                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Millette
Argued at Chesapeake, Virginia


JAMES HAMPTON
                                                             MEMORANDUM OPINION * BY
v.     Record No. 1107-07-1                                   JUDGE ROBERT P. FRANK
                                                                   JULY 1, 2008
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                              Christopher W. Hutton, Judge

                 Ben Pavek (Deborah Saunders; Office of the Public Defender, on
                 briefs), for appellant.

                 Susan M. Harris, Assistant Attorney General (Robert F. McDonnell,
                 Attorney General, on brief), for appellee.


       James Hampton, appellant, was convicted on his conditional guilty plea of possession of

cocaine in violation of Code § 18.2-250. On appeal, appellant contends that the trial court erred

in denying his motion to suppress, claiming the police did not have reasonable suspicion to seize

him. For the reasons that follow, we find that the trial court did not err in denying appellant’s

motion to suppress and we affirm appellant’s conviction.

                                          BACKGROUND

       At approximately 11:20 p.m. on December 24, 2005, Hampton Police Officer Ryan

Boone was in uniform and patrolling an area that he described as “known for drug activity, gang

activity.” Officer Boone observed appellant near a convenience store waving at passing cars.

Officer Boone pulled into a vacant lot near the convenience store and continued to watch

appellant.

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       Appellant saw Officer Boone and approached his patrol car. Officer Boone got out of his

car, met appellant in the lot, and asked appellant about the waving. Officer Boone smelled

alcohol on appellant’s breath and noted appellant’s eyes were glassy and his speech slurred.

Appellant stated that he lived across the street and asked Officer Boone if he could go home. 1

Officer Boone could not specifically recall how he responded to appellant’s desire to go home,

but he testified that he did not tell appellant that he was not free to go. “I didn’t say he had to

stay there, but we just continued the conversation.” Appellant never attempted to leave.

       While Officer Boone spoke with appellant, he noticed a “case” in appellant’s shirt

pocket. Officer Boone asked appellant about the case, and appellant gave it to Officer Boone,

telling Officer Boone he “didn’t have anything to hide.” Inside the case were two pairs of

eyeglasses. Appellant then gave Officer Boone permission to search him. When Officer Boone

patted appellant down, he recovered a crack pipe from appellant’s shirt pocket.

       At the suppression hearing, Officer Boone acknowledged that he wanted to establish

appellant’s identity “[t]o verify he didn’t have any warrants on file . . . [b]ecause it [wa]s a high

crime area and I have arrested people with capias [sic] on file.”

       Appellant does not dispute that he consented to the pat-down search, but contends that

Officer Boone’s continued questioning after his request to go home amounted to a “seizure” in

violation of the Fourth Amendment. In ruling that Officer Boone did not detain appellant, the

trial court found that appellant “expressed a desire to go home, which he did not do.”

       This appeal follows.




       1
         The record is unclear whether appellant stated “I’d like to go home” or whether he
asked if he could go home. The trial court found that appellant “expressed a desire to go home.”

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                                            ANALYSIS

       “‘On appeal from a denial of a suppression motion, we must review the evidence in the

light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.’”

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

v. Commonwealth, 39 Va. App. 682, 687, 576 S.E.2d 234, 236 (2003)). An appellant’s claim

that evidence was seized in violation of the Fourth Amendment “‘presents a mixed question of

law and fact that we review de novo on appeal. In making such a determination, we give

deference to the factual findings of the trial court and independently determine whether the

manner in which the evidence was obtained [violated] the Fourth Amendment.’” Wilson v.

Commonwealth, 45 Va. App. 193, 202-03, 609 S.E.2d 612, 616 (2005) (quoting Murphy v.

Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002)) (alteration in original).

               Fourth Amendment jurisprudence “has placed police-citizen
               confrontations into three categories.” “First, there are
               communications between police officers and citizens that are
               consensual and, therefore, do not implicate the [F]ourth
               [A]mendment.” Second, are “brief investigatory stops” based
               upon “specific and articulable facts,” and third, are “highly
               intrusive, full-scale arrests” based upon probable cause.

Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 869-70 (1992) (quoting Iglesias

v. Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988)).

       “Law enforcement officers do not violate the Fourth Amendment’s prohibition of

unreasonable seizures merely by approaching individuals on the street or in other public places

and putting questions to them if they are willing to listen.” United States v. Drayton, 536 U.S.

194, 200 (2002); see also Florida v. Bostick, 501 U.S. 429, 434 (1991). Furthermore, “‘[a]n

encounter between a law enforcement officer and a citizen in which the officer merely identifies

himself and states that he is conducting an . . . investigation, without more, is not a seizure within

the meaning of the Fourth Amendment but is, instead, a consensual encounter.’” Londono v.

                                                -3-
Commonwealth, 40 Va. App. 377, 399, 579 S.E.2d 641, 651 (2003) (quoting McGee v.

Commonwealth, 25 Va. App. 193, 199, 487 S.E.2d 259, 262 (1997) (en banc)). During a

consensual encounter, a citizen may validly consent to a search of his person or property, and

“searches made by the police pursuant to a valid consent do not implicate the Fourth

Amendment.” McNair v. Commonwealth, 31 Va. App. 76, 82, 521 S.E.2d 303, 306 (1999)

(en banc). A person need not be told of his right to refuse consent in order for that consent to be

voluntary. Barkley, 39 Va. App. at 696, 576 S.E.2d at 241. The totality of the circumstances is

controlling. Id.

       “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)). An encounter between a police officer and a citizen becomes a seizure for

Fourth Amendment purposes “‘only if, in view of all of the circumstances surrounding the

incident, a reasonable person would have believed that he was not free to leave,’” Baldwin v.

Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 648 (1992) (quoting United States v.

Mendenhall, 446 U.S. 544, 554 (1980)), because the citizen’s freedom of movement was being

restrained by the use of physical force or show of authority. Hodari D., 499 U.S. at 626-27.

       Among the factors that determine whether an officer “by means of physical force or a

show of authority” would cause a reasonable person to feel seized, Mendenhall, 446 U.S. at 553,

are 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, 40 Va. App. at

398-99, 579 S.E.2d at 651 (quoting Mendenhall, 446 U.S. at 554).




                                               -4-
       Appellant conceded at oral argument that no other factors indicating appellant was seized

were present, aside from Officer Boone’s failure to respond. Appellant argues that Officer

Boone’s failure to respond to appellant’s request to go home, standing alone, indicated that

appellant was not free to leave. This silence, claims appellant, transformed an initially

consensual encounter into a seizure. We disagree.

       Accepting the trial court’s historical factual findings, we review de novo whether those

facts support the legal conclusion that appellant was seized under the circumstances here and that

the encounter was no longer consensual when Officer Boone asked for consent to search.

       We conclude that appellant was not seized and that he voluntarily consented to the search

in a spirit of apparent cooperation with Officer Boone rather than in “submission to a show of

force or authority which left him no choice.” Sibron v. New York, 392 U.S. 40, 63 (1968). This

conclusion hinges on several specific facts considered in the context of the totality of the

circumstances. Initially, we find it significant that appellant voluntarily approached Officer

Boone in a public place. He was not touched, frisked, or restrained in any way. There was no

use of force, brandishing of weapons, or any intimidation, threat, or command. Importantly,

Officer Boone was alone, unaccompanied by other officers.

       When appellant expressed his desire to go home, Officer Boone did not order him to

remain or restrict his movement. Appellant was free to leave and walk away. Instead, appellant

decided to stay and carry on the conversation that he had initiated with Officer Boone. Officer

Boone merely continued to speak with appellant, and appellant made no other attempts to leave

or terminate the conversation. When Officer Boone asked about appellant’s glasses case,

appellant freely handed it over, remarking that he “didn’t have anything to hide.” A reasonable

person would not perceive Officer Boone’s failure to comment on appellant’s statement as a

basis to believe he was not free to go. Indeed, nothing in the record suggests appellant was not

                                                -5-
free to leave. Thus, we see nothing in the record before us that transformed the consensual

encounter into a seizure.

                                         CONCLUSION

       For the foregoing reasons, we find the trial court did not err in denying appellant’s

motion to suppress. Accordingly, we affirm.

                                                                                         Affirmed.




                                               -6-
