                   COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Annunziata
Argued at Richmond, Virginia


JEROME LEE WOODSON, JR.
                                         MEMORANDUM OPINION * BY
v.   Record No. 1031-01-2                 JUDGE LARRY G. ELDER
                                              APRIL 30, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert W. Duling, Judge

          Gregory W. Franklin, Assistant Public
          Defender (Office of the Public Defender, on
          brief), for appellant.

          Marla Graff Decker, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Jerome Lee Woodson (appellant) appeals from his bench trial

conviction for possession of cocaine in violation of Code

§ 18.2-250.   On appeal, he contends the trial court erroneously

denied his motion to suppress because the officers detained him

without reasonable suspicion of criminal activity and because

the search which yielded the cocaine exceeded the scope of

appellant's consent.   We hold the encounter became a seizure

when the officer told appellant he had committed a criminal

offense by possessing an open container of alcohol.     Assuming

without deciding the seizure was objectively reasonable, the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
justification for the seizure ended when appellant poured out

the beer at the officer's request.      However, a reasonable person

in appellant's position would not have felt free to leave or to

decline the officer's request to search, and thus the seizure

continued.   Because the search was not supported by probable

cause and appellant's consent was tainted by the illegal

seizure, the search was unreasonable and violated the Fourth

Amendment.

     On appeal of the denial of a motion to suppress, we view

the evidence in the light most favorable to the Commonwealth,

granting to the evidence all reasonable inferences fairly

deducible therefrom.    Commonwealth v. Grimstead, 12 Va. App.

1066, 1067, 407 S.E.2d 47, 48 (1991).     "[W]e are bound by the

trial court's findings of historical fact unless 'plainly wrong'

or without evidence to support them."      McGee v. Commonwealth, 25

Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc).

However, we review de novo the trial court's application of

defined legal standards such as probable cause and reasonable

suspicion to the particular facts of the case.      See Ornelas v.

United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134

L. Ed. 2d 911 (1996).   We also review de novo the question

whether a person has been seized in violation of the Fourth

Amendment.   Reittinger v. Commonwealth, 260 Va. 232, 236, 532

S.E.2d 25, 27 (2000).



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     "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

stops, and (3) highly intrusive arrests and searches founded on

probable cause."     Wechsler v. Commonwealth, 20 Va. App. 162,

169, 455 S.E.2d 744, 747 (1995) (citation omitted).      "A seizure

occurs when an individual is either physically restrained or has

submitted to a show of authority."       McGee, 25 Va. App. at 199,

487 S.E.2d at 262.    "Whether a seizure has occurred . . .

depends upon whether, under the totality of the circumstances, a

reasonable person would have believed that he or she was not

free to leave."     Id. at 199-200, 487 S.E.2d at 262.   Relevant

factors under the "totality of the circumstances" analysis

include "the threatening presence of several officers, the

display of a weapon by an officer, some physical touching of the

person of the citizen, or the use of language or tone of voice

indicating that compliance with the officer's request might be

compelled."   United States v. Mendenhall, 446 U.S. 544, 554, 100

S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980) (emphases added).

     The Supreme Court applied these principles in Reittinger,

which involved facts similar to those in appellant's case.      In

Reittinger, two armed, uniformed deputies stopped the driver's

van "in a rural area in the nighttime."       Id. at 234, 237, 532

S.E.2d at 26, 27.    One deputy approached the driver while the

                                 - 3 -
other approached the passenger.     Id. at 234, 236, 532 S.E.2d at

26, 27.   When the deputy informed the driver that only one of

the van's headlights was illuminated, the driver showed the

deputy a new headlight and said he planned to install it the

following day.    Id. at 234, 532 S.E.2d at 26.   The deputy

decided against issuing a citation, gave the driver a verbal

warning, and told him he was "'free to go.'"      Id.    Immediately

thereafter, however, the deputy asked the driver whether he had

any illegal weapons or drugs in the vehicle, and the driver

responded there was nothing illegal in the van.         Id.   The deputy

then asked three times for permission to search the van while

the driver appeared to consult with the van's passengers.          Id.

Without responding expressly to the deputy's request, the driver

exited the van.    Id.   The deputy saw a "'large bulge'" in the

driver's pants pocket, conducted a pat-down in which he

determined the bulge was "hard" and might be a weapon, and

ordered the driver to remove the object, which proved to be a

pipe containing marijuana residue.       Id.

     The Court held

           [a]lthough Deputy Bolen had told Reittinger
           that he was free to go, we think that the
           events that transpired immediately
           thereafter would suggest to a reasonable
           person that just the opposite was the case.
           We do not think that a reasonable person,
           under the circumstances, would have
           considered that he was free to disregard the
           deputies and simply drive away. Therefore,
           we conclude, from our de novo review of the
           facts, that Reittinger was unlawfully seized

                                 - 4 -
            in violation of his Fourth Amendment rights
            . . . [and] that the trial court . . . erred
            in refusing to suppress the product of the
            unlawful seizure and search of Reittinger
            . . . .

Id. at 237, 532 S.E.2d at 28.

     Similarly, here, we hold as a matter of law, under the

totality of the circumstances, that a reasonable person in

appellant's position would have believed he was not free to

leave or to decline Officer Davenport's request to search.

Although the vehicle appellant occupied was parked when Officer

Davenport approached it, Davenport nevertheless seized appellant

when he told appellant that his actions in possessing an open

container of beer were illegal and asked appellant to pour the

beer out.    See McGee, 25 Va. App. at 200, 487 S.E.2d at 262

("[W]hen a police officer confronts a person and informs the

individual that he or she has been specifically identified as a

suspect in a particular crime which the officer is

investigating, that fact is significant among the 'totality of

the circumstances' to determine whether a reasonable person

would feel free to leave.").    Thus, regardless of whether

appellant's possession of the open container violated a statute

or ordinance, 1 Davenport's actions constituted a seizure.

Davenport's statement that he would not issue appellant a


     1
       We assume without deciding that appellant's possession of
the open container in a private vehicle did not constitute a
violation of a statute or ordinance.


                                - 5 -
citation for the offense, rather than removing the coercive

impact of the encounter, served to heighten it.    A reasonable

person in appellant's position would have believed that this

continued cooperation with Officer Davenport's "requests" was

required in order for him to avoid receiving a citation for the

alcohol offense.   See Florida v. Bostick, 501 U.S. 429, 438, 111

S. Ct. 2382, 2388, 115 L. Ed. 2d 389 (1991) ("[T]he 'reasonable

person' test presupposes an innocent person.").

     The justification for the seizure ended when appellant

poured out his beer and Officer Davenport opted not to issue a

citation.   Nevertheless, as in Reittinger, the seizure continued

because a reasonable person would not have felt free to leave

when Officer Davenport, who was accompanied by a second officer

during a nighttime stop, asked first for identification and then

for permission to search appellant's person.    See Reittinger,

260 Va. at 236-37, 532 S.E.2d at 27-28.   The facts demonstrating

an ongoing seizure in appellant's case are even stronger than

those in Reittinger because Officer Davenport never told

appellant he was free to leave.

     "Evidence obtained as a direct result of an

unconstitutional search or seizure is plainly subject to

exclusion."   Segura v. United States, 468 U.S. 796, 804-05, 104

S. Ct. 3380, 3385, 82 L. Ed. 2d 599 (1984).    Only three

exceptions to this rule exist:    "(1) evidence attributed to an

independent source; (2) evidence where the connection has become

                                 - 6 -
so attenuated as to dissipate the taint; and (3) evidence which

inevitably would have been gained even without the unlawful

action."   Warlick v. Commonwealth, 215 Va. 263, 266, 208 S.E.2d

746, 748 (1974).

     Here, no evidence establishes an independent source or

inevitable discovery.   Further, no evidence indicates that the

connection between the illegal seizure and the consent was so

attenuated as to dissipate the taint.    Appellant purportedly

consented to be searched under circumstances in which a

reasonable person would not have felt free to leave or to

withhold consent.   No evidence indicated Officer Davenport told

appellant that he was free to go or to refuse Davenport's

request to search his person.   Thus, the connection between the

illegal seizure and the consent was strong, and we hold the

evidence failed to prove a purging of the primary taint.

     For these reasons, we hold the trial court erroneously

denied appellant's suppression motion.   Therefore, we reverse

appellant's conviction and remand for further proceedings

consistent with this opinion if the Commonwealth be so advised.

                                             Reversed and remanded.




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