                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Humphreys and Kelsey
Argued at Richmond, Virginia


CALVIN TAYLOR
                                                              MEMORANDUM OPINION* BY
v.     Record No. 2856-04-2                                     JUDGE LARRY G. ELDER
                                                                    MARCH 7, 2006
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                              Ernest P. Gates, Judge Designate

                 John B. Mann (Levit & Mann, P.C., on briefs), for appellant.

                 Denise C. Anderson, Assistant Attorney General (Judith Williams
                 Jagdmann, Attorney General, on brief), for appellee.


       Calvin Taylor (appellant) appeals from his conviction, entered upon his conditional plea

of guilty, for possession of marijuana with intent to distribute. On appeal, he contends the

seizure and search that led to the discovery of marijuana on his person were unreasonable and

violated the Fourth Amendment. We hold the evidence supports a finding that the seizure and

search that yielded the marijuana were reasonable, and we affirm appellant’s conviction.1

       On appeal of the denial of a motion to suppress, we view the evidence in the light most

favorable to the Commonwealth. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         In his petition for appeal, appellant also challenged a simultaneous conviction for
possessing cocaine, also entered upon a conditional plea of guilty, because it was found in a
post-arrest search that he contended was the fruit of the earlier illegal seizure and search that
yielded the marijuana. At the petition stage, this Court concluded appellant failed to preserve for
appeal his assignment of error regarding the cocaine and denied his petition for appeal on that
ground. We note that the result is the same result that would have obtained if the petition for
appeal of the cocaine conviction had been granted along with the marijuana conviction.
S.E.2d 47, 48 (1991). “[W]e are bound by the trial court’s findings of historical fact unless

‘plainly wrong’ or without evidence to support them,” McGee v. Commonwealth, 25 Va. App.

193, 198, 487 S.E.2d 259, 261 (1997) (en banc), but we review de novo the trial court’s

application of defined legal standards such as reasonable suspicion to the particular facts of the

case, see Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911

(1996).

          Fourth Amendment jurisprudence recognizes three categories of police-citizen contact:

“(1) consensual encounters, (2) brief, minimally intrusive investigatory detentions, based upon

specific, articulable facts, commonly referred to as Terry stops, see Terry v. Ohio, 392 U.S. 1, 88

S. Ct. 1868, 20 L. Ed. 2d 889 (1968), 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).

          Consensual encounters “‘need not be predicated on any suspicion of the person’s

involvement in wrongdoing,’ and remain consensual ‘as long as the citizen voluntarily

cooperates with the police.’” Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870

(1992) (quoting United States v. Wilson, 953 F.2d 116, 121 (4th Cir. 1991)). “‘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.’” Greene v. Commonwealth, 17

Va. App. 606, 610, 440 S.E.2d 138, 140 (1994) (quoting United States v. Mendenhall, 446 U.S.

544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980)).

          “A seizure occurs when an individual is either physically restrained or has submitted to a

show of authority.” McGee, 25 Va. App. at 199, 487 S.E.2d at 262. “Whether a seizure has

occurred . . . depends upon whether, under the totality of the circumstances, a reasonable person

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would have believed that he or she was not free to leave.” Id. at 199-200, 487 S.E.2d at 262.

Factors relevant under the “totality of the circumstances” analysis 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.”’” Greene, 17 Va. App. at 611 n.1, 440 S.E.2d at 141 n.1

(quoting Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877) (other citation omitted).

       “[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.” McCain v. Commonwealth,

261 Va. 483, 491, 545 S.E.2d 541, 546 (2001); see also INS v. Delgado, 466 U.S. 210, 216, 104

S. Ct. 1758, 1762, 80 L. Ed. 2d 247 (1984).

       If, during the course of a consensual encounter, the officer develops reasonable and

articulable suspicion that criminal activity may be afoot, he may “detain [the individual] briefly

while attempting to obtain additional information” to confirm or dispel his suspicions. Hayes v.

Florida, 470 U.S. 811, 816, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705 (1985).

               [O]nce an officer has lawfully detained an individual, “he is
               ‘authorized to take such steps as [are] necessary to protect [his and
               others’] personal safety and to maintain the status quo during the
               course of the stop.’” Servis v. Commonwealth, 6 Va. App. 507,
               519, 371 S.E.2d 156, 162 (1988) (quoting United States v.
               Hensley, 469 U.S. 221, 235, 105 S. Ct. 675, 83 L. Ed. 2d 604
               (1985)). An officer may preserve the status quo by ordering the
               person detained to place his hands where the officer can see them.

Welshman v. Commonwealth, 28 Va. App. 20, 34, 502 S.E.2d 122, 128-29 (1998) (en banc).

       When an officer is both (1) rightly in the presence of an individual, as he is during the

course of a valid Terry stop, and (2) develops reasonable suspicion that the person may, in fact,

be armed and dangerous, he may frisk that person for weapons. See Phillips v. Commonwealth,

17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993); see also 4 Wayne R. LaFave, Search and

Seizure § 9.6(a), at 615-18 (4th ed. 2004). Circumstances “relevant in [this] analysis include
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characteristics of the area surrounding the stop, the time of the stop, the specific conduct of the

suspect individual, the character of the offense under suspicion, and the unique perspective of a

police officer trained and experienced in the detection of crime.” Christian v. Commonwealth,

33 Va. App. 704, 714, 536 S.E.2d 477, 482 (2000) (en banc) (footnote omitted).

       Here, the evidence supports a finding that Officer Hixon’s initial encounter with

appellant was consensual. Officers Hixon and Graves approached the vehicle in which appellant

and his uncle were occupants in an effort to initiate a consensual encounter. No evidence

established that, when Officers Hixon and Graves approached the vehicle in which appellant and

his uncle were occupants, the officers displayed their weapons or directed the men to remain

inside the car, and appellant in fact felt free to exit the vehicle while he talked to Officer Hixon.

This evidence supports a finding that appellant was not physically restrained and had not

submitted to any show of authority. Thus, at the time appellant exited the vehicle and Officer

Hixon smelled marijuana, appellant had not been seized, and the encounter remained consensual.

       Once Officer Hixon smelled what he believed to be the odor of marijuana coming from

the vehicle, he had reasonable, articulable suspicion to believe that criminal activity was afoot,

cf. Cherry v. Commonwealth, 44 Va. App. 347, 357-58, 605 S.E.2d 297, 302 (2004) (holding

that “the detection of the odor of burning marijuana emanating from the open door of a

residence, by a credible law enforcement officer who is familiar with its smell, provides that

officer with probable cause to believe contraband is present inside the residence”), and he was

entitled to detain appellant briefly while attempting to obtain additional information to either

confirm or dispel his suspicion that appellant might be in possession of marijuana. During the

course of that detention, Officer Hixon was entitled to preserve the status quo by ordering

appellant to keep his left hand, which appellant repeatedly placed in his left pocket, where the

officer could see it. Welshman, 28 Va. App. at 34, 502 S.E.2d at 128-29. Officer Hixon testified

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that he had patrolled that particular apartment complex for a period of five years and had

previously “encountered individuals [there]” in the early morning hours “that [he had] arrested

with drugs and/or guns on their persons.” The smell of marijuana, combined with the time of the

encounter, appellant’s repeated insertion of only his left hand into his left coat pocket despite

Officer Hixon’s repeated instruction to him to remove it, and Officer Hixon’s knowledge of the

character of the area in which the encounter occurred, supported Officer Hixon’s suspicion that

appellant was armed and dangerous. These circumstances justified Officer Hixon’s decision to

physically seize and restrain appellant while frisking his pocket for weapons. When the frisk

yielded marijuana rather than a weapon, Officer Hixon had probable cause for an arrest.

       Citing Murphy v. Commonwealth, 264 Va. 568, 570 S.E.2d 836 (2002), appellant

contends that Officer Hixon’s “feel” of something “crumbly” in appellant’s pocket that he

believed to be marijuana was insufficient to provide probable cause for arrest. We disagree.

Officer Hixon testified that immediately upon patting the pocket and without further

manipulating its contents, he believed, based on his training and experience, that the substance it

contained was marijuana. This testimony, if found credible by the trial court, was sufficient to

provide probable cause to seize the contents of the pocket. See Murphy, 264 Va. at 574-75, 570

S.E.2d at 839 (recognizing “plain feel” doctrine of Minnesota v. Dickerson, 508 U.S. 366, 113

S. Ct. 2130, 124 L. Ed. 2d 334 (1993), as legitimizing seizure of contraband contained in pocket

by officer who said character of item as contraband was immediately apparent upon patting and

distinguishing facts in Murphy based on testimony of officer that “character of the object” as a

plastic bag was “immediately apparent” and that officer merely inferred that bag likely contained

contraband).

       Thus, the seizure and search that led to Officer Hixon’s discovery of marijuana in

appellant’s left coat pocket were reasonable, and the trial court’s denial of appellant’s

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suppression motion was not error. Accordingly, we affirm appellant’s conviction for possession

of marijuana with intent to distribute.

                                                                                     Affirmed.




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