COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Decker and O’Brien Argued at Richmond, Virginia

DMITRI I. MEDVEDEV MEMORANDUM OPINION * BY v. Record No . 0930-16-2 JUDGE MARLA GRAFF DECKER JULY 18, 2017 HENRICO COUNTY

FROM THE CIRCUIT COURT OF HENRICO COUNTY L. A. Harris, Jr., Judge David B. Hargett (Hargett Law, PLC, on brief), for appellant. Jeromy R. Lewis, Assistant Co mmonwealth’s Attorney (Shannon L

. Taylor, Henrico County Commonwea lth’s Attorney, on brief), for appellee.
Dmitri I. Medvedev appeals his conviction for driving under th e influence with a blood alcohol concentration greater th an 0.20% in violation of Henric o County Municipal Code § 22-2, which adopts and incorporates Co de §§ 18.2-266 and -270 by refe rence. On appeal, he argues that the circuit court erred by ruling that the seizure that led to his arrest was reasonab le under the Fourth Amendment of the United States Constitution. We hold that the seizure was reasonable because the evidence, viewed under the proper standard, proves that the enc ounter began as a consensual one and that, by the time a seizure occurred, the officer had reaso nable suspicion to believe that the appellant had been driving while intoxicated. Accordingly, we hold that the circuit court’s denial of the motion to suppre ss was not error, and we affirm the appella nt’s conviction.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - I. BACKGROUND 1 On October 9, 2015, Officer Scott Ph illips of the Henrico Count y Police received a “service call” from “dispatch.” Dispatch reported that a citiz en had been “following” a driver who was “operating a red Mazda SUV” that had arrived at the Jew ish Community Center (JCC). The dispatcher further relayed t hat the driver was “all over th e road” and “running off the road.” 2 Officer Phillips responded to the call as the “backup officer.” Phillips testified that based on everything the dispatcher told him , he “fe[lt] like [he] was re sponding to an impaired driver.” When Officer Phillips arrived a t the JCC, he drove through the parking lot and toward the main entrance without activati ng his emergency lights. He saw a red Mazda SUV matching the description issued by dispatch parked in a public space near th e building. On the opposite side of the parking lane, Officer Phill ips saw a man standing at the ba ck of a different car. Phillips “pulled by” and looked at the red S UV. As he “slowed,” he “loo ked over” at the man standing nearby. Upon “ma[king] eye contact ,” the officer “sort of poin ted to the SUV,” looked at the man again, and received “a posi tive response of a head nod.” Officer Phillips noticed that no one was inside the SUV, but h e saw a man sitting on a bench just outside one of the e ntrances to the JCC. Someone wh o appeared to be a security officer was standing next to the m an. Phillips parked his poli ce car in front of the building, about twenty-five feet away from th e bench. He did not activate any of the emergency lights on his vehicle. The officer got out of his car and walked up to the m an, who was the appellant.

1 In ruling on the propriety of acircuit court’s decision on a motion to suppress, the appellate court views the eviden ce in the light most favorable to the party who prevailed below, in this case Henrico Count y. E.g., Beasley v. Commonwealth, 60 Va. App. 381, 385 n.1, 728 S.E.2d 499, 501 n.1 (2012).

2 The record establishes that the citizen’s call to the police w as recorded.- 3 - Officer Phillips “asked” the a ppellant to “join” him by his pol ice car in an effort to get the appellant “away from the front door of the school.” The ap pellant stood up and walked with Phillips to the officer’s car. Phi llips then “asked” the appel lant if he had his driv er’s license with him, and the appellant handed t he officer his license. At abou t the same time that Officer Phillips received the appellant ’s license, he “detect[ed] an od or of alcoholic beverage about [the appellant’s person].” Also, the appellant exhibited what Offic er Phillips described as “an off-balance posture.” Once th e primary officer assigned to the call arrived, he conducted various field sobriety tests and arrest ed the appellant for driving und er the influence of alcohol. Prior to the appellant’s tr ial, he filed a motion to suppress the evidence. He contended that he was seized when Officer P hillips asked for his identifi cation and that the officer lacked reasonable suspicion to detai n him. The prosecutor responded b y “conced[ing]” that the appellant was “seized” when Offi cer Phillips received the appel lant’s driver’s license. Nevertheless, he argued that the seizure was lawful because the officer had reasonable suspicion to detain the appellant for ei ther driving under the influence (DUI) or public intoxication. The circuit court ruled based on the totality of the circumstances that the encounter began as a consensual one and that the officer developed reasonable, articulable suspicion to justify a brief investigative detention. T he judge determined that Offic er Phillips, the only witness at the suppression hearing, was “very c redible.” He found that the of ficer went to the JCC, saw a red Mazda, and received “acknowledge ment” from “someone in the park ing lot” that “this was the car that [the citizen had] bee n following.” In the “same parki ng lot,” the officer saw the appellant seated next to a security guard. The judge concluded that Officer Phillips “had the right to go up to” t he appellant. Additionally, the judge found that the officer asked the appel lant, “[W]ould you mind coming with me so we can get away f rom this entrance,” and the appellant “agreed to do that.”- 4 - The judge further found that “at the same time” the officer ask ed for the appellant’s driver’s license, he smelled alcohol and s aw the appellant “standing in the unusual ma[nn]er that he . . . described.” The judge concluded t hat the report that the Mazda had been driven “all over the road,” combined with the odor of alcohol emanating from the app ellant and the way he was standing, provided the officer with reasonable, articulable sus picion to detain the appellant for further investigation. After the circuit court denie d the motion to suppress, the app ellant entered a conditional guilty plea, retaining the right to appeal the denial of his mo tion. The court accepted the plea, convicted the appellant, and sente nced him to six months in jai l, with five months fifteen days suspended.
II. ANALYSIS The appellant contends that the denial of his motion to suppres s the evidence derived from the seizure of his person w as error. He asserts that he w as seized “the moment [the officer] took [his] license” and notes tha t the prosecutor agreed with this conclusion in the circuit court. He suggests that the totality of the circumstances known to the officer at the time did not provide reasonable suspicion that he ha d been driving while intoxicated . Additionally, the appellant notes that the court did not m ake any findings on the prosecuto r’s alternative argument that the officer “could have been conducting an investigation into a pos sible drunk in public” offense. When challenging the denial of a motion to suppress evidence, t he appellant bears the burden of establishing that rev ersible error occurred. Glenn v . Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008). On appeal, the Court consider s the evidence in the light most favorable to the party who prevai led below and affords to that party, in this case Henrico County, the benefit of all inferences fai rly deducible from the evidenc e. Mason v. Commonwealth, 291 Va. 362, 367, 786 S.E.2d 148, 151 (2016). The appellate court is bound by the circuit court’s- 5 - “findings of historical fact unle ss ‘plainly wr ong’ or without evidence to support them” and “give[s] due weight to the infere nces 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 ). The factual findings to whic h we defer include that court’s assessment of the credibility of the witnesses . McCary v. Commonwealth, 36 Va. App. 27, 35, 548 S.E.2d 239, 243 (2001). Ultimately, however, the appellate court “review[s ] de novo the [circuit] court’s application of defined legal sta ndards, such as whether the pol ice had reasonable suspicion” to detain the appellant. Bla nd v. Commonwealth, 66 Va. App. 405, 412, 785 S.E.2d 798, 801 (2016). This de novo review “involves application of an objective rather than a sub jective standard.” Id. The law recognizes “three distin ct types of police-citizen inte ractions: (1) arrest[s], which must be supported by probable cause; (2) brief investigat ory stops, which must be supported by reasonable articulabl e suspicion; and (3) brief [c onsensual] encounters between police and citizens.” Bra nham v. Commonwealth, 283 Va. 273, 27 9, 720 S.E.2d 74, 77 (2012) (citations omitted) (quoting United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002)). It is well established that the Fourth Amendment “does not require any level of suspicion” for a consensual encounter, which may i nclude “non-coercive questioni ng by officers” and “a request for identification.” Id. An encounter remains consensua l “[a]s long as the police do not convey, by word or deed, that compliance with their request is mandatory.” Montag ue v. Commonwealth, 278 Va. 532, 538, 684 S.E.2d 583, 587 (2009). Further, the fact that “ most individuals will feel obligated to respond when asked questions by a police officer” does not, standing alone, “convert a consensual encounter into a sei zure.” Id. A seizure has not o ccurred “unless, taking into account all the circumstances of the enc ounter, ‘a reasonable person wo uld . . . believe[] that he was not- 6 - free to leave’” or disregar d the questions. Id. at 539, 684 S. E.2d at 587 (alterations in original) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)) . Factors that might suggest that a seizure has occurred inc lude “the threatening presence o f several police officers, their display of weapons, a physical touching of the person to whom the questions are directed, and the use of language [or tone of voice] indicating that complian ce with the police request is required.” Id.; see Mendenhall, 446 U.S. at 554. The appellant contends that Officer Phillips seized him when th e officer “received” his driver’s license “and did not return it to him.” He also notes in support of his argument that the prosecutor conceded in the circ uit court that once the officer obtained his driver’s license, he was seized for Fourth Amendment purpo ses. We reject this argument for two reasons. First, although a party may conced e a fact or facts, if a partyoffers a concession on a point of law, an appellate cour t may not blindly accept the con cession and reverse a conviction on that basis. See Wright v. Commonwealth, 278 Va. 754, 760 n. 3, 685 S.E.2d 655, 658 n.3 (2009); Logan v. Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) ( en banc ). Instead, the reviewi ng court must conduct an independent legal analysis to determine whether reversal is required. See Wright, 278 Va. at 760 n.3, 685 S.E. 2d at 658 n.3; Logan, 47 Va. App. at 172 n.4, 622 S.E.2d at 773 n.4. Accordingly, this Court mus t independently examine whether the law supports the circuit co urt’s denial of the appellant’s motion to suppress, which includes determining whether, and if s o when, the appellant was seized. Second, controlling authority estab lishes that Officer Phillips ’ request for and receipt of the appellant’s driver’s license was not a seizure. The Suprem e Court of Virginia considered this question in Branham v. Commonwealth, 283 Va. 273, 720 S.E.2d 74 (2012). In that case, the police encountered the defendant in the driver’s seat of a car parked near a house at which they were attempting to serve arre st warrants. Id. at 276-77, 720 S .E.2d at 76. One of the officers- 7 - shined his spotlight on the defendant’s car and asked the defen dant for his drive r’s license. Id. at 277, 720 S.E.2d at 76. While awaiting t he results of the licen se check, the same officer asked the defendant “what was going on.” Id. The officer also asked whe ther the man had anything illegal and if he would “mind stepping out o f the vehicle” for a weapon s frisk. Id. After complying, the defendant consented to a search of his person. Id. Additional ly, no evidence established that the defendant “ever asked for the r eturn of his license.” Id. at 2 78, 720 S.E.2d at 76. Branham moved to suppress cont raband found in the search of his person, contending that he was seized under the Four th Amendment “as soon as [the officer] took his driver’s license.” Id. at 278, 720 S.E.2d a t 77. The Court rejected th at argument, holding that the encounter, including the license request, was wholly consensual . Id. at 280, 720 S.E.2d at 78. In doing so, it noted that Code § 46.2- 104, which “requir[es] the owner or operator of a motor vehicle to exhibit his driver’s license to an officer for ident ification, applies only when such a driver has received a signal to s top from a law-enforcement off icer.” Id. Because the officer had not stopped the defendant in that fashion, the Court reasoned that he “was not required by law to surrender his driver’s license for a record check.” Id. There fore, the Court concluded that the officer’s request to see the defe ndant’s driver’s license was “ no more than a request” and the defendant’s “compliance was vol untary and not coerced.” Id. T he Court noted that none of the other facts converted the consen sual encounter into a seizure b ecause the “other officers did not say anything” to the defendant , there was “no display of weapon s or emergency lights,” the defendant’s “car was not blocke d,” and “no threatening or coerc ive tone of voice was used.” Id. Similarly, in the instant case, the appellant was not required by law to surrender his license because when the officer r equested it, the appellant wa s not the “operator of a motor vehicle” who had “received a signa l to stop from a law-enforcem ent officer.” See id. Instead, the encounter began in a consen sual fashion when the lone offic er simply asked the appellant,- 8 - who was sitting on a bench, “[W]ould you mind coming with me so we can get away from this entrance,” and the appellant “a greed” to go with him. The evid ence in the record further supports the circuit court’s fi nding that Officer Phillips’ exc hange with the appellant about his driver’s license was similarly arequest to which the appellant agreed. See id. Officer Phillips was the only police officer on the scene at that time, and the circuit court expressly found that his testimony was credible. The o fficer testified that he did not activate the lights on his police car. In addition, no evidence indicate d that the officer raised his voice, touched the appellant, displayed his weapon, or indicated i n any way that the appellan t’s compliance with his request was required. Under these facts, the request for and receipt o f the appellant’s license did not convert the consensual e ncounter into a seizure. As soon as Officer Phillips det ected the odor of alcohol and sa w that the appellant was having problems with his balance, ob servations that he made sim ultaneously with the license request, the officer had reasonabl e suspicion to detain the app ellant. As the circuit court ruled, the officer’s own observations, al ong with the tip from the con cerned citizen, provided reasonable suspicion that the appellant had been driving under the influence of alcohol. “In making reasonable-suspicion det erminations, reviewing court s must look at the ‘totality of the circumstances ’ . . . to see whether the detain ing officer has a ‘particularized and objective basis’ for suspec ting legal wrongdoing.” Mason, 291 Va. at 368, 786 S.E.2d at 151 (quoting United States v . Arvizu, 534 U.S. 266, 273 (2002)). “ The test is not what the officer thought” but, rather, “ whether the facts and circumstances appa rent to him at the time of the [seizure] were such as to creat e in the mind of a reasonable of ficer in the same position a suspicion that a viol ation of the law [ha d occurred,] was occurring[,] or was about to occur.” Id.; see Logan v. Commonw ealth, 19 Va. App. 437, 441, 452 S.E.2d 364 , 367 (1994) ( en banc ). This standard “requires far mo re than an officer’s ‘hunch’ or ‘ gut feeling’ but far less than actual- 9 - proof.” Mason, 291 Va. at 369, 786 S.E.2d at 152. Additionall y, conducting this totality of the circumstances analysis require s consideration of the officer’s training and experience. Harris v. Commonwealth, 241 Va. 146, 149, 400 S.E.2d 191, 193 (1991). Ho wever, the officer need not expressly articulate such a sus picion as long as the record con tains objective facts to support it. Mason, 291 Va. at 369-70, 786 S.E.2d a t 152; see Raab v. Common wealth, 50 Va. App. 577, 583 n.2, 652 S.E.2d 144, 148 n.2 (2007) ( en banc ). Whether the totality of the circumstances justifies a brief inv estigatory detention “is dependent upon both the content of information possessed by pol ice and its degree of reliability.” Navarette v. Californi a, 134 S. Ct. 1683, 1687 (2014) (quoting Alabama v. White, 496 U.S. 325, 330 (1990)). Where part of the information is provided by an i nformant, “[a] court must consider both ‘the veracity of t he informant and the basis of h is or her knowledge.’” Reed v. Commonwealth, 36 Va. App. 260, 267, 549 S.E.2d 616, 619 (2001) (quoting Jefferson v. Commonwealth, 27 Va. App. 1, 13, 497 S.E.2d 474, 480 (1998)). If the informer is “a disinterested citizen who is eith er a victim of or eyewitness t o[] a crime, police properly may give [the informer’s report] more weight . . . than they would to information from a ‘criminal’ informer, whose motives are le ss likely to be pure.” Id. at 26 7-68, 549 S.E.2d at 619-20. Further, if the tipster’s ident ity is known or likely to be asc ertainable, the information is entitled to greater weight because the tip ster subjects himself to liabi lity if the report proves false. See Jackson v. Commonwealth, 267 Va. 666, 679-81, 594 S.E.2d 595, 6 02-03 (2004). Finally, a tip indicating that it is based on firsthand inf ormation is entitle d to more weight than one failing to convey the basis of the tipst er’s knowledge. Bland, 66 Va. App . at 416, 785 S.E.2d at 803. Here, the officer knew that his presence at the JCC had been in itiated by a concerned citizen who called the police to r eport he had followed a red M azda SUV that was “all over the road” and “running off the road.” The reliability of the tip w as enhanced because the call was- 10 - recorded, increasing the possibi lity that the tipster’s voice, at the very least, could be used to identify him if the tip proved to be false. 3 See Navarette, 134 S. Ct. at 1690. After Officer Phillips locate d an SUV matching the reported des cription in the JCC parking lot, he saw a man he be lieved to be the concerned citiz en standing just a few cars away. Phillips believed the man was t he tipster because when the offi cer pointed to the SUV and looked back at the man, the man nodded his head. This evidence supports the circuit court’s finding that the citizen tipster w as present at the scene when the officer arrived and that he confirmed the SUV the officer s aw parked near the door was the same vehicle that the tipster had reported for its erratic driving. Based on the information that he received from dispatch, Offi cer Phillips believed that he was looking for an “impaired dr iver.” The officer did not k now with certainty that the person he saw sitting on the bench near t he door—the appellant—was tha t driver. Nevertheless, once the officer engaged the appellantin a consensual encounter and personally observed that the appellant smelled of alcohol a nd was having balance problems, t he officer had at least reasonable suspicion to detain the appella nt briefly to investigate furthe r. 4 Moreover, the evidence, viewed objectively, provided the officer with reason to believe that h e could make immediate personal contact with the ci tizen tipster. A brief detention was permitted under these circumstances to allow the officer to confirm or di spel his suspicion that the appellant had operated the SUV and had done so while under the influe nce of alcohol. Cf. id. at 1 690-91 (observing that a “reliable

3 The record does not establish whe ther dispatch obtained the ti pster’s name or other identifying information.

4 Officer Phillips testified that he detained the appellant for three to five minutes before the arrival of the primary offi cer assigned to the call and tha t, while waiting, he did not take any additional steps to confirm or di spel the suspicion that the ap pellant had committed a DUI or was committing the offense of public i ntoxication. As the appellan t confirmed at oral argument, he challenges only the constitutiona lity of the basis for Officer Phillips’ detention at the time he took the license, not the dur ation of the detention.- 11 - tip” alleging driving behavior su ch as “‘weaving all over the r oadway’” “generally would justify a traffic stop on suspicion of drunk driving” (quoting People v . Wells, 136 P.3d 810, 811 (Cal. 2006))); Jones v. Commonw ealth, 51 Va. App. 730, 737, 660 S.E.2 d 343, 346 (2008) (observing that “[t]he odor of alcohol e manating from a suspect” who an of ficer observed driving “provided a police officer with ‘reasonable suspicion that [he] was drivi ng while intoxicated’” (quoting Wallace v. Commonwealth, 32 Va. App. 497, 505, 528 S.E.2d 739, 742 (2000))), aff’d in part and vacated in part on other grounds, 279 Va. 52, 688 S.E.2d 26 9 (2010). Contrary to the appellant’s suggestion, the fact that he was no longer driving the vehicle is of no import on the facts of this case. See Code § 19.2-81(D) (permitting an offic er to make a warrantless arrest for misdemeanor DUI “within three hours of the alleged offense . . . whether or not the offense was committed in such officer’s presence”); cf. Navarette, 134 S. C t. at 1691-92 (observing that “allowing a drunk driver a second c hance for dangerous conduct could have disastrous consequences”). The record supports the conclusi on that Officer Phillips had re asonable suspicion to detain the appellant in light of objective facts indicating tha t he may have committed a DUI. 5
III. CONCLUSION On the facts of this case, the appellant was not seized when t he officer asked to see his identification and received it from him. Additionally, the off icer had reasonable suspicion to support an investigative detent ion as soon as he smelled alcoho l on the appellant and observed his balance issues. Consequen tly, any seizure of the appellantthat occurred after the officer

5 The Commonwealth alternativelyargues that the objective facts known to the officer also provided him with reasonable suspicion to investigate whet her the appellant was committing the ongoing offense of public i ntoxication. See McGhee v. Comm onwealth, 280 Va. 620, 624-25, 701 S.E.2d 58, 60 (2010); Crislip v. Commonwealth, 37 V a. App. 66, 71-72, 554 S.E.2d 96, 98-99 (2001). In light of our ru ling that the officer had reasonable suspici on to investigate the DUI offense, we do not address this argument.- 12 - received his driver’s license w as reasonable under the Fourth A mendment, and we affirm the conviction. Affirmed.