                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Bumgardner and Lemons
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                           MEMORANDUM OPINION * BY
v.        Record No. 1569-98-3            JUDGE SAM W. COLEMAN III
                                             DECEMBER 29, 1998
CHARLIE WILLIAM GILBERT


          FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                 William N. Alexander, II, Judge
          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellant.

          Rudolph A. Shupik, Jr., for appellee.



     Charlie William Gilbert was charged with driving a motor

vehicle after having been declared an habitual defender.      On

Gilbert's motion, the trial judge suppressed evidence from a

police encounter that the judge determined was a Terry stop

conducted without reasonable suspicion.       Because the trial court

erred in concluding that the officer lacked reasonable suspicion,

the trial court's ruling is reversed and the case is remanded to

the circuit court.
                            I.   BACKGROUND

     On appeal, we view the evidence in the light most favorable

to the prevailing party, and grant to that party all reasonable

inferences fairly deducible from the evidence.       See Commonwealth
v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Sergeant Dennis, while in uniform and on duty in his marked

police car, was parked in a lot outside a supermarket.   Dennis

observed Gilbert drive a vehicle onto the lot, park, and exit the

vehicle.    On seeing Gilbert drive onto the lot, Sergeant Dennis,

who knew Gilbert, recalled that in a conversation seven to ten

months earlier Gilbert had mentioned that he was an habitual

offender.

     Based on this recollection, Sergeant Dennis motioned for

Gilbert to approach his car.   As Gilbert came to the patrol car,

Sergeant Dennis told him that he "need[ed] for him to sit on the

passenger side" of his car.    Sergeant Dennis explained to Gilbert

that he knew Gilbert was an habitual offender and that he would

have to charge him with driving after having been declared an

habitual offender.   Gilbert responded by asking Sergeant Dennis

to "give him a break."   After Sergeant Dennis called the police

dispatch with Gilbert's Social Security number and confirmed

Gilbert's status as an habitual offender, Dennis issued Gilbert a

summons for driving after having been declared an habitual

offender and released him.
     The trial judge found that Sergeant Dennis detained Gilbert

within the meaning of the Fourth Amendment when Dennis motioned

Gilbert to his car and had him take a seat in the patrol car.

The trial judge held that the detention was an invalid Terry stop

because the officer's awareness that some seven to ten months

earlier Gilbert had been an habitual offender was insufficient to



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create a reasonable suspicion that Gilbert continued to be and

was presently an habitual offender.

                           II.   ANALYSIS

     In this interlocutory appeal, pursuant to Code § 19.2-398 et

seq., we determine whether the trial court erred in finding that

the encounter between Sergeant Dennis and Gilbert constituted a

seizure within the meaning of the Fourth Amendment, and if not,

whether the court erred in finding that no reasonable suspicion

justified the seizure.   The analysis involves mixed questions of

law and fact.   See McGee v. Commonwealth, 25 Va. App. 193,

197-98, 487 S.E.2d 259, 261 (1997) (en banc).    We are bound by

the trial court's findings of historical fact unless plainly

wrong or without evidence to support them, and we give deference

to the inferences the trial court draws from those facts.     See

id. at 198, 487 S.E.2d at 261.    However, we determine de novo

whether the facts, as established, implicate the Fourth

Amendment, and if so, whether reasonable suspicion or probable

cause justified the intrusion.     See id.

     The trial court did not err in finding that the encounter

between Sergeant Dennis and Gilbert constituted an investigatory

or Terry stop.
          [A] person has been "seized" within the
          meaning of the Fourth Amendment only if, in
          view of the circumstances surrounding the
          incident, a reasonable person would have
          believed that he was not free to leave.
          Examples of the circumstances that might
          indicate a seizure, even where the person did
          not attempt to leave [include, inter alia]
          . . . the use of language or tone of voice



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           indicating that compliance with the officer's
           request might be compelled.


United States v. Mendenhall, 446 U.S. 544, 554 (1980); see McGee,

25 Va. App. at 199, 487 S.E.2d at 262.   Determining whether

police conduct rises to the level of a Fourth Amendment seizure

requires examining the facts in each case.   See Michigan v.

Chesternut, 486 U.S. 567, 576-77 (1988); see also Parker v.

Commonwealth, 255 Va. 96, 103, 496 S.E.2d 47, 50-51 (1998)

(plurality opinion) (declining to extend Baldwin v. Commonwealth,

243 Va. 191, 413 S.E.2d 645 (1992), and limiting it to its unique

facts).
     Sergeant Dennis, who was in uniform and in a marked police

car, motioned for Gilbert to approach the patrol car.   Dennis

told Gilbert that "he needed" for him to take a seat in the

vehicle.   Gilbert acquiesced in or submitted to the police

officer's authority and took a seat in Dennis's patrol car.      See

generally California v. Hodari D., 499 U.S. 621, 625-26 (1991)

(notwithstanding a lack of physical restraint, submission to a

show of authority constitutes a seizure within the meaning of the

Fourth Amendment).   Sergeant Dennis then related to Gilbert that

he "knew" Gilbert was an habitual offender and that he would have

to charge him.   The trial court did not err in determining that a

reasonable person, faced with these facts, would not believe that

he or she was free to ignore the officer and avoid the detention.

     Pursuant to Terry, an officer may approach and temporarily
detain a person to investigate possible criminal behavior without



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probable cause.    See Terry v. Ohio, 392 U.S. 1, 21-22 (1968);

McGee, 25 Va. App. at 202, 487 S.E.2d at 263.    When an officer

can articulate a particularized and objective basis to suspect

that an individual is involved in criminal activity, the officer

may briefly detain the suspect in order to further investigate

that suspicion.    See United States v. Cortez, 449 U.S. 411,

417-18 (1981).    In determining whether a police officer had

reasonable suspicion that criminal activity was afoot, there is

no bright line rule or "litmus test," rather a court must

consider the totality of circumstances.    See Buck v.

Commonwealth, 20 Va. App. 298, 302, 456 S.E.2d 534, 536 (1995);

Commonwealth v. Spencer, 21 Va. App. 156, 159, 462 S.E.2d 899,

901 (1995).

     We hold that the trial court erred in determining that

Sergeant Dennis lacked reasonable suspicion to briefly detain

Gilbert in order to further investigate.   Under Code § 46.2-356,

a person who has been declared to be an habitual offender

generally will continue in that status for ten years and

thereafter until the privilege has been restored by a court of

competent jurisdiction.   Although Sergeant Dennis's knowledge

that Gilbert was an habitual offender seven to ten months before

was not conclusive evidence that he was still an habitual

offender, that fact gave Sergeant Dennis a reasonable basis to

suspect that Gilbert was still an habitual offender which, in

turn, justified a brief investigatory detention.   As soon as



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Gilbert asked Sergeant Dennis for "a break," Dennis had further

grounds to detain Gilbert.   See Glasco v. Commonwealth, 26 Va.

App. 763, 771, 497 S.E.2d 150, 154 (1998) (affirming that

knowledge of defendant's arrest two weeks earlier on charges that

often, but not always, resulted in suspension of a driver's

license created reasonable suspicion that defendant was driving

without a license).

     Accordingly, the trial court's order granting the motion to

suppress is reversed and remanded to the trial court for such

further proceedings as may be advised.
                                         Reversed and remanded.




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