Steven Phillip Cogan v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: May 27, 1997
• Docket: 1751962
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole Argued at Richmond, Virginia

STEVEN PHILLIP COGAN MEMORANDUM OPINION * BY v. Record No. 1751-96-2 JUDGE MARVIN F. COLE MAY 27, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HANOVER COUNTY Richard H.C. Taylor, Judge Bruce P. Ganey (Ganey & Laibstain, P.C., on brief), for appellant.

Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Steven Phillip Cogan (appellant) was convicted of driving

under the influence of alcohol (DUI). 1 Appellant contends on

appeal that he was unlawfully seized, in violation of the Fourth

Amendment, when Deputy Barton asked for his driver's license and

registration. In the process of appellant presenting those

documents to Barton, Barton observed evidence of appellant's

intoxication. Thus, appellant contends, the trial court erred in

refusing to suppress the evidence of his intoxication. We

disagree and affirm the conviction.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. 1 Appellant also was convicted of refusing to permit a sample of his blood or breath to be taken. This Court lacks jurisdiction to review that judgment. See Commonwealth v. Rafferty, 241 Va. 319, 323-24, 402 S.E.2d 17, 19-20 (1991). I.

On November 22, 1995, while on routine patrol, Hanover

County Deputy Sheriff D.S. Barton saw appellant's truck parked in

a loading zone in the parking lot of a Fas Mart convenience

store. On the area of the lot where appellant's truck was

parked, the store owner had painted, "NO PARKING - LOADING ZONE."

Barton parked his vehicle behind the truck and approached

appellant. Barton asked appellant for his driver's license and vehicle

registration. "During the course of [appellant] presenting" the

license and registration, Barton noticed a strong odor of alcohol

on appellant and observed that appellant had bloodshot eyes.

Based on his observations, Barton arrested appellant for DUI, in

violation of Code § 18.2-266.

The written statement of facts filed in lieu of a transcript

in this case recited that the following facts were uncontested:

(1) appellant was the operator of the truck, (2) appellant was

intoxicated, (3) appellant refused a blood or breath test, and

(4) there is no ordinance in Hanover County that designates

illegal parking a crime.

Appellant filed a motion to suppress the evidence on the

ground that Barton lacked reasonable articulable suspicion for

the seizure. The court denied the motion to suppress.

II.

In reviewing a trial court's denial of a suppression motion,

-2- we consider the evidence most favorably to the Commonwealth. The

burden is on the defendant to show the trial court's ruling

constituted reversible error. See Fore v. Commonwealth, 220 Va.

1007, 1010, 265 S.E.2d 729, 731 (1980).

"Fourth Amendment jurisprudence recognizes three categories

of police-citizen confrontations: (1) consensual encounters, (2)

brief, minimally intrusive investigatory detentions, based upon

specific, articulable facts, commonly referred to as Terry stops,

and (3) highly intrusive arrests and searches founded on probable

cause." Weschler v. Commonwealth, 20 Va. App. 162, 169, 455

S.E.2d 744, 747 (1995). A consensual encounter has no Fourth

Amendment implications unless it is "accompanied by such

'coercion or show of force or authority by the officer'" that a

reasonable individual would believe he must comply with the

officer's requests and may not leave. Greene v. Commonwealth, 17

Va. App. 606, 610, 440 S.E.2d 138, 140 (1994) (citation omitted).

Where an individual is seated in a parked vehicle, a request

by a police officer for a driver's license and registration does

not transform a consensual encounter into a seizure. See

Richmond v. Commonwealth, 22 Va. App. 257, 260-61, 468 S.E.2d

708, 709-10 (1996); see also Toliver v. Commonwealth, 23 Va. App.

34, 36, 473 S.E.2d 722, 723-24 (1996). In such circumstances, a

consensual encounter becomes an investigative detention only when

the officer receives the individual's license and does not return

it. See Richmond, 22 Va. App. at 261, 468 S.E.2d at 710

-3- (reasonable person would not believe he could terminate encounter

once officer retained license and returned to police car to run

record check). 2

III.

In this case, Deputy Barton saw appellant's truck only after

it was parked in the parking lot of the Fas Mart store. Barton's

approach of the truck and request for license and registration

did not constitute a seizure for Fourth Amendment purposes.

During appellant's presentation of the license and registration

to Barton, Barton observed the signs of appellant's intoxication.

Thus, when the seizure occurred, that is, when Barton received

the documents and retained them, he had at least reasonable, articulable suspicion to support the seizure. The deputy's

actions did not violate the Fourth Amendment, and the trial court

did not err in refusing to suppress the evidence.

Accordingly, we affirm the judgment of the trial court.

Affirmed.

2 Where an officer observes a defendant operating a vehicle and thus, under Code § 46.2-104, the driver is required to exhibit his license and registration upon police request, the request for such documents by the police constitutes a seizure. See Brown v. Commonwealth, 17 Va. App. 694, 697, 440 S.E.2d 619, 621 (1994).

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