Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan and 

Kinser, JJ., and Poff, Senior Justice 

JERRY LOUIS COCHRAN 

 OPINION BY 

v. Record No. 982476 SENIOR JUSTICE RICHARD H. POFF 

 November 5, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 We granted this appeal to consider whether the Court of 

Appeals of Virginia erred in affirming a trial court's judgment 

finding Jerry Louis Cochran guilty of possession of 

phencyclidine (PCP) with intent to distribute. The principal 

issue raised by five of six assignments of error is whether, as 

Cochran contends, the trial court erred in overruling his motion 

"to suppress the evidence of PCP because it was obtained as a 

result of an unreasonable seizure of his person in violation of 

his Fourth Amendment rights1 under the United States 

Constitution." 

 Confirming the jury's verdict, the trial court sentenced 

Cochran to a term of seven years in the penitentiary and a fine 

of $10,000.00. The Court of Appeals granted Cochran's appeal 

 1

 The Amendment provides: 

The right of the people to be secure in their 

persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be 

violated, and no warrants shall issue, but upon 

probable cause, supported by oath or affirmation, and 
limited to the principal issue. On January 26, 1993, two of the 

three members of a panel of that Court reversed the conviction 

on the ground that "appellant discarded the PCP while subject to 

an illegal seizure". Cochran v. Commonwealth, 15 Va. App. 619, 

624, 426 S.E.2d 144, 147 (1993). The panel denied the 

Commonwealth's request for a rehearing, but by order entered 

February 25, 1993, the Court of Appeals granted a petition for 

rehearing en banc and stayed the mandate. By order entered July 

13, 1993, an equally divided court sitting en banc affirmed the 

judgment of the trial court, withdrew the opinion of the threejudge panel, and vacated the mandate dated January 26, 1993. By 

order entered October 2, 1998 in response to Cochran's habeas

corpus petition, this Court awarded Cochran leave to petition 

for appeal. We granted his petition by order entered April 22, 

1999. Finding no error in the decision of the Court of Appeals 

sitting en banc, we will affirm its judgment. 

 First, we consider Cochran's sixth assignment of error 

concerning appellate procedure. Cochran argues on brief that 

the Court of Appeals "erred in reversing the judgment of a panel 

. . . because a majority of the judges sitting en banc did not 

vote to reverse the judgment of the panel". Cochran relies upon 

 

particularly describing the place to be searched, and 

the persons or things to be seized. 

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Code § 17-116.02 (now recodified as § 17.1-402) which provides 

in pertinent part as follows: 

(D). ... The Court sitting en banc shall consider and decide 

the case and may overrule any previous decision by any 

panel or of the full Court. 

(E). ... In all cases decided by the Court en banc, the 

concurrence of at least a majority of the judges sitting 

shall be required to reverse a judgment, in whole or in 

part. 

 The language chosen by the General Assembly is plain. The 

"judgment" subject to reversal "in whole or in part" by a 

majority of the Court sitting en banc includes the judgment 

entered by the trial court.2 Hence, absent a majority vote of 

the Court of Appeals sitting en banc reversing the judgment of 

the trial court, that judgment is affirmed. 

 This Court has reviewed both civil and criminal cases in 

which the Court of Appeals has applied that interpretation of 

the statute. See, e.g., White v. White, 257 Va. 139, 143-144, 

509 S.E.2d 323, 325 (1999); Granados v. Windson Development 

Corp., 257 Va. 103, 106, 509 S.E.2d 290, 291 (1999); Husske v. 

Commonwealth, 252 Va. 203, 206, 476 S.E.2d 920, 921-22 (1996), 

cert. denied, 519 U.S. 1154 (1997); Lockhart v. Commonwealth, 

251 Va. 184, 184, 466 S.E.2d 740, 740 (1996). 

 2

 The panel decision was not a judgment because "the clerk 

of the Court of Appeals [had not forwarded] its mandate . . . to 

the clerk of the trial court" as required by Rule 5A:31. 

3
 The decisions of an equally divided Court of Appeals 

sitting en banc and applying that interpretation include 

Stevenson v. Commonwealth, 28 Va. App. 562, 507 S.E.2d 625 

(1998)(en banc); Hebden v. Commonwealth, 26 Va. App. 727, 496 

S.E.2d 169 (1998)(en banc); Brown v. Commonwealth, 24 Va. App. 

1, 480 S.E.2d 112 (1997)(en banc), cert. denied, ___ U.S. ___, 

118 S.Ct. 1073 (1998); Carter v. Extra's, Inc., 15 Va. App. 648, 

427 S.E.2d 197 (1993)(en banc); McIntosh v. Commonwealth, 15 Va. 

App. 314, 399 S.E.2d 27 (1990)(en banc); Diehl v. Commonwealth, 

10 Va. App. 139, 390 S.E.2d 550 (1990)(en banc). 

 In the face of these decisions, the General Assembly has 

not rejected or modified judicial interpretation of the statute 

in issue. "Under these circumstances, the construction given to 

the statute is presumed to be sanctioned by the legislature and 

therefore becomes obligatory upon the courts." Vansant and 

Gusler, Inc. v. Washington, 245 Va. 356, 361, 429 S.E.2d 31, 33-

34 (1993). 

 Overruling the assignment of procedural error, we turn to 

the principal question in issue. There is no consequential 

dispute in the facts relevant to that issue. 

 Deputy Sheriff Earl D. Chewning, Jr., on patrol in a marked 

car, was dispatched to a parking lot to meet an unknown person 

who had called concerning recovery of stolen property. When 

Chewning arrived at the lot that night, he noticed a car parked 

4
near a public telephone booth. The parking lot was well 

lighted, and Chewning could see the driver standing outside the 

car and two persons seated inside. 

 Chewning asked the driver if anyone had called the 

sheriff's department. Before he received a response, Cochran, 

the front seat passenger, started to get out of the car. 

Chewning asked Cochran to remain in the car while he "talked to 

the driver." The deputy sheriff testified that he did so "[f]or 

my safety, because I didn't know exactly what was going on at 

that time." Cochran complied, and Chewning escorted the driver 

to the rear of the vehicle where he had a better view of the two 

passengers. As Chewning was talking with the driver, Cochran 

again opened the door of the car. Chewning instructed him to 

remain in the car, he complied, and Chewning resumed his 

conversation with the driver. Almost immediately, Cochran began 

to get out of the car again. 

 Chewning testified that "[a]s he got out of the vehicle, he 

shoved a bluish colored bag up underneath the car and started 

back towards me." Chewning twice asked for Cochran's name, but 

Cochran's only response was "urrrrr, like that." Cochran was 

"very wobbly on his feet, his eyes were very watery and red, and 

his speech was very slurred." Chewning asked Cochran "to turn 

around and place his hands on top of the roof of the car." 

Chewning conducted a "pat down" search for weapons. Finding 

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none, he retrieved the blue bag. Inside, he found three small 

plastic bags and a film canister. Each contained a strong 

smelling substance which Chewning recognized as likely to be 

illegal drugs. He placed Cochran under arrest. 

 Relying on the Supreme Court's decision in California v. 

Hodari D., 499 U.S. 621 (1991) and its progeny, including this 

Court's decision in Woodson v. Commonwealth, 245 Va. 401, 429 

S.E.2d 27 (1993), the Commonwealth contends that the trial court 

correctly found that Cochran "abandoned the bag containing the 

illegal drugs prior to any seizure of his person." We agree. 

 As this Court made clear in Woodson, it must first be 

determined "when [the defendant] was 'seized' within the meaning 

of the Fourth Amendment." Id. at 404, 429 S.E.2d at 29. "[A] 

person has been 'seized' within the meaning of the Fourth 

Amendment only if, in view of all the circumstances surrounding 

the incident, a reasonable person would have believed that he 

was not free to leave." United States v. Mendenhall, 446 U.S. 

544, 554 (1980). This test is not applicable until the person 

submits to the officer's show of authority. Woodson, 245 Va. at 

404-05, 429 S.E.2d at 29. 

 In our view, as evidenced by Cochran's repeated attempts to 

get out of the car, he did not submit to Deputy Chewning's 

authority until after he had attempted to hide the bag under the 

6
car, Chewning had identified its contents, and Cochran had been 

searched for weapons and placed under arrest. 

 Finding no merit in the assignments of error, we will 

affirm the judgment of the Court of Appeals affirming the 

judgment of the trial court. 

Affirmed. 

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