Home / Uncategorized / MALBROUGH v. COMMONWEALTH


Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.

v. Record No. 062570 January 11, 2008



In this appeal, we must determine whether, under the
facts presented, a defendant?s Fourth Amendment protections
against unreasonable search and seizure were infringed by a
consent search of his person, conducted by police at a
roadside stop, after he had been told that he was free to
Facts and Proceedings
The material facts are undisputed. In the early
afternoon of February 25, 2004, Ronald Wayne Malbrough, Jr.,
was operating a light blue Cadillac in a residential area in
Chesterfield County. He was stopped by Officer Stephen
Fortier of the Chesterfield County Police Department because
the Cadillac bore license plates registered to another vehicle
and because a rejection sticker was displayed on its
windshield. There were two passengers in the car with
Malbrough, one in the front seat and one in the rear. Officer
Fortier displayed his cruiser?s flashing blue lights when
making the stop and they continued to flash throughout his
encounter with Malbrough. Fortier parked his cruiser on the
side of the road behind the Cadillac at the entrance to a
Officer Fortier saw a handgun lying in plain view on the
center console of the Cadillac as he walked up to the driver?s
window and at the same time Malbrough told him that he had a
handgun in the car. Officer Fortier told all the occupants of
the car to keep their hands where he could see them and
retrieved the handgun from Malbrough without incident.
Fortier took the handgun back to his cruiser and announced on
his police radio that he had recovered a weapon from the
Cadillac. Two other police vehicles, driven by Officers Neal
Flatt and Richard Holmes, respectively, arrived at the scene
almost simultaneously. One parked on the side of the road
behind Fortier?s cruiser and the other parked on the side of
the road ahead of the Cadillac but far enough ahead that
?[t]here was plenty of room between the vehicles,? such that
Malbrough ?would have been able to pull his vehicle out.? The
flashing blue lights of Officers Fortier’s and Flatt’s police
vehicles continued to operate throughout the encounter but
Holmes believed it likely that those on his vehicle did not.
Officer Fortier returned to the Cadillac and asked
Malbrough for his driver?s license and registration.
Malbrough handed these to Fortier, who took them back to his
cruiser to verify them.
While Fortier was thus engaged, Officer Holmes walked up
to the Cadillac and spoke to Malbrough. At Holmes? request,
Malbrough stepped out of the Cadillac. Holmes had responded
to a complaint at an earlier date, reporting that shots had
been fired at night, in another residential subdivision
nearby, from a ?Cadillac, a large, older model, which fit the
description of the vehicle in question.? Holmes told
Malbrough about that incident, asked him if he knew anything
about it, was satisfied with his answers, and concluded that
he had no reason to detain him or question him further. This
exchange lasted no more than three minutes.
While the foregoing conversation was going on, Officer
Flatt, who was a firearms instructor, walked up to Officer
Fortier?s cruiser. Fortier handed Flatt the weapon Malbrough
had handed him. Flatt ?cleared? the weapon, a loaded .45
caliber semi-automatic pistol, and put it under his waistband
in the small of his back. It remained there throughout the
encounter and none of the participants made any further
mention of it.
Meanwhile, Officer Fortier had determined that
Malbrough?s license and registration were ?facially valid? and
his computer check revealed no problems with them. He took
the documents back to the Cadillac, and, because Malbrough was
still talking to Officer Holmes at the front of the vehicle,
placed the driver?s license and registration on the Cadillac?s
front seat. Fortier asked both passengers to step out of the
car and asked them to consent to a search. They agreed. He
searched them and found no contraband. He checked their names
on his computer and found that they were not ?wanted.?
Fortier then ?told Malbrough that his information was all on
the driver?s seat of his car and that he was free to leave.?
After making that statement, Fortier asked Malbrough for
permission to search the Cadillac. Malbrough agreed.
Fortier?s search revealed no weapons or drugs in the car,
which was ?fairly clean.? Fortier asked Malbrough ?if he had
anything illegal on his person.? Malbrough said no. Fortier
asked Malbrough for permission to search his person.
Malbrough ?started pulling items from his pockets.? Fortier
told him ?not to put his hands in his pockets . . . I would do
the checking.? Malbrough ?told [Fortier] it was all right,?
turned away from Fortier, and ?raised [his] hands in the air.?
In Malbrough?s right front trouser pocket, Fortier found
plastic bags containing marijuana, ?rock? cocaine, and powder
cocaine. Fortier arrested Malbrough. The confrontation, from
traffic stop to arrest, lasted about 13 minutes.
Malbrough was indicted by a grand jury for possession of
cocaine with intent to distribute and for possession of a
firearm while in possession of cocaine. He filed a motion to
suppress the evidence obtained as a result of the search of
his person, which the trial court denied. He subsequently
entered conditional ?Alford? pleas of guilty to the firearm
charge and to the lesser charge of simple possession of
cocaine, preserving his right to appeal the trial court?s
ruling denying his motion to suppress. The court imposed a
sentence of three years confinement on the cocaine charge, all
of which was suspended, and a sentence of two years
confinement, to be served, on the firearm conviction.
Malbrough appealed his convictions to the Court of
Appeals, which initially denied his appeal by a per curiam
opinion. Malbrough requested review by a three-judge panel,
which granted his petition, heard oral argument, and affirmed
the convictions by a majority opinion, one judge dissenting.
We awarded him an appeal.
Malbrough concedes that Officer Fortier?s traffic stop
was lawful and does not challenge any of the activities of the
police that took place prior to the time he was asked to
consent to a search of his person. At that time, he contends,
he was unlawfully seized in violation of his Fourth Amendment
protections against unreasonable search and seizure, the
warrantless search of his person was unlawful, and the results
of the search, as the ?fruit of the poisonous tree,? should
have been suppressed.
The applicable standard of review is well settled. The
question whether the Fourth Amendment has been violated is
always ?a question of fact to be determined from all the
circumstances.? Ohio v. Robinette, 519 U.S. 33, 40 (1996)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-49
(1973)). In reviewing the denial of a motion to suppress
evidence claiming a violation of a person?s Fourth Amendment
rights, we consider the facts in the light most favorable to
the Commonwealth, the prevailing party at trial. The burden
is on the defendant to show that the trial court committed
reversible error. We are bound by the trial court?s factual
findings unless those findings are plainly wrong or
unsupported by the evidence. We will review the trial
court?s application of the law de novo. Ward v. Commonwealth,
273 Va. 211, 218, 639 S.E.2d 269, 272 (2007). Nevertheless,
an appellate court ?should take care both to review findings
of historical fact only for clear error and to give due weight
to inferences drawn from those facts by resident judges and
local law enforcement officers.? Reittinger v. Commonwealth,
260 Va. 232, 236, 532 S.E.2d 25, 27 (2000) (quoting Ornelas v.
United States, 517 U.S. 690, 699 (1996)).
Police officers are free to engage in consensual
encounters with citizens, indeed, it is difficult to envision
their ability to carry out their duties if that were not the
case. See Parker v. Commonwealth, 255 Va. 96, 101-02, 496
S.E.2d 47, 50 (1998). In a series of decisions, however, the
Supreme Court has limited lawful ?consensual encounters? to
circumstances in which ?a reasonable person would feel free
‘to disregard the police and go about his business.’ ?
Reittinger, 260 Va. at 236, 532 S.E.2d at 27 (quoting Florida
v. Bostick, 501 U.S. 429, 434 (1991)). The ?reasonable
person? test is objective, and presumes an innocent person
rather than one laboring under a consciousness of guilt.
Bostick, 501 U.S. at 437-38. The consensual encounter becomes
a seizure ?[o]nly when the officer, by means of physical force
or show of authority, has in some way restrained the liberty
of a citizen.? Id. at 434.
Accordingly, the issue of fact presented to the trial
court by Malbrough?s motion to suppress was whether, when
Officer Fortier asked him for permission to search his person,
a reasonable person, under all the surrounding circumstances,
would have believed that he was not free to leave, or rather,
felt free to disregard the request and ?go about his
business.? Id., see also United States v. Mendenhall, 446
U.S. 544, 554 (1980).
Malbrough argued before the trial court and on appeal
that a reasonable person would not have felt free to leave the
scene for a number of reasons. At the time he was asked to
consent to the search of his person, Malbrough was ?in the
midst of three armed police officers with his vehicle flanked
in the front and back by two cruisers with flashing blue
lights;? his pistol was being withheld by the police and there
was no indication when, if ever, he could recover it; and his
driver?s license and registration cards had not been handed
back to him but were on the front seat of his car. He also
made the argument that the offenses that led to his initial
traffic stop were still ongoing: The rejection sticker and
improper plates were still displayed on his car, and even
though he had not been given a summons for those offenses, he
would be committing a further infraction if he drove away.
The Commonwealth responds that there was nothing
unreasonable in the presence of three officers, in view of the
presence of three occupants in the Cadillac having a loaded
firearm in plain view; that the officers? cruisers were parked
in such a way that they would not obstruct the Cadillac if
Malbrough wished to leave; that the flashing blue lights were
operating for safety reasons to warn approaching traffic of
vehicles stopped on the side of the road; that Malbrough gave
the firearm voluntarily to Officer Fortier before the officer
had even asked for it; that Malbrough never requested its
return and that no further mention was ever made of it;1 that
Malbrough?s driver?s license and registration cards had indeed
been returned to him when Fortier placed them on the front
seat and told Malbrough they were there and that he was free
to leave.
The Commonwealth also pointed out that, although
Malbrough had been questioned about a shooting by Officer
Holmes, Holmes was obviously satisfied with Malbrough?s
responses and made no objection when Fortier told Malbrough
that he was free to leave. Finally, there was no evidence
that any of the officers drew or brandished their weapons,
touched the occupants of the Cadillac except with their
consent, used hostile tones of voice, accused them of
wrongdoing or made any intimidating gestures. Indeed, at the
time Fortier made his request to search Malbrough, the police

1 The Commonwealth acknowledges that Officer Flatt?s
retention of the weapon might have given Malbrough a claim
against the police, but argues that it did nothing to make him
think he was not free to leave. The Commonwealth argues that
cases interpreting police retention of a defendant?s personal
property as a restriction of his freedom of movement focus on
items necessary for travel, such as driver?s licenses, car
keys, passports, airline tickets, and the like. See, e.g.,
4 Wayne R. LaFave, Search & Seizure ? 9.4(a) n.81 (4th ed.
present at the scene had indicated to the occupants of the
Cadillac that they had no reason to question or detain them
further. Compare McGee v. Commonwealth, 25 Va. App. 193, 200-
01, 487 S.E.2d 259, 262-63 (1997) (reasonable person would
conclude that he is not free to leave when police indicate he
is suspected of criminal activity).
Malbrough relies on our decision in Reittinger, where we
held a purported consent search following a roadside traffic
stop to have been an unlawful seizure of the person because,
in the circumstances of that case, a reasonable person would
not in fact have felt free to go even after a police officer
had told him he was free to do just that. Reittinger, 260 Va.
at 237, 532 S.E.2d at 28. This case differs from Reittinger
in several respects. There, the defendant was stopped along a
road in a rural area in the nighttime. After deciding not to
issue a summons for a defective headlight, a deputy sheriff
told him he was free to leave. Thereafter, while two other
armed deputies flanked his car, one of them asked him to
consent to a search. When the defendant failed to give
consent, the deputy repeated the request a second time and
then a third. The defendant never gave express consent to a
search, but simply exited his vehicle, whereupon the deputy
patted him down and found contraband. Id. at 234-35, 532
S.E.2d at 26. Here, by contrast, the search occurred in
daylight in a residential area. The police on the scene were
equal in number to the occupants of the Cadillac. There was
no evidence of any intimidating behavior on the part of the
police. Malbrough clearly gave his consent to the search,
before it took place, in response to a single request by the
The most significant distinction between Reittinger and
the present case is that in Reittinger, the trial judge, who
alone had the opportunity to look the witnesses in the eye and
weigh their credibility, expressly found that the deputy
effectively seized Reittinger without probable cause because a
reasonable person in the circumstances would conclude that his
detention continued and that he was not free to leave. Id. at
236, 532 S.E.2d at 27.2 Here, the trial court, after analyzing
all the attendant circumstances, made the opposite finding and
concluded that a reasonable person would have felt free to
ignore the request and leave the scene when Fortier asked
Malbrough to consent to a search of his person.
There is good reason for the rule that appellate courts
must defer to the factual findings of the trial judge in
Fourth Amendment cases. The fact patterns in such cases
arrive in infinite variety, seldom or never exactly
duplicated. Moreover, they involve consideration of nuances
such as tone of voice, facial expression, gestures and body
language seldom discernable from a printed record. The
controlling inquiry is the effect of such matters on a
reasonable person in the light of all the surrounding
The test is necessarily imprecise, because it
is designed to assess the coercive effect of police
conduct, taken as a whole, rather than to focus on
particular details of that conduct in isolation.
Moreover, what constitutes a restraint on liberty
prompting a person to conclude that he is not free
to ?leave? will vary, not only with the particular
police conduct at issue, but also with the setting
in which the conduct occurs.

Parker, 255 Va. at 102, 496 S.E.2d at 50 (quoting Michigan v.
Chesternut, 486 U.S. 567, 573 (1988)). In the present case,
there was no evidence of any coercive conduct on the part of
the police after Malbrough was told that he was free to leave.
The Supreme Court perceptively held, by the language
quoted above from Ornelas, that the inferences drawn from the
evidence in such cases by trial judges, who have personally
heard and observed the witnesses, are entitled to deference.
We accord that deference to the trial court?s finding here.

2 Despite making that factual finding, the trial court
ruled that the subsequent ?pat down? search was justified for
the deputies? protection.
We cannot say from the record that the trial court?s
finding was ?plainly wrong or unsupported by the evidence.?
Ward, 273 Va. at 218. 639 S.E.2d at 272. Malbrough did not
carry his burden of showing that the trial court committed
reversible error, and we find no error in the application of
the law by that court or by the Court of Appeals.
Accordingly, we will affirm the judgment of the Court of


I respectfully dissent. The material and undisputed
facts surrounding the encounter of Ronald Wayne Malbrough, Jr.
with the police on the afternoon of February 25, 2004 are
amply recited in the majority opinion and need not be repeated
in detail here. Likewise, the principles of law applicable to
the resolution of Malbrough?s claim that the conduct of the
police violated his Fourth Amendment rights as well as the
principles governing our standard of review of that issue are
well established and recited by the majority. Under those
facts and principles of law, the ultimate focus of the
analysis of the issue presented is whether a reasonable
person, under the particular factual circumstances of this
case, would have believed that he was free to disregard the
request of the police to search his person and to leave the
scene of the encounter. See Florida v. Bostick, 501 U.S. 429,
434 (1991); United States v. Mendenhall, 446 U.S. 544, 554
(1980); see also Reittinger v. Commonwealth, 260 Va. 232, 236,
532 S.E.2d 25, 27 (2000). In my view, no reasonable person
could possibly believe himself free to leave the scene under
the coercive circumstances of this police encounter.
In this case, Officer Stephen Fortier stopped the blue
Cadillac car operated by Malbrough because the Cadillac bore
license plates registered to another vehicle and because a
rejection sticker was displayed on its windshield. This
routine traffic stop quite appropriately evolved into a patent
and serious concern for the safety of the officer when Officer
Fortier approached the Cadillac and observed in plain view a
loaded handgun on the center console. The officer retrieved
the gun during Malbrough?s acknowledgement that it belonged to
him. Officer Fortier placed the gun in his police cruiser and
called for ?backup? on his police radio. Responding to that
call, Officers Neal Flatt and Richard Holmes arrived
immediately at the scene in separate police cruisers.
Thereafter, the police searched the two passengers in the
Cadillac as well as the vehicle. While these searches were
being conducted, Officer Holmes asked Malbrough to step out of
the Cadillac. Malbrough complied and the two men moved to a
location between the front of the Cadillac and the rear of
Officer Holmes? police cruiser. There, Officer Holmes
questioned Malbrough regarding an incident that had previously
occurred several miles away in which shots reportedly had been
fired from a Cadillac generally fitting the description of
Malbrough?s Cadillac.
Officer Holmes concluded that he did not have a basis to
charge Malbrough for the earlier shooting. Nothing in the
record, however, suggests that Officer Holmes informed
Malbrough that he was no longer under suspicion for the
earlier crime; nor did Officer Holmes advise Malbrough that he
was free to go. Rather, as the questioning by Officer Holmes
was concluding, Officer Fortier approached and advised
Malbrough that his driver?s license and registration were on
the driver?s seat of the Cadillac and that Malbrough was ?free
to leave.? Nevertheless, Officer Fortier immediately asked
Malbrough for consent to search his person for drugs or
weapons. At that time, Malbrough?s handgun was in Officer
Flatt?s waistband. The officers did not tell Malbrough how or
when the gun would be returned to him if he decided to leave
the scene without consenting to the search of his person by
Officer Fortier.
The majority correctly notes that the test for
determining whether a reasonable person under all of the
circumstances would have believed that he was not free to
leave the scene of a police encounter is ?necessarily
imprecise, because it is designed to assess the coercive
effect of police conduct.? Michigan v. Chesternut, 486 U.S.
567, 573 (1988). For this reason, isolated conduct of the
police, such as a statement that ?you are free to leave,? must
be considered in view of all the surrounding circumstances.
The circumstances of this case are more compelling in
that regard than those upon which our decision in Reittinger
were premised. In Reittinger, we held that a reasonable
person would not have believed that he was free to leave even
after the police had advised the driver of a stopped vehicle
that he was free to go. Here, two police officers in separate
police cruisers responded to the scene of the traffic stop
because Officer Fortier had radioed for backup after he had
taken possession of Malbrough?s handgun. Malbrough was made
aware by Officer Holmes that the focus of his questions was a
recent and nearby incident involving a shooting from a
Cadillac matching the description of Malbrough?s Cadillac in
several aspects. Beyond question, a reasonable person under
these circumstances would have concluded that the police were
then concerned with resolving the rational suspicion that
Malbrough and his vehicle were implicated in the shooting
incident rather than a concern with the traffic violations
that prompted the stop by Officer Fortier. While Officer
Holmes may have concluded that he had no basis to detain
Malbrough further relating to the shooting incident, he did
not convey that subjective conclusion to Malbrough. The
police had conducted searches of the passengers in the
Cadillac as well as the vehicle because they had discovered
the presence of Malbrough?s gun; only Malbrough remained
unsearched. The police retained possession of Malbrough?s gun
and had not indicated how or when the gun might be returned to
him. At that point in the encounter, despite Officer
Fortier?s statement that he was free to leave, a reasonable
person would not have believed that Malbrough was free to
leave until there was some objective indication from Officer
Holmes that such was the case as a result of his subjective
conclusion that Malbrough was not going to be detained in
connection with the shooting incident that Officer Holmes was
There is no question that the police in this case had the
right to temporarily seize Malbrough?s handgun for their
safety until their investigation at the scene of the traffic
stop was completed. However, under the particular
circumstances of this case, I would hold that Malbrough was
unlawfully seized in violation of his Fourth Amendment rights
and, therefore, that the Court of Appeals erred in affirming
the trial court?s judgment in refusing to suppress the product
of that unlawful seizure.
Accordingly, I would reverse the judgment of the Court of
Appeals, vacate Malbrough?s conviction, and remand the case to
the Court of Appeals with direction that the case be remanded
to the trial court for a new trial if the Commonwealth were so