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November 5, 1999
Record No. 982476
JERRY LOUIS COCHRAN
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Present: Carrico, C.J., Compton, Lacy, Hassell,
Keenan and Kinser, JJ., and Poff, Senior Justice
OPINION BY SENIOR JUSTICE RICHARD H. POFF
We granted this appeal to consider whether the
Court of Appeals of Virginia erred in affirming a trial court’s
judgment finding Jerry Louis Cochran guilty of possession of
phencyclidine (PCP) with intent to distribute. The principal
issue raised by five of six assignments of error is whether, as
Cochran contends, the trial court erred in overruling his motion
"to suppress the evidence of PCP because it was obtained as
a result of an unreasonable seizure of his person in violation of
his Fourth Amendment rights under the United States
Confirming the jury’s verdict, the trial court
sentenced Cochran to a term of seven years in the penitentiary
and a fine of $10,000.00. The Court of Appeals granted Cochran’s
appeal limited to the principal issue. On January 26, 1993, two
of the three members of a panel of that Court reversed the
conviction on the ground that "appellant discarded the PCP
while subject to an illegal seizure". Cochran v.
Commonwealth, 15 Va. App. 619, 624, 426 S.E.2d 144, 147
(1993). The panel denied the Commonwealth’s request for a
rehearing, but by order entered February 25, 1993, the Court of
Appeals granted a petition for rehearing en banc and stayed the
mandate. By order entered July 13, 1993, an equally divided court
sitting en banc affirmed the judgment of the trial court,
withdrew the opinion of the three-judge panel, and vacated the
mandate dated January 26, 1993. By order entered October 2, 1998
in response to Cochran’s habeas corpus petition,
this Court awarded Cochran leave to petition for appeal. We
granted his petition by order entered April 22, 1999. Finding no
error in the decision of the Court of Appeals sitting en banc, we
will affirm its judgment.
First, we consider Cochran’s sixth assignment
of error concerning appellate procedure. Cochran argues on brief
that the Court of Appeals "erred in reversing the judgment
of a panel . . . because a majority of the judges
sitting en banc did not vote to reverse the judgment of the
panel". Cochran relies upon Code ? 17-116.02 (now
recodified as ? 17.1-402) which provides in pertinent part
(D). The Court sitting en banc
shall consider and decide the case and may overrule any
previous decision by any panel or of the full Court.
(E). In all cases decided by the
Court en banc, the concurrence of at least a majority of
the judges sitting shall be required to reverse a
judgment, in whole or in part.
The language chosen by the General Assembly is
plain. The "judgment" subject to reversal
"in whole or in part" by a majority of the Court
sitting en banc includes the judgment entered by the trial court.
Hence, absent a majority vote of the
Court of Appeals sitting en banc reversing the judgment of
the trial court, that judgment is affirmed.
This Court has reviewed both civil and criminal
cases in which the Court of Appeals has applied that
interpretation of the statute. See, e.g., White
v. White, 257 Va. 139, 143-144, 509 S.E.2d 323, 325 (1999); Granados
v. Windson Development Corp., 257 Va. 103, 106, 509 S.E.2d
290, 291 (1999); Husske v. Commonwealth, 252 Va. 203, 206,
476 S.E.2d 920, 921-22 (1996), cert. denied, 519
U.S. 1154 (1997); Lockhart v. Commonwealth, 251 Va. 184,
184, 466 S.E.2d 740, 740 (1996).
The decisions of an equally divided Court of
Appeals sitting en banc and applying that interpretation include Stevenson
v. Commonwealth, 28 Va. App. 562, 507 S.E.2d 625 (1998)(en
banc); Hebden v. Commonwealth, 26 Va. App. 727, 496 S.E.2d
169 (1998)(en banc); Brown v. Commonwealth, 24 Va. App. 1,
480 S.E.2d 112 (1997)(en banc), cert. denied, ___
U.S. ___, 118 S.Ct. 1073 (1998); Carter v. Extra’s, Inc.,
15 Va. App. 648, 427 S.E.2d 197 (1993)(en banc); McIntosh v.
Commonwealth, 15 Va. App. 314, 399 S.E.2d 27 (1990)(en banc);
Diehl v. Commonwealth, 10 Va. App. 139, 390 S.E.2d 550
In the face of these decisions, the General
Assembly has not rejected or modified judicial interpretation of
the statute in issue. "Under these circumstances, the
construction given to the statute is presumed to be sanctioned by
the legislature and therefore becomes obligatory upon the
courts." Vansant and Gusler, Inc. v. Washington, 245
Va. 356, 361, 429 S.E.2d 31, 33-34 (1993).
Overruling the assignment of procedural error,
we turn to the principal question in issue. There is no
consequential dispute in the facts relevant to that issue.
Deputy Sheriff Earl D. Chewning, Jr., on patrol
in a marked car, was dispatched to a parking lot to meet an
unknown person who had called concerning recovery of stolen
property. When Chewning arrived at the lot that night, he noticed
a car parked near a public telephone booth. The parking lot was
well lighted, and Chewning could see the driver standing outside
the car and two persons seated inside.
Chewning asked the driver if anyone had called
the sheriff’s department. Before he received a response, Cochran,
the front seat passenger, started to get out of the car. Chewning
asked Cochran to remain in the car while he "talked to the
driver." The deputy sheriff testified that he did so
"[f]or my safety, because I didn’t know exactly what was
going on at that time." Cochran complied, and Chewning
escorted the driver to the rear of the vehicle where he had a
better view of the two passengers. As Chewning was talking with
the driver, Cochran again opened the door of the car. Chewning
instructed him to remain in the car, he complied, and Chewning
resumed his conversation with the driver. Almost immediately,
Cochran began to get out of the car again.
Chewning testified that "[a]s he got out
of the vehicle, he shoved a bluish colored bag up underneath the
car and started back towards me." Chewning twice asked for
Cochran’s name, but Cochran’s only response was "urrrrr,
like that." Cochran was "very wobbly on his feet, his
eyes were very watery and red, and his speech was very
slurred." Chewning asked Cochran "to turn around and
place his hands on top of the roof of the car." Chewning
conducted a "pat down" search for weapons. Finding
none, he retrieved the blue bag. Inside, he found three small
plastic bags and a film canister. Each contained a strong
smelling substance which Chewning recognized as likely to be
illegal drugs. He placed Cochran under arrest.
Relying on the Supreme Court’s decision in California
v. Hodari D., 499 U.S. 621 (1991) and its progeny, including
this Court’s decision in Woodson v. Commonwealth, 245 Va.
401, 429 S.E.2d 27 (1993), the Commonwealth contends that the
trial court correctly found that Cochran "abandoned the bag
containing the illegal drugs prior to any seizure of his
person." We agree.
As this Court made clear in Woodson, it
must first be determined "when [the defendant] was ‘seized’
within the meaning of the Fourth Amendment." Id. at
404, 429 S.E.2d at 29. "[A] person has been ‘seized’ within
the meaning of the Fourth Amendment only if, in view of all the
circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave." United
States v. Mendenhall, 446 U.S. 544, 554 (1980). This test is
not applicable until the person submits to the officer’s show of
authority. Woodson, 245 Va. at 404-05, 429 S.E.2d at 29.
In our view, as evidenced by Cochran’s repeated
attempts to get out of the car, he did not submit to Deputy
Chewning’s authority until after he had attempted to hide
the bag under the car, Chewning had identified its contents, and
Cochran had been searched for weapons and placed under arrest.
Finding no merit in the assignments of error,
we will affirm the judgment of the Court of Appeals affirming the
judgment of the trial court.
 The Amendment provides:
The right of the people to be secure in
their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.
 The panel decision was not
a judgment because "the clerk of the Court of Appeals [had
not forwarded] its mandate . . . to the clerk
of the trial court" as required by Rule 5A:31.