COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Frank 

Argued at Salem, Virginia 

VINCENT DICKERSON 

 OPINION BY 

v. Record No. 1120-00-3 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 27, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

B.A. Davis, III, Judge Designate 

 Philip G. Gardner (Gardner, Gardner, Barrow & 

Sharpe, on brief), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Appellant, Vincent Dickerson, appeals his conviction for 

possession of cocaine with the intent to distribute. He contends 

the trial court erroneously denied his motion to suppress 

evidence that was obtained in violation of his Fourth Amendment 

rights. For the following reasons, we affirm. 

BACKGROUND

 On August 20, 1999, a Danville Life Saving Crew truck was 

headed west on Highway 58 between Danville and Martinsville when 

it encountered a person in a black Ford Escort who would not 

yield the right-of-way to the ambulance. Deputy Parker, a law 

enforcement official with the Pittsylvania Sheriff's Department, 

was on routine uniformed patrol when he received information from 

his dispatcher reporting the incident. Deputy Parker also 

received a description of the offending vehicle and its license 
plate number. When Parker saw the ambulance coming in his 

direction, he pulled his police car onto the highway from a 

turnaround where he was positioned. He passed the ambulance and 

got behind the vehicle that matched the description given to him 

by the dispatcher. The vehicle was in the left lane traveling at 

a high rate of speed in front of the ambulance. By using his 

speedometer, Parker determined the vehicle was traveling at about 

sixty-five miles per hour in a posted fifty-five 

mile-per-hour zone. 

 Parker activated his emergency lights and siren to signal 

the driver to stop. When the driver complied, Parker approached 

the car and found Dickerson in the driver's seat. No other 

occupants were in the car. Parker detected the odor of alcohol 

on Dickerson's person and asked him if he had been drinking. 

Dickerson responded that he had consumed one beer. He admitted 

to Parker that he was "going sixty-five miles an hour." 

 Dickerson exited the vehicle at Parker's request and agreed 

to perform field sobriety tests, all of which he satisfactorily 

completed. As a result, Parker decided not to arrest Dickerson 

for driving under the influence of alcohol and informed Dickerson 

of that decision. He added, however, that Dickerson might get a 

summons from the ambulance driver for failing to 

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yield to an emergency vehicle. Parker then told Dickerson he was 

"free to go." 

 As Dickerson was getting back into his vehicle, Parker asked 

him if the car contained anything that Parker "should know 

about," such as "dope, marijuana, roaches in the ashtray, 

something, anything like that." When Dickerson responded in the 

negative, Parker asked him if he smoked marijuana. Dickerson 

admitted he did, qualifying his answer by stating, "not while he 

was driving." Dickerson then added that "there [were] some 

roaches in the ashtray." 

 After Dickerson's admission, Parker asked if he could look 

inside Dickerson's car. Although Dickerson said, "no," to the 

request, Dickerson reached into the vehicle, pulled out the 

ashtray, and handed it to the deputy. Parker saw "numerous hand 

rolled cigarette roaches" in the ashtray, and Dickerson admitted 

they were marijuana cigarettes. 

 Parker again asked Dickerson for permission to look inside 

the vehicle and Dickerson again responded, "no." However, Parker 

began to search the vehicle and found inside the passenger 

compartment three plastic bags of an "off-white rock substance" 

and one plastic box containing a scale. Parker asked another 

deputy, Deputy Morrison, who had earlier arrived on the scene as 

back-up, to unlock the truck and search it. Morrison found in 

the trunk seven small plastic bags of an off-white 

rock-like substance, one plastic bag containing a white powder 

substance, and another set of scales. Parker placed Dickerson 

under arrest. 

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 Dickerson filed a motion to suppress the evidence, which 

the trial court denied. He subsequently pled guilty to the 

offense, reserving the right to appeal the trial court's ruling 

on the suppression motion. 

ANALYSIS

 Dickerson contends the encounter with the officer following 

the traffic stop was not consensual and that because the seizure 

was not based on a reasonable, articulable suspicion of criminal 

activity on his part, he was seized in violation of his Fourth 

Amendment rights. The Commonwealth contends the encounter was 

consensual and that during this consensual encounter, the officer 

developed probable cause to arrest Dickerson and probable cause 

to search his vehicle. We agree with the Commonwealth and affirm 

the trial court's ruling on the suppression motion. 

 When reviewing on appeal a trial court's ruling denying a 

motion to suppress evidence, we consider the evidence and all 

reasonable inferences which may be drawn from the evidence in the 

light most favorable to the Commonwealth. Greene v. 

Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994). 

The burden on appeal to show "that the denial of [the] motion to 

suppress constitute[d] reversible error" rests with the 

defendant. Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437 

S.E.2d 232, 233 (1993). 

 We review determinations of reasonable suspicion and 

probable cause de novo on appeal. Ornelas v. United States, 517 

U.S. 690, 699 (1996); McGee v. Commonwealth, 25 Va. App. 193, 

197, 487 S.E.2d 259, 261 (1997). "Similarly, the question 

whether a person has been seized in violation of the Fourth 

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Amendment is reviewed de novo on appeal." Reittinger v. 

Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000). 

Although we apply de novo our own legal analysis of whether a 

seizure occurred, we are "bound by the trial court's findings of 

historical fact unless 'plainly wrong' or without evidence to 

support them and we give due weight to the inferences drawn from 

those facts by resident judges and local law enforcement 

officers." McGee, 25 Va. App. at 198, 487 S.E.2d at 261. 

 The record shows that Deputy Parker lawfully stopped 

Dickerson for a traffic violation. Dickerson concedes the 

initial stop was lawful. Whren v. United States, 517 U.S. 806, 

810 (1996) (police may stop a vehicle where they have probable 

cause to believe a traffic violation has occurred). However, 

when an officer makes a lawful traffic stop, the scope of the 

temporary detention may not exceed the purpose of the stop. 

Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion) 

("The scope of the detention must be carefully tailored to its 

underlying justification."). Therefore, absent reasonable, 

articulable suspicion, Deputy Parker could not lawfully extend 

the initial stop and continue to detain Dickerson in order to ask 

him questions concerning his possession and use of drugs. The 

Commonwealth does not contend that Deputy Parker had reasonable 

suspicion to detain Dickerson when he began to question him 

concerning his use and possession of drugs; rather, it contends 

Deputy Parker and Dickerson were engaged in a consensual 

encounter at the time the questioning occurred. 

 Dickerson argues that once the traffic stop was completed, 

Parker's questions regarding the presence of drugs in the car 

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constituted an illegal seizure. We disagree and find that the 

encounter was consensual at the time of the questioning and that 

probable cause to arrest Dickerson and search his vehicle 

developed as a result of the consensual encounter that followed 

the initial traffic stop. 

 A voluntary police-citizen encounter becomes a seizure for 

Fourth Amendment purposes "[o]nly when the officer, by means of 

physical force or show of authority, has in some way restrained 

the liberty of a citizen." Florida v. Bostick, 501 U.S. 429, 434 

(1991). "So long as a reasonable person would feel free 'to 

disregard the police and go about his business,' the encounter is 

consensual, and no reasonable suspicion is required." Id.

(citation omitted). "[E]ven when officers have no basis for 

suspecting a particular individual, they may generally ask 

questions of that individual . . . and request consent to 

search . . . as long as the police do not convey a message that 

compliance with their requests is required." Id. at 434-35, 437. 

In determining whether the encounter was consensual, we must 

"consider all the circumstances surrounding the encounter to 

determine whether the police conduct would have communicated to a 

reasonable person that the person was not free to decline the 

officers' requests or otherwise terminate the encounter." Id. at 

439. 

 In determining whether a reasonable person would feel he or 

she was not free to terminate an encounter with the police, 

several jurisdictions, including Virginia, have utilized a set of 

factors first articulated by Justice Stewart in his opinion in 

United States v. Mendenhall, 446 U.S. 544 (1980) (opinion of 

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Stewart, J.). See United States v. Galvan-Muro, 141 F.3d 904, 

906 (8th Cir. 1998); United States v. Turner, 928 F.2d 956, 959 

(10th Cir. 1991); Parker v. Commonwealth, 255 Va. 96, 101-02, 496 

S.E.2d 47, 50 (1998); Baldwin v. Commonwealth, 243 Va. 191, 196, 

413 S.E.2d 647, 648 (1992). Those factors include: 

"the threatening presence of several officers, the display of a 

weapon by an officer, some physical touching of the person of the 

citizen, or the use of language or tone of voice indicating that 

compliance with the officer's request might be compelled." 

Mendenhall, 446 U.S. at 554 (opinion of Stewart, J.). 

 The record shows that after the lawful traffic stop was 

completed, Dickerson was told he was free to leave before any of 

the challenged questioning ensued. Mere questioning alone, after 

Dickerson was told he was free to go, is not sufficient to 

constitute restraint for Fourth Amendment purposes. See United 

States v. Sullivan, 138 F.3d 126 (4th Cir. 1997); United States 

v. Lattimore, 87 F.3d 647 (4th Cir. 1996); United States v. 

Thompson, 106 F.3d 794 (7th Cir. 1997); Galvan-Muro, 141 F.3d 

904; United States v. White, 81 F.3d 775 (8th Cir. 1996); United 

States v. Anderson, 114 F.3d 1059 (10th Cir. 1997); United States 

v. Elliott, 107 F.3d 810 (10th Cir. 1997); United States v. 

Hernandez, 93 F.3d 1493 (10th Cir. 1996); United States v. 

Sandoval, 29 F.3d 537 (10th Cir. 1994); United States v. 

McKneely, 6 F.3d 1447 (10th Cir. 1993); Turner, 928 F.2d 956; 

United States v. Werking, 915 F.2d 1404 (10th Cir. 1990). 

 In this case, after Deputy Parker told Dickerson he was free 

to leave, Dickerson returned to his car and began to get back 

into the vehicle, indicating that Dickerson believed he was free 

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to leave at that point. See Hernandez, 93 F.3d at 1499. Nothing 

occurred after that point that would make a reasonable person 

feel he or she was not still free to leave. Deputies Parker and 

Morrison did not by means of force or show of authority restrain 

Dickerson or indicate that he was required to comply with their 

requests. While two officers were on the scene, only one was 

interacting with Dickerson. See White, 81 F.3d at 779 (other 

officers "were little more than passive observers prior to 

commencement of the search"). Neither officer acted in a 

threatening manner either by their language or the tone of voice 

used. See Galvan-Muro, 141 F.3d at 906 (exchange between officer 

and defendant was "cooperative and conversational"); White, 81 

F.3d at 779 ("tone of the entire exchange was cooperative"). 

Neither officer physically touched Dickerson, and neither 

displayed a weapon. Galvan-Muro, 141 F.3d at 906; White, 81 F.3d 

at 779.1 Finally, the evidence establishes that neither officer 

 1

 Contrary to Dickerson's assertions on appeal, the mere 

presence of a holstered weapon is not sufficient to convert a 

consensual encounter into an illegal seizure. See Bostick, 501 

U.S. at 432, 434, 437 (in holding that "a seizure does not occur 

simply because a police officer approaches an individual and 

asks a few questions," the Court noted that although the officer 

in that case was carrying a holstered weapon, the officer did 

not point the gun at the defendant or use the gun in a 

threatening manner). 

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 In addition, Dickerson's reliance on Parker, 255 Va. 96, 

496 S.E.2d 47, for the proposition that the fact that an officer 

is wearing a uniform and a badge, alone, constitutes a show of 

authority, is misplaced. In Parker, the Virginia Supreme Court, 

in finding the defendant had been seized, specifically relied on 

the fact that after the defendant attempted to evade the police, 

the officer "drove his police cruiser forty feet off of the 

street and onto private property and stopped his police cruiser 

at the location where the defendant was standing," and not on 

the fact that the officer, like most patrol officers, was 

wearing a badge and a uniform. Id. at 103, 496 S.E.2d at 51. 
blocked nor restricted Dickerson's movement in any way. 

Dickerson 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 

utilized force nor made a show of authority which would have led 

a reasonable person to believe he or she was not free 

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to go, the encounter between Dickerson and the police was 

consensual. 

 This case may be distinguished from Reittinger, 260 Va. 232, 

532 S.E.2d 25, where the Virginia Supreme Court found that the 

defendant had been unlawfully seized following a traffic stop. 

In Reittinger, the police pulled the defendant over for operating 

a vehicle with only one headlight. One officer approached the 

vehicle and stood next to the driver's window, and a second 

officer stood next to the front passenger side window. The first 

officer asked the defendant for his license and registration. 

After the officer gave the defendant a verbal warning for the 

headlight offense, the officer told the defendant he was "free to 

go." Immediately thereafter, without moving from the driver's 

side window, the officer asked the defendant if he had any 

illegal drugs or weapons in the car. The defendant said, "no," 

and the officer asked permission to search the vehicle. The 

defendant did not respond but, rather, consulted with the 

passengers in the vehicle. The officer asked to search the 

vehicle three times without response from the defendant before 

the defendant exited the vehicle. When he exited the vehicle, 

the officer saw what looked like a weapon in the defendant's 

pocket and ordered him to remove it. 

 The Supreme Court held that the defendant had been 

unlawfully seized. Id. at 237, 532 S.E.2d at 28. The Court 

found that, "[a]lthough 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." Id. In deciding Reittinger 

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remained under the restraint of the traffic stop, the Court 

focused on the fact that the officers still flanked the vehicle 

even after the defendant was told he was free to go and on the 

repeated requests by the officer to search the vehicle. Id. at 

236-37, 532 S.E.2d at 27; see also Hernandez, 93 F.3d at 1499 

("'[A]ccusatory, persistent, and intrusive' questioning may turn 

an otherwise voluntary encounter into a coercive one if it 

conveys the message that compliance is required."). In the case 

before us, there was a clear and definite break in the chain of 

events, separating the stop from the subsequent consensual 

encounter. Dickerson was told he was free to go and was allowed 

to return to his vehicle. Deputy Parker's inquiry began as 

Dickerson was entering his car, and the inquiry, unlike that in 

Reittinger, did not, by its nature, implicate restraint or the 

need to restrain. Parker's questions were limited to gathering 

information that Dickerson was free to decline giving. 

Furthermore, Parker was not persistent in seeking information 

from Dickerson in the face of either resistance on his part or 

under circumstances where his willingness to cooperate was not 

made manifest. Rather, Dickerson responded to Parker's 

questions regarding his use and possession of marijuana without 

further prodding by the officers. 

 In the course of the consensual encounter, Parker obtained 

information that gave rise to probable cause to arrest Dickerson 

for a criminal offense and to search his car incident to that 

arrest. In response to questions asked by Parker, Dickerson 

admitted he smoked marijuana and had some "roaches" in the 

ashtray of the car. This evidence constitutes probable cause for 

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arrest. Taylor v. Commonwealth, 222 Va. 816, 821, 284 S.E.2d 

833, 836 (1981) ("[P]robable cause exists when the facts and 

circumstances within the officer's knowledge, and of which he has 

reasonably trustworthy information, alone are sufficient to 

warrant a person of reasonable caution to believe that an offense 

has been or is being committed."); see also Parker, 255 Va. at 

105, 496 S.E.2d at 53; Buck v. Commonwealth, 20 Va. App. 298, 

304, 456 S.E.2d 534, 536-37 (1995) ("If an officer has reason to 

believe that a person is committing a felony in his presence by 

possessing contraband or a controlled substance, the officer has 

probable cause to arrest the individual without a warrant."). 

The search of the vehicle conducted incident to that arrest was 

proper. New York v. Belton, 453 U.S. 454, 460 (1981) (police may 

search passenger compartment of vehicle when they have made 

lawful arrest of occupant); Rawlings v. Kentucky, 448 U.S. 98, 

111 (1980) (search may proceed formal arrest so long as police 

have probable cause to arrest at time of search). Furthermore, 

although Deputy Parker did not immediately arrest Dickerson and 

continued to ask for Dickerson's consent to search the vehicle, 

the officer's subjective beliefs are irrelevant for purposes of 

determining whether the officer actually had probable cause to 

arrest. Poindexter v. Commonwealth, 16 Va. App. 730, 734, 432 

S.E.2d 527, 529 (1993) (where officer has probable cause to 

arrest suspect prior to conducting search, "officer's subjective 

motivations are not dispositive"); Limonja v. Commonwealth, 8 Va. 

App. 532, 537-38, 383 S.E.2d 476, 480 (1989) ("Police actions are 

to be tested 'under a standard of objective reasonableness 

without regard to the underlying intent or motivation of the 

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officers involved.'" (quoting Scott v. United States, 436 U.S. 

128, 138 (1978))). 

 Finally, the search of the vehicle, including the trunk, was 

proper under the automobile exception to the warrant requirement. 

Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (search of 

vehicle proper when there is probable cause to believe it 

contains contraband). Once the officers found drugs in the 

passenger compartment, they had probable cause to extend their 

search to the trunk of Dickerson's vehicle. 

 Because we find the encounter in this case was consensual 

and that the officers had probable cause to arrest Dickerson and 

to search his vehicle, we affirm the trial court's ruling denying 

Dickerson's motion to suppress. 

 Affirmed. 

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