COURT OF APPEALS OF VIRGINIA

Present: Judges Elde r, Humphreys and Kelsey Argued at Richmond, Virginia

CALVIN TAYLOR MEMORANDUM OPINION * BY v. Record No. 2856-04-2 JUDGE LARRY G. ELDER MARCH 7, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Ernest P. Gates, Judge Designate John B. Mann (Lev it & Mann, P.C., on briefs), for appellant. Denise C. Anderson, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Calvin Taylor (appellant) appeals from his conviction, entered upon his conditional plea of guilty, for possession of marijuana with intent to distribute. On a ppeal, he contends the seizure and search that led to the discovery of marijuana on his person were unreasonable and

violated the Fourth Amendment. We hold the ev idence supports a findi ng that the seizure and search that yielded the marijuana were reas onable, and we affirm appellant’s conviction. 1 On appeal of the denial of a motion to suppr ess, we view the evidence in the light most

favorable to the Commonwealt h. Commonwealth v. Grimstead , 12 Va. App. 1066, 1067, 407

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 In his petition for appeal, appellant also challenged a simultaneous conviction for possessing cocaine, also entered upon a conditional plea of guilty, because it was found in a post-arrest search that he conte nded was the fruit of the earlier illegal seizure and search that yielded the marijuana. At the pe tition stage, this Court concluded appellant failed to preserve for appeal his assignment of error re garding the cocaine and denied hi s petition for appeal on that ground. We note that the result is the same resu lt that would have obtai ned if the petition for appeal of the cocaine conviction had been granted along with the marijuana conviction.- 2 - S.E.2d 47, 48 (1991). “[W]e are bound by the trial c ourt’s findings of historical fact unless ‘plainly wrong’ or without evidence to support them,” McGee v. Commonwealth , 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc), but we review de novo the trial court’s application of defined legal standa rds such as reasonable suspicion to the particular facts of the

case, see Ornelas v. United States , 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996). Fourth Amendment jurisprudence recognizes th ree categories of polic e-citizen contact: “(1) consensual encounters, (2) brief, minima lly intrusive investigatory detentions, based upon specific, articulable facts, commonly referred to as Terry stops, see Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and (3) highly intrusive arrests and searches founded on probable cause.” Wechsler v. Commonwealth , 20 Va. App. 162, 169, 455 S.E.2d 744, 747 (1995). Consensual encounters “‘need not be pred icated on any suspicion of the person’s involvement in wrongdoing,’ and remain consen sual ‘as long as th e 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 v. Commonwealth , 17 Va. App. 606, 610, 440 S.E.2d 138, 140 (1994) ( quoting United States v. Mendenhall , 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980)). “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 tota lity of the circumstances, a reasonable person- 3 - would have believed that he or she was not free to leave.” Id. at 199-200, 487 S.E.2d at 262.

Factors relevant under the “total ity of the circumstances” analys is include “‘“the 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 th at 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] police request made in a public place for a person to produce some identification, by itself, generally does not constitute a Fourth Amendment seizure.” McCain v. Commonwealth , 261 Va. 483, 491, 545 S.E.2d 541, 546 (2001); see also INS v. Delgado , 466 U.S. 210, 216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247 (1984). If, during the course of a consensual enc ounter, the officer develops reasonable and articulable suspicion that criminal activity may be afoot, he may “detain [t he individual] briefly while attempting to obtain additional information” to confirm or dispel his suspicions. Hayes v.

Florida , 470 U.S. 811, 816, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705 (1985). [O]nce an officer has lawfully de tained an individual, “he is ‘authorized to take such steps as [are] necessary to protect [his and others’] personal safety and to maintain the status quo during the course of the stop.’” Servis v. Commonwealth , 6 Va. App. 507, 519, 371 S.E.2d 156, 162 (1988) (quoting United States v. Hensley , 469 U.S. 221, 235, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985)). An officer may preserve the status quo by ordering the person detained to place his hands where the officer can see them.

Welshman v. Commonwealth , 28 Va. App. 20, 34, 502 S.E.2d 122, 128-29 (1998) (en banc). When an officer is both (1) ri ghtly in the presence of an i ndividual, as he is during the course of a valid Terry stop, and (2) develops reasonable susp icion that the person may, in fact, be armed and dangerous, he may fris k that person for weapons. See Phillips v. Commonwealth , 17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993); see also 4 Wayne R. LaFave, Search and

Seizure § 9.6(a), at 615-18 (4th ed. 2004). Circumst ances “relevant in [thi s] analysis include- 4 - characteristics of the area surrounding the stop, the time of the stop, the specific conduct of the suspect individual, the character of the offens e under suspicion, and the unique perspective of a police officer trained and experienced in the de tection of crime.” Ch ristian v. Commonwealth , 33 Va. App. 704, 714, 536 S.E.2d 477, 482 (2000) (en banc) (footnote omitted). Here, the evidence supports a finding that Officer Hi xon’s initial encounter with appellant was consensual. Officers Hixon and Grav es approached the vehicle in which appellant and his uncle were occupants in an effort to initiate a consensual encounter. No evidence established that, when Officers Hixon and Graves approached the vehicle in which appellant and his uncle were occupants, the o fficers displayed their weapons or directed the men to remain inside the car, and appellant in fact felt free to exit the vehicle while he talked to Officer Hixon. This evidence supports a finding that appellan t was not physically restrained and had not submitted to any show of authority. Thus, at th e time appellant exited the vehicle and Officer Hixon smelled marijuana, appellant had not been seized, and the encounte r remained consensual.

Once Officer Hixon smelled what he believed to be the odor of marijuana coming from the vehicle, he had reasonable, articulable suspicion to believe that criminal activity was afoot,

cf. Cherry v. Commonwealth , 44 Va. App. 347, 357-58, 605 S.E.2d 297, 302 (2004) (holding that “the detection of the odor of burning marijuana emanating from the open door of a residence, by a credible law enforcement officer who is familiar with its smell, provides that officer with probable cause to be lieve contraband is present insi de the residence”), and he was entitled to detain appellant briefly while attemp ting to obtain additional information to either confirm or dispel his suspicion that appellant might be in possession of marijuana. During the course of that detention, Of ficer Hixon was entitled to pr eserve the status quo by ordering appellant to keep his left hand, which appellant repeatedly placed in his left pocket, where the

officer could see it. Welshman , 28 Va. App. at 34, 502 S.E.2d at 128-29. Officer Hixon testified- 5 - that he had patrolled that pa rticular apartment complex for a period of five years and had previously “encountered individual s [there]” in the early morni ng hours “that [he had] arrested with drugs and/or guns on their persons.” The sme ll of marijuana, combined with the time of the encounter, appellant’s repeated in sertion of only his left hand in to his left coat pocket despite Officer Hixon’s repeated instruction to him to remove it, and Officer Hixon’s knowledge of the

character of the area in which the encounter occurred, supported Officer Hixon’s suspicion that appellant was armed and dangerous. These circ umstances justified Offi cer Hixon’s decision to physically seize and restrain appellant while fr isking his pocket for weapons. When the frisk yielded marijuana rather than a weapon, Offi cer Hixon had probable cau se for an arrest. Citing Murphy v. Commonwealth , 264 Va. 568, 570 S.E.2d 836 (2002), appellant

contends that Officer Hixon’s “f eel” of something “crumbly” in appellant’s pocket that he believed to be marijuana was insufficient to prov ide probable cause for arrest. We disagree.

Officer Hixon testified that immediatel y upon patting the pocket and without further manipulating its contents, he believed, based on hi s training and experience, that the substance it contained was marijuana. This testimony, if fou nd credible by the trial c ourt, was sufficient to provide probable cause to seize th e contents of the pocket. See Murphy , 264 Va. at 574-75, 570 S.E.2d at 839 (recognizing “plain feel ” doctrine of Minnesota v. Dickerson , 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), as legitimizing seizure of contraband contained in pocket by officer who said character of item as contraband was immediately apparent upon patting and distinguishing facts in Murphy based on testimony of officer that “character of the object” as a plastic bag was “immediately apparent” a nd that officer merely inferr ed that bag likely contained contraband). Thus, the seizure and search that led to Officer Hixon’s discovery of marijuana in appellant’s left coat pocket were reasonable, and the trial court’s denial of appellant’s- 6 - suppression motion was not error. Accordingly, we affirm appellant’s conviction for possession of marijuana with intent to distribute.

Affirmed.