                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judge Clements and Senior Judge Annunziata
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                              MEMORANDUM OPINION* BY
v.     Record No. 0882-07-1                                 JUDGE JEAN HARRISON CLEMENTS
                                                                   SEPTEMBER 28, 2007
ROBERT C. COLLINS, S/K/A
 ROBERT LEONARD COLLINS


                    FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                                Westbrook J. Parker, Judge

                 Joanne V. Frye, Assistant Attorney General (Robert F. McDonnell,
                 Attorney General; Leah A. Darron, Senior Assistant Attorney
                 General, on brief), for appellant.

                 Barrett R. Richardson (Richardson and Rosenberg, LLC, on brief),
                 for appellee.


       Robert C. Collins stands indicted for possessing a concealed weapon as a violent felon, in

violation of Code § 18.2-308.2. Pursuant to Code § 19.2-398, the Commonwealth appeals a pretrial

ruling granting Collins’s motion to suppress the weapon found on his person during a search by

police. The Commonwealth contends the trial court erred by concluding the weapon should be

suppressed, as a matter of law, pursuant to Moore v. Commonwealth, 272 Va. 717, 636 S.E.2d 395

(2006), cert. granted, ___U.S.___ (Sept. 25, 2007) (No. 06-1082). For the reasons that follow, we

reverse the trial court’s suppression of the weapon.

       As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

appeal.

                                          I. BACKGROUND

          On July 31, 2006, at approximately 12:15 a.m., Suffolk Police Officer B. Oliver observed

Collins operating a bicycle in an “erratic manner” and without a helmet, bicycle light, or

registration. After Collins dismounted his bicycle in front of a residence, Officer Oliver exited his

vehicle and, from a distance twenty feet away, asked Collins, “Can I holler at you a minute?”

Collins responded by walking towards Oliver. Oliver “may have” shined a flashlight on Collins.

When the officer asked his name, Collins identified himself as Robert Collins and, without being

asked, handed Oliver an “old and faded” New York photo identification card. A backup officer,

who had been “around the corner,” then arrived on the scene.

          Officer Oliver did not cite Collins for any violations regarding his operation of the

bicycle. After discussing the erratic operation of the bicycle with Collins and advising him that he

needed a helmet, light, and registration, Officer Oliver radioed for a warrant check on Collins. That

check, which occurred “one or two minutes” after Oliver received the identification card from

Collins, revealed that Collins had outstanding felony warrants for robbery and firearm charges.

After discovering the outstanding warrants, Oliver conducted a pat-down search of Collins and

found a “t-handle knife” in a holster strapped to Collins’s belt. Collins was charged with carrying a

concealed weapon after having been convicted of a felony. That charge was subsequently amended

to possession of a concealed weapon by a violent convicted felon.

          Collins moved to suppress the knife. After conducting a hearing, the trial court granted

Collins’s motion to suppress the knife, holding that the encounter between Officer Oliver and

Collins was not consensual and that the knife should be suppressed pursuant to the decision in

Moore.

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       This appeal by the Commonwealth followed.

                                           II. ANALYSIS

       On appeal, the Commonwealth contends the trial court erred in concluding the encounter

between Officer Oliver and Collins was not consensual and that the knife should be suppressed

pursuant to Moore. Rather, the Commonwealth argues, this case is controlled by the decisions in

McCain v. Commonwealth, 261 Va. 483, 545 S.E.2d 541 (2001), and McLellan v. Commonwealth,

37 Va. App. 144, 554 S.E.2d 699 (2001). We agree with the Commonwealth.

       In reviewing a trial court’s ruling on a motion to suppress, we view the evidence, and all

reasonable inferences fairly deducible therefrom, in the light most favorable to the party

prevailing below, Collins in this case. See Commonwealth v. Grimstead, 12 Va. App. 1066,

1067, 407 S.E.2d 47, 48 (1991). “[T]he question whether a person has been seized in violation

of the Fourth Amendment is reviewed de novo on appeal.” Reittinger v. Commonwealth, 260

Va. 232, 236, 532 S.E.2d 25, 27 (2000). However, “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 v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc).

       In McCain, an officer observed McCain and a passenger sitting in a parked car. 261 Va. at

487, 545 S.E.2d at 543. After illuminating the car with his vehicle’s headlights and a spotlight, the

officer approached the car and asked McCain for identification. Id. at 486-87, 545 S.E.2d at 543.

McCain gave the officer “a valid driver’s license,” which the officer then used to check for

outstanding warrants. Id. at 487, 545 S.E.2d at 543. Finding no outstanding warrants, the officer

returned McCain’s license to him. Id. McCain then consented to a search of the vehicle. Id. On

appeal, McCain argued he was unlawfully seized when the officer asked for identification and

checked for outstanding warrants. Id. at 489, 545 S.E.2d at 544. Our Supreme Court disagreed,

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holding that the officer did not “effect[] a seizure of McCain when he requested identification from

McCain and conducted a check for outstanding warrants.” Id. at 490, 545 S.E.2d at 545. Instead,

the Court explained, the officer merely “requested identification from McCain without any show

of force or display of authority that would have led a reasonable person to believe that he was not

free to leave the scene of the encounter.” Id. at 491, 545 S.E.2d at 546.

        Similarly, in McLellan, two officers approached McLellan, who was seated in the driver’s

seat of a parked car, and asked for some identification to determine if he was trespassing on the

property. 37 Va. App. at 148, 554 S.E.2d at 701. After obtaining identification from McLellan, one

of the officers checked to see if he had been warned against trespassing and if he had any

outstanding warrants. Id. Following McLellan’s furtive movements and failure to comply with the

officer’s directive to keep his hands on the steering wheel, the officers searched the car. Id. at

148-49, 554 S.E.2d at 701-02. McLellan argued he was unlawfully seized when the officers

demanded identification. Id. at 150, 554 S.E.2d at 702. Noting that the officers, “in a public place,

simply requested some identification from appellant” and that “[t]here was no show of force or

display of authority that would have led a reasonable person to believe he was not free to leave,” we

concluded that, consistent with the Supreme Court’s decision in McCain, McLellan was not

“seized” within the meaning of the Fourth Amendment. Id. at 153, 155, 554 S.E.2d at 703, 704.

        Here, the encounter between Officer Oliver and Collins occurred in a public place. After

Collins dismounted his bicycle, Oliver merely asked if he could speak with him. Of his own accord,

Collins approached the officer and, when asked his name, voluntarily provided an out-of-state

identification card that was “old and faded.” After briefly discussing Collins’s erratic operation of

the bicycle and advising him that he needed a helmet, light, and registration to operate a bicycle in

Suffolk, Oliver ran a check for outstanding warrants. Only after discovering that Collins had




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outstanding felony warrants for robbery and firearm charges did he conduct a pat-down search of

Collins.

        As in McCain and McLellan, there was no show of force or display of authority that would

have led a reasonable person to believe that he was not free to leave the scene of the encounter.

Although Officer Oliver may have shined a flashlight on Collins during the encounter, such an act

was not a show of authority so intimidating as to constitute a Fourth Amendment seizure. See

Baldwin v. Commonwealth, 243 Va. 191, 199, 413 S.E.2d 645, 649-50 (1992) (holding that shining

a floodlight at a suspect and telling him to “come over here” did not render the initial encounter a

seizure); see also McCain, 261 Va. at 486, 491, 545 S.E.2d at 543, 546 (indicating that illuminating

the suspect’s car with headlights and a spotlight during the initial encounter did not constitute a

seizure). Nor did the fact that Officer Oliver talked to Collins about his operation of the bicycle

indicate that a seizure had occurred. As Oliver testified, he simply discussed the erratic operation

and advised Collins that he needed a helmet, light, and registration. He did not cite him for any

infractions. The entire conversation took no more than “one or two minutes.” The omission of an

explicit instruction by the officer that Collins was free to leave did not render the encounter a

seizure. See Harris v. Commonwealth, 266 Va. 28, 33, 581 S.E.2d 206, 210 (2003) (“The failure

to affirmatively inform [the suspect] that he was free to leave does not by itself require a finding

that the ensuing encounter was non-consensual.”). Moreover, as the trial court expressly found,

“all the talk about the bicycle had ended before” the officer used the identification card to run the

warrant check. We hold, therefore, that Collins was not “seized,” within the meaning of the Fourth

Amendment, at the time.

        We further hold that the trial court’s reliance on Moore, in concluding that Officer Oliver

violated Collins’s Fourth Amendment rights when he retained his identification card and ran a

warrant check, was misplaced. In Moore, police officers stopped Moore for a Class 1 misdemeanor

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and arrested him. Id. at 719, 636 S.E.2d at 396. Incident to that arrest, they subsequently conducted

a search of Moore’s person and found cocaine in his jacket pocket. Id. Holding the officers were

authorized pursuant to Code § 19.2-74 to only issue a summons for the misdemeanor offense and

thus “could not lawfully conduct a full field-type search,” the Supreme Court reversed Moore’s

conviction. Id. at 725, 636 S.E.2d at 400. In the present case, however, as previously mentioned,

Officer Oliver searched Collins only after learning that Collins had outstanding felony warrants for

robbery and firearm charges. Accordingly, Moore is inapposite to this case.

       Hence, we conclude the trial court erred in granting Collins’s motion to suppress the knife.

                                        III. CONCLUSION

       For these reasons, we reverse the trial court’s suppression of the evidence and remand this

case for further proceedings consistent with this opinion, if the Commonwealth be so advised.

                                                                      Reversed and remanded.




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