                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Haley
Argued at Salem, Virginia


STEVEN LAWRENCE PANNELL
                                                              MEMORANDUM OPINION * BY
v.     Record No. 2478-06-3                                  JUDGE ROBERT J. HUMPHREYS
                                                                   MARCH 18, 2008
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                                Joseph W. Milam, Jr., Judge

                 Gregory T. Casker for appellant.

                 Richard B. Smith, Special Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Steven Lawrence Pannell (“Pannell”) appeals two separate convictions. 1 Pannell first

appeals his conviction for burglary, in violation of Code § 18.2-89. Pannell argues that the trial

court erred by refusing to suppress an eyewitness identification of him because it was the product

of an earlier unconstitutionally suggestive “show-up.” Pannell next appeals his conviction for

possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2. Pannell argues

that the trial court erred in refusing to suppress a gun discovered during an investigatory




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

       1
         On July 21, 2006, the trial court entered an order convicting Pannell of burglary. That
conviction arose from a home intrusion that took place on October 19, 2005. On July 27, 2006,
six days after Pannell was convicted of burglary, the trial court entered an order convicting
Pannell of possession of a firearm by a felon. That conviction arose from a separate interaction
with police that occurred on August 17, 2005. The trial court consolidated the convictions for
sentencing and entered one order sentencing Pannell for both crimes. On appeal, because the
charges are otherwise unrelated, we will address each of them separately.
detention because the investigating officers did not have reasonable suspicion to stop him or frisk

him for weapons.

                                             I. Analysis

                                      A. The Burglary Charge

        Pannell was convicted of burglary in large part due to the eyewitness testimony of

Zachary Harrelson (“Harrelson”), the victim of the crime. Harrelson saw Pannell in his house

during a break-in on October 19, 2005. Later that same night, at a show-up arranged by the

investigating officers, Harrelson identified Pannell as the man that broke into his house. Pannell

argues that the trial court erred by refusing to suppress Harrelson’s in-court and out-of-court

identifications. Specifically, Pannell claims that the police used an unduly suggestive show-up

identification procedure that resulted in a substantial likelihood of misidentification and

irreparably tainted Harrelson’s later identification of Pannell at trial. We refuse to address

Pannell’s argument because he failed to make a contemporaneous objection when Harrelson

identified him at trial.

        A person charged with a crime based on an eyewitness’ identification may have the

identification excluded if the procedure used to procure the identification “was so unnecessarily

suggestive and conducive to irreparable mistaken identification that he was denied due process

of law.” Stovall v. Denno, 388 U.S. 293, 301-02 (1967). When the defendant challenges an

out-of-court identification, the identification is only admissible if “either (1) the identification

was not unduly suggestive; or (2) the procedure was unduly suggestive, but the identification

was so reliable that there is no substantial likelihood of misidentification.” Charity v.

Commonwealth, 24 Va. App. 258, 262, 482 S.E.2d 59, 60 (1997). Furthermore, even if an

out-of-court identification is inadmissible, “an in-court identification by that witness is still




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admissible if it has an origin independent of the inadmissible out-of-court identification.” Wise

v. Commonwealth, 6 Va. App. 178, 186, 367 S.E.2d 197, 202 (1988).

       Before trial, Pannell made a motion to suppress Harrelson’s out-of-court identification as

well as any potential in-court identification that he might make at trial. The trial court denied

Pannell’s motion. At trial, Harrelson identified Pannell as the man that he saw break into his

house and testified that he recognized Pannell from the break-in, not the show-up.

       On appeal, Pannell argues only the trial court erred in admitting Harrelson’s out-of-court

identification. He did not claim in his brief that the trial court erred by allowing Harrelson to

identify Pannell in court and conceded at oral argument that he was not challenging the

admission of the in-court identification on appeal. By failing to appeal Harrelson’s in-court

identification, Pannell’s claim that the admission of the out-of-court identification was improper

is moot.

       “[E]ven if evidence of the out-of-court identification cannot be admitted, an in-court

identification may still be made if the origin of that identification is independent of the

inadmissible out-of-court identification procedure.” Hill v. Commonwealth, 2 Va. App. 683,

693, 347 S.E.2d 913, 918 (1986). In Curtis v. Commonwealth, 11 Va. App. 28, 396 S.E.2d 386

(1990), we addressed the admissibility of an in-court and an out-of-court identification. We held

that the trial court erred by admitting evidence of the out-of-court identification, but we affirmed

the decision of the trial court because the in-court identification was properly in evidence.

       Pursuant to Curtis, if Harrelson’s in-court identification is properly in evidence, we must

affirm the trial court and the admissibility of the out-of-court identification is essentially

irrelevant. Pannell does not claim that the trial court erred by admitting Harrelson’s in-court

identification. Consequently his argument that the trial court erred by admitting the out-of-court

identification is moot, and we affirm the decision of the trial court.

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                  B. The Possession of a Firearm by a Convicted Felon Charge

       On his second charge, Pannell argues that the trial court erred in refusing to suppress the

gun that Officer Nicholson recovered from his waistband on August 17, 2005. Pannell argues

two separate bases as to why the gun should have been suppressed. First, he argues that Officer

Oakes initiated a traffic stop thereby seizing him without reasonable suspicion of criminal

activity when she briefly turned on the lights of her patrol car. In the alternative, he argues that

even if he was not seized by Officer Oakes, he was seized by Officer Chaney and Officer

Nicholson when he was pulled from his car and frisked. Pannell further argues that seizure was

not supported by reasonable suspicion of criminal activity or reasonable suspicion that he was

armed and dangerous.

       The Commonwealth responds that Officer Oakes did not seize Pannell and that the initial

approach by Officers Chaney, Nicholson, and Rice was a permissible consensual encounter. The

Commonwealth argues further that the subsequent search and seizure were justified because, by

reaching into his shirt and waistband Pannell created reasonable suspicion that he was engaged in

criminal activity and that he was armed and dangerous. For the following reasons, we agree with

the Commonwealth that Pannell was not initially seized, and we disagree with Pannell that his

eventual seizure was not supported by reasonable suspicion.

       Determining whether a seizure has occurred and whether a frisk for weapons is

constitutional is “a mixed question of law and fact.” Ornelas v. United States, 517 U.S. 690, 696

(1996); see also McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997)

(en banc). Accordingly, “we are bound by the trial court’s findings of historical fact unless

‘plainly wrong’ or without evidence to support them and we give due weight to the inferences

drawn from those facts by resident judges and local law enforcement officers.” McGee, 25




                                                -4-
Va. App. at 198, 487 S.E.2d at 261. However, we review the application of the Fourth

Amendment to those facts de novo. See Ornelas, 517 U.S. at 691.

       “Fourth Amendment jurisprudence ‘has placed police-citizen confrontations into three

categories.’” 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)). The first

type of interactions are consensual encounters that do not implicate the Fourth Amendment.

Iglesias, 7 Va. App. at 99, 372 S.E.2d at 173. The second type of interaction is a brief

investigative detention or “Terry” stop. See Terry v. Ohio, 392 U.S. 1, 27 (1968). Although

brief and limited in scope, a Terry stop is a seizure and “must be based upon reasonable,

articulable suspicion that criminal activity is or may be afoot.” McGee, 25 Va. App. at 198, 487

S.E.2d at 261. The third type of interaction is a “full-scale” arrest or search. Id. An arrest or

search “must be based upon probable cause to believe that a crime has been committed by the

suspect.” Id.

       Pannell first argues that by activating the blue lights on her patrol car Officer Oakes

seized him without reasonable suspicion. For the purposes of the Fourth Amendment, a person

has been seized “if, in view of all of the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.” United States v. Mendenhall, 446

U.S. 544, 554 (1980). Circumstances that might indicate a seizure include “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.” Id.

       The record in this case does not support a conclusion that Pannell had been seized when

he initially arrived at the gas station. Pannell’s seizure theory is that Officer Oakes made a

demonstration of authority by activating the lights on her patrol car and that the driver of the

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Infiniti turned into the gas station as a result of seeing those lights. Pannell contends that Officer

Oakes’ initial show of authority resulted in a seizure and that seizure continued through the time

Officers Chaney, Nicholson, and Rice arrived and asked the driver of the Infiniti for

identification. However, Pannell’s theory is both factually and legally inaccurate.

       Officer Chaney testified at the suppression hearing that the Infiniti had already begun to

turn into the parking lot before Officer Oakes turned her lights on. Under our standard of review

we must accept his testimony as true. “A seizure does not occur in the absence of physical force

used by a law enforcement officer or a defendant’s submission to an officer’s assertion of

authority.” McCain v. Commonwealth, 261 Va. 483, 491, 545 S.E.2d 541, 546 (2001) (emphasis

added). Because the driver turned into the gas station of his own volition and not in response to

Officer Oakes’ lights, his decision to turn into the gas station was not in submission to Officer

Oakes’ authority.

       Furthermore, Officer Rice explained that the lights on the patrol car were only on a “split

second” and that it looked like Officer Oakes may have even “accidentally” engaged the lights

and immediately turned them off. When Officer Oakes turned into the parking lot she did not

stop driving or approach the Infiniti. She continued around the building, out of sight. Clearly a

seizure does not occur whenever a person is in the presence of flashing lights for a “split second”

as a police vehicle drives past. Nothing about Officer Oakes’s conduct would lead a reasonable

person to believe that they were not free to leave.

       In fact, the record is clear that Pannell and the driver believed that they were free to

leave. After parking next to a gas pump both men exited the Infiniti and attempted to patronize

the gas station. The driver of the Infiniti testified that he walked around the building trying to

get into the gas station for “two or three minutes” before the other officers arrived. The driver

even testified that he felt that he was free to leave. Under those circumstances, we hold that the

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men were not seized when they initially parked at the gas station; no reasonable person would

believe that they were not free to leave.

       Nor were the men seized when Officers Chaney, Nicholson, and Rice arrived at the gas

station. When the other officers arrived at the gas station, they did not activate the siren or the

light on their car and did not block the Infiniti from leaving. The officers were not in police

uniforms, and their weapons were not drawn. Two of the officers approached the driver without

identifying themselves as police officers and asked him for identification. The Fourth

Amendment is not implicated when police officers “approach[] individuals on the street or in

other public places and put[] questions to them if they are willing to listen.” United States v.

Drayton, 536 U.S. 194, 201 (2002). The officers merely approached the driver and asked him a

question. Their encounter, at least initially, was consensual.

       However, the consensual nature of the encounter soon changed. As Officers Rice and

Chaney initiated conversation with the driver, Officer Nicholson saw Pannell take his hands and

put them under his shirt. Officer Nicholson immediately asked Pannell, “Please get your hands

up. Please get your hands up.” Pannell did not put his hands up and continued reaching under

his shirt. At that point, Officer Nicholson drew his gun while continuing to yell to Pannell to put

his hands up. Officer Chaney ran to the car, opened the passenger door, pulled Pannell out of the

car, and laid him on the ground. Officer Chaney frisked Pannell for weapons, feeling what he

believed to be a gun in the waistband of Pannell’s pants. Officer Chaney reached under

Pannell’s shirt and discovered a gun in his waistband. Pannell claims that seizure was illegal

because the officers did not have reasonable suspicion to believe that he was engaged in criminal

activity or that he was armed and dangerous.

       As stated earlier, a police officer must, at a minimum, have a reasonable, articulable

suspicion that criminal activity is afoot in order to seize a suspect. During a Terry stop, if the

                                                -7-
officer reasonably believes that the suspect “‘may be armed and presently dangerous,’” he may

conduct “a limited search of the suspect’s outer clothing for the purpose of discovering

weapons.” Simmons v. Commonwealth, 217 Va. 552, 554, 231 S.E.2d 218, 220 (1977) (quoting

Terry, 392 U.S. at 30).

       When Officer Nicholson saw Pannell look at the officers questioning his companion,

reach into his waistband, and refuse to show his hands when asked, it was reasonable for

Nicholson to believe that Pannell was reaching for a gun. See Welshman v. Commonwealth, 28

Va. App. 20, 35, 502 S.E.2d 129, 130 (1998) (holding that a man’s refusal to show his hands at

the request of a police officer gave the officer reasonable suspicion that the man was armed). In

Virginia, it is a crime to carry a concealed firearm without a permit. Code § 18.2-308. Once

Officer Nicholson had a reasonable suspicion that Pannell was concealing a gun, it was also

reasonable for him to suspect that Pannell might be concealing that gun in violation of Code

§ 18.2-308. Officer Nicholson’s reasonable belief that Pannell was concealing a gun gave him

reasonable suspicion that Pannell was engaged in criminal activity and that he was armed and

dangerous. Under Terry, the officers were then entitled to detain Pannell to investigate and frisk

him for their safety. Terry, 392 U.S. at 30. Because the stop and frisk were proper, the trial

court did not err in refusing to suppress the gun that Officer Chaney discovered during the frisk.

                                          II. Conclusion

       For the reasons stated above, we hold that the trial court correctly denied Pannell’s

motion to suppress Harrelson’s in-court and out-of-court identifications and affirm his conviction

for burglary. We also hold that that trial court correctly denied Pannell’s motion to suppress the

gun discovered by Officer Chaney during the stop and frisk, and affirm his conviction for

possession of a firearm by a felon.

                                                                                           Affirmed.

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