Commonwealth of Virginia v Charlie William Gilbert

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Bumgardner and Lemons
Argued by teleconference
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION* BY
v. 	Record No. 1569-98-3 	JUDGE SAM W. COLEMAN III
DECEMBER 29, 1998
CHARLIE WILLIAM GILBERT
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
Rudolph A. Shupik, Jr., for appellee.
Charlie William Gilbert was charged with driving a motor
vehicle after having been declared an habitual defender. 	On
Gilbert's motion, the trial judge suppressed evidence from a
police encounter that the judge determined was a Terry stop
conducted without reasonable suspicion. 	Because the trial court
erred in concluding that the officer lacked reasonable suspicion,
the trial court's ruling is reversed and the case is remanded to
the circuit court.
I. 	BACKGROUND
On appeal, we view the evidence in the light most favorable
to the prevailing party, and grant to that party all reasonable
inferences fairly deducible from the evidence. 	See Commonwealth
v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

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Sergeant Dennis, while in uniform and on duty in his marked
police car, was parked in a lot outside a supermarket. 	Dennis
observed Gilbert drive a vehicle onto the lot, park, and exit the
vehicle. 	On seeing Gilbert drive onto the lot, Sergeant Dennis,
who knew Gilbert, recalled that in a conversation seven to ten
months earlier Gilbert had mentioned that he was an habitual
offender.
Based on this recollection, Sergeant Dennis motioned for
Gilbert to approach his car. 	As Gilbert came to the patrol car,
Sergeant Dennis told him that he "need[ed] for him to sit on the
passenger side" of his car. 	Sergeant Dennis explained to Gilbert
that he knew Gilbert was an habitual offender and that he would
have to charge him with driving after having been declared an
habitual offender. 	Gilbert responded by asking Sergeant Dennis
to "give him a break." 	After Sergeant Dennis called the police
dispatch with Gilbert's Social Security number and confirmed
Gilbert's status as an habitual offender, Dennis issued Gilbert a
summons for driving after having been declared an habitual
offender and released him.
The trial judge found that Sergeant Dennis detained Gilbert
within the meaning of the Fourth Amendment when Dennis motioned
Gilbert to his car and had him take a seat in the patrol car.
The trial judge held that the detention was an invalid Terry stop
because the officer's awareness that some seven to ten months
earlier Gilbert had been an habitual offender was insufficient to

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create a reasonable suspicion that Gilbert continued to be and
was presently an habitual offender.
II. 	ANALYSIS
In this interlocutory appeal, pursuant to Code § 19.2-398 et
seq., we determine whether the trial court erred in finding that
the encounter between Sergeant Dennis and Gilbert constituted a
seizure within the meaning of the Fourth Amendment, and if not,
whether the court erred in finding that no reasonable suspicion
justified the seizure. 	The analysis involves mixed questions of
law and fact. 	See McGee v. Commonwealth, 25 Va. App. 193,
197-98, 487 S.E.2d 259, 261 (1997) (en banc). 	We are bound by
the trial court's findings of historical fact unless plainly
wrong or without evidence to support them, and we give deference
to the inferences the trial court draws from those facts. 	See
id. at 198, 487 S.E.2d at 261. 	However, we determine de novo
whether the facts, as established, implicate the Fourth
Amendment, and if so, whether reasonable suspicion or probable
cause justified the intrusion. 	See id.
The trial court did not err in finding that the encounter
between Sergeant Dennis and Gilbert constituted an investigatory
or Terry stop.
[A] person has been "seized" within the
meaning of the Fourth Amendment only if, in
view of the circumstances surrounding the
incident, a reasonable person would have
believed that he was not free to leave.
Examples of the circumstances that might
indicate a seizure, even where the person did
not attempt to leave [include, inter alia]
. . . the use of language or tone of voice

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indicating that compliance with the officer's
request might be compelled.
United States v. Mendenhall, 446 U.S. 544, 554 (1980); see McGee,
25 Va. App. at 199, 487 S.E.2d at 262. 	Determining whether
police conduct rises to the level of a Fourth Amendment seizure
requires examining the facts in each case. 	See Michigan v.
Chesternut, 486 U.S. 567, 576-77 (1988); see also Parker v.
Commonwealth, 255 Va. 96, 103, 496 S.E.2d 47, 50-51 (1998)
(plurality opinion) (declining to extend Baldwin v. Commonwealth,
243 Va. 191, 413 S.E.2d 645 (1992), and limiting it to its unique
facts).
Sergeant Dennis, who was in uniform and in a marked police
car, motioned for Gilbert to approach the patrol car. 	Dennis
told Gilbert that "he needed" for him to take a seat in the
vehicle. 	Gilbert acquiesced in or submitted to the police
officer's authority and took a seat in Dennis's patrol car. 	See
generally California v. Hodari D., 499 U.S. 621, 625-26 (1991)
(notwithstanding a lack of physical restraint, submission to a
show of authority constitutes a seizure within the meaning of the
Fourth Amendment). 	Sergeant Dennis then related to Gilbert that
he "knew" Gilbert was an habitual offender and that he would have
to charge him. 	The trial court did not err in determining that a
reasonable person, faced with these facts, would not believe that
he or she was free to ignore the officer and avoid the detention.
Pursuant to Terry, an officer may approach and temporarily
detain a person to investigate possible criminal behavior without

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probable cause. 	See Terry v. Ohio, 392 U.S. 1, 21-22 (1968);
McGee, 25 Va. App. at 202, 487 S.E.2d at 263. 	When an officer
can articulate a particularized and objective basis to suspect
that an individual is involved in criminal activity, the officer
may briefly detain the suspect in order to further investigate
that suspicion. 	See United States v. Cortez, 449 U.S. 411,
417-18 (1981). 	In determining whether a police officer had
reasonable suspicion that criminal activity was afoot, there is
no bright line rule or "litmus test," rather a court must
consider the totality of circumstances. 	See Buck v.
Commonwealth, 20 Va. App. 298, 302, 456 S.E.2d 534, 536 (1995);
Commonwealth v. Spencer, 21 Va. App. 156, 159, 462 S.E.2d 899,
901 (1995).
We hold that the trial court erred in determining that
Sergeant Dennis lacked reasonable suspicion to briefly detain
Gilbert in order to further investigate. 	Under Code § 46.2-356,
a person who has been declared to be an habitual offender
generally will continue in that status for ten years and
thereafter until the privilege has been restored by a court of
competent jurisdiction. 	Although Sergeant Dennis's knowledge
that Gilbert was an habitual offender seven to ten months before
was not conclusive evidence that he was still an habitual
offender, that fact gave Sergeant Dennis a reasonable basis to
suspect that Gilbert was still an habitual offender which, in
turn, justified a brief investigatory detention. 	As soon as

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Gilbert asked Sergeant Dennis for "a break," Dennis had further
grounds to detain Gilbert. 	See Glasco v. Commonwealth, 26 Va.
App. 763, 771, 497 S.E.2d 150, 154 (1998) (affirming that
knowledge of defendant's arrest two weeks earlier on charges that
often, but not always, resulted in suspension of a driver's
license created reasonable suspicion that defendant was driving
without a license).
Accordingly, the trial court's order granting the motion to
suppress is reversed and remanded to the trial court for such
further proceedings as may be advised.
Reversed and remanded.