                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Petty and Senior Judge Bumgardner
UNPUBLISHED


              Argued at Chesapeake, Virginia


              TYRONE PARKER
                                                                             MEMORANDUM OPINION* BY
              v.      Record No. 1667-13-1                                JUDGE RUDOLPH BUMGARDNER, III
                                                                                  AUGUST 26, 2014
              COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                              Everett A. Martin, Jr., Judge

                                J. Barry McCracken, Assistant Public Defender, for appellant.

                                Benjamin H. Katz, Assistant Attorney General (Mark R. Herring,
                                Attorney General, on brief), for appellee.


                      Tyrone Parker appeals his conviction of possession of more than one half ounce but less

              than five pounds of marijuana with the intent to distribute, Code § 18.2-248.1. He contends he was

              illegally detained before being searched incident to his arrest. Finding the trial court did not err in

              denying his motion to suppress, we affirm.

                      “In reviewing a trial court’s denial of a motion to suppress, ‘[t]he burden is upon [the

              defendant] to show that th[e] 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 (1980)). We review de novo the questions of reasonable suspicion

              and probable cause, but we “review findings of historical fact only for clear error and . . . give

              due weight to inferences drawn from those facts by resident judges and local law enforcement

              officers.” Ornelas v. United States, 517 U.S. 690, 699 (1996).

                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        Officers Finn and Ortiz were on patrol in a marked police car across the street from a

Norfolk Regional Housing Authority (NRHA) public housing complex when they observed the

defendant ride by on a bicycle. Finn knew the defendant by his nickname and asked if he would

stop to talk with them. The defendant turned around and approached the driver’s side of the

police cruiser. Finn exited the vehicle, asked the defendant for identification, and explained he

was going to issue him a notice banning him from all NRHA property. Finn had been working

as a community resource officer for the complex and had received several complaints about the

defendant. Finn completed a “ban notice,” gave the defendant a copy, and returned his

identification.

        Finn then asked the defendant if he had a license for his bicycle. When the defendant

stated that he did not, Ortiz asked him if he could check the serial number on the bicycle to

determine if it had been reported stolen. The defendant agreed and got off the bicycle when

Ortiz stated he would need to look under it. Ortiz took the serial number from the bottom of the

bicycle and learned it had been reported stolen. He then arrested the defendant for the

possession of the stolen bicycle, handcuffed him, and searched him incident to the arrest. Ortiz

found twenty-six individually wrapped bags of marijuana and a large amount of currency on

him. The defendant admitted the marijuana was his and that he intended to distribute it.

        The defendant moved to suppress the drugs and his incriminating statements. He

maintained he was seized when Finn began the process to ban him from NRHA properties. The

trial court ruled that even if writing out the ban notice constituted a seizure once the notice was

completed and given to the defendant with his identification “he was then free to leave.” The

trial court concluded the rest of the encounter was consensual. It denied the motion to suppress.

        While we agree with the trial court’s finding that the defendant was engaged in a

consensual encounter with the police after the issuance of the ban notice, we also conclude the

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defendant was never seized before his arrest for possession of a stolen bicycle. “Police officers

do not violate the Fourth Amendment . . . when the person’s encounter with the police is

consensual.” Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003). “In order

for a seizure to occur, an individual must be under some physical restraint by an officer or have

submitted to the show of police authority.” Thomas v. Commonwealth, 24 Va. App. 49, 54, 480

S.E.2d 135, 137 (1997) (en banc) (citing California v. Hodari D., 499 U.S. 621, 628 (1991)).

       Addressing nearly identical facts, the Supreme Court of Virginia concluded that a seizure

does not occur when an individual is briefly detained by law enforcement officers while they

notify him he is banned from a property. See Jones v. Commonwealth, 279 Va. 521, 530, 690

S.E.2d 95, 100 (2010).

       In this case, the trial judge did not rule on the question of whether the defendant was

seized while the officer completed the ban notice. Indeed, at trial neither side cited Jones as

important precedent to the facts developed at the suppression hearing. The trial court prudently

avoided ruling on a legal issue not fully developed by the parties and ruled on an alternative

point that fully addressed the defendant’s motion to suppress; regardless of the possibility of an

earlier seizure, any seizure would have ended before the defendant consented to the search.

       The record of this case contains all evidence necessary to rule on the issue of whether the

defendant was ever seized during his encounter with the police. This ground for affirmance was

before the trial court. “The factual record is complete; the conclusion to be drawn from these

facts . . . may be decided on this record.” Perry v. Commonwealth, 280 Va. 572, 581, 701 S.E.2d

431, 436 (2010). “[We] independently determine whether the manner in which the evidence was

obtained satisfies the Fourth Amendment.” Jones, 279 Va. at 527, 690 S.E.2d at 99.

       Jones noted:

               [T]he deputies did not demand that Jones accompany them to the
               rental office. Jones was merely asked if he would accompany the
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               deputies, and he was cooperative with their request. There was no
               evidence that either deputy brandished his weapon, physically
               touched Jones, used a tone of voice, language or body language
               indicating that Jones was not free to leave, or that compliance with
               their request to accompany them to the rental office was
               compelled. There was no evidence of repeated requests by the
               deputies. Although the deputies did not affirmatively inform Jones
               that he was free to leave, that fact alone is not sufficient to remove
               the consensual nature of the encounter.

Id. at 529, 690 S.E.2d at 100. The Court specifically held the facts surrounding the detention

supported the conclusion it did not amount to a seizure.

       We also conclude the defendant in this case was not seized during the encounter with the

police before they obtained probable cause to arrest him for the possession of the stolen bicycle.

The record does not suggest the defendant was restrained or subjected to a “show of police

authority.” He voluntarily approached the officers after they asked to speak to him, and Finn

remained three to four feet away from the defendant as they discussed his activities at the

housing complex. Finn spoke with the defendant only long enough to examine his identification

and issue a notice banning him from NRHA property. After Finn returned the defendant’s

identification along with the ban notice, he asked the defendant about his bicycle license, but did

not restrain him in any manner. Ortiz asked the defendant if he could run the serial number on

the bicycle, and the defendant readily agreed. Nothing in the officers’ words or actions

suggested the defendant was not free to leave. As in Jones, the fact that the officers did not

inform the defendant that he was free to leave did not transform the consensual encounter into a

seizure.

       The defendant stresses that Harris controls. In that case an initial lawful stop became

unlawful because a reasonable person would not have known the initial seizure had ended and

would not have felt free to leave. Harris, 266 Va. at 33, 581 S.E.2d at 210. In this case, the

initial encounter with the police never was a seizure. There was no subsequent, post-seizure

                                                -4-
encounter as in Harris. This case does not pose an issue of whether police extended a lawful

detention into an unlawful seizure.

       The totality of circumstances demonstrates that the encounter was consensual until the

police learned the bicycle had been reported stolen and arrested the defendant. The trial court

properly denied the motion to suppress. Accordingly, we affirm.

                                                                                        Affirmed.




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