COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Pett y and Senior Ju dge Bumgardner Argued at Chesapeake, Virginia

TYRONE PARKER MEMORANDUM OPINION * BY v. Record No. 1667-13-1 JUDGE RUDOLPH BUMGARDNER, III AUGUST 26, 2014 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Everett A. Mar tin, Jr., Judge J. Barry McCracken, Assistant Public Defender, for appellant. Benjamin H. Katz, Assistant At torney General (M ark R. Herring, Attorney General, on brief), for appellee.
Tyrone Parker appeals his conviction of posse ssion of more than on e half ounce but less than five pounds of marijuana with the intent to distribute, Code § 18.2-248.1. He contends he was illegally detained before be ing searched incident to his arrest. Finding the tr ial court did not err in denying his motion to suppress, we affirm. “In reviewing a trial court’s denial of a motion to suppre ss, ‘[t]he burden is upon [the defendant] to show that th[e] ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error. ’” McGee v. Common wealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) ( en banc ) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). We review de novo the questions of reasonable suspicion and probable cause, but we “review findings of historical fact only for clear error and . . . give due weight to inferences drawn from those fact s by resident judges and local law enforcement officers.” Ornelas v. United States, 517 U.S. 690, 699 (1996).

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - Officers Finn and Ortiz were on patrol in a marked police car across the street from a Norfolk Regional Housing Authority (NRHA) p ublic housing complex when they observed the defendant ride by on a bicycle. Finn knew the de fendant by his nickname and asked if he would stop to talk with them. The defendant turned around and approached the driver’s side of the police cruiser. Finn exited the vehicle, asked the defendant for identification, and explained he was going to issue him a notice banning him from all NRHA property. Finn had been working as a community resource officer for the complex and had received several complaints about the defendant. Finn completed a “ban notice,” ga ve the defendant a c opy, and returned his identification. Finn then asked the defendant if he had a li cense for his bicycle. When the defendant stated that he did not, Ortiz asked him if he could check the serial number on the bicycle to determine if it had been reported stolen. The defendant agreed and got off the bicycle when Ortiz stated he would need to look under it. Or tiz took the serial number from the bottom of the bicycle and learned it had been reported stolen. He then ar rested the defendant for the possession of the stolen bicycle, handcuffed him, a nd searched him incident to the arrest. Ortiz found twenty-six individually wrapped bags of marijuana and a large amount of currency on him. The defendant admitted the marijuana wa s his and that he intended to distribute it. The defendant moved to suppress the drugs and his incriminating statements. He maintained he was seized when Finn began the pr ocess to ban him from NRHA properties. The trial court ruled that even if writing out the ban notice constituted a seizure once the notice was completed and given to the defendant with his id entification “he was then free to leave.” The trial court concluded the rest of the encounter was consensual. It denied the motion to suppress. While we agree with the trial court’s fi nding that the defendant was engaged in a consensual encounter with the pol ice after the issuance of the ban notice, we also conclude the- 3 - defendant was never seized before his arrest for possession of a stolen bicy cle. “Police officers do not violate the Fourth Amendment . . . when the person’s encounter with the police is consensual.” Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003). “In order for a seizure to occur, an indivi dual must be under some physical restraint by an officer or have submitted to the show of police authority.” Thomas v. Commonwealth, 24 Va. App. 49, 54, 480 S.E.2d 135, 137 (1997) ( en banc ) (citing California v. Hodari D., 499 U.S. 621, 628 (1991)). Addressing nearly identical facts, the Suprem e Court of Virginia c oncluded that a seizure does not occur when an individual is briefly de tained by law enforcement officers while they notify him he is banned from a property. See Jones v. Commonwealth, 279 Va. 521, 530, 690 S.E.2d 95, 100 (2010). In this case, the trial judge did not rule on the question of whether the defendant was seized while the officer completed the ban notice. Indeed, at trial neither side cited Jones as important precedent to the facts developed at the suppression hear ing. The trial court prudently avoided ruling on a legal issue no t fully developed by the partie s and ruled on an alternative point that fully addressed the defendant’s motion to suppress; regardless of the possibility of an earlier seizure, any seizure w ould have ended before the defe ndant consented to the search. The record of this case contains all evidence necessary to rule on the issue of whether the defendant was ever seized during his encounter with the police. This ground for affirmance was before the trial court. “The factual record is complete; the conclusion to be drawn from these facts . . . may be decided on this record.” Perry v. Commonwealth, 280 Va. 572, 581, 701 S.E.2d 431, 436 (2010). “[We] independently determine wh ether the manner in which the evidence was obtained satisfies the Fourth Amendment. ” Jones, 279 Va. at 527, 690 S.E.2d at 99. Jones noted: [T]he deputies did not demand that Jones accompany them to the rental office. Jones was merely asked if he would accompany the- 4 - deputies, and he was cooperative wi th their request. There was no evidence that either deputy br andished his weapon, physically touched Jones, used a tone of voice, language or body language indicating that Jones was not free to leave, or that compliance with their request to accompany them to the rental office was compelled. There was no evidence of repeated requests by the deputies. Although the deputies did not affirmatively inform Jones that he was free to leave, that fact alone is not sufficient to remove the consensual nature of the encounter. Id. at 529, 690 S.E.2d at 100. The Court specific ally held the facts su rrounding the detention supported the conclusion it di d not amount to a seizure. We also conclude the defendant in this cas e was not seized during the encounter with the police before they obtained probable cause to arrest him for the possession of the stolen bicycle. The record does not suggest the defendant was restrained or subjecte d to a “show of police authority.” He voluntarily approa ched the officers after they as ked to speak to him, and Finn remained three to four feet away from the de fendant as they discussed his activities at the housing complex. Finn spoke with the defendant only long enough to examine his identification and issue a notice banning him from NRHA prope rty. After Finn returned the defendant’s identification along with the ban notice, he asked the defendant about his bicycle license, but did not restrain him in any manner. Ortiz asked the defendant if he could ru n the serial number on the bicycle, and the defendant readily agreed. Nothing in the officers’ words or actions suggested the defendant wa s not free to leave. As in Jones, the fact that the officers did not inform the defendant that he was free to leave did not transform the consensual encounter into a seizure. The defendant stresses that Harris controls. In that case an initial lawful stop became unlawful because a reasonable person would not have known the initial seizure had ended and would not have felt free to leave. Harris, 266 Va. at 33, 581 S.E.2d at 210. In this case, the initial encounter with the police never was a se izure. There was no subsequent, post-seizure- 5 - encounter as in Harris. This case does not pos e an issue of whether po lice extended a lawful detention into an unlawful seizure. The totality of circumstances demonstrates that the encounter was consensual until the police learned the bicycle had been reported stolen and arrested the defendant. The trial court properly denied the motion to suppress. Accordingly, we affirm. Affirmed.