Virginia Lawyers Weekly VA Lawyers Weekly
Where the initial stop of defendant’s vehicle for speeding was lawful, the officer’s continued encounter with defendant was consensual, and defendant’s admission that he smoked marijuana and had roaches in his ashtray, while pulling out the ashtray and handing it to the deputy, provided probable cause to arrest defendant and search his vehicle.
We find that the encounter was consensual at the time of the questioning and that probable cause to arrest defendant and search his vehicle developed as a result of the consensual encounter that followed the initial traffic stop.
The record shows that after the lawful traffic stop was completed, defendant was told he was free to leave before any of the challenged questioning ensued. Mere questioning alone, after defendant was told he was free to go, is not sufficient to constitute restraint for Fourth Amendment purposes.
In this case, after the deputy told defendant he was free to leave, defendant returned to his car and began to get back into the vehicle, indicating that defendant believed he was free to leave at that point. Nothing occurred after that point that would make a reasonable person feel he or she was not still free to leave. The two deputies did not by means of force or show of authority restrain defendant or indicate that he was required to comply with their requests. While two officers were on the scene, only one was interacting with defendant. Neither officer acted in a threatening manner either by their language or the tone of voice used. Neither officer physically touched defendant, and neither displayed a weapon.
Finally, the evidence establishes that neither officer blocked nor restricted defendant’s movement in any way. He was told he was free to leave and was allowed to return to his vehicle, which had the keys in the ignition. Therefore, because the police neither used force nor made a show of authority which would have led a reasonable person to believe he or she was not free to go, the encounter between defendant and the police was consensual.
Denial of motion to suppress affirmed.
Dickerson v. Commonwealth (Annunziata) No. 1120-00-3, March 27, 2001; Pittsylvania County Cir. Ct. (Davis) Philip G. Gardner for appellant; Marla G. Decker, AAG, for appellee VLW 001-7-160, 13 pp.
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