COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Bumgardner and Lemons 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 1569-98-3 JUDGE SAM W. COLEMAN III 

 DECEMBER 29, 1998 

CHARLIE WILLIAM GILBERT 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

William N. Alexander, II, Judge 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellant. 

 Rudolph A. Shupik, Jr., for appellee. 

 Charlie William Gilbert was charged with driving a motor 

vehicle after having been declared an habitual defender. On 

Gilbert's motion, the trial judge suppressed evidence from a 

police encounter that the judge determined was a Terry stop 

conducted without reasonable suspicion. Because the trial court 

erred in concluding that the officer lacked reasonable suspicion, 

the trial court's ruling is reversed and the case is remanded to 

the circuit court. 

I. BACKGROUND

 On appeal, we view the evidence in the light most favorable 

to the prevailing party, and grant to that party all reasonable 

inferences fairly deducible from the evidence. See Commonwealth 

v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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Sergeant Dennis, while in uniform and on duty in his marked 

police car, was parked in a lot outside a supermarket. Dennis 

observed Gilbert drive a vehicle onto the lot, park, and exit the 

vehicle. On seeing Gilbert drive onto the lot, Sergeant Dennis, 

who knew Gilbert, recalled that in a conversation seven to ten 

months earlier Gilbert had mentioned that he was an habitual 

offender. 

 Based on this recollection, Sergeant Dennis motioned for 

Gilbert to approach his car. As Gilbert came to the patrol car, 

Sergeant Dennis told him that he "need[ed] for him to sit on the 

passenger side" of his car. Sergeant Dennis explained to Gilbert 

that he knew Gilbert was an habitual offender and that he would 

have to charge him with driving after having been declared an 

habitual offender. Gilbert responded by asking Sergeant Dennis 

to "give him a break." After Sergeant Dennis called the police 

dispatch with Gilbert's Social Security number and confirmed 

Gilbert's status as an habitual offender, Dennis issued Gilbert a 

summons for driving after having been declared an habitual 

offender and released him. 

 The trial judge found that Sergeant Dennis detained Gilbert 

within the meaning of the Fourth Amendment when Dennis motioned 

Gilbert to his car and had him take a seat in the patrol car. 

The trial judge held that the detention was an invalid Terry stop 

because the officer's awareness that some seven to ten months 

earlier Gilbert had been an habitual offender was insufficient to 
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create a reasonable suspicion that Gilbert continued to be and 

was presently an habitual offender. 

II. ANALYSIS

 In this interlocutory appeal, pursuant to Code § 19.2-398 et

seq., we determine whether the trial court erred in finding that 

the encounter between Sergeant Dennis and Gilbert constituted a 

seizure within the meaning of the Fourth Amendment, and if not, 

whether the court erred in finding that no reasonable suspicion 

justified the seizure. The analysis involves mixed questions of 

law and fact. See McGee v. Commonwealth, 25 Va. App. 193, 

197-98, 487 S.E.2d 259, 261 (1997) (en banc). We are bound by 

the trial court's findings of historical fact unless plainly 

wrong or without evidence to support them, and we give deference 

to the inferences the trial court draws from those facts. See

id. at 198, 487 S.E.2d at 261. However, we determine de novo

whether the facts, as established, implicate the Fourth 

Amendment, and if so, whether reasonable suspicion or probable 

cause justified the intrusion. See id. 

 The trial court did not err in finding that the encounter 

between Sergeant Dennis and Gilbert constituted an investigatory 

or Terry stop. 

 [A] person has been "seized" within the 

meaning of the Fourth Amendment only if, in 

view of the circumstances surrounding the 

incident, a reasonable person would have 

believed that he was not free to leave. 

Examples of the circumstances that might 

indicate a seizure, even where the person did 

not attempt to leave [include, inter alia] 

. . . the use of language or tone of voice 
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indicating that compliance with the officer's 

request might be compelled. 

United States v. Mendenhall, 446 U.S. 544, 554 (1980); see McGee, 

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

police conduct rises to the level of a Fourth Amendment seizure 

requires examining the facts in each case. See Michigan v. 

Chesternut, 486 U.S. 567, 576-77 (1988); see also Parker v. 

Commonwealth, 255 Va. 96, 103, 496 S.E.2d 47, 50-51 (1998) 

(plurality opinion) (declining to extend Baldwin v. Commonwealth, 

243 Va. 191, 413 S.E.2d 645 (1992), and limiting it to its unique 

facts). 

 Sergeant Dennis, who was in uniform and in a marked police 

car, motioned for Gilbert to approach the patrol car. Dennis 

told Gilbert that "he needed" for him to take a seat in the 

vehicle. Gilbert acquiesced in or submitted to the police 

officer's authority and took a seat in Dennis's patrol car. See

generally California v. Hodari D., 499 U.S. 621, 625-26 (1991) 

(notwithstanding a lack of physical restraint, submission to a 

show of authority constitutes a seizure within the meaning of the 

Fourth Amendment). Sergeant Dennis then related to Gilbert that 

he "knew" Gilbert was an habitual offender and that he would have 

to charge him. The trial court did not err in determining that a 

reasonable person, faced with these facts, would not believe that 

he or she was free to ignore the officer and avoid the detention. 

 Pursuant to Terry, an officer may approach and temporarily 

detain a person to investigate possible criminal behavior without 
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probable cause. See Terry v. Ohio, 392 U.S. 1, 21-22 (1968); 

McGee, 25 Va. App. at 202, 487 S.E.2d at 263. When an officer 

can articulate a particularized and objective basis to suspect 

that an individual is involved in criminal activity, the officer 

may briefly detain the suspect in order to further investigate 

that suspicion. See United States v. Cortez, 449 U.S. 411, 

417-18 (1981). In determining whether a police officer had 

reasonable suspicion that criminal activity was afoot, there is 

no bright line rule or "litmus test," rather a court must 

consider the totality of circumstances. See Buck v. 

Commonwealth, 20 Va. App. 298, 302, 456 S.E.2d 534, 536 (1995); 

Commonwealth v. Spencer, 21 Va. App. 156, 159, 462 S.E.2d 899, 

901 (1995). 

 We hold that the trial court erred in determining that 

Sergeant Dennis lacked reasonable suspicion to briefly detain 

Gilbert in order to further investigate. Under Code § 46.2-356, 

a person who has been declared to be an habitual offender 

generally will continue in that status for ten years and 

thereafter until the privilege has been restored by a court of 

competent jurisdiction. Although Sergeant Dennis's knowledge 

that Gilbert was an habitual offender seven to ten months before 

was not conclusive evidence that he was still an habitual 

offender, that fact gave Sergeant Dennis a reasonable basis to 

suspect that Gilbert was still an habitual offender which, in 

turn, justified a brief investigatory detention. As soon as 
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Gilbert asked Sergeant Dennis for "a break," Dennis had further 

grounds to detain Gilbert. See Glasco v. Commonwealth, 26 Va. 

App. 763, 771, 497 S.E.2d 150, 154 (1998) (affirming that 

knowledge of defendant's arrest two weeks earlier on charges that 

often, but not always, resulted in suspension of a driver's 

license created reasonable suspicion that defendant was driving 

without a license). 

 Accordingly, the trial court's order granting the motion to 

suppress is reversed and remanded to the trial court for such 

further proceedings as may be advised. 

 Reversed and remanded.