David Lee Jasper v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 28, 1999
• Docket: 1833982
• Status: Unpublished

Opinion

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"

- 2 - 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).

- 3 - 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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