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Search & Seizure – Consensual Encounter – Outstanding Warrant

Police did not need a particularized suspicion to approach a vehicle in a restaurant parking lot and question defendant about his identity, and he was not seized until police determined there was an outstanding warrant for him, the Court of Appeals says in upholding defendant’s conviction of cocaine possession with intent to distribute.

Defendant’s encounter with the sergeant and the trooper cannot be fairly characterized as a seizure. The sergeant did nothing more than initiate a conversation with defendant and ask if he would identify himself. Defendant willingly produced his ID card.

The sergeant’s testimony, accepted as credible by the fact finder, proved that neither he nor the trooper ever physically touched defendant, made any threats or demands, drew any weapons or engaged in any form of aggressive behavior. Nor did they park their unmarked police vehicle so as to block in defendant’s car. There was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice.

While both officers were armed, the mere presence of officers who are uniformed and armed does not constitute a show of authority that transforms a consensual encounter into a seizure under the Fourth Amendment.

Denial of motion to suppress and drug conviction affirmed.

Venable v. Commonwealth (Kelsey, J.) No. 0833-07-2, Dec. 30, 2008; Richmond Cir.Ct. (Stout) Diane M. Abato for appellant; Joanne V. Frye, AAG, for appellee. VLW 008-7-551(UP), 7 pp.

VLW 008-7-551

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