Opinion
Record No. 0784-93-1
September 17, 1993
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH EDWARD W. HANSON, JR., JUDGE.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellant.
S. Clark Daugherty, Deputy Public Defender (Office of the Public Defender, on brief), for appellee.
Present: Chief Judge Moon, Judges Baker and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In this appeal by the Commonwealth, the sole issue presented is whether the trial court erroneously found that Edward Lavelle Hines (Hines) had been seized without a warrant in violation of the Fourth Amendment to the United States Constitution, which caused the trial court to suppress the inculpatory evidence discovered by the police subsequent to their encounter with Hines.
The record discloses that at 10:00 p.m. on October 27, 1992, Officers Savino and Bishard were conducting surveillance of a crowd gathered in front of a house located in "a high drug, high crime area." In pursuance of that surveillance and in an attempt to speak to persons in front of the residence, the officers encountered Hines as they walked toward each other.
As Terry teaches . . . in the interest of "effective crime prevention and detection . . . a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest."
Baldwin v. Commonwealth, 243 Va. 191, 195, 413 S.E.2d 645, 647 (1992) (quoting Terry v. Ohio, 392 U.S. 1, 22 (1968)). As the officers approached Hines, each officer stepped onto the grass on either side of the cement walkway, assuring that Hines had free passage if he elected to proceed past them toward the residence. A person is "'seized' only when, by means of physical force or show of authority, his freedom of movement is restrained." Baldwin, 243 Va. at 196, 413 S.E.2d at 647 (quotingUnited States v. Mendenhall, 446 U.S. 544, 553 (1980)). The requisite restraint is not shown in the absence of evidence such as the "threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of an accused, or the use of language or tone of voice indicating that compliance with the officer's request to stop might be compelled." Id. No such showing has been made in this case.
"[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street, . . . by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." Baldwin, 243 Va. at 196, 413 S.E.2d at 647 (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)). "Nor would the fact that the questioner is a police officer, without more, convert the encounter into a seizure." Id. "While most citizens will respond to a police request, the fact that people do so . . . without being told that they are free not to respond," does not eliminate the consensual nature of the response. I.N.S. v. Delgado, 466 U.S. 210, 216 (1984). The subjective belief of the person approached is irrelevant to whether a seizure has occurred. United States v. Winston, 892 F.2d 112, 116 (D.C. Cir. 1989), cert. denied, 497 U.S. 1027 (1990).
For the reasons stated, the order of the trial court declaring the encounter to be a seizure and directing that the evidence be suppressed is reversed and this cause is remanded for such further action as the Commonwealth may be advised.
Reversed and remanded.