United States of America v.  Terrence Ormstom Smith

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4957 
TERRENCE ORMSTOM SMITH,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(CR-03-221-A)
Argued: November 30, 2004
Decided: January 27, 2005
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Affirmed in part; reversed and remanded in part by published opinion.
Judge Luttig wrote the opinion, in which Judge Niemeyer and Judge
King joined.
COUNSEL
ARGUED: Mark Howard Bodner, Fairfax, Virginia, for Appellant.
Sean Thomas Martin, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee. ON BRIEF: Paul J. McNulty, United States
Attorney, Alexandria, Virginia, for Appellee.

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OPINION
LUTTIG, Circuit Judge:
Following the denial of his motion to suppress evidence gathered
in an allegedly unlawful seizure, appellant Terrence Ormstom Smith
was convicted before a federal magistrate judge of possession of
cocaine, making a false statement to a law enforcement officer, and
driving with a suspended license. The district court affirmed the
denial of Smith’s motion to suppress and affirmed all of his convic-
tions. On appeal, Smith challenges the denial of his motion to sup-
press, and challenges his conviction for driving with a suspended
license on the grounds that the CIA access road is not a highway, as
required by Virginia law to sustain such a conviction. We hold that
even if the actions Smith challenges constitute a seizure, that seizure
was lawful because Smith’s encounter with officers was consensual.
We also hold that Smith’s challenge to his conviction for driving with
a suspended license is meritorious. Accordingly, we affirm Smith’s
convictions for possession of cocaine and for making a false state-
ment, but reverse his conviction for driving with a suspended license.
I.
At 1:38 a.m. on October 14, 2002, Smith drove to the call box on
the CIA access road outside the main gate of the CIA headquarters
in McLean, Virginia, and said he was lost and needed directions. J.A.
206-07. A CIA officer directed Smith to pull to the Jersey barrier,
which was about 75 meters from the call box and closer to the main
gate to the CIA. Id. Smith did so. Id.
When Smith reached the barrier, CIA Security Protective Service
Officers Adam Petrus and Steve Songy approached Smith’s car and
yelled at him and his passengers to put their hands up. Id. at 207-08.
Both officers were armed, Petrus with a nine millimeter pistol and
Songy with a shotgun. Id. at 208. It is unclear from the record whether
Petrus had his weapon out of the holster. The parties agree that the
shotgun was in a position from which it could readily be fired,
although they disagree as to whether it was pointed at the passengers
of the car. Id.
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Petrus approached the car and asked Smith and his passengers
whether they knew where they were, whether they had drugs or alco-
hol in the vehicle, and for identification. Id. at 38. Smith said he did
not have a driver’s license; upon being pressed on whether his license
was suspended, he admitted that it was. Id. at 38-39. Petrus asked
Smith to step out of the car and asked for his name and date of birth;
Smith provided a false name and the wrong date of birth. Id. at 40.
Petrus ran a security check on that name and birth date and found no
record of such a person. Id. Petrus then requested that Smith consent
to a pat-down for weapons, which Smith did. Id. at 40-41. Because
he smelled alcohol, Petrus had another officer perform a field sobriety
test. Id. at 43. Smith failed and was arrested. Id. Upon a search of
Smith incident to arrest, the officer found a paraphernalia pipe used
to smoke a controlled substance. Id. at 44.
Smith was charged with possession of cocaine, operating a vehicle
with a blood alcohol concentration of over .08 percent, operating a
vehicle while under the influence of alcohol, driving with a suspended
license, and providing false information to an authorized person
investigating a violation of law or regulation. J.A. 4-8. Smith moved
to suppress all evidence supporting these charges, alleging that the
action of the officers in surrounding his car with weapons constituted
an unlawful seizure. See J.A. 10-11. The magistrate judge denied this
motion. The prosecutor dismissed the charge of driving with a blood
alcohol level of over .08 percent, and Smith was acquitted of driving
under the influence of alcohol. J.A. 12. Smith was convicted of the
remaining charges, and sentenced to two consecutive prison terms of
one year and of one day. J.A. 13.
Smith appealed to the district court, challenging both the magistrate
judge’s ruling on his suppression motion and his conviction for driv-
ing with a suspended license on a "highway." The district court
affirmed the magistrate judge’s judgment on both points. J.A. 18-27,
205-15. Smith now appeals.
II.
First, Smith challenges the district court’s affirmance of the magis-
trate judge’s denial of his motion to suppress the evidence gathered
against him by Officer Petrus. Smith claims that a seizure occurred
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when the armed officers approached his car, making him feel that he
could not leave without answering their questions. See United States
v. Mendenhall, 446 U.S. 544, 554 (1980) ("[A] person has been
‘seized’ within the meaning of the Fourth Amendment only if, in view
of all of the circumstances surrounding the incident, a reasonable per-
son would have believed that he was not free to leave."). A seizure
is permissible under the Fourth Amendment either if officers "have a
reasonable suspicion, based on objective facts, that the individual is
involved in criminal activity," or if the stop is made "pursuant to a
practice embodying neutral criteria." Brown v. Texas, 443 U.S. 47, 51
(1979). Smith contends that neither of these circumstances is present,
and thus that the alleged seizure violated the Fourth Amendment and
that evidence gathered against him during the seizure must be sup-
pressed.
The district court denied the motion to suppress, concluding that a
seizure did occur, but that the officers had reasonable articulable sus-
picion for the seizure. J.A. 212, 214. We review the district court’s
conclusions of law de novo, but review its underlying factual conclu-
sions only for clear error. United States v. McKinnon, 92 F.3d 244,
246 (4th Cir. 1996). We are not limited to evaluation of the grounds
offered by the district court to support its decision, but may affirm on
any grounds apparent from the record. MM v. School District, 303
F.3d 523, 536 (4th Cir. 2002).
We do not reach the district court’s conclusions that a seizure
occurred and that reasonable suspicion existed, because we find that
even if the officers’ show of force was a seizure, that seizure was con-
sensual and thus reasonable.1 Florida v. Jimeno, 500 U.S. 248, 250-
51 (1991) ("[W]e have long approved consensual searches because it
is no doubt reasonable for the police to conduct a search once they
have been permitted to do so.").
1Similarly, we decline to reach the government’s argument that the
Fourth Amendment is not implicated at all on CIA property. See United
States v. Jenkins, 986 F.2d 76, 78 (4th Cir. 1993) (citing caselaw holding
that searches on closed military bases are "exempt from the usual Fourth
Amendment requirement of probable cause").
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Appellant was not forced to proceed from the call box to the Jersey
barrier, but rather did so in order to obtain directions from the offi-
cers, which he had requested. See J.A. 210-11. The initiation of the
encounter was thus undoubtedly consensual. Smith contends that he
was no longer free to leave — and thus presumably no longer con-
sented to the encounter — when he was surrounded by officers with
weapons. We do not believe the scope of his consent can be viewed
so narrowly. The Supreme Court has held that "[t]he standard for
measuring the scope of a suspect’s consent under the Fourth Amend-
ment is that of ‘objective’ reasonableness — what would the typical
reasonable person have understood by the exchange between the offi-
cer and the suspect?" Jimeno, 500 U.S. at 251. In fact, the Fourth
Amendment does not even require that the suspect actually consent
to a government search; factual determinations by the government,
such as the presence of consent, must be reasonable, but are not
required always to be correct. Cf. Illinois v. Rodriguez, 497 U.S. 177,
185 (1990) (holding that the general rule that factual determinations
must only be reasonable applies when law enforcement evaluates
whether a party giving consent to a search has the authority to do so).
We are satisfied that Smith’s unauthorized and voluntary approach
to officers outside the CIA headquarters in the middle of the night jus-
tified a belief by the officers that he was consenting to the customary
security precautions required at that time of the night at the entrance
to such a protected facility, regardless of whether Smith intended to
consent to a demand for identification by armed officers or whether
he even knew that he was so consenting. A reasonable person would
certainly know that officers at the CIA gate would be armed when
approaching an unidentified car, and that such officers would seek to
determine who was entering the property without authorization.2 As
such, a reasonable person would view a decision to initiate a consen-
sual encounter with officers near the gate of the CIA as consent to
these foreseeable circumstances. The officers were thus plainly justi-
fied in believing that their encounter with Smith at the Jersey barrier
was consensual. Therefore, if any seizure occurred, it was within the
2In fact, federal regulations require anyone "entering on to or when on
[a Central Intelligence] Agency installation" to produce proper identifi-
cation on demand. 32 C.F.R. § 1903.6(b).
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scope of Smith’s consent and thus reasonable within the meaning of
the Fourth Amendment.
III.
Appellant also contends that his conviction for driving on a sus-
pended license is not sustainable, because such a conviction requires
that an individual drive on a "highway" and the access road in front
of the CIA is not a "highway" under Virginia law.3 Again, we review
the factual conclusions of the district court for clear error. United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
Virginia law prohibits anyone whose driver’s license has been sus-
pended or revoked from "thereafter driv[ing] any motor vehicle . . .
on any highway in the Commonwealth until the period of such sus-
pension or revocation has terminated." Va. Code § 46.2-301(B). A
"highway" is defined, in relevant part, to include
the entire width between the boundary lines of every way or
place open to the use of the public for purposes of vehicular
travel in the Commonwealth, including the streets and alleys
. . . .
Va. Code § 46.2-100 (emphasis added). Smith contends that the CIA
access road is not a highway because it is not "open to the use of the
public."
The district court reasoned and held as follows, that "[t]he Defen-
dant’s entrance from Route 123 to the CIA access road was not barred
by guards or gates and no signs indicated the access road was a
restricted area [and that] [t]his satisfies the prima facie presumption
that the road was open to the public and, therefore, a public highway."
J.A. 24. See Kay Management Co., Inc. v. Creason, 220 Va. 820, 832
(Va. 1980) ("We hold that the evidence of accessibility to the public
for free and unrestricted use gave rise to a prima facie presumption
that the streets [at issue] were highways . . . .").
3State law governs traffic safety and the permissible use and operation
of vehicles within a CIA installation. 32 C.F.R. § 1903.3.
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Smith argues that the government presented no evidence to support
the district court’s factual conclusions. However, on appeal, the gov-
ernment itself contends that signs prohibiting unauthorized entry were
present. See Appellee’s Br. at 4 ("Signs are posted along the roadway
advising that only CIA employees and those with authorized business
may enter CIA property."); see also J.A. 54 (testimony of Officer
Petrus) ("Any individual who proceeds to the CIA, there are road
signs along the road that inform only CIA employees and those with
authorized business are to only enter.").
Because the undisputed evidence in the record reveals that signs
barring entry were present, and because the government concedes as
much, the district court’s conclusion to the contrary is clear error. The
presence of signs barring public entry establishes that the access road
is not open to public use, and thus is not a highway under Virginia
law. See Furman v. Call, 234 Va. 437, 439 ("Thus, the test for deter-
mining whether a way is a ‘highway’ depends upon the degree to
which the way is open to public use for vehicular travel."); see also
id. at 441 (finding a road was a highway because signs indicating
"Private Property, No Soliciting" only prohibited soliciting, not the
entry of the public).
The government offers two arguments against this conclusion.
First, the government notes that Smith did not meet with any interfer-
ence as he drove down the access road. But this fact is not determina-
tive. In Flinchum v. Commonwealth of Virginia, the Court of Appeals
of Virginia concluded that the parking lot of a sporting goods store
was not a highway, without providing any indication that the driver
encountered interference as he drove into the parking lot. 24 Va. App.
734 (1997). The court noted the presence of a "no trespassing" sign
and held that "‘the premises . . . were open to the public upon [the
owner’s] invitation. The invitation was for private business purposes
and for his benefit.’" Id. at 736-37 (emphasis added) (quoting Prilla-
man v. Commonwealth, 199 Va. 401, 407-08 (1957)). Likewise in this
case, the presence of signs barring unauthorized admittance is suffi-
cient to establish that the access road is not "open to the use of the
public for purposes of vehicular travel." Va. Code § 46.2-100.
Second, the government argues that the road is used not only by
employees and official visitors, but also by taxi and bus drivers taking
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authorized personnel to the gate, delivery trucks, and persons in
search of directions such as defendant. But parties bringing authorized
personnel or deliveries are not members of the public at large, but are
"those with authorized business" whom the government admits are
permitted to use the roadway. Appellee’s Br. at 4. The suggestion that
the fact that individuals who are lost, such as the defendant, may drive
on the road establishes the character of the access road as a highway
is even less persuasive, given that the government not only does not
argue that the access road is open to such individuals, but describes
Smith’s presence on the access road when lost as "without authoriza-
tion." Appellee’s Br. at 13. Because the general public is not permit-
ted on the access road, it is not "open to the use of the public for
purposes of vehicular travel." Va. Code § 46.2-100. See also
Flinchum, 24 Va. App. at 737 (holding that a road not "open to the
public at all times" was not a "highway").
CONCLUSION
For the foregoing reasons, we affirm Smith’s convictions for pos-
session of cocaine and for making a false statement to an investigat-
ing officer, but reverse his conviction for driving with a suspended
license. The case is remanded for resentencing consistent with this
opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
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