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June 9, 2000

Record No. 991417





PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Stephenson, Senior Justice


In this appeal, we determine whether the Court of Appeals
erred in holding that the trial court correctly refused to
suppress certain evidence found during a search of the defendant
by a deputy sheriff.


In a bench trial in the Circuit Court of Rockbridge County,
Christopher Reittinger was found guilty of possession of
marijuana, in violation of Code ? 18.2-250.1, and fined
$150. The court also suspended Reittinger’s driver’s license for
a period of six months, pursuant to the provisions of Code
? 18.2-259.1.

On July 21, 1998, a panel of the Court of Appeals reversed
Reittinger’s conviction. Reittinger v. Commonwealth,
28 Va. App. 80, 502 S.E.2d 151 (1998). Upon a rehearing en
banc, however, the Court of Appeals affirmed the
conviction. Reittinger v. Commonwealth, 29 Va. App.
724, 514 S.E.2d 775 (1999) (en banc).


On May 3, 1996, about 10:30 p.m., Deputy Sheriff Hugh Bolen
stopped a van on Route 11 in Rockbridge County because the van
had "only one operable headlight." Deputy Bolen
approached the driver’s side of the van, and Deputy Max Smith
approached the van’s passenger side. Deputy Bolen asked
Reittinger, the driver, for his operator’s license and vehicle
registration and informed Reittinger that the van had only one
illuminated headlight. Thereupon, Reittinger displayed a new
headlight that he said he planned to install the following day.
Deputy Bolen, having decided against issuing a citation, simply
gave Reittinger a verbal warning. Deputy Bolen then told
Reittinger that he was "free to go."

Immediately thereafter, however, Deputy Bolen asked Reittinger
whether he had any illegal weapons or drugs in the vehicle, and
Reittinger stated that there was nothing illegal in the van.
Deputy Bolen then asked Reittinger for permission to search the
van. The deputy twice repeated the request to search while
Reittinger appeared to consult with the passengers in the van.

Rather than answer the deputy, Reittinger exited the van.
Deputy Bolen then saw a "large bulge" in Reittinger’s
right pants pocket and conducted a "pat down" search of
Reittinger. The bulge felt "hard," and Deputy Bolen
thought Reittinger might be carrying a weapon. Deputy Bolen then
ordered Reittinger to empty his pocket. Reittinger removed an
object that proved to be a smoking pipe containing marijuana
residue. Deputy Bolen testified that, when he requested consent
to search the van, he had no reasonable and articulable suspicion
of criminal activity on the part of Reittinger.


Reittinger contends that, under the facts of this case, the
search was the product of an unlawful seizure and, therefore, was
invalid. He further asserts that, assuming arguendo he was
engaged in a consensual encounter with the deputy when he exited
his vehicle, no legal justification existed for his seizure and

The Commonwealth contends that Reittinger was not unlawfully
seized but that, after he was told that he was free to leave, he
and the deputy were engaged in a consensual encounter following
the completion of a lawful traffic stop. The Commonwealth further
contends that, after Reittinger exited the vehicle and while the
deputy and Reittinger continued to be engaged in a consensual
encounter, the deputy saw a bulge in Reittinger’s pocket that he
believed could have been a weapon. Therefore, the Commonwealth
asserts, the search of Reittinger was lawful because it was done
for the deputies’ protection.

In affirming the trial court’s denial of Reittinger’s motion
to suppress, the Court of Appeals essentially adopted the
Commonwealth’s contentions. The Court of Appeals held that,

where a lawful encounter based on reasonable suspicion or
probable cause flows immediately into a consensual encounter, an
officer remains lawfully in the presence of the individual
previously detained for purposes of conducting a pat-down
search[, and, t]herefore, the officer may frisk the individual
for weapons if he develops a reasonable suspicion that the
individual may be armed and dangerous.

Reittinger, 29 Va. App. at 733-34, 514 S.E.2d at


The Fourth Amendment to the Federal Constitution provides, in
pertinent part, that "[t]he right of the people to be secure
in their persons, . . . and effects, against
unreasonable searches and seizures, shall not be violated."
It is firmly established that warrantless searches and seizures
are per se unreasonable, subject only to a few
specifically-established and well-delineated exceptions. Thompson
v. Louisiana, 469 U.S. 17, 19-20 (1984). Thus, "the
Commonwealth has the burden of proving the legitimacy of a
warrantless search and seizure." Simmons v. Commonwealth,
238 Va. 200, 204, 380 S.E.2d 656, 659 (1989). Whether the Fourth
Amendment has been violated "’is 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 considering a challenge under the Fourth Amendment,
questions of reasonable suspicion and probable cause involve
questions of both law and fact and are reviewed de novo
on appeal. Ornelas v. United States, 517 U.S. 690,
699 (1996); Bass v. Commonwealth, 259 Va. 470, 475,
525 S.E.2d 921, 924 (2000). Similarly, the question whether a
person has been seized in violation of the Fourth Amendment is
reviewed de novo on appeal. See Schneckloth,
412 U.S. at 226; see also United States v. Mendenhall,
446 U.S. 544, 551 n.5 (1980). An appellate court, however,
"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." Ornelas, 517 U.S. at 699.

In the present case, the trial court found that
"[t]he deputy effectively seized [Reittinger] without
probable cause and without an articulable suspicion to
investigate further."[1] The court further found that
"[a] reasonable person . . . upon immediately
being subjected to a new and unrelated inquiry would conclude his
detention continued . . . and [that] the reasonable
inference to be drawn from [Reittinger’s] voluntarily exiting his
vehicle is that [he] concluded he was not free to leave."
Despite the trial court’s conclusion that "[t]he detention
of [Reittinger] after the investigation of the [traffic] violation was completed was illegal," the court ruled that
the subsequent "pat down" search was justified for the
deputies’ protection.

While law enforcement officers may engage in consensual
encounters with citizens, the Supreme Court has limited such
encounters to those in which "a reasonable person would feel
free ‘to disregard the police and go about his business.’ " Florida
v. Bostick, 501 U.S. 429, 434 (1991) (quoting California
v. Hodari D., 499 U.S. 621, 628 (1991)); accord Florida
v. Royer, 460 U.S. 491, 497-98 (1983) (plurality opinion).
In the present case, Reittinger had been stopped in a rural area
in the nighttime. He was in the presence of two armed deputies,
one on each side of the vehicle. Deputy Bolen asked Reittinger to
waive his Fourth Amendment right and consent to a search of the
vehicle. When Reittinger did not respond, the deputy asked a
second and then third time for consent to search. These requests
for permission to search were made even though Deputy Bolen
admitted that he "had no reasonable and articulable
suspicion of criminal activity on the part of [Reittinger]."

Although Deputy Bolen had told Reittinger that he was free to
go, we think that the events that transpired immediately
thereafter would suggest to a reasonable person that just the
opposite was the case. We do not think that a reasonable person,
under the circumstances, would have considered that he was free
to disregard the deputies and simply drive away. Therefore, we
conclude, from our de novo review of the facts,
that Reittinger was unlawfully seized in violation of his Fourth
Amendment rights; that the trial court, though correct about the
seizure, erred in refusing to suppress the product of the
unlawful seizure and search of Reittinger; and that the Court of
Appeals erred in affirming the trial court’s judgment.

Accordingly, we will reverse the judgment of the Court of
Appeals, vacate Reittinger’s conviction, and remand the case to
the Court of Appeals with direction that the case be remanded to
the trial court for further proceedings if the Commonwealth be so

Reversed and remanded.


[1] A person is "seized"
"only when, by means of physical force or a show of
authority, his freedom of movement is restrained." Mendenhall,
446 U.S. at 553.