                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Humphreys and Retired Judge Kulp*
Argued at Richmond, Virginia


JOHN CARLTON CARTER, JR.
                                           MEMORANDUM OPINION ** BY
v.   Record No. 2445-98-2                 JUDGE ROBERT J. HUMPHREYS
                                               AUGUST 22, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                     L. A. Harris, Jr., Judge

          John W. Luxton (Morchower, Luxton & Whaley,
          on brief), for appellant.

          Richard B. Smith, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     John C. Carter, Jr. ("Carter") complains that the trial

court erred in failing to suppress evidence seized following a

search of his person by a Henrico County police officer.     For

the reasons that follow, we affirm the decision of the trial

court.

                            I.   BACKGROUND

     On December 12, 1997 at approximately 2:20 p.m.,

Investigator Richard Palkovitz was traveling southbound on


     *
       Retired Judge James E. Kulp took part in the consideration
of this case by designation pursuant to Code § 17.1-400,
recodifying § 17-116.01.
     **
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Laburnum Avenue in Henrico County when a vehicle operated by

Carter pulled out from Delmont Street, across Laburnum, and

stopped, partially blocking the traffic lane occupied by

Palkovitz, who was forced to brake abruptly and narrowly avoided

a collision with Carter's vehicle.

        Palkovitz approached Carter's vehicle, requested Carter's

driver's license and registration and returned to his vehicle to

write a summons.    Carter remained in his vehicle during this

time.

        Palkovitz determined by radio that Carter was not wanted

for any outstanding criminal warrants but did have a prior

criminal drug history.    Officer Kita Brown then arrived on the

scene and advised Palkovitz that she had just seen Carter

standing with a group on a "high drug corner" in Essex Village,

an area known for serious problems with guns and drugs.    Brown

told Palkovitz that as she drove by the corner, Carter "made

kind of quick, nervous glancing views at her."

        After receiving this information, Palkovitz returned to

Carter's vehicle and asked him to get out of the car.    He then

returned Carter's license and registration and asked Carter to

sign the summons.

        After Carter signed the summons, Palkovitz started talking

to him about the problem of guns and drugs in Essex Village.

Carter denied that he was carrying either drugs or weapons.



                                 - 2 -
Palkovitz then asked if he could search Carter, and Carter

responded by raising his arms and saying, "[G]o ahead."

     Upon searching Carter, Palkovitz found a wad of folded

currency totaling $796 in Carter's front pants pocket.    Inside

the folded currency, Palkovitz discovered a plastic baggie

containing what he suspected to be, and which a scientific

analysis proved to be, heroin.

     Palkovitz testified that he instructed Carter to step out

of his vehicle because, based upon the information he received

from Officer Brown and Carter's prior drug history, he wanted to

satisfy himself that there were no bulges in Carter's clothing

which might suggest he was armed.    Palkovitz further testified

that he intended to ask Carter for consent to search, that he

did not draw his own weapon, and that his vehicle's emergency

lights were not activated at the time he returned Carter's

license and registration to him.

                          II.    ANALYSIS

     When we review a trial court's denial of a suppression

motion, "[w]e review the evidence in a light most favorable to

. . . the prevailing party below, and we grant all reasonable

inferences fairly deducible from that evidence."    Commonwealth

v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

While we are bound to review de novo the ultimate questions of

reasonable suspicion and probable cause, we "review findings of



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historical fact only for clear error 1 and . . . give due weight

to inferences drawn from those facts by resident judges and

local law enforcement officers."    Ornelas v. United States, 517

U.S. 690, 699 (1996) (footnote added).

     "Fourth Amendment jurisprudence recognizes three categories

of police-citizen confrontations:   (1) consensual encounters,

(2) brief, minimally intrusive investigatory detentions, based

upon specific, articulable facts, commonly referred to as Terry

stops, and (3) highly intrusive arrests and searches founded on

probable cause."   Wechsler v. Commonwealth, 20 Va. App. 162,

169, 455 S.E.2d 744, 747 (1995) (citation omitted).

     Carter concedes that Palkovitz had the authority to ask him

to step out of his car during the traffic stop.    See

Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977), and Welshman v.

Commonwealth, 28 Va. App. 20, 32, 502 S.E.2d 122, 127-28 (1998).

He argues, however, that the request was improper because

Palkovitz made his request after the summons was written and

signed.

     Here, the purpose of the stop was the citation of Carter

for a traffic offense.   A consensual encounter can follow a




     1
       "In Virginia, questions of fact are binding on appeal
unless 'plainly wrong.'" McGee v. Commonwealth, 25 Va. App. 193,
198 n.1, 487 S.E.2d 259, 261 n.1 (1997) (en banc) (citations
omitted).


                               - 4 -
legitimate detention.    See United States v. Rusher, 966 F.2d

868, 877 (4th Cir. 1992). 2   While a detention

          usually must last no longer than is
          necessary to effectuate the purpose of the
          stop . . . lengthening the detention for
          further questioning beyond the initial stop
          is permissible in two circumstances. First,
          the officer may detain the driver for
          questioning unrelated to the initial stop if
          he has an objectively articulable suspicion
          that illegal activity has occurred or is
          occurring. Second, further questioning
          unrelated to the initial stop is permissible
          if the initial detention has become a
          consensual encounter.

United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir. 1999)

(citations omitted).    Without some indicated restraint, mere

questioning by officers when a routine traffic stop is over and

its purpose served, does not amount to a seizure under the

Fourth Amendment.   See United States v. Sullivan, 138 F.3d 126,

131 (4th Cir. 1998).


     2
       Recently, in Reittinger v. Commonwealth, ___ Va. ___, ___
S.E.2d ___ (2000), the Supreme Court of Virginia held that the
police unlawfully seized the defendant following their
investigation of a traffic infraction. There, the Court's
opinion focused on the following factors in determining that the
defendant was illegally detained: (1) the deputy sheriffs
stopped the defendant in a rural area at nighttime, (2) two
armed deputies, one on each side of the defendant's vehicle,
confronted him, and (3) one deputy asked the defendant for
consent to search three times. See id. at ___, ___ S.E.2d at
___. At a minimum, factors (1) and (3) are not present in
Carter's case. Accordingly, we disagree with the dissent and
find that Reittinger is not controlling in this case. Nor do we
believe that Reittinger was intended to eviscerate the basic
principle that a consensual search can follow a legitimate
detention, in light of the Supreme Court's refusal in Ohio v.
Robinette, 519 U.S. 33 (1996), to adopt a per se rule
prohibiting such encounters.

                                - 5 -
     Further, "not all personal intercourse between policemen

and citizens involves 'seizures' of persons.   Only when the

officer, by means of physical force or show of authority, has in

some way restrained the liberty of a citizen may we conclude

that a 'seizure' has occurred."   Terry v. Ohio, 392 U.S. 1, 19

n.16 (1968).   A Terry stop occurs "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."   United

States v. Mendenhall, 446 U.S. 544, 554 (1980).   "As long as the

person to whom questions are put remains free to disregard the

questions and walk away, there has been no intrusion upon that

person's liberty or privacy as would under the Constitution

require some particularized and objective justification."      Id.

     As the Commonwealth notes, the facts of this case are

virtually identical to those found in Ohio v. Robinette, 519

U.S. 33 (1996), where the United States Supreme Court held that

a consensual encounter may immediately follow the issuance of a

traffic summons without violating the Fourth Amendment.   In

Robinette, the Supreme Court rejected a bright line rule that

would have required police officers to advise citizens stopped

for traffic offenses that they were free to go before the

officers attempted to engage in consensual interrogations.

Rather, the Supreme Court held that "[t]he Fourth Amendment test

for a valid consent to search is that the consent be voluntary

and '[v]oluntariness is a question of fact to be determined from

                               - 6 -
all the circumstances.'"   Id. at 40.   Here, the trial court

found that the search was consensual.   Taking the evidence in

the light most favorable to the Commonwealth, which prevailed

below, we cannot say that this finding was erroneous.

                                                          Affirmed.




                               - 7 -
Benton, J., dissenting.

     "[S]topping an automobile and detaining its occupants

constitute a 'seizure' within the meaning of [the Fourth

Amendment], even though the purpose of the stop is limited and

the resulting detention quite brief."     Delaware v. Prouse, 440

U.S. 648, 653 (1979).    "While law enforcement officers may

engage in consensual encounters with citizens, the Supreme Court

has limited such encounters to those in which 'a reasonable

person would feel free "to disregard the police and go about his

business."'"     Reittinger v. Commonwealth, ___ Va. ___, ___, ___

S.E.2d ___, ___ (2000) (citations omitted).

     When the officer asked John C. Carter, Jr., to leave his

car to sign the summons, the officer did so only for the express

purpose of prolonging the encounter and delaying Carter's

departure.    After Carter signed the summons, the officer did not

tell Carter he was free to leave.    Instead, the officer

immediately began to interrogate Carter concerning narcotics.

He asked Carter if he "had any guns or drugs."    Although the

reason for the initial stop had ended, the officer continued the

detention by making inquiries unrelated to the initial stop.

     This inquiry concerning guns and drugs was an

unconstitutional extension of the original traffic stop.

             The officer: "may request a driver's
             license and vehicle registration, run a
             computer check, and issue a citation. When
             the driver has produced a valid license and
             proof that he is entitled to operate the

                                 - 8 -
          car, he must be allowed to proceed on his
          way, without being subject to further delay
          by police for additional questioning." Any
          further detention for questioning is beyond
          the scope of the Terry stop and therefore
          illegal unless the officer has a reasonable
          suspicion of a serious crime.

United States v. Rusher, 966 F.2d 868, 876-77 (4th Cir. 1992)

(citation omitted).

     All further questioning by the officer after Carter signed

the summons was unlawful.   Carter was not free to leave.   When

the officer began interrogating Carter, he did not tell Carter

he could leave.   The officer's immediate transition into the

inquiry was so seamless that a reasonable person would not have

believed the initial seizure had ended.   See Florida v. Royer,

460 U.S. 491, 502-03 (1983).

          [T]he events that transpired immediately
          [after Carter signed the summons] . . .
          would suggest to a reasonable person that
          . . . [he or she was not free to leave]. We
          do not think that a reasonable person, under
          the circumstances, would have considered
          that he was free to disregard the [officers]
          and simply drive away.

Reittinger, ___ Va. at ___, ___ S.E.2d at ___.

     An officer cannot satisfy these constitutional concerns by

simply testifying that the detainee was "free to go."    If, as in

this case, the officer did not tell the person he was free to

leave and the officer's subsequent words or conduct conveyed a

contrary message, no reasonable person would consider that he or

she, having been detained by the officer, could simply go away.


                               - 9 -
See id.; Royer, 460 U.S. at 502-03 (noting that Royer "was never

informed that he was free to board his plane if he so chose").

Therefore, because the officer had completed the traffic

investigation, I would hold that the inquiry concerning the

drugs and weapons unlawfully extended the seizure.

     The officer lacked probable cause or a reasonable

articulable suspicion to detain Carter for this interrogation

and further inquiry.   By his own testimony, the officer detained

Carter only to obtain "consent" to search.   The officer's

actions subjected Carter to a new and unrelated inquiry under

circumstances such that a reasonable person would not have

believed the initial seizure had ended and that he or she was

free to leave.   See Toliver v. Commonwealth, 23 Va. App. 34, 37,

473 S.E.2d 722, 724 (1996) (Benton, J., concurring).    Moreover,

the principle is well established that an alleged consent

derived from a person illegally detained is invalid.     See Royer,

460 U.S. at 507-08.

     For these reasons, I would hold that the trial judge erred

in refusing to suppress the evidence.   See Deer v. Commonwealth,

17 Va. App. 730, 736-37, 441 S.E.2d 33, 37-38 (1994).

Accordingly, I would reverse the conviction.




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