Opinion
Record No. 0102-93-1
Decided: July 26, 1994
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, Frederick B. Lowe, Judge
Affirmed.
Andrew G. Wiggin (Office of the Public Defender, on brief), for appellant.
Virginia B. Theisen, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this criminal appeal, we hold that the trial court did not err in denying the defendant's motion to suppress the cocaine seized from the defendant. The cocaine was discovered during a consensual encounter between the police and the defendant and not during a search. Therefore, seizure of the cocaine was legal, and we affirm the conviction.
The defendant has the burden to show that a trial court's denial of a suppression motion constitutes reversible error. Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 732, cert. denied, 449 U.S. 1017 (1980). The trial court did not err in denying the motion to suppress because the cocaine found by Officer Tiedemann was discovered before the defendant was seized for purposes of the Fourth Amendment. "Only when [an] 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). See also Baldwin v. Commonwealth, 243 Va. 191, 195, 413 S.E.2d 645, 647 (1992).
Police officers do not implicate the Fourth Amendment by approaching an individual in a public place and asking questions. Florida v. Royer, 460 U.S. 491, 497 (1983) (Fourth Amendment not implicated when police officers asked defendant to see his airline ticket, asked for identification and requested consent to search him); see also Carson v. Commonwealth, 12 Va. App. 497, 499, 404 S.E.2d 919, 920 (1991), aff'd en banc, 13 Va. App. 280, 410 S.E.2d 412, aff'd, 244 Va. 293, 421 S.E.2d 415 (1992).
Tiedemann approached the defendant, who was sitting in the passenger's seat of a parked car, and asked "if he had a moment [to] speak with him." Tiedemann requested identification and asked Beeman to exit his vehicle. Beeman consented to the requests. At this point, Beeman had not been stopped and seized by the police. Once outside the car, Beeman turned, placed his hands in his vest pocket, and dropped a small plastic "baggie" on the ground. Tiedemann saw that the packet contained a substance that had the appearance of cocaine, whereupon Tiedemann arrested the defendant based upon probable cause that he possessed cocaine.
Prior to Beeman's arrest, a reasonable person in his situation would not reasonably have believed that he was not free to leave. See Commonwealth v. Satchell, 15 Va. App. 127, 131, 422 S.E.2d 412, 414-415 (1992). The car in which Beeman was sitting had not been stopped by the police. The police vehicle was not blocking its exit. While Officer Tiedemann had a flashlight, he did not display his weapon, nor did he use sirens or lights on his vehicle. Officer Tiedemann did not indicate to Beeman that he was being detained or was not free to leave. No seizure occurred until Beeman dropped the "baggie" containing cocaine, at which time he was arrested upon probable cause. See generally Hollis v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889 (1976). Accordingly, we uphold the trial court's denial of the defendant's motion to suppress, and we affirm the defendant's conviction for possession of cocaine.
At the suppression hearing, the trial court based its denial of defendant's motion upon the police having a reasonable suspicion to make a Terry stop. Because we hold that the encounter between Beeman and Tiedemann was consensual, we do not reach the question whether the officer had a reasonable suspicion of criminal activity.
Affirmed.