                                              COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Alston and Russell
UNPUBLISHED


              Argued by teleconference


              COMMONWEALTH OF VIRGINIA
                                                                             MEMORANDUM OPINION* BY
              v.      Record No. 1452-17-4                                  JUDGE WESLEY G. RUSSELL, JR.
                                                                                  JANUARY 23, 2018
              KYLE EMERSON YEN


                                     FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                                  John M. Tran, Judge

                                David M. Uberman, Assistant Attorney General (Mark R. Herring,
                                Attorney General, on brief), for appellant.

                                Zachary A. Deubler (Whitestone Young, P.C., on brief), for
                                appellee.


                      Kyle Emerson Yen was indicted for violating Code § 18.2-250 for his possession of cocaine

              that was discovered after a traffic stop. In the proceedings below, Yen sought to suppress the

              cocaine that was found, arguing that the search of his person that led to its discovery violated the

              Fourth Amendment. The circuit court granted Yen’s motion to suppress, and the Commonwealth,

              pursuant to Code § 19.2-398(A)(2), appeals that ruling. For the reasons that follow, we reverse the

              circuit court’s ruling and remand the matter for further proceedings consistent with this opinion.




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                           BACKGROUND1

        Around 10:00 p.m. on July 4, 2016, Officer Michael Valentin, with activated lights, initiated

a traffic stop of Yen’s vehicle after Yen disregarded a red traffic light and proceeded through an

intersection. When Valentin knocked on Yen’s window, Yen jumped and let out a muffled scream.

Valentin described the encounter as follows: “During our initial contact, I observed the driver to be

fidgety, twitchy, and sweating.” Valentin asked Yen where he was going and asked about Yen’s

driving and criminal records. Yen answered the officer’s questions and informed him that his

passenger had been drinking and that they were headed to a bar. Valentin obtained Yen’s driver’s

license and registration and returned to his police cruiser.

        In the police cruiser, Valentin initiated a driver’s transcript check and a criminal records

check. He also requested “backup.”

        While Valentin was conducting the transcript and records check, the backup officer arrived.

The backup officer parked behind Valentin and approached Yen’s passenger. The backup officer

informed Valentin that he was familiar with the passenger from a prior encounter. The backup

officer told Valentin that he had observed the passenger attempt to dispose of a bag of marijuana.

Ultimately, the passenger was charged with possession of marijuana.

        Valentin completed the transcript and records checks. There were no outstanding warrants

for Yen’s arrest, and Valentin characterized Yen’s driving record as “fair.” Valentin decided to

issue a “warning ticket” for the red light infraction.

        Valentin left his police cruiser and approached Yen’s vehicle. He detected the odor of

alcohol coming from the vehicle and asked Yen to step out of the vehicle. Valentin explained that


        1
          The parties submitted the matter to the circuit court based upon stipulations and the
transcript of testimony from the arresting officer, Officer Valentin, at the preliminary hearing.
As a result, Yen concedes on brief that “the facts are not in dispute on appeal.” Accordingly, we
recite the facts as reflected by the parties’ stipulations and in the preliminary hearing testimony
of Officer Valentin, accepting the stipulations and testimony as true.
                                                   -2-
when he detects an odor of alcohol from a car containing more than one person, he “separate[s] the

driver from the other occupant[]” to enable him to determine if the odor of alcohol is coming from

the driver.

        Yen got out of the vehicle, and Valentin returned his license and registration. Valentin then

issued the warning ticket for the red light infraction and asked Yen if he had consumed any

alcoholic beverages that day. Yen responded that he had consumed a beer approximately thirty

minutes before Valentin had stopped him.

        Valentin asked if Yen would perform field sobriety tests. Yen agreed and performed

multiple tests. Valentin indicated that Yen performed sufficiently well on the tests that he did not

have a basis for charging Yen with driving under the influence. When Yen’s counsel eventually

questioned Valentin regarding what Valentin communicated to Yen once the field sobriety tests

were completed, the following colloquy occurred:

               Counsel:        Before you asked him if he would consent to the
                               search of the vehicle, did you tell him he was free to
                               leave?

               Valentin:       Forgive me. Yes. I told Mr. Yen that I had
                               concluded my tests; we weren’t going to have him
                               attempt anymore; I did not believe that he was
                               intoxicated.

               Counsel:        All right. But you didn’t tell him, with the words I
                               used, You’re free to leave; you can go?

               Valentin:       Not to my memory. At that time he had had his
                               license and he was issued a warning ticket for the
                               initial infraction . . . and I told him verbally that the
                               evaluation for DUI was over.

               Counsel:        All right. You've had an opportunity to look at your
                               notes of the offense or your report of what
                               happened; is that correct?

               Valentin:       Yes.



                                                 -3-
               Counsel:        Would you agree that there is nothing in your notes
                               that reflect that you told him he was free to leave?

               Valentin:       I would say that’s correct.[2]

       After completing the DUI investigation, Valentin asked Yen to consent to a search of his

vehicle. Yen assented to the search of the vehicle. Before beginning a search of the vehicle,

Valentin asked Yen if he had any weapons. Yen responded that he did not have any weapons, and

Valentin then asked Yen to raise his shirt.

       Yen raised his shirt, revealing a plastic bag containing a white powder. Valentin testified

that, based on his training and experience, he believed the bag contained “an eight ball of cocaine.”

He informed Yen he was being detained so that he could investigate Yen’s possible possession of

narcotics. Valentin placed Yen in handcuffs and read him Miranda warnings. Yen confirmed that

the substance in the bag was cocaine.

       Valentin testified that Yen’s initial nervousness made him suspicious that Yen possessed

illegal drugs. He conceded, however, that he did not have a particular drug or crime in mind. He

also conceded that he did not have a reason to believe Yen was armed when he asked if Yen had a

weapon, but that he asked the question to ensure his safety during his planned search of the vehicle.

       Yen filed a motion to suppress the cocaine; citing Rodriguez v. United States, 135 S. Ct.

1609 (2015), Yen argued that the stop and resulting detention, although initially valid, became

unlawful because it was “prolonged beyond the time reasonably required to complete the mission at

hand.” Specifically, Yen contended that the police “did initiate a lawful stop,” but “that stop legally

ended when Officer Valentin[] made this determination that there was insufficient proof for a DUI.”


       2
         Although Valentin answered “yes” in responding to the question of whether he told Yen
he was free to leave, the remainder of his testimony strongly suggests that, although he told Yen
many things, Valentin never used words to the effect that Yen was “free to go.” Because we
view the evidence in the light most favorable to Yen as the prevailing party below, see Bland v.
Commonwealth, 66 Va. App. 405, 412, 785 S.E.2d 798, 801 (2016), we proceed with the
understanding that Valentin never expressly told Yen he was free to go.
                                                -4-
Yen argued that Valentin lacked reasonable suspicion to extend the detention to search the car or

Yen and that, in light of the totality of the circumstances, his consent to the search of his person and

car was invalid.

        In response, the Commonwealth argued that the detention of Yen to allow investigation of

both the initial traffic infraction and the suspicion of DUI was clearly lawful, but ended when

Valentin informed Yen that “the evaluation for DUI was over.” According to the Commonwealth,

the interactions from that point forward, including the search of Yen’s person, were consensual, and

thus, did not implicate the Fourth Amendment. The Commonwealth maintained that Rodriguez was

easily distinguishable because Rodriguez had refused to consent to the subject search and was

detained to allow the non-consensual search to occur. Alternatively, the Commonwealth contended

that Valentin had reasonable articulable suspicion that Yen may have possessed illegal drugs based

upon Yen’s nervous reaction when Valentin first approached the car.

        The circuit court heard the motion to suppress on August 18, 2017. As noted above, no ore

tenus evidence was presented; the parties stipulated to the evidence, including the preliminary

hearing testimony of Valentin.

        From the bench, the circuit court initially denied the motion to suppress, but nevertheless

reserved final judgment, stating that it would “take this afternoon to reread” the cases submitted by

the parties and inform the parties if it reconsidered its decision. The circuit court determined that

the question was “should the officer have not asked that one additional series of questions after

being satisfied in his mind that the offense[s] that he believed the defendant had committed, the

defendant [in fact] had not committed. So does [the officer] have an obligation to really shut down

and pack up his gear and vacate the scene or can he do one more question[?]”

        Later, “upon a closer examination of the transcript” and contrary to its earlier decision, the

circuit court entered an order granting Yen’s motion to suppress. In reconsidering the issue, the

                                                  -5-
circuit court noted that the issue presented was “whether the discovery of contraband on the

defendant’s person resulted from a consensual search, or alternatively, was supported by reasonable

suspicion.”

        The circuit court found that the search was not consensual. Citing Ohio v. Robinette, 519

U.S. 33 (1996), the circuit court stated that, “following a lawful traffic stop, a police officer may

engage in additional questioning as long as the continued encounter is consensual[,]” but found that

under the circumstances of this case “a reasonable person would not feel that he was free to leave

when the request for the search of the car was made.” In making this decision, the circuit court

referenced “[t]he fact that [Yen] was still engaged in conversation with the officer, the presence of

the back-up officers and the absence of a clear directive from the officer that the defendant was free

to leave[.]”3

        In addition, the circuit court explicitly found that “the fact that [Yen] emitted a muffled

scream when first approached by the officer, who had knocked on the car’s window . . . and [Yen’s]

being sweaty, fidg[e]ty and twitchy does not provide sufficient reasonable suspicion to conduct a

pat down.” Finding that the suspicious behavior mostly appeared in connection with the initial stop,

the circuit court further concluded that, “[t]he officer’s subsequent interaction did not produce any

additional evidence except for the absence of sufficient cause to believe [Yen] was intoxicated.” In

summary, the circuit court stated, “[f]or reasonable suspicion to exist, more than nervousness must

be present. While an officer may rely on escalating information, the absence of positive evidence is

not the equivalent of the additional information that would support a Terry search after a traffic stop

had been concluded.”




        3
          Although the circuit court’s order refers to the presence of “back-up officers,” the record
reveals the presence of only one backup officer. Yen conceded at oral argument in this Court that
only one backup officer was present.
                                                 -6-
       Ultimately, by order dated August 18, 2016, the circuit court granted Yen’s motion to

suppress and this appeal followed. On appeal, the Commonwealth contends that

                I. The [c]ircuit [c]ourt’s holding that[ ] “[a]fter a significant period
                of detention, an officer must do more than inform a defendant that he
                is not being charged with an offense” is plainly wrong and is
                unsupported by the Fourth Amendment of the Constitution. The
                [circuit] court erred as a matter of law when it concluded that “after a
                significant period of detention, an officer must do more than inform a
                defendant that he is not being charged with an offense.” The
                Supreme Court of the United States and the Supreme Court of
                Virginia have expressly rejected such an approach.

                II. The [c]ircuit [c]ourt erred in granting the defendant’s motion to
                suppress and in finding that a reasonable person in the defendant’s
                position would not have felt free to leave because its finding relied
                on an erroneous finding of fact and did not account for the totality of
                the circumstances. The [circuit] court erred in concluding that a
                reasonable person in Yen’s position would not have felt free to leave,
                as it failed to consider the totality of the circumstances and relied, in
                part, upon an erroneous finding of fact.

                                             ANALYSIS4

       The Fourth Amendment protects “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures . . . .” U.S. Const. amend.

IV. “Generally, searches conducted without a warrant are per se unreasonable and, therefore,

unlawful under the fourth amendment.” Commonwealth v. Ealy, 12 Va. App. 744, 751, 407 S.E.2d

681, 686 (1991) (quoting Derr v. Commonwealth, 6 Va. App. 215, 219, 368 S.E.2d 916, 918

(1988)); accord Katz v. United States, 389 U.S. 347, 357 (1967). Accordingly, “[a] warrantless

search by the police is invalid unless it falls within one of the narrow and well-delineated exceptions

to the warrant requirement . . . .” Flippo v. West Virginia, 528 U.S. 11, 14 (1999) (citing Katz, 389

U.S. at 357).


       4
         On appeal, the Commonwealth does not challenge the circuit court’s determination that
Valentin lacked reasonable articulable suspicion to search either the vehicle or Yen once the
investigation for DUI had been completed. Accordingly, our review is limited to the issue of
whether Yen’s consent to the search of his car and person was valid.
                                                -7-
        Searches conducted with a person’s consent are such an exception. We repeatedly have

recognized “the general rule that a search authorized by consent is wholly valid.” Matthews v.

Commonwealth, 65 Va. App. 334, 342, 778 S.E.2d 122, 126 (2015) (internal quotation marks

and citations omitted). A search conducted with a person’s consent is invalid “if it is

involuntary, or is the product of a manipulative ‘exploitation’ by the police of an earlier

unconstitutional search or seizure.” Id. (internal quotation marks and citations omitted).

        Here, it is undisputed that Yen “consented” to the search. When Valentin asked Yen if he

would consent to a search of his vehicle, Yen said yes. When Valentin asked Yen to raise his

shirt, Yen did so, indicating his consent. The issue before the circuit court and before us on

appeal is whether Yen was subject to an impermissible seizure when he consented, rendering his

consent involuntary, and hence, invalid.

        The parties agree that, if, at the time he consented to the search, Yen was no longer

seized, his consent was valid under these circumstances. The parties also agree that, if, at the

time he consented to the search, Yen remained subject to a seizure, his consent, and hence the

subsequent search, was invalid. Cf. Florida v. Royer, 460 U.S. 491, 501 (1983) (recognizing that

“statements given during a period of illegal detention are inadmissible even though voluntarily

given if they are the product of the illegal detention and not the result of an independent act of

free will”).

        We apply a de novo standard of review in determining “whether a person has been seized

in violation of the Fourth Amendment.” Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d

206, 209 (2003). In conducting such review, we defer to the circuit court’s finding of historical

fact. Id. Here, however, the parties stipulated to the evidence below and agree that there are no

facts in dispute. Accordingly, the circuit court did not make factual findings to which we must




                                                -8-
defer, but rather, addressed the legal question of whether, given the undisputed facts, Yen was

“seized” when he consented to the search.5

       The Commonwealth agrees with Yen that he was seized for Fourth Amendment purposes

when Valentin pulled him over for the red light infraction and when Valentin conducted his DUI

investigation. Where the Commonwealth and Yen differ is whether the seizure ended before

Yen consented to the search of his person.

       Consistent with the Fourth Amendment, a police officer’s interaction with a citizen that

begins with a seizure can evolve into a consensual encounter. Ohio v. Robinette, 519 U.S. 33

(1996). In Robinette, an officer pulled Robinette over for speeding and demanded Robinette’s

driver’s license. Id. at 36. After taking the license from Robinette, the officer returned to his

patrol car and ran a records check, which revealed that Robinette had no prior violations. Id.

The officer then returned to Robinette’s car and asked him to step out of the car. Id. Robinette

complied, and the officer returned Robinette’s license and issued a warning for speeding. Id.

The officer then said: “‘One question before you get gone: Are you carrying any illegal

contraband in your car? Any weapons of any kind, drugs, anything like that?’” Id. After

Robinette responded in the negative, the officer asked for consent to search the car, which

Robinette granted. Id. The resultant search led to the discovery of illegal drugs. Id.

       Robinette moved to suppress the drugs found in the car, arguing that his consent was

invalid. The Ohio Supreme Court agreed, holding that, before an encounter that begins with a

seizure can evolve into a consensual encounter, constitutional guarantees “require[] that citizens

stopped for traffic offenses be clearly informed by the detaining officer when they are free to go



       5
          The closest that the circuit court came to making a factual determination was its
statement that it “assumed no issue with [the] credibility” of Valentin. Given this and the
parties’ stipulations regarding Valentin’s testimony, Valentin’s testimony must be accepted as
true for purposes of this appeal.
                                                 -9-
after a valid detention, before an officer attempts to engage in a consensual interrogation.” Id.

(citation omitted). The Ohio Supreme Court went on to hold that, once an officer has completed

the investigation for which he validly has seized someone, “‘[a]ny attempt at consensual

interrogation must be preceded by the phrase “At this time you legally are free to go” or by

words of similar import.’” Id. (citation omitted).

       The United States Supreme Court reversed, rejecting a reading of the Fourth Amendment

that required such a “per se rule.” Id. at 39-40. The United States Supreme Court reasoned that

it was “unrealistic to require police officers to always inform detainees that they are free to go

before a consent to search may be deemed voluntary” and held that the “Fourth Amendment test

for a valid consent to search is that the consent be voluntary, and voluntariness is a question of

fact to be determined from all the circumstances.” Id. at 40 (internal quotation marks and

citation omitted).

       This facts and circumstances approach to whether a reasonable person would feel free to

leave after an initial, lawful seizure can be difficult to apply. The two Virginia cases most like

the instant case regarding whether an initial seizure has evolved to a consensual encounter

demonstrate the difficulty. Although decided on the same day, our Supreme Court reached

different results in each case.

       In Harris, a police officer initiated a stop of the truck Harris was driving because the

truck had a broken license plate light. 266 Va. at 30, 581 S.E.2d at 208. Harris had a passenger

with him. Shortly after the truck was stopped, a second police officer arrived on the scene. Id.

       The officer asked for Harris’ driver’s license and the vehicle registration. Id. Harris told

the officer that he knew the truck had been stopped for the broken license plate light, but did not

produce a driver’s license; instead, he gave the officer his social security card. Id.




                                                - 10 -
       The officer instructed Harris to get out of the truck and asked him questions to verify

Harris’ identity. Id. Using a hand-held radio, the officer confirmed Harris’ identity and that,

although Harris did not have it with him, Harris had a valid driver’s license. Id. The officer

returned the social security card to Harris. Id. at 31, 581 S.E.2d at 208.

       “The officer then asked Harris if he had anything illegal in the truck or on his person.

Harris replied that he did not.” Id. The officer then asked Harris if he could search the truck,

and Harris consented. The officer performed a pat down of Harris and then placed him in the

patrol car, while the truck’s passenger was removed from the truck and told to stand next to the

patrol car. Id. In the resulting search, the officer “found several stolen items,” which led to

Harris being charged with “two counts of grand larceny.” Id.

       The officer conceded that, at the time, he asked for Harris’ consent to search the truck,

“he had no reasonable articulable suspicion that either Harris or his passenger ‘had done

anything illegal’” other than the potential traffic offenses. Id. The officer testified he had

decided not to cite Harris for a traffic infraction “and that Harris was free to go.” Prior to asking

for consent to search the truck, the officer did not inform Harris that he would not be cited for a

traffic offense or that he was free to go. Id.

       Harris moved to suppress the items discovered as a result of the search, arguing that his

consent was invalid because it stemmed from his illegal detention. Id. at 31, 518 S.E.2d at

208-09. The trial court found the search lawful, concluding that Harris’ consent had been

obtained appropriately. Id. at 31, 518 S.E.2d at 209. Harris then appealed that finding. Id.

       In applying the facts and circumstances test, the Supreme Court recognized that

               [v]arious factors have been identified as relevant in determining
               whether a seizure has occurred, including the threatening presence
               of a number of police officers, the display of weapons by officers,
               physical contact between an officer and a citizen, an officer’s
               language or tone of voice compelling compliance, the retention of

                                                 - 11 -
               documents requested by an officer, and whether a citizen was told
               that he or she was free to leave.

Id. at 32, 581 S.E.2d at 209.

       After reviewing all of the factors, the Supreme Court determined “that a reasonable

person would not have known that the investigation of the traffic offense had terminated and,

thus, would not have felt free to disregard the officer’s questions or have felt free to leave.” Id.

at 33, 581 S.E.2d at 210. Accordingly, the Supreme Court concluded that when the officer

“began questioning Harris about possession of contraband, the encounter was not consensual and

Harris was seized for purposes of the Fourth Amendment . . .” and that the evidence should have

been suppressed. Id. Central to the Supreme Court’s conclusion was that “Harris knew he had

committed a traffic violation and knew he had not complied with the officer’s request for his

driver’s license and vehicle registration” and “[t]he officer did nothing to indicate to Harris that

he was no longer subject to detention for a traffic violation.” Id.

       On the same day, the Supreme Court decided Dickerson v. Commonwealth, 266 Va. 14,

581 S.E.2d 195 (2003), finding that Dickerson’s consent to search that was obtained after he had

been stopped for a traffic violation was valid because a reasonable person in his position would

have felt free to go. Specifically, a law enforcement officer initiated a traffic stop of the vehicle

Dickerson was driving for speeding and failure to yield the right of way. Id. at 16, 581 S.E.2d at

196. After the initial stop, a second officer arrived and parked his car behind the first officer’s

vehicle. Id.

       When the first officer approached Dickerson’s vehicle, he detected an odor of alcohol

emanating from Dickerson. Id. As a result, the officer had Dickerson step out of the car and

perform field sobriety tests. Id. After the tests had been completed, the officer decided not to

charge Dickerson with an alcohol related offense and informed Dickerson that he was free to go,

but that he might be subpoenaed for his previous failure to yield the right of way. Id.
                                                - 12 -
       As Dickerson began getting back into his car, the officer asked if there was anything in

the car the officer should know about, including drugs. Id. When Dickerson responded that

there was not, the officer asked Dickerson if he smoked marijuana. Id. Dickerson responded

that he did, but not while he was driving; Dickerson then volunteered that there were some

“roaches” in the car’s ashtray. Id.

       Although Dickerson refused to consent to a search of the car, he provided the contents of

the ashtray to the officer and identified the contents as used marijuana cigarettes. Id. A

subsequent search of the car led to the discovery of “three plastic bags of cocaine and a plastic

box containing scales under the driver’s side floormat . . . [and] several additional plastic bags of

cocaine and another set of scales” in the trunk. Id. at 17, 581 S.E.2d at 196.

       Charged with possession of cocaine with the intent to distribute, Dickerson moved to

suppress the evidence recovered from the search of his car, arguing that his apparently voluntary

act of providing the marijuana cigarettes from the car’s ashtray to the officer stemmed from the

officer’s impermissible questioning of him after the purpose of the initial seizure, the traffic stop,

had dissipated. Id. at 17, 581 S.E.2d at 196-97. According to Dickerson, a reasonable person in

his position would not have felt free to go, and therefore, his apparently voluntary action was the

involuntary result of the continuation of his seizure in violation of his Fourth Amendment rights.

Id. at 17-18, 581 S.E.2d at 197.

       Reviewing all of the facts and circumstances, including the number of officers present,

the officer’s statement that Dickerson was free to go, and Dickerson’s response, the Supreme

Court concluded that “[t]he events of the original encounter resulting in Dickerson’s initial

detention and release were complete and the ensuing events constituted a new, and consensual,

encounter.” Id. at 18, 581 S.E.2d at 197. Accordingly, the Supreme Court concluded that

Dickerson’s actions were consensual and that the evidence should not be suppressed.

                                                - 13 -
       The similarities between Dickerson and Harris are manifest. Both cases involved a traffic

stop initiated by one officer who was soon joined by a backup officer. The traffic stops were

both initiated by the officer activating his emergency lights and causing the defendant to pull

over in response. There is no indication that any of the officers displayed a weapon (other than

simply wearing one) prior to the request for consent. Cf. United States v. Drayton, 536 U.S. 194,

205 (2002) (“The presence of a holstered firearm thus is unlikely to contribute to the

coerciveness of the encounter absent active brandishing of the weapon.”). In each case, there

does not appear to have been any significant physical contact between the officer and the

defendant prior to the request for consent. In both cases, the officer had returned identification

documents to the defendant prior to asking additional questions.

       The only difference of any import is what the officers communicated about the status of

the respective investigations. The officer effectively informed Dickerson that the

investigation/seizure was over when the officer told Dickerson that he was free to go, but might

be subpoenaed for his previous failure to yield the right of way. Dickerson, 266 Va. at 16, 581

S.E.2d at 196. In contrast, the officer not only failed to tell Harris he was free to go, “[t]he

officer did nothing to indicate to Harris that he was no longer subject to detention for a traffic

violation.” Harris, 266 Va. at 33, 581 S.E.2d at 210.

       Applying the logic of these cases to the instant case reveals that Yen’s encounter with the

officer falls somewhere in between the two. Although the case shares the similarities of

Dickerson and Harris regarding the initial traffic stop, the use of emergency lights to effectuate




                                                - 14 -
that stop,6 the display of weapons by the officer, the arrival of a backup officer, the lack of any

significant physical contact, and the return of all identifying documents, it differs from both in

what the officer communicated to Yen at the end of the initial investigation.

       Unlike the circumstances in Dickerson, the officer never expressly informed Yen he was

free to leave. However, unlike the situation in Harris, Yen was aware that the officer had

concluded his investigation. Prior to seeking consent to search, the officer had given Yen the

warning ticket for running the red light and informed Yen that he had sufficiently completed the

field sobriety tests, that the officer did not believe Yen was intoxicated, and “that the evaluation

for DUI was over.”

       We find that this case is closer to Dickerson than to Harris. Because the officer indicated

to Yen that the investigations related to the initial seizure were over, the officer validly obtained

Yen’s consent to search both his car and his person. Accordingly, the circuit court erred in

granting Yen’s motion to suppress.

       To hold otherwise effectively would require an officer to inform a citizen explicitly and

expressly that, not only had the initial investigation come to an end, but that the citizen was free

to go. Although such a bright line rule would be far easier to apply and may better reflect how a

citizen might normally interact with a police officer in these situations, such a resolution is

foreclosed by the United States Supreme Court’s decision in Robinette, which explicitly and

expressly rejected just such an approach. See also Harris, 266 Va. at 33, 581 S.E.2d at 210 (“The



       6
          Yen places great emphasis on the use of emergency lights and the fact that the lights
remained on during Yen’s encounter with the officer. The use of emergency lights will often be
the dispositive factor in determining whether a seizure has occurred. However, when as here, it
is undisputed that a seizure occurred and the question is whether the seizure has evolved into a
consensual encounter, the use of the emergency lights necessarily takes on less importance.
After all, almost all seizures (necessarily including seizures that evolve into consensual
encounters) are the result of some show of police authority, whether emergency lights or a verbal
command to stop while displaying a badge.
                                                 - 15 -
failure to affirmatively inform [the defendant] that he was free to leave does not by itself require

a finding that the ensuing encounter was non-consensual.” (citing Robinette, 519 U.S. at 39-40)).

                                          CONCLUSION

       For the foregoing reasons, we conclude that, under the applicable precedents, Yen validly

consented to the search of his person that led to the discovery of the cocaine. Accordingly, we

reverse the judgment of the circuit court suppressing the evidence found as a result of the search

and remand the case to the circuit court for further proceedings consistent with this opinion.

                                                                           Reversed and remanded.




                                               - 16 -
Alston, J., concurring in the judgment.

       I join the result reached by the very thorough majority opinion but write separately to

voice my concern about the analytical framework used to discern whether a “reasonable person”

would feel free to leave the scene after the conclusion of an initial encounter with law

enforcement. The amorphous concept of the so-called “reasonable person” is not and cannot be

an individual trained in the nuances and gradations of constitutional law, particularly within

Fourth Amendment doctrine.7 See New York v. Quarles, 467 U.S. 649, 663-64 (1984)

(O’Connor, J., concurring in part and dissenting in part) (recognizing “the hair-splitting

distinctions that currently plague our Fourth Amendment jurisprudence”). While the majority

finds reconciliation in the jurisprudence, I would suggest that the shades of grey between the

result reached by my colleagues in the majority and that reached by the very learned trial judge

underscores the dilemma of this case. The two Virginia cases most analogous to the instant case,

which address whether an initial seizure has evolved to a consensual encounter, highlight the

incongruity of the “reasonable person” standard as it applies in instances such as this. See

Dickerson v. Commonwealth, 266 Va. 14, 18-19, 581 S.E.2d 195, 197-98 (2003); Harris v.

Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003).

       In applying the facts and circumstances test, the Supreme Court recognized that

               [v]arious factors have been identified as relevant in determining
               whether a seizure has occurred, including the threatening presence
               of a number of police officers, the display of weapons by officers,
               physical contact between an officer and a citizen, an officer’s
               language or tone of voice compelling compliance, the retention of

       7
           The reasonable person belongs to a family of hypothetical figures in law including: the
“right-thinking member of society,” the “officious bystander,” the “reasonable parent,” the
“reasonable landlord,” the “fair-minded and informed observer,” the “person having ordinary
skill in the art,” and stretching back to Roman jurists, the figure of the bonus pater familias – all
used to define legal standards. While there is a loose consensus in black letter law, there is no
accepted technical definition. As with legal fiction in general, it is somewhat susceptible to ad
hoc manipulation or transformation, and hence the “reasonable person” is an emergent concept
of common law.
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               documents requested by an officer, and whether a citizen was told
               that he or she was free to leave.

Harris, 266 Va. at 32, 581 S.E.2d at 209.

       The majority in our case correctly notes that the only difference of any import between

Harris and Dickerson is what the officers communicated about the status of the respective

investigations and that applying the logic of these cases to the instant case reveals that Yen’s

encounter with the officer falls somewhere in between the two.

       The majority then concludes that because the officer indicated to Yen that the

investigations related to the initial seizure were over, the officer validly obtained Yen’s consent

to search his car which then legally evolved into a search of Yen’s person. I do not necessarily

agree that to hold otherwise would effectively require an officer to inform a citizen explicitly and

expressly that, not only had the initial investigation come to an end, but that the citizen was free

to go. That is not the law, and there are good reasons for that framework. However,

“communication” in many instances can be verbal or non-verbal based upon objective criteria or

intuitive in nature. My concern is that there is cause for confusion without some plausible

definition to figure out first, who the “reasonable person” is; and second, what are the

expectations of this “reasonable person” in instances such as these.8 For example, consider the

“reasonable person” who pursues the admirable course of compliance and cooperation with law

enforcement, yet operates under a misperception of the legal niceties of the encounter. Indeed,

an incorrect assessment may create the possibility for other criminal liability in the nature of



       8
         Academics have endeavored to trace the origins and fundamentals of the concept, and
have reached disturbing conclusions about its practical applications. See Susan F. Mandiberg,
Symposium: Who is the Reasonable Person? Reasonable Officers vs. Reasonable Lay Persons in
the Supreme Court’s Miranda and Fourth Amendment Cases, 14 Lewis & Clark L. Rev. 1481,
1536 (2010) (“[T]he Court frequently . . . allows the reasonable officer to be all too human,
indeed often flawed, but requires the reasonable lay person to be a paragon of astute awareness,
control of emotions, and sacrifice for the greater good.”).
                                                - 18 -
obstruction of justice or the like should this “reasonable person” choose to improvidently

terminate the encounter. Worse than a Hobson’s Choice, this is a choice of potentially yet

almost unavoidably dire circumstances if one chooses wrong.




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