COURT OF APPEALS OF VIRGINIA
Present: Judges Benton , Kelsey and McClanahan Argued at Richmond, Virginia

TIMOTHY OBERRY STITH MEMORANDUM OPINION * BY v. Record No. 2394-03-2 JUDGE D. ARTHUR KELSEY JANUARY 11, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG James F. D’Alton, Jr., Judge Daniel W. Hall, Senior Assistant Public Defender, for appellant. Susan L. Parrish, Assistant Atto rney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Convicted of possession of cocaine with intent to distribute, Timothy Oberry Stith asserts on appeal that the tria l court erred by not suppressing ev idence recovered from him during a search incident to his arrest and statements he made both before and after his arrest. We affirm, finding no constitutional violations by the arresting officers and thus no reason to suppress evidence under the exclusionary rule. I. On appeal from a denial of a suppression motion, we examine the evidence in the light most favorable to the Commonwea lth, giving it the benefit of all reasonable inferences. Medley v. Commonwealth , 44 Va. App. 19, 24, 602 S.E.2d 411, 413 (2004) ( en banc ); Slayton v. Commonwealth , 41 Va. App. 101, 103, 582 S.E.2d 448, 449 (2003).

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - During the early morning hours of March 8, 2003, several officers of the Petersburg Police Department, including Officer Lawrence Wi encek, were on street patrol. The uniformed officers saw Stith and another individual standi ng outside a Food Mart. As the officers approached the two men, one officer recognized Stith and called him out by name. “How you doing, Mr. Stith?” Stith responded, “Okay.” Officer Wiencek then asked Stith, “Can I talk to you?” Stith said yes. Several officers stood in front of Stith a nd his companion, “close enough to speak” to them. 1 Officer Wiencek asked Stith for his name. Stith replied, “Timothy Stith.” Wiencek then asked Stith if he had any outstanding warrants on file, to which Stith responded, “I don’t know.” Using his handheld radio, Officer Wiencek ca lled police headquarters “to see if he had a warrant.” At this point, Officer Wiencek testif ied, Stith “was free to leave . . . he wasn’t under any detention.” Nothing was said to suggest he could not simply walk away. Given Stith’s agreement to talk with him, however, Officer Wiencek assumed Stith “was going to wait” during the warrant inquiry. Stith did wait. The dispatcher advised Wiencek that an outst anding warrant for Stith’s arrest was on file. The officer then advised Stith that there was “an outstanding warrant for his arrest and that he was under arrest.” Officer Wiencek verified St ith’s date of birth to ensure it matched the information on the warrant. Officer Wiencek th en searched Stith and found 58 baggies of crack cocaine. During the conversation preceding Stith’s arre st, the officers stood in a semicircle facing Stith and his companion. “The two other offi cers that were there,” Officer Wiencek recalled, “talked to the other guy” accompanying Stith. They also spoke to Stith as well. Had Stith

1 The record is unclear exactly how many o fficers were involved. On direct, Officer Wiencek said there were two other officers accomp anying him. On cross, he said three other officers were present. Given the circumstances of this case, the distinction is immaterial.- 3 - chosen to discontinue the dialogue, Officer Wi encek testified, he coul d have “walked around” the officers. No evidence suggested Stith’s only pa th of departure (or, for that matter, even his natural path of departure) was somehow blocked by the officers. Nor did any facts imply that the officers backed Stith up against a wall or into a corn er. At no point prior to Stith’s arrest did any officer unholster a firearm, give any commands, ma ke any threats, or physically touch Stith. At trial, Stith moved to suppress all stat ements made by him and evidence found on him. The ostensible conversation, Stith argued, was not a conversation at all. It was a custodial interrogation pursuant to an illegal de facto arrest. The trial court denied the suppression motion, heard the evidence, and found Stith guilty of possession of cocaine with intent to distribute in violation of Code § 18.2-248. S tith appeals the denial of hi s suppression motion, which, if successful, would eliminate any evid entiary basis for his conviction. II. Though the ultimate question whether the o fficers violated the Fourth or Fifth Amendments triggers de novo scrutiny, “we defer to the trial c ourt’s findings of ‘historical fact’ and give ‘due weight to the in ferences drawn from those facts by resident judges and local law enforcement officers.’” Slayton , 41 Va. App. at 105, 582 S.E.2d at 449-50 (citations omitted). To prevail on appeal, “the defe ndant must show that the trial court’s denial of his suppression motion, when the evidence is considered in the light most favorable to the prosecution, was reversible error.” Id. at 105, 582 S.E.2d at 450 (quo ting Whitfield v. Commonwealth , 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003)); see also Barkley v. Commonwealth , 39 Va. App. 682, 690, 576 S.E.2d 234, 238 (2003). A. C ONSENSUAL C ONVERSATION Stith first argues that the officers violated the Fourth Amendment by seizing him without an individualized suspicion of criminality, either in the form of probable cause justifying a- 4 - custodial arrest, Maryland v. Pringle , 540 U.S. 366 (2003), or, shor t of that, a reasonable, articulable suspicion that criminal activity “may be afoot” justifying an investigatory detention, United States v. Arvizu , 534 U.S. 266, 273 (2002). We agree with Stith that neither predicate for a seizure has been shown, but disagree with him that either had to be. A consensual encounter “does not require any justification and may be terminated at will by the individual.” White v. Commonwealth , 267 Va. 96, 104, 591 S.E.2d 662, 666 (2004). Thus, officers need not have any pa rticularized suspicion to appro ach “individuals on the street or in other public places” and then put “questions to them if they are willing to listen.” United States v. Drayton , 536 U.S. 194, 200 (2002); see also Barkley , 39 Va. App. at 691-93, 576 S.E.2d at 238-39. So long as officers refrain from inducing “cooperation by coercive means,” they need no suspicion of criminality to “ pose questions, ask for identification, and request consent to search luggage.” Drayton , 536 U.S. at 201 (citing Florida v. Bostick , 501 U.S. 429, 434-35 (1991)). 2 An officer questioning a citizen exceeds the scope of his authority and effects a seizure only when, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” California v. Hodari D. , 499 U.S. 621, 628 (1991) (quoting United States v. Mendenhall , 446 U.S. 544, 554 (1980)). This reasonable-person test “presupposes an innocent person.” Bostick , 501 U.S. at 438 (emphasis in original). Framed this way, the test guarantees that Fourth Amendment pr otections do not “vary with the state of mind of the particular individual being approached.” Wechsler v. Commonwealth , 20 Va. App. 162, 170, 455 S.E.2d 744, 747 (1995) (citations omitted).

2 See also Barkley , 39 Va. App. at 691, 576 S.E.2d at 238; McLellan v. Commonwealth , 37 Va. App. 144, 151, 554 S.E.2d 699, 702 (2001); Commonwealth v. Satchell , 15 Va. App. 127, 131, 422 S.E.2d 412, 415 (1992).- 5 - Several factors determine whether an officer “by means of physical force or show of authority” would cause a reasonable person to feel seized. Mendenhall , 446 U.S. at 554-55; see also Sykes v. Commonwealth , 37 Va. App. 262, 268, 556 S.E.2d 794, 797 (2001). “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 that compliance with the officer’s request mi ght be compelled,” Londono v. Commonwealth , 40 Va. App. 377, 398-99, 579 S.E.2d 641, 651 (2003) (citati on omitted), all shed light on whether a seizure has occurred. See also Barkley , 39 Va. App. at 692, 576 S.E.2d at 239. No one circumstance, however, should be considered apart from the larger context. Thus, an encounter

⎯ otherwise consensual

⎯ does not become a seizure merely because of the presence of several armed officers, Drayton , 536 U.S. at 204-05, or the failure of the officers to inform the person that he is free to ig nore further questioning, I.N.S. v. Delgado , 466 U.S. 210, 216 (1984), or their failure to te ll the individual he is free to leave, Ohio v. Robinette , 519 U.S. 33, 39-40 (1996). “While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free no t to respond, hardly elim inates the consensual nature of the response.” Delgado , 466 U.S. at 216. In this case, the trial c ourt found the conversation consen sual up until the moment of Stith’s arrest on the outstanding warrant. The evidence supports that decision. Officer Wiencek began the conversation with an e xpress request for permission to speak with Stith. He agreed. This initial exchange expressly established the conversat ion as consensual. See Lawrence v. Commonwealth , 17 Va. App. 140, 144, 435 S.E.2d 591, 593 (1993) (“He agreed to talk with them.”), aff’d per curiam , 247 Va. 339, 443 S.E.2d 160 (1994). At no point from the beginning of the encounter to its end did Officer Wiencek make any threats, raise his voice, or issue any- 6 - commands to Stith. Nor did any of the officers draw their weapons 3 or physically touch Stith. What was said in Drayton can be said here as well: “There was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice. It is beyond question that had this encounter occurred on the street, it woul d be constitutional.” Drayton , 536 U.S. at 204 (finding no seizure during questioni ng within the close confines of a bus). Stith’s primary complaint focuses on the fact that the officers stood near him in a semicircle. To leave their presence, Stith points out, he would have had to “walk around” them. Like the trial court, we find this circumstance insufficient to carry the weight of Stith’s argument. Blocking one’s only path of escape, making a doorway impassable, backing one into a corner, completely encircling a suspect

⎯ arguably all involve circ umstances suggestive of a de facto seizure. But cf. Drayton , 536 U.S. at 205 (holding no seiz ure existed as officer stood at the “front of the bus” by the exit door); Delgado , 466 U.S. at 219 (officers stationed at exits of factory did not make their questioning of workers nonconsensual). But that is not what happened to Stith. He was not surrounded, backed up against a wall, or cornered. To be sure, no evidence suggests that the path around the officers was any less natural and ordinary than the path through them. While several officers stood near Stith and his companion, had Stith decided to end the encounter with the officers and leave, he needed only to walk around them. See United States v. Kim , 25 F.3d 1426, 1431 n.2 (9th Cir. 1994) (even if egress “partially blocked” a seizure does not ne cessarily take place “if an avenue for departure remains open”); United States v. $25,000 U.S. Currency , 853 F.2d 1501, 1505 (9th Cir. 1988)

3 “That most law enforcement officers are ar med is a fact well known to the public. The presence of a holstered firearm thus is unlikely to contribute to the coer civeness of the encounter absent active brandishing of the weapon.” Drayton , 536 U.S. at 205; Barkley , 39 Va. App. at 694, 576 S.E.2d at 240.- 7 - (finding no seizure where individual was “surrou nded by the officers and blocked by a concrete pillar” but nevertheless “could ha ve easily walked around the pillar and the officers”). If that fact makes the conversation a seizure, it would m ean a group of officers on street patrol could

never
⎯ as a group
⎯ have a face-to-face conversation with anyone without being accused of conducting a de facto arrest. They would either have to shout from a distance or form some ostensibly less threatening geometric shape (o ther than a semicircle) while carrying on the conversation. Even so, Stith continues, what may have st arted off as a consensual encounter quickly became a seizure as soon as Officer Wiencek asked him if he had any “outstanding warrants.” Under this reasoning, a consensual conversation cannot remain cons ensual if the police officer asks any potentially incriminating questions. We cannot accept this thes is. As many courts have explained, “the mere fact that officers ask incriminating questions is not relevant to the totality-of-the-circumstances inquiry

⎯ what matters instead is ‘t he manner’ in which such questions were posed.” United States v. Ringold , 335 F.3d 1168, 1173 (10th Cir.) (citations omitted), cert. denied , 540 U.S. 1026 (2003). 4 Even “persistent questio ning regarding criminal activity” does not necessarily negate the consen sual nature of the c onversation. Dickerson v. Commonwealth , 266 Va. 14, 17, 581 S.E.2d 195, 197 (2003) ( holding that an officer did not seize an individual simply by asking whether he “smoked marijuana” or had any illegal drugs). 5

4 See , e.g. , Bostick , 501 U.S. at 439 (noting that the pr oposition that “police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions” is supported by a “long, unbroken line of decisions dating back more than 20 years”); United States v. Kim , 27 F.3d 947, 953 (3d Cir. 1994) (holding “potentially incriminating questions” do not by themselv es make an encounter coercive).

5 Nor can a seizure be implied merely from an officer’s request for identification. See , e.g. , McCain v. Commonwealth , 261 Va. 483, 491, 545 S.E.2d 541, 546 (2001) (holding “a police request made in a public place for a pe rson to produce some id entification, by itself, generally does not constitute a Fourth Amen dment seizure” (citations omitted)); McLellan ,- 8 - In this case, the officers began the conversat ion by asking Stith for permission to question him. That one of those questions (“Do you ha ve any outstanding warrants?”) might solicit an incriminating answer did not convert the convers ation into a seizure. The officers did not directly accuse Stith of anything, or make a di splay of force, or use any intimidating nonverbal cues to coerce a response. Th e encounter remained consensual until the moment that Officer Wiencek arrested Stith on the outstanding warrant. The trial court, ther efore, did not err in denying Stith’s motion to suppress on this basis. B. M IRANDA V IOLATION Stith’s second argument asserts that his “Fif th Amendment rights were violated when he was asked to give his identity, a nd then give further details afte r being told he was under arrest without being advised of his Miranda rights.” The trial court correc tly rejected this argument. Stith’s statements during the consensual encounter do not implicate Miranda , which applies only to custodial interrogations in the context of a “for mal arrest or restraint on freedom of movement of the degree associated with a fo rmal arrest.” Yarborough v. Alvarado , 124 S. Ct. 2140, 2149 (2004) (quoting Thompson v. Keohane , 516 U.S. 99, 112 (1995)). As to the “further details” Stith claims to have given after his arrest on the outstanding warrant, Officer Wiencek asked Stith only for his da te of birth to confirm his identity. Miranda does not apply to “routine booking” questions seeking biographical information. Pennsylvania v. Muniz , 496 U.S. 582, 601 (1990). Such questions “nor mally attendant to arrest and custody” do not constitute custodial interrogation under Miranda . Watts v. Commonwealth , 38 Va. App. 206, 215, 562 S.E.2d 699, 704 (2002) (quoting Wright v. Commonwealth , 2 Va. App. 743, 746, 348 S.E.2d 9, 12 (1986), and South Dakota v. Neville , 459 U.S. 553, 564 n.15 (1982)).

37 Va. App. at 153, 554 S.E.2d at 703 (f inding it inconsequential, by it self, that the “detective, in a public place, simply requested some identification”).- 9 - III. The circumstances of this case lack the i ndicia of coercion necessary to convert the officers’ consensual conversation with Stith into a de facto seizure. His statements, therefore, were not the product of an illegal detention. Nor were they in any way obt ained in violation of Miranda . The physical evidence taken from Stith, moreover, was properly obtained through the search incident to his arrest. We thus affirm the trial court’s deni al of Stith’s motion to suppress. Affirmed.- 10 - Benton, J., dissenting. The Fourth Amendment protects “the right of the people to be secure in their persons . . . against unreasonable searches and seizures.” U. S. Const. amend. IV. “The Supreme Court has provided examples of circumstances indicating the occurrence of a seizure . . . includ[ing] ‘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 that compliance with the officer’s request might be compelled.’” Bolden v. Commonwealth , 263 Va. 465, 471, 561 S.E.2d 701, 704 (2002) (quoting United States v. Mendenhall , 446 U.S. 544, 553 (1980)). Also relevant is whether the officer advises the person “that he or she was free to leave.” Harris v. Commonwealth , 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003). In determining whether a seizure has occurred, all of these circumstances need not coincide. See Bolden , 263 Va. at 472, 561 S.E.2d at 705. Rather, when the ci rcumstances establish that an officer, “by means of . . . show of authority, has in some way restrained the lib erty of a citizen . . . we [may] conclude that a ‘seizure’ ha s occurred.” Terry v. Ohio , 392 U.S. 1, 19 n.16 (1968). Officer Wiencek testified that he and three other officers -- Officer Jones, Officer Land, and another officer whose name he “wasn’t fam iliar with” -- were in uniform and armed when they arrived in two police vehicles and “pulled up in the parking lot to [Stith].” The officers were tasked to “interdict” people on the street and contact them “purposefully.” The four officers approached Stith and a nother man, who were at a tele phone. One officer asked, “how you doing Mr. Stith,” and all the offi cers stood in a semicircle in front of Stith “about three . . . to four feet away from him.” All four of the offi cers were “talking to [Stith]” seeking to determine whether he knew of warrants for his arrest. I would hold that the threatening presence of the four armed officers arrayed in a semicircle in front of Stith, th e questioning of Stith about crim inal conduct by all the officers,- 11 - and the absence of a statement to Stith that he wa s free to leave, when combined, “present such a ‘show of authority,’ as to make a reasonable person believe he . . . is not free to leave the encounter.” Bolden , 263 Va. at 472, 561 S.E.2d at 705. “[T]he Fifth Amendment privilege is availabl e . . . and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.” Miranda v. Arizona , 384 U.S. 436, 467 (1966). Although “the police have the right to request citizens to answer voluntarily questio ns concerning unsolved crimes,” the police “have no right to compel them to answer.” Davis v. Mississippi , 394 U.S. 721, 727 n.6 (1969). Thus, when police officers detain a person in violation of Terry , the fruits of that encounter must be suppressed. Sibron v. New York , 392 U.S. 40, 65-66 (1968); Terry , 392 U.S. at 13. I would hold that the officers detained Stith without reasonable suspicion of criminal conduct and that the trial judge er red in refusing to suppress the ev idence. I, therefore, dissent.