor common sense suggests that [the suspect] was free to walk away. . . . [A]s a
practical matter he then was under arrest” and his surrender of a luggage key was not consensual.
Id. at 508-09 (Powell, J., concurring).
This Court followed similar reasoning when it held that an initially consensual encounter
became a seizure when the officer retained the defendant’s license to run a records search.
Richmond v. Commonwealth, 22 Va. App. 257, 260-61 (1996). Specifically, a reasonable person
in those circumstances “would not have believed that he could terminate the encounter.” Id. at
261. This Court has applied that reasoning time and again. See, e.g., Perry v. Commonwealth,
No. 2466-00-2, slip op. at 5-6 (Va. Ct. App. July 30, 2002); Allen v. Commonwealth, No.
2966-00-2, slip op. at 8 (Va. Ct. App. May 28, 2002); Cartwright v. Commonwealth, No.
1349-00-2, slip op. at 8-9 (Va. Ct. App. May 15, 2001); Commonwealth v. Morton, No.
-7- 0497-00-2, slip op. at 7-9 (Va. Ct. App. July 11, 2000). The consensual nature of the encounter
may be restored if the officers give the license back and tell the suspect that he is free to leave or
that they can only search with the suspect’s consent. See Commonwealth v. Rice, 28 Va. App.
374, 381-82 (1998); Jasper v. Commonwealth, No. 1833-98-2, slip op. at 4 n.1 (Va. Ct. App.
Dec. 28, 1999).
But that did not happen here. As in Royer and Richmond, Brenya obtained Martinez’s
driver’s license and did not return it. Brenya eventually used Martinez’s Virginia license to run a
records search. At no point did any officer tell Martinez he was free to leave or that they could
only search him with his consent. In fact, when Martinez gave consent to Fogarty to search his
jacket, Brenya was across the street with the Virginia license, speaking to the Uber driver. If
Martinez wanted to break off the encounter, he would have had to walk away from two officers
without his Virginia license or walk back across the street to obtain the license from an officer
who would momentarily be calling in a warrant check on his name. This dilemma, recognized
by the United States Supreme Court in Royer and this Court in Richmond, rendered the encounter
a seizure and the consent that followed involuntary.
Finally, no officer told Martinez that he was free to leave. While an officer need not tell
a suspect that he has the right to leave, United States v. Drayton, 536 U.S. 194, 206 (2002), not
doing so is a factor in determining whether a suspect has been seized, Jones, 279 Va. at 528-29.
Here, no officer told Martinez he was free to leave at any point, even though each had the
opportunity to do so. In fact, Johndrow almost immediately recognized Martinez from
Johndrow’s experience with special investigations, before hearing Martinez’s name or reading
either of Martinez’s driver’s licenses. As a result, Johndrow began asking Martinez why he was
not in Colorado. Johndrow characterized this as “small talk.” But Fogarty admitted that he
-8- intentionally obtained consent before the EMTs arrived because he thought Martinez had drugs,
and “guns and drugs go together.”
Martinez was illegally seized when Brenya walked across the street holding Martinez’s
Virginia driver’s license. At that point, he was surrounded by two police officers and two police
cars while a third officer had his Virginia driver’s license on the other side of the street. No
officer told Martinez he was free to leave, and the officers attempted to obtain consent before
emergency personnel arrived because they believed Martinez had drugs and guns, demonstrating
that the officers converted the situation from a medical emergency to a drug search. Martinez
was illegally seized, and the seizure was not based on reasonable suspicion or probable cause
that a crime had been committed. The seizure was based on an erroneous belief that Martinez
could consent to the encounter even when the consensual nature of the interaction had ended.
II. Once the officers illegally seized Martinez, he could not consent to the search, and the search violated the Fourth Amendment.
Generally, “a search authorized by consent is wholly valid.” Schneckloth v. Bustamonte,
412 U.S. 218, 222 (1973). “Consent loses its validity only if it is involuntary . . . or the product
of a manipulative ‘exploitation’ by the police of an earlier unconstitutional search or seizure.”
Kyer v. Commonwealth, 45 Va. App. 473, 483 (2005) (internal citations omitted) (quoting Wong
Sun v. United States, 371 U.S. 471, 488 (1963)). Consent given after an illegal detention may be
insufficient “if given after the consenter has been illegally detained.” Id. at 484.
In determining whether consent was “sufficiently attenuated from the [illegal detention] to purge its taint,” we have “considered, in addition to the voluntariness of the consent, the temporal proximity and the presence of intervening circumstances between the [illegality] and the consent, [the defendant’s] awareness of a right to withhold consent, and the purpose and flagrancy of the police misconduct.”
Davis v. Commonwealth, 37 Va. App. 421, 434 (2002) (alterations in original) (quoting
Commonwealth v. Ealy, 12 Va. App. 744, 755 (1991)). -9- Here, Johndrow and Fogarty obtained consent almost immediately after Martinez was
illegally seized, and there was no intervening event. There is no evidence that Martinez knew he
had the right to withhold consent, and no officer informed him of that right. Most importantly,
the officers on the scene took advantage of a medical emergency request to seize Martinez and
acquire his consent to search before he had been treated by EMTs. That flagrant misconduct
distorted the original purpose of the medical emergency, taking advantage of a person in need of
assistance.
Because the request for consent occurred almost immediately after the illegal seizure,
Martinez did not know he had the right to withhold consent, and the officers distorted the
purpose of the medical emergency to conduct a drug search, Martinez’s consent was coerced.
Thus, Martinez’s involuntary consent could not form the basis of a valid search, therefore the
search violated the Fourth Amendment.
III. Because the officers illegally seized Martinez and coerced his consent in violation of his Fourth Amendment rights, the exclusionary rule was properly applied in this case.
By granting Martinez’s motion to suppress, the circuit court applied the exclusionary
rule.2 While the court found in the initial hearing that no police misconduct had occurred, when
ruling on the motion to reconsider, it suppressed all evidence and testimony obtained from the
search of Martinez. Moreover, because this Court reviews the application of law de novo, we
review the application of the exclusionary rule with no deference to the circuit court. See Jones,
71 Va. App. at 380, 383.
2 The Commonwealth asserted its objection to the application of the exclusionary rule in its general request to note its exception to the court’s letter opinion. The court issued an order granting the motion to suppress and waiving endorsements pursuant to Rule 1:13. The order provided that “Counsel will have 10 days from entry of this Order to note objections to the [c]ourt’s ruling.” No objections were noted in the record. However, we assume without deciding that the Commonwealth preserved its objection by its argument on the purpose of suppression. - 10 - Officers Fogarty and Johndrow committed misconduct in illegally seizing Martinez and
coercing his consent when they knew, or should have known, that he was seized. Once a Fourth
Amendment violation has been established, “we must decide whether to apply the exclusionary
rule.” Id. at 383. The purpose of the exclusionary rule “is to deter future Fourth Amendment
violations.” Davis v. United States, 564 U.S. 229, 236-37 (2011). “To trigger the exclusionary
rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid by the justice system.” Collins,
297 Va. at 215 (quoting Herring v. United States, 555 U.S. 135, 144 (2009)). The goal of the
exclusionary rule is “to deter deliberate, reckless, or grossly negligent conduct.” Herring, 555
U.S. at 144. Therefore, we must determine under all the circumstances “whether a reasonably
well trained officer would have known that the search was illegal.” Id. at 145 (quoting United
States v. Leon, 468 U.S. 897, 922 n.23 (1984)). “[A]n officer can gain no Fourth Amendment
advantage through a sloppy study of the laws he is duty-bound to enforce.” Heien v. North
Carolina, 574 U.S. 54, 67 (2014).
The illegal seizure and intentional coercion of consent, in violation of Martinez’s Fourth
Amendment rights, constituted police misconduct. In responding to a call for a medical
emergency, Brenya requested Martinez’s license. While ostensibly still responding to the
medical emergency, all three officers decided to move across the street to an area away from
Martinez’s Uber. Without hearing Martinez’s name, Johndrow recognized Martinez from
special investigations experience. Once Brenya moved to the other side of the street with
Martinez’s Virginia license, Fogarty decided to ask Martinez for consent to search him. And
although purportedly still responding to the medical emergency, Fogarty intentionally asked to
search Martinez before any emergency personnel arrived because he suspected that Martinez
might have drugs and guns. At that point, Fogarty knew or should have known Martinez was
- 11 - seized under Richmond, but he chose to ask for consent anyway. The act of coercing consent
while Martinez was awaiting medical assistance, and while the officers themselves were
supposed to be aiding him, is police misconduct meriting the use of the exclusionary rule.
The purpose of the exclusionary rule is to deter police officers’ “deliberate, reckless, or
grossly negligent conduct.” Herring, 555 U.S. at 144. Obtaining consent to search an individual
when that individual has already been seized through the pretense of ensuring safety while
waiting for medical assistance is an attempt to gain a “Fourth Amendment advantage through a
sloppy study of the laws [an officer] is duty-bound to enforce.” Heien, 574 U.S. at 67.
Application of the exclusionary rule is necessary to deter this conduct in the future. Otherwise,
police officers will continue to ignore Royer, Richmond, and the long line of cases that followed.
When Brenya obtained Martinez’s Virginia license and did not return it, the officers
should have known that under these circumstances any consent they obtained would be
involuntary. At that moment, Martinez was seized for purposes of the Fourth Amendment.
Johndrow and Fogarty knew Brenya had the Virginia license because they saw Martinez hand it
to Brenya. Brenya ran a warrant check on Martinez while the other officers obtained Martinez’s
involuntary consent. It is objectively unreasonable for a police officer to not know that retaining
a driver’s license under the circumstances presented here constitutes a seizure of a suspect and
that the consent following that seizure would be involuntary. A long line of cases has
established precedent that is well known, or should be well known, to all police officers.3
CONCLUSION
The totality of circumstances resulted in the illegal seizure of Martinez: three officers
surrounded him, Brenya took his Virginia license and did not return it, and no officer told him he
3 See Royer, 460 U.S. at 504; Richmond, 22 Va. App. at 260-61; Perry, No. 2466-00-2, slip op. at 5-6; Allen, No. 2966-00-2, slip op. at 8; Cartwright, No. 1349-00-2, slip op. at 8-9; Morton, No. 0497-00-2, slip op. at 7-9. - 12 - was free to leave. Once Martinez was illegally seized, his consent to search was involuntary.
Because the exclusionary rule is necessary to deter such police misconduct in the future, the
circuit court’s decision is affirmed.
Affirmed.
- 13 -