COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Elder 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 0497-00-2 JUDGE LARRY G. ELDER 

 JULY 11, 2000 

JAMISON JERALD MORTON 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Thomas N. Nance, Judge 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellant. 

 Gregory W. Franklin, Assistant Public 

Defender (Office of the Public Defender, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Jamison Jerald Morton (defendant) stands indicted for 

possession of cocaine with intent to distribute. The 

Commonwealth appeals a pretrial ruling granting defendant's 

motion to suppress all evidence seized from defendant. On 

appeal, the Commonwealth contends the trial court erroneously 

suppressed the evidence because it was obtained during a 

consensual encounter with defendant for which the police did not 

need reasonable suspicion or probable cause. We hold the trial 

court did not err in concluding that the officer's retention of 

defendant's identification converted the encounter into a 
seizure under the facts of this case. Because the officers 

lacked reasonable suspicion or probable cause to justify the 

seizure, as the Commonwealth concedes, we hold that the seizure 

was unreasonable and that the trial court did not err in 

granting the motion to suppress. 

I. 

BACKGROUND 

 On October 19, 1999, Richmond Police Officer Bruce 

Gochenour and his partner were traveling in a marked patrol car. 

Gochenour's partner was driving, and Gochenour rode in the front 

passenger seat. Each officer was in uniform, wore a badge, and 

carried a firearm on his hip. 

 Gochenour saw defendant standing on a street corner with 

three or four other people. As Gochenour and his partner drove 

closer, the others left, but defendant remained. The patrol car 

pulled up beside defendant. Gochenour rolled down his window, 

and in a conversational tone, he asked defendant "what was going 

on." Defendant "didn't really give a reply," but remained 

standing on the corner. Gochenour got out of the car and said, 

"[C]an I talk to you for a second?" Again, defendant gave "no 

real verbal reply. He just stood there." 

 Around this same time, Gochenour heard his partner exit the 

police car. Gochenour did not actually see him but assumed he 

positioned himself at the rear of the vehicle. 

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 Gochenour, from a position of "about arm's length" from 

defendant, asked, "[D]o you have an ID with you?" Defendant 

said "yes," "pulled an ID from his pants pocket" and "handed it 

to [Gochenour]." Gochenour took the identification card and 

"looked at it to see that [it had] the blue and purple colors, 

like . . . a DMV ID card," but he did not examine the 

identifying information or "run [the] information in" at that 

time. Instead, he placed the ID card in his utility belt, as 

was his usual practice, and asked, "[D]o you have any weapons on 

you?" Defendant then raised both hands, keeping one fist 

closed, but gave no verbal response to Gochenour's question. 

Gochenour said he "didn't know what [that] meant," so he asked 

defendant, "[C]an I pat you down?" Defendant said, "[Y]eah, 

sure," "kind of shrugged his shoulders," and opened his left 

hand, revealing two off-white rocks which Gochenour believed to 

be crack cocaine. Gochenour then took appellant into custody 

and retrieved the rocks, which had fallen from defendant's hand. 

Gochenour searched defendant incident to arrest and recovered 

more suspected cocaine from his person. 

 Gochenour testified that he never told defendant during the 

encounter that he was free to leave but that his tone remained 

conversational throughout and that he did not touch defendant 

until after defendant had consented to a pat-down and dropped 

the suspected rocks of crack cocaine. 

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 The trial court, after hearing counsel's argument on the 

motion to suppress, made the following observation: "What 

[defense counsel] is saying . . . , if I understand him 

correctly, is that once [Gochenour] retained [defendant's] 

identification card and didn't hand it back to him, the sequence 

there is very crucial. It's whether [Gochenour] took it, stuck 

it in his belt and then asked to pat him down." The court then 

questioned Gochenour to clarify the sequence of events and made 

the following findings: "[Gochenour] said he took the card. 

Didn't check the details. Saw that it was an ID card. Stuck it 

in his belt. Asked [defendant] if he had any weapons. 

[Defendant] raised his hand, and one of his fists was closed." 

Defense counsel then said, "And [Gochenour] said, do you mind if 

I pat you down?" and the court responded, "And that's when 

[defendant] dropped [the suspected rocks of crack cocaine]." 

 The court gave counsel an opportunity to file legal 

memoranda in support of and opposition to the motion. Following 

receipt of these memoranda, the trial court granted the motion 

to suppress. 

II. 

ANALYSIS 

 At a hearing on a defendant's motion to suppress, the 

Commonwealth has the burden of proving that a warrantless search 

or seizure did not violate the defendant's Fourth Amendment 

rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380 

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S.E.2d 656, 659 (1989). On appeal, we view the evidence in the 

light most favorable to the prevailing party, here the 

defendant, granting to it all reasonable inferences fairly 

deducible therefrom. See Commonwealth v. Grimstead, 12 Va. App. 

1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e 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 v. Commonwealth, 25 Va. 

App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing 

Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 

1659, 134 L. Ed. 2d 911 (1996)). However, we review de novo the 

trial court's application of defined legal standards such as 

probable cause and reasonable suspicion to the particular facts 

of the case. See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663. 

 Police-citizen encounters generally fall into one of three 

categories. See McGee, 25 Va. App. at 198, 487 S.E.2d at 261. 

 First, there are consensual encounters which 

do not implicate the Fourth Amendment. 

Next, there are brief investigatory stops, 

commonly referred to as "Terry" stops, which 

must be based upon reasonable, articulable 

suspicion that criminal activity is or may 

be afoot. Finally, there are "highly 

intrusive, full-scale arrests" or searches 

which must be based upon probable cause to 

believe that a crime has been committed by 

the suspect. 

Id. (citations omitted). "The purpose of the Fourth Amendment 

is not to eliminate all contact between the police and the 

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citizenry, but 'to prevent arbitrary and oppressive interference 

by enforcement officials with the privacy and personal security 

of individuals.'" Greene v. Commonwealth, 17 Va. App. 606, 610, 

440 S.E.2d 138, 140 (1994) (quoting United States v. Mendenhall, 

446 U.S. 544, 553-54, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 

(1980) (citation omitted)). Therefore, consensual encounters 

"'need not be predicated on any suspicion of the person's 

involvement in wrongdoing,' and remain consensual 'as long as 

the citizen voluntarily cooperates with the police.'" Payne v. 

Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870 (1992) 

(quoting United States v. Wilson, 953 F.2d 116, 121 (4th Cir. 

1991)). "'As long as the person to whom questions are put 

remains free to disregard the questions and walk away, there has 

been no intrusion upon that person's liberty or privacy as would 

under the Constitution require some particularized and objective 

justification.'" Greene, 17 Va. App. at 610, 440 S.E.2d at 140 

(quoting Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877). "A 

seizure occurs when an individual is either physically 

restrained or has submitted to a show of authority." McGee, 25 

Va. App. at 199, 487 S.E.2d at 262. 

 "Whether a seizure has occurred . . . depends upon whether, 

under the totality of the circumstances, a reasonable person 

would have believed that he or she was not free to leave." Id.

at 199-200, 487 S.E.2d at 262. Other factors relevant under the 

"totality of the circumstances" analysis include "'"the 

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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."'" Greene, 17 Va. App. at 611 n.1, 440 S.E.2d at 141 

n.1 (quoting Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877) 

(other citation omitted). 

 A request for identification made during an otherwise 

consensual encounter does not, standing alone, convert the 

encounter into a seizure. See, e.g., INS v. Delgado, 466 U.S. 

210, 216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247 (1984). 

However, in the case of the driver of a stationary automobile, 

we have held "that 'what began as a consensual encounter quickly 

became an investigative detention once the [officer] received 

[the individual's] driver's license and did not return it to 

him.'" Richmond v. Commonwealth, 22 Va. App. 257, 261, 468 

S.E.2d 708, 710 (1996) (quoting United States v. Lambert, 46 

F.3d 1064, 1068 (10th Cir. 1995)). In Richmond, a uniformed 

deputy approached Richmond as he was seated in his parked 

vehicle at a gas station and asked for Richmond's driver's 

license. See id. at 259, 468 S.E.2d at 709. Richmond complied 

and waited while the deputy ran a record check at his police 

vehicle. See id. Upon returning to Richmond's car, the deputy 

observed drug paraphernalia inside the vehicle. See id. We 

held that Richmond had been seized before the officer observed 

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the drug paraphernalia because "[a] reasonable person in 

[Richmond's] circumstances would not have believed that he could 

terminate the encounter once the officer retained the driver's 

license and returned to his police vehicle to run a record 

check." Id. at 261, 468 S.E.2d at 710. We also noted that, "as 

a practical matter, if [Richmond] left the scene in his vehicle 

while [the deputy] had his driver's license, [Richmond] would 

have violated Code § 46.2-104, which prohibits a vehicle 

operator from driving without a license." See id.

 We have not previously had occasion to consider the nature 

of an encounter in which an officer requests and retains 

identification from a pedestrian. The Commonwealth contends on 

brief, however, that our ruling in Richmond, and the earlier 

case of Brown v. Commonwealth, 17 Va. App. 694, 440 S.E.2d 619 

(1994), is limited to cases in which "the citizen is located in 

a car and his driver's license is taken by the officer so that 

the driver would not feel free to leave because to do so would 

violate the law" prohibiting driving without a license. 

(Emphasis added). We disagree. Our holding in Richmond, as 

quoted above, did not rest solely upon the single causal 

connection the Commonwealth asserts. Rather we held that "[a] 

reasonable person in [Richmond's] circumstances would not have 

believed that he could terminate the encounter once the police 

officer retained the driver's license and returned to his police 

vehicle to run a record check" and "[f]urthermore, as a 

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practical matter, [that] if [Richmond] left the scene in his 

vehicle while [the deputy] had his driver's license, [Richmond] 

would have violated Code § 46.2-104, which prohibits a vehicle 

operator from driving without a license." Id. at 261, 468 

S.E.2d at 710 (emphasis added). That Richmond's departure by 

car without his driver's license would have violated the law was 

not the singular factor in that case. 

 Under the reasoning of Richmond, we affirm the trial 

court's ruling that appellant was seized when Officer Gochenour 

requested appellant's identification and placed it in his belt 

prior to asking appellant's permission to frisk him for weapons. 

Other jurisdictions have reached this same conclusion. In Salt 

Lake City v. Ray, 998 P.2d 274 (Utah Ct. App. 2000), for 

example, two uniformed officers engaged in a consensual 

encounter with Ray, a pedestrian, asked her for identification, 

and she complied with the request by producing a state 

identification card. See id. at 276. However, "[r]ather than 

viewing the information and returning the card, [one of the 

officers] retained [the identification]" and stepped away "to 

check for warrants on his portable radio" while the other 

officer asked for permission to search Ray's bag. Id.

 Although Ray acceded to a search of her bag, the court held 

that the encounter became a seizure such that her accession to 

the search was not truly consensual. See id. at 276, 278. 

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Given the totality of the circumstances, it 

is clear that a reasonable person in Ray's 

position would not feel free to just walk 

away, thereby abandoning her identification, 

let alone to approach [the officer], take 

back her identification, and then leave. 

Instead, [the officer's] retention of her 

identification during the warrant check 

sufficiently restrained Ray's freedom of 

movement that she was seized for purposes of 

the Fourth Amendment. 

Id. at 278 (footnotes omitted). Although the officer testified 

he would have returned Ray's identification and allowed her to 

leave if she had asked to do so, the court held that this fact 

was irrelevant because it was not communicated to Ray. See id.

at 268 n.1. It observed that "although an officer is not 

required to inform a person he or she is free to leave during a 

[consensual] encounter, such a warning might aid the officer 

from unwittingly escalating the encounter to a [seizure]." Id.

 The Supreme Court of Tennessee reached a similar result in 

State v. Daniel, 12 S.W.3d 420 (Tenn. 2000), in which an officer 

approached four men standing around a vehicle in an unlighted 

parking lot after dark. See id. at 423. The officer asked for 

identification and retained it while he ran a computer check, 

which revealed an outstanding warrant for Daniel. See id. The 

court apparently placed no weight on whether the vehicle 

belonged to any of the men or whether they were traveling in it. 

See id. In holding that the retention of Daniel's 

identification constituted a seizure, the court noted that, 

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[w]ithout his identification, Daniel was 

effectively immobilized. Abandoning one's 

identification is simply not a practical or 

realistic option for a reasonable person in 

modern society. . . . [W]hen an officer 

retains a person's identification for the 

purpose of running a computer check for 

outstanding warrants, no reasonable person 

would believe that he or she could simply 

terminate the encounter by asking the 

officer to return the identification. 

Id. at 427. 

 Although both Ray and Daniel involved an officer's 

retention of an individual's identification for purposes of 

running a check for outstanding warrants, the key issue in Ray

and Daniel was the retention itself and its effect on whether a 

reasonable person in the owner's position would have believed 

she or he was free to leave. See Ray, 998 P.2d at 278 & nn.2-3; 

Daniel, 12 S.W.3d at 427. The court in Ray also noted that the 

"critical time at issue [was] . . . when Ray consented to the 

search." 998 P.2d at 278 n.3; see also Lambert, 46 F.3d at 1069 

n.4. In appellant's case, he consented to the search at a time 

when Gochenour, a uniformed and armed police officer whose 

similarly clad partner stood nearby, asserted control over 

appellant's person by retaining possession of his 

identification. The evidence supports the trial court's 

conclusion that a reasonable person in defendant's position 

would have believed he was not free to leave. 

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 For these reasons, we affirm the ruling of the trial court 

granting appellant's motion to suppress, and we dismiss the 

indictment for possession of cocaine with intent to distribute. 

Affirmed.

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