                             COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Kelsey and McClanahan
Argued at Richmond, Virginia


TIMOTHY OBERRY STITH
                                                             MEMORANDUM OPINION* BY
v.     Record No. 2394-03-2                                   JUDGE D. ARTHUR KELSEY
                                                                  JANUARY 11, 2005
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                             James F. D’Alton, Jr., Judge

               Daniel W. Hall, Senior Assistant Public Defender, for appellant.

               Susan L. Parrish, Assistant Attorney General (Jerry W. Kilgore,
               Attorney General, on brief), for appellee.


       Convicted of possession of cocaine with intent to distribute, Timothy Oberry Stith asserts

on appeal that the trial court erred by not suppressing evidence recovered from him during a

search incident to his arrest and statements he made both before and after his arrest. We affirm,

finding no constitutional violations by the arresting officers and thus no reason to suppress

evidence under the exclusionary rule.

                                                 I.

       On appeal from a denial of a suppression motion, we examine the evidence in the light

most favorable to the Commonwealth, giving it the benefit of all reasonable inferences. Medley

v. Commonwealth, 44 Va. App. 19, 24, 602 S.E.2d 411, 413 (2004) (en banc); Slayton v.

Commonwealth, 41 Va. App. 101, 103, 582 S.E.2d 448, 449 (2003).




       * Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       During the early morning hours of March 8, 2003, several officers of the Petersburg

Police Department, including Officer Lawrence Wiencek, were on street patrol. The uniformed

officers saw Stith and another individual standing outside a Food Mart. As the officers

approached the two men, one officer recognized Stith and called him out by name. “How you

doing, Mr. Stith?” Stith responded, “Okay.” Officer Wiencek then asked Stith, “Can I talk to

you?” Stith said yes.

       Several officers stood in front of Stith and his companion, “close enough to speak” to

them.1 Officer Wiencek asked Stith for his name. Stith replied, “Timothy Stith.” Wiencek then

asked Stith if he had any outstanding warrants on file, to which Stith responded, “I don’t know.”

Using his handheld radio, Officer Wiencek called police headquarters “to see if he had a

warrant.” At this point, Officer Wiencek testified, Stith “was free to leave . . . he wasn’t under

any detention.” Nothing was said to suggest he could not simply walk away. Given Stith’s

agreement to talk with him, however, Officer Wiencek assumed Stith “was going to wait” during

the warrant inquiry. Stith did wait.

       The dispatcher advised Wiencek that an outstanding warrant for Stith’s arrest was on file.

The officer then advised Stith that there was “an outstanding warrant for his arrest and that he

was under arrest.” Officer Wiencek verified Stith’s date of birth to ensure it matched the

information on the warrant. Officer Wiencek then searched Stith and found 58 baggies of crack

cocaine.

       During the conversation preceding Stith’s arrest, the officers stood in a semicircle facing

Stith and his companion. “The two other officers that were there,” Officer Wiencek recalled,

“talked to the other guy” accompanying Stith. They also spoke to Stith as well. Had Stith


       1
         The record is unclear exactly how many officers were involved. On direct, Officer
Wiencek said there were two other officers accompanying him. On cross, he said three other
officers were present. Given the circumstances of this case, the distinction is immaterial.
                                              -2-
chosen to discontinue the dialogue, Officer Wiencek testified, he could have “walked around”

the officers. No evidence suggested Stith’s only path of departure (or, for that matter, even his

natural path of departure) was somehow blocked by the officers. Nor did any facts imply that the

officers backed Stith up against a wall or into a corner. At no point prior to Stith’s arrest did any

officer unholster a firearm, give any commands, make any threats, or physically touch Stith.

       At trial, Stith moved to suppress all statements made by him and evidence found on him.

The ostensible conversation, Stith argued, was not a conversation at all. It was a custodial

interrogation pursuant to an illegal de facto arrest. The trial court denied the suppression motion,

heard the evidence, and found Stith guilty of possession of cocaine with intent to distribute in

violation of Code § 18.2-248. Stith appeals the denial of his suppression motion, which, if

successful, would eliminate any evidentiary basis for his conviction.

                                                 II.

       Though the ultimate question whether the officers violated the Fourth or Fifth

Amendments triggers de novo scrutiny, “we defer to the trial court’s findings of ‘historical fact’

and give ‘due weight to the inferences drawn from those facts by resident judges and local law

enforcement officers.’” Slayton, 41 Va. App. at 105, 582 S.E.2d at 449-50 (citations omitted).

To prevail on appeal, “the defendant must show that the trial court’s denial of his suppression

motion, when the evidence is considered in the light most favorable to the prosecution, was

reversible error.” Id. at 105, 582 S.E.2d at 450 (quoting Whitfield v. Commonwealth, 265 Va.

358, 361, 576 S.E.2d 463, 464 (2003)); see also Barkley v. Commonwealth, 39 Va. App. 682,

690, 576 S.E.2d 234, 238 (2003).

                               A. CONSENSUAL CONVERSATION

       Stith first argues that the officers violated the Fourth Amendment by seizing him without

an individualized suspicion of criminality, either in the form of probable cause justifying a

                                                -3-
custodial arrest, Maryland v. Pringle, 540 U.S. 366 (2003), or, short of that, a reasonable,

articulable suspicion that criminal activity “may be afoot” justifying an investigatory detention,

United States v. Arvizu, 534 U.S. 266, 273 (2002). We agree with Stith that neither predicate for

a seizure has been shown, but disagree with him that either had to be.

        A consensual encounter “does not require any justification and may be terminated at will

by the individual.” White v. Commonwealth, 267 Va. 96, 104, 591 S.E.2d 662, 666 (2004).

Thus, officers need not have any particularized suspicion to approach “individuals on the street

or in other public places” and then put “questions to them if they are willing to listen.” United

States v. Drayton, 536 U.S. 194, 200 (2002); see also Barkley, 39 Va. App. at 691-93, 576

S.E.2d at 238-39. So long as officers refrain from inducing “cooperation by coercive means,”

they need no suspicion of criminality to “pose questions, ask for identification, and request

consent to search luggage.” Drayton, 536 U.S. at 201 (citing Florida v. Bostick, 501 U.S. 429,

434-35 (1991)).2

       An officer questioning a citizen exceeds the scope of his authority and effects a seizure

only when, “in view of all the circumstances surrounding the incident, a reasonable person would

have believed that he was not free to leave.” California v. Hodari D., 499 U.S. 621, 628 (1991)

(quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). This reasonable-person test

“presupposes an innocent person.” Bostick, 501 U.S. at 438 (emphasis in original). Framed this

way, the test guarantees that Fourth Amendment protections do not “vary with the state of mind

of the particular individual being approached.” Wechsler v. Commonwealth, 20 Va. App. 162,

170, 455 S.E.2d 744, 747 (1995) (citations omitted).




       2
        See also Barkley, 39 Va. App. at 691, 576 S.E.2d at 238; McLellan v. Commonwealth,
37 Va. App. 144, 151, 554 S.E.2d 699, 702 (2001); Commonwealth v. Satchell, 15 Va. App. 127,
131, 422 S.E.2d 412, 415 (1992).
                                             -4-
       Several factors determine whether an officer “by means of physical force or show of

authority” would cause a reasonable person to feel seized. Mendenhall, 446 U.S. at 554-55; see

also Sykes v. Commonwealth, 37 Va. App. 262, 268, 556 S.E.2d 794, 797 (2001). “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,” Londono v. Commonwealth, 40

Va. App. 377, 398-99, 579 S.E.2d 641, 651 (2003) (citation omitted), all shed light on whether a

seizure has occurred. See also Barkley, 39 Va. App. at 692, 576 S.E.2d at 239.

       No one circumstance, however, should be considered apart from the larger context.

Thus, an encounter ⎯ otherwise consensual ⎯ does not become a seizure merely because of the

presence of several armed officers, Drayton, 536 U.S. at 204-05, or the failure of the officers to

inform the person that he is free to ignore further questioning, I.N.S. v. Delgado, 466 U.S. 210,

216 (1984), or their failure to tell the individual he is free to leave, Ohio v. Robinette, 519 U.S.

33, 39-40 (1996). “While most citizens will respond to a police request, the fact that people do

so, and do so without being told they are free not to respond, hardly eliminates the consensual

nature of the response.” Delgado, 466 U.S. at 216.

       In this case, the trial court found the conversation consensual up until the moment of

Stith’s arrest on the outstanding warrant. The evidence supports that decision. Officer Wiencek

began the conversation with an express request for permission to speak with Stith. He agreed.

This initial exchange expressly established the conversation as consensual. See Lawrence v.

Commonwealth, 17 Va. App. 140, 144, 435 S.E.2d 591, 593 (1993) (“He agreed to talk with

them.”), aff’d per curiam, 247 Va. 339, 443 S.E.2d 160 (1994). At no point from the beginning

of the encounter to its end did Officer Wiencek make any threats, raise his voice, or issue any




                                                 -5-
commands to Stith. Nor did any of the officers draw their weapons3 or physically touch Stith.

What was said in Drayton can be said here as well: “There was no application of force, no

intimidating movement, no overwhelming show of force, no brandishing of weapons, no

blocking of exits, no threat, no command, not even an authoritative tone of voice. It is beyond

question that had this encounter occurred on the street, it would be constitutional.” Drayton, 536

U.S. at 204 (finding no seizure during questioning within the close confines of a bus).

       Stith’s primary complaint focuses on the fact that the officers stood near him in a

semicircle. To leave their presence, Stith points out, he would have had to “walk around” them.

Like the trial court, we find this circumstance insufficient to carry the weight of Stith’s

argument. Blocking one’s only path of escape, making a doorway impassable, backing one into

a corner, completely encircling a suspect ⎯ arguably all involve circumstances suggestive of a

de facto seizure. But cf. Drayton, 536 U.S. at 205 (holding no seizure existed as officer stood at

the “front of the bus” by the exit door); Delgado, 466 U.S. at 219 (officers stationed at exits of

factory did not make their questioning of workers nonconsensual).

       But that is not what happened to Stith. He was not surrounded, backed up against a wall,

or cornered. To be sure, no evidence suggests that the path around the officers was any less

natural and ordinary than the path through them. While several officers stood near Stith and his

companion, had Stith decided to end the encounter with the officers and leave, he needed only to

walk around them. See United States v. Kim, 25 F.3d 1426, 1431 n.2 (9th Cir. 1994) (even if

egress “partially blocked” a seizure does not necessarily take place “if an avenue for departure

remains open”); United States v. $25,000 U.S. Currency, 853 F.2d 1501, 1505 (9th Cir. 1988)



       3
         “That most law enforcement officers are armed is a fact well known to the public. The
presence of a holstered firearm thus is unlikely to contribute to the coerciveness of the encounter
absent active brandishing of the weapon.” Drayton, 536 U.S. at 205; Barkley, 39 Va. App. at
694, 576 S.E.2d at 240.
                                                -6-
(finding no seizure where individual was “surrounded by the officers and blocked by a concrete

pillar” but nevertheless “could have easily walked around the pillar and the officers”). If that

fact makes the conversation a seizure, it would mean a group of officers on street patrol could

never ⎯ as a group ⎯ have a face-to-face conversation with anyone without being accused of

conducting a de facto arrest. They would either have to shout from a distance or form some

ostensibly less threatening geometric shape (other than a semicircle) while carrying on the

conversation.

       Even so, Stith continues, what may have started off as a consensual encounter quickly

became a seizure as soon as Officer Wiencek asked him if he had any “outstanding warrants.”

Under this reasoning, a consensual conversation cannot remain consensual if the police officer

asks any potentially incriminating questions. We cannot accept this thesis. As many courts

have explained, “the mere fact that officers ask incriminating questions is not relevant to the

totality-of-the-circumstances inquiry ⎯ what matters instead is ‘the manner’ in which such

questions were posed.” United States v. Ringold, 335 F.3d 1168, 1173 (10th Cir.) (citations

omitted), cert. denied, 540 U.S. 1026 (2003).4 Even “persistent questioning regarding criminal

activity” does not necessarily negate the consensual nature of the conversation. Dickerson v.

Commonwealth, 266 Va. 14, 17, 581 S.E.2d 195, 197 (2003) (holding that an officer did not

seize an individual simply by asking whether he “smoked marijuana” or had any illegal drugs).5



       4
         See, e.g., Bostick, 501 U.S. at 439 (noting that the proposition that “police officers can
approach individuals as to whom they have no reasonable suspicion and ask them potentially
incriminating questions” is supported by a “long, unbroken line of decisions dating back more
than 20 years”); United States v. Kim, 27 F.3d 947, 953 (3d Cir. 1994) (holding “potentially
incriminating questions” do not by themselves make an encounter coercive).
       5
         Nor can a seizure be implied merely from an officer’s request for identification. See,
e.g., McCain v. Commonwealth, 261 Va. 483, 491, 545 S.E.2d 541, 546 (2001) (holding “a
police request made in a public place for a person to produce some identification, by itself,
generally does not constitute a Fourth Amendment seizure” (citations omitted)); McLellan,
                                                -7-
       In this case, the officers began the conversation by asking Stith for permission to question

him. That one of those questions (“Do you have any outstanding warrants?”) might solicit an

incriminating answer did not convert the conversation into a seizure. The officers did not

directly accuse Stith of anything, or make a display of force, or use any intimidating nonverbal

cues to coerce a response. The encounter remained consensual until the moment that Officer

Wiencek arrested Stith on the outstanding warrant. The trial court, therefore, did not err in

denying Stith’s motion to suppress on this basis.

                                  B.   MIRANDA VIOLATION

       Stith’s second argument asserts that his “Fifth Amendment rights were violated when he

was asked to give his identity, and then give further details after being told he was under arrest

without being advised of his Miranda rights.” The trial court correctly rejected this argument.

Stith’s statements during the consensual encounter do not implicate Miranda, which applies only

to custodial interrogations in the context of a “formal arrest or restraint on freedom of movement

of the degree associated with a formal arrest.” Yarborough v. Alvarado, 124 S. Ct. 2140, 2149

(2004) (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)).

       As to the “further details” Stith claims to have given after his arrest on the outstanding

warrant, Officer Wiencek asked Stith only for his date of birth to confirm his identity. Miranda

does not apply to “routine booking” questions seeking biographical information. Pennsylvania v.

Muniz, 496 U.S. 582, 601 (1990). Such questions “normally attendant to arrest and custody” do

not constitute custodial interrogation under Miranda. Watts v. Commonwealth, 38 Va. App. 206,

215, 562 S.E.2d 699, 704 (2002) (quoting Wright v. Commonwealth, 2 Va. App. 743, 746, 348

S.E.2d 9, 12 (1986), and South Dakota v. Neville, 459 U.S. 553, 564 n.15 (1982)).




37 Va. App. at 153, 554 S.E.2d at 703 (finding it inconsequential, by itself, that the “detective, in
a public place, simply requested some identification”).
                                               -8-
                                                 III.

       The circumstances of this case lack the indicia of coercion necessary to convert the

officers’ consensual conversation with Stith into a de facto seizure. His statements, therefore,

were not the product of an illegal detention. Nor were they in any way obtained in violation of

Miranda. The physical evidence taken from Stith, moreover, was properly obtained through the

search incident to his arrest. We thus affirm the trial court’s denial of Stith’s motion to suppress.

                                                                                           Affirmed.




                                                -9-
Benton, J., dissenting.

        The Fourth Amendment protects “the right of the people to be secure in their persons . . .

against unreasonable searches and seizures.” U.S. Const. amend. IV. “The Supreme Court has

provided examples of circumstances indicating the occurrence of a seizure . . . includ[ing] ‘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.’” Bolden v. Commonwealth, 263 Va.

465, 471, 561 S.E.2d 701, 704 (2002) (quoting United States v. Mendenhall, 446 U.S. 544, 553

(1980)). Also relevant is whether the officer advises the person “that he or she was free to

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

whether a seizure has occurred, all of these circumstances need not coincide. See Bolden, 263

Va. at 472, 561 S.E.2d at 705. Rather, when the circumstances establish that an officer, “by

means of . . . show of authority, has in some way restrained the liberty of a citizen . . . we [may]

conclude that a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).

        Officer Wiencek testified that he and three other officers -- Officer Jones, Officer Land,

and another officer whose name he “wasn’t familiar with” -- were in uniform and armed when

they arrived in two police vehicles and “pulled up in the parking lot to [Stith].” The officers

were tasked to “interdict” people on the street and contact them “purposefully.” The four

officers approached Stith and another man, who were at a telephone. One officer asked, “how

you doing Mr. Stith,” and all the officers stood in a semicircle in front of Stith “about three . . . to

four feet away from him.” All four of the officers were “talking to [Stith]” seeking to determine

whether he knew of warrants for his arrest.

        I would hold that the threatening presence of the four armed officers arrayed in a

semicircle in front of Stith, the questioning of Stith about criminal conduct by all the officers,

                                                 - 10 -
and the absence of a statement to Stith that he was free to leave, when combined, “present such a

‘show of authority,’ as to make a reasonable person believe he . . . is not free to leave the

encounter.” Bolden, 263 Va. at 472, 561 S.E.2d at 705.

       “[T]he Fifth Amendment privilege is available . . . and serves to protect persons in all

settings in which their freedom of action is curtailed in any significant way from being

compelled to incriminate themselves.” Miranda v. Arizona, 384 U.S. 436, 467 (1966). Although

“the police have the right to request citizens to answer voluntarily questions concerning unsolved

crimes,” the police “have no right to compel them to answer.” Davis v. Mississippi, 394 U.S.

721, 727 n.6 (1969). Thus, when police officers detain a person in violation of Terry, the fruits

of that encounter must be suppressed. Sibron v. New York, 392 U.S. 40, 65-66 (1968); Terry,

392 U.S. at 13.

       I would hold that the officers detained Stith without reasonable suspicion of criminal

conduct and that the trial judge erred in refusing to suppress the evidence. I, therefore, dissent.




                                                - 11 -
