A defendant who stopped to talk to police as he rode his bicycle in a public housing complex, and who received a written ban from the officer based on complaints about defendant’s presence at the complex, and who then was arrested for possession of a stolen bicycle, cannot suppress the marijuana and cash police found when they searched him incident to that arrest, the Court of Appeals says.
While we agree with the trial court finding that defendant was engaged in a consensual encounter with the police after issuance of the ban notice, we also conclude the defendant was never seized before his arrest for possession of a stolen bicycle. Addressing nearly identical facts in Jones v. Commonwealth, 279 Va. 521 (2010), the Supreme Court of Virginia concluded that a seizure does not occur when an individual is briefly detained by law enforcement officers while they notify him he is banned from a property.
In this case, the judge did not rule on the question of whether the defendant was seized while the officer completed the ban notice. At trial neither side cited Jones as important precedent to the facts developed at the suppression hearing. The trial court prudently avoided ruling on a legal issue not fully developed by the parties and ruled on an alternative point that fully addressed defendant’s motion to suppress; regardless of the possibility of an earlier seizure, any seizure would have ended before the defendant consented to the search.
We also conclude defendant in this case was not seized during the encounter with the police before they obtained probable cause to arrest him for possession of the stolen bicycle. Nothing in the officers’ words or actions suggested defendant was not free to leave. The fact that the officers did not inform defendant he was free to leave did not transform the consensual encounter into a seizure.
The totality of the circumstances demonstrates that the encounter was consensual until the police learned the bicycle had been reported stolen and arrested the defendant. The trial court properly denied the motion to suppress.
Parker v. Commonwealth (Bumgardner) No. 1667-13-1, Aug. 26, 2014; Norfolk Cir.Ct. (Martin) J. Barry McCracken, APD, for appellant; Benjamin H. Katz, AAG, for appellee. VLW 014-7-258(UP), 5 pp.