COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Humphreys and Petty 

Argued at Richmond, Virginia 

BRENDA DENISE MUHAMMAD 

 MEMORANDUM OPINION*

 BY 

v. Record No. 3054-08-1 JUDGE ROBERT J. HUMPHREYS 

APRIL 27, 2010 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

James A. Cales, Jr., Judge 

 Joseph A. Sadighian, Senior Assistant Appellate Defender (Office of 

the Appellate Defender, on briefs), for appellant. 

 Donald E. Jeffrey, III, Senior Assistant Attorney General (William C. 

Mims, Attorney General, on brief), for appellee. 

 Brenda Denise Muhammad (“Muhammad”) was convicted, pursuant to a conditional 

guilty plea, of possession of cocaine, in violation of Code § 18.2-250; and possession of heroin, 

in violation of Code § 18.2-250. On appeal, Muhammad contends that the trial court erred when 

it denied her motion to suppress the evidence obtained incident to her arrest. Specifically, 

Muhammad maintains that the stop was not consensual and that the officers lacked reasonable 

articulable suspicion that she was engaged in criminal activity. Thus, Muhammad argues that 

she was detained in violation of her Fourth Amendment rights, and any evidence seized from her 

person should be suppressed as “fruit of the poisonous tree.” For the following reasons, we 

disagree with Muhammad and affirm. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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BACKGROUND 

On appeal, we review the evidence in the “light most favorable” to the Commonwealth. 

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle requires 

us to “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as 

true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn 

therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (citation 

omitted). So viewed, the evidence is as follows. 

On July 10, 2008, at 2:10 a.m., Officer B. Reid (“Reid”) and Officer Schultz (“Schultz”) of 

the Portsmouth Police Department were on patrol and observed Muhammad and two other women 

in the parking lot of a convenience store. Reid also observed a truck parked on the street next to the 

store. The driver of the truck conversed with a man on the street as the officers approached. The 

store was closed at this time, and the officers had a “trespass authorization” for the business. 

According to Reid, the business is located in a “pretty rough neighborhood” that Reid characterized 

as a “high drug, high crime” area. Reid did not observe any illegal activity, but testified that the 

women were speaking loudly. Reid and Schultz arrived in their marked cruiser, approached the 

women, and told them that that they were being too loud due to the fact that it was a “residential” 

neighborhood. While speaking with them Reid did not threaten anyone, kept her weapon in her 

holster, and spoke in a normal voice. Reid was familiar with Muhammad because she had dealt 

with her on several previous occasions. 

Since Muhammad did not have an “identification card” on her, Reid asked for and received 

her name, date of birth, social security number, and address and wrote it down.1

 Reid did not 

inform any of the individuals that she was running their information through the law enforcement 

 1

 None of the other women had identification cards on them either, and Reid obtained 

their identifying information as well. The men in and by the truck provided identification to the 

officers. 
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computer system. During the encounter, one of the other women started to walk off, and Reid asked 

her “Where are you going? You’re not going to hang out with us.”2 The other woman came back 

to the group, but was not told by Reid to do so. Reid never touched Muhammad during this 

exchange. Reid also told one of the men by the truck to “sit still” during the encounter. Schultz 

stood near the men while Reid ran the information through the computer system. 

When Reid found out from police “dispatch” that there was an outstanding arrest warrant for 

Muhammad, she arrested her. In the search incident to that arrest, Reid discovered a glass smoking 

device in Muhammad’s underwear and a capsule of heroin inside a dollar bill in her bra. Reid’s 

entire contact with Muhammad lasted five to seven minutes prior to arresting her. Reid testified that 

the purpose for asking for identification from the group of women was based on the fact that they 

were on the property of a closed business for which there was a trespass authorization. Reid further 

stated that she was investigating who was on the property and what they were doing. 

Muhammad contended to the trial court in her motion to suppress that the drug evidence 

discovered on her when she was arrested was the fruit of an unlawful seizure because a reasonable 

person would not have viewed the encounter as consensual, and the police had no reasonable 

articulable suspicion to detain her. The trial judge denied her motion and stated: “I certainly don’t 

think it was an unreasonable encounter and once [officers] got the warrant, obviously everything 

from then on was clearly okay, so I’m going to overrule your objection.” 

Muhammad subsequently entered a conditional plea of guilty to both drug charges, 

preserving the right to appeal the trial court’s denial of her motion. This appeal follows. 

2

 Both parties agreed at oral argument that the record was not clear on whether this 

question was asked prior to obtaining the women’s identification information. 
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ANALYSIS 

Muhammad contends that she was unlawfully seized at the time Reid asked for her 

identifying information, and therefore the subsequent discovery that she was wanted on an 

outstanding warrant, as well as the drugs found on her person pursuant to the subsequent search 

incident to her arrest on that warrant, should have been suppressed. We do not reach the merits 

of whether the discovery of the outstanding warrant was an intervening circumstance that 

attenuated any “fruit of the poisonous tree” taint from the illegal police conduct because we hold 

that the initial stop was consensual.3

“On appeal from a trial court’s denial of a motion to suppress, we must review the 

evidence in the light most favorable to the Commonwealth, granting to the Commonwealth all 

reasonable inferences fairly deducible from it.” Sabo v. Commonwealth, 38 Va. App. 63, 69, 

561 S.E.2d 761, 764 (2002) (citing Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 

S.E.2d 47, 48 (1991)). This Court is “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 v. 

Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas 

v. United States, 517 U.S. 690, 699 (1996)). However, “we review de novo the trial court’s 

 3

 This issue would be one of first impression in the Commonwealth. This Court has 

previously, in dicta in an unpublished opinion, addressed this issue, but did so only in passing 

because it ultimately held that the initial encounter between the appellant and the police officers 

was lawful. Venable v. Commonwealth, No. 0833-07-2 (Va. Ct. App. Dec. 30, 2008). Other 

jurisdictions which have analyzed this issue have continuously turned to the analysis in United 

States v. Green, 111 F.3d 515 (7th Cir. 1997), with the majority of those jurisdictions then 

applying the three factors set forth in Brown v. Illinois, 422 U.S. 590, 603-04 (1975), in 

determining that there was sufficient attenuation from the discovery of an outstanding arrest 

warrant to dissipate the taint of an unlawful seizure on evidence seized after the lawful arrest. 

However, because we agree with the trial court that Muhammad’s encounter with the police in 

this case was consensual, we need not consider whether or not the discovery of an outstanding 

warrant for Muhammad falls within the “fruit of the poisonous tree” doctrine of the exclusionary 

rule. 
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application of legal standards . . . to the particular facts of the case.” McCracken v. 

Commonwealth, 39 Va. App. 254, 258, 572 S.E.2d 493, 495 (2002) (en banc) (citing Ornelas, 

517 U.S. at 699). ‘“Ultimate questions of reasonable suspicion and probable cause . . . involve 

questions of both law and fact and are reviewed de novo on appeal.’” Ramey v. Commonwealth, 

35 Va. App. 624, 628, 547 S.E.2d 519, 521 (2001) (quoting Neal v. Commonwealth, 27 

Va. App. 233, 237, 498 S.E.2d 422, 424 (1998)). 

“The Fourth Amendment . . . protects ‘the right of the people to be secure in their 

persons, houses, papers, and effects, against unreasonable searches and seizures.’” Johnson v. 

Commonwealth, 26 Va. App. 674, 682, 496 S.E.2d 143, 147 (1998) (citation omitted). A 

police-citizen encounter is either consensual, brief investigatory or “Terry” stop, or an arrest. 

McGee, 25 Va. App. at 198, 487 S.E.2d at 261. A consensual encounter is not a seizure, and 

does not need to be based on any suspicion of the individual’s involvement in wrongdoing 

because it does not implicate the Fourth Amendment. Payne v. Commonwealth, 14 Va. App. 86, 

88, 414 S.E.2d 869, 870 (1992) (citation omitted); McGee, 25 Va. App. at 198, 487 S.E.2d at 

261. Likewise, “interrogation relating to one’s identity or a request for identification by the 

police does not, by itself, constitute a Fourth Amendment seizure.” INS v. Delgado, 466 U.S. 

210, 216 (1984). 

“There is no ‘litmus test’ for determining whether an encounter is 

consensual or constitutes an illegal seizure. If, however, a 

reasonable person would not feel free to decline an officer’s 

requests or would not feel free to leave, the encounter is not 

consensual and constitutes an illegal seizure under the Fourth 

Amendment.” 

Bandy v. Commonwealth, 52 Va. App. 510, 516, 664 S.E.2d 519, 522 (2008) (quoting Harris v. 

Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003)). 

“A person is seized by the police and thus entitled to challenge the government’s action 

under the Fourth Amendment when the officer, ‘by means of physical force or show of 
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authority,’ terminates or restrains his freedom of movement, . . . ‘through means intentionally 

applied.’” Brendlin v. California, 551 U.S. 249, 254 (2007) (citations omitted). In determining 

whether a seizure has occurred, 

[v]arious factors have been identified as relevant . . . , including the 

threatening presence of a number of police officers, the display of 

weapons by officers, physical contact between an officer and a 

citizen, an officer’s language or tone of voice compelling 

compliance, the retention of documents requested by an officer, 

and whether a citizen was told that he or she was free to leave. 

Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003) (citations omitted); see 

also Montague v. Commonwealth, 278 Va. 532, 539, 684 S.E.2d 583, 587 (2009). “The decision 

whether the encounter was consensual must be made based on the totality of the circumstances.” 

Harris, 266 Va. at 32, 581 S.E.2d at 209 (citing United States v. Mendenhall, 446 U.S. 544, 554 

(1980)). 

 The Supreme Court of Virginia in its recent decision in Montague, held that a similar 

encounter between the police and Montague was consensual prior to discovery of outstanding 

arrest warrants. 278 Va. at 539, 684 S.E.2d at 587-88. In that case, the officers approached 

Montague and his companion in the parking lot of an apartment complex, asked him if he lived 

there, and when he replied that he did not, the officers obtained his identification information. 

Id. at 539, 684 S.E.2d at 588. Upon receiving the information, one of the officers contacted a 

police “dispatcher” to determine if there were any outstanding arrest warrants for Montague, and 

the dispatcher relayed that there were two outstanding warrants. Id. at 537, 684 S.E.2d at 586. 

The encounter lasted only two to three minutes, the officers did not engage in any show of force, 

nor did they use language that indicated to Montague he was required to stay. Id. at 539, 684 

S.E.2d at 586. Montague remained about five feet away from the officers, and made no attempt 

to leave. Id. at 539-40, 684 S.E.2d at 588. Based on these facts and circumstances, the Supreme 

Court concluded that the encounter was consensual. 
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In this case, the encounter between Reid and Muhammad was consensual. Reid made no 

show of force or authority nor did she physically restrain Muhammad in any way during the 

encounter. Reid’s gun remained in the holster the entire time, and only two officers were present 

with the group of five individuals. Reid spoke with the women while Schultz spoke with the 

men over by the truck, and then Schultz remained by the truck with the men, and the women 

stayed in front of the door to the store while Reid ran the information. Also, when Reid 

approached the group of women she spoke to them in a normal voice, and obtained their 

identification information. See Jones v. Commonwealth, 52 Va. App. 548, 556, 665 S.E.2d 261, 

265 (2008) (“‘[I]nterrogation relating to one’s identity or a request for identification by the 

police does not, by itself, constitute a Fourth Amendment seizure.’” (quoting INS, 466 U.S. at 

216)). Further, Reid obtained no identifications or documents from the individuals that she 

retained such that a reasonable person would have thought she was not free to leave until 

receiving them back. Lastly, although Reid did not verbally tell Muhammad she was free to 

leave, the interaction with Muhammad prior to her arrest was brief in that it lasted only five to 

seven minutes. 

Muhammad argues that she was seized when Reid did not permit one of the women to 

leave by asking her where she was going and if she was going to hang out with them. However, 

the interaction between Reid and the other woman has no bearing on whether or not the 

encounter with Muhammad was consensual. Muhammad did not tell the other woman that she 

had to return, nor did she chase her down. The words spoken by Reid did not turn the interaction 

with the other woman into a seizure, nor did they convert Muhammad’s consensual encounter 

into a seizure. The same applies to the words spoken by Reid to the male by the truck to “sit 

still.” They did not create a seizure of the male, nor did they transfer to create a seizure of 

Muhammad. 
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Under these circumstances, Reid did not violate Muhammad’s Fourth Amendment rights 

because the encounter was consensual. Therefore, we hold that the trial court did not err in 

denying Muhammad’s motion to suppress. 

Affirmed.