5.1 GENERAL CONSIDERATIONS

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 Ed.)

5.1 GENERAL CONSIDERATIONS

5.101 Themes.

The Supreme Court and appellate courts analyzed Fourth Amendment issues largely through the lens of the "reasonable expectation of privacy" doctrine articulated in Katz v. United States ⁶⁸⁷ in the years that followed the ruling. More recently, the Supreme Court placed increased emphasis on the pre-Katz, property-based analysis, focusing on governmental intrusion on private property and trespassory conduct by law enforcement, although certainly not abandoning the principles applied in Katz and its progeny. ⁶⁸⁸ "The Katz reasonable-expectations test 'has been added to, not substituted for,' the traditional property-based understanding of the Fourth Amendment . . . ." ⁶⁸⁹

Emerging technologies, sophisticated forms of surveillance and tracking, and evolving means of acquiring evidence will continue to change Fourth Amendment jurisprudence. Appellate courts, often wrestling with the application of the Fourth Amendment years after the technology or methods at issue are obsolete or outdated, will continue to create some degree of unpredictability for both the government and citizens with respect to the validity of a particular search when using contemporary technologies to obtain evidence.

While the constitutional landscape changed in recent years with respect to the Fourth Amendment, so has the Commonwealth of Virginia from a statutory perspective. The Virginia legislature recently enacted significant statutory changes regarding searches, seizures, warrants, primary offenses, consent, and available remedies when law enforcement violates certain statutes.

This chapter seeks to provide a general overview of the Fourth Amendment, with insight into applicable case law and statutes within the Commonwealth. The authors do not intend, nor endeavor, to create a comprehensive review of the Fourth Amendment here. To do so would require significantly more than a chapter. However, we do attempt to provide readers with a basic outline of the aforementioned topics, specifically focusing on Virginia practice and procedure, hopefully allowing practitioners to "issue spot" and find direction on an array of search and seizure topics rooted in both case law and the Virginia Code.

5.102 Fourth Amendment Continuum and Seizures.

A. In General.

Many interactions between law enforcement and a citizen will take place on a continuum under the Fourth Amendment. The Fourth Amendment, however, does not shield a citizen from a truly consensual interaction with law enforcement. An officer may approach anyone and strike up a voluntary conversation. The nature of that interaction, the manner of approach, how the parties are physically situated, the display of weapons, the number of law enforcement officers, and a variety of other factors may change the nature of that conversation from a consensual interaction to a seizure or, perhaps, an arrest. Notably, the terms "seizure" and "arrest" are not fungible under the Fourth Amendment. While every arrest is a seizure, the opposite is not true. Similarly, a party that is "detained" is not necessarily "in custody" for Fourth Amendment purposes.

The Supreme Court recognizes three forms of interactions between the police and citizens: (i) brief consensual encounters, requiring no objective justification or suspicion; (ii) brief investigatory stops, supported by reasonable articulable suspicion; and (iii) an arrest, supported by probable cause. ⁶⁹⁰ What begins as a consensual encounter may evolve into an investigatory stop or arrest, depending on the dynamics of the interaction.

B. Seizures and the Exclusionary Rule.

Although covered more thoroughly elsewhere in this chapter, a brief note on the exclusionary rule is prudent here. Why does the nature of an interaction between law enforcement and a citizen and where it falls on our continuum matter? Why do we care about how and when evidence is seized or obtained? Ultimately, and subject to various exceptions expanded on in this chapter, evidence and statements obtained during unconstitutional police-citizen encounters is subject to potential suppression. Simply put, unconstitutionally obtained evidence, subject to numerous exceptions of course, typically cannot be used during the prosecution of the aggrieved party's criminal case.

To deter misconduct by law enforcement, and subject to several exceptions discussed herein, the United States Supreme Court adopted a prophylactic approach toward unconstitutionally obtained evidence stemming from unlawful seizures, sometimes requiring the exclusion of evidence and their direct "fruits." The exclusionary rule is not a constitutional right, but a judicially created mechanism for deterring unconstitutional police conduct. The Court has rejected a broad "[i]ndiscriminate application" of the rule, applying it when the "deterrence benefits outweigh the 'substantial social costs.'" ⁶⁹¹ The Court's cases "hold that society must swallow this bitter pill when necessary, but only as a 'last resort.'" ⁶⁹²

However, the violation of statutory rights or obligations by law enforcement does not automatically create a suppression remedy for a defendant. "[U]nless the statute expressly provides for an evidentiary exclusion remedy," a violation of a statute does not require suppression of "the offending evidence." ⁶⁹³ "[T]he Virginia Supreme Court has consistently declined to impose an exclusionary rule where no deprivation of the defendant's constitutional rights occurred." ⁶⁹⁴ Notably, the General Assembly recently created statutory suppression remedies for violations of search warrant protocol, secondary offenses, and searches based upon the odor of marijuana, discussed more thoroughly below.

C. Consensual Encounters.

Not every citizen encounter with law enforcement will rise to a seizure for Fourth Amendment purposes. Voluntary conversation and questioning does not constitute a seizure, and an officer's words and conduct must be evaluated to determine if the encounter transitions to an involuntary interaction.

A consensual encounter occurs when an officer approaches "to ask [the party] questions" if "a reasonable person would understand that he or she could refuse to cooperate." ⁶⁹⁵ Consensual encounters remain consensual "as long as the citizen voluntarily cooperates with the police." ⁶⁹⁶ The application of Fourth Amendment scrutiny only occurs when the encounter "loses its consensual nature." ⁶⁹⁷ If the questioned person "remains free to disregard the questions and walk away," the interaction does not constitute a seizure as long as there is no "demonstrable restriction on the person's liberty." ⁶⁹⁸

Consensual questioning does not create a seizure even when there is a request for identification. ⁶⁹⁹ The Supreme Court "acknowledge[s] that most individuals will feel obligated to respond when asked questions by a police officer, but . . . that . . . fact alone will not convert a consensual encounter into a seizure." ⁷⁰⁰ An encounter between the police and a citizen does not constitute a seizure unless, "taking into account all the circumstances of the encounter, 'a reasonable person would . . . believe[] that he was not free to leave.'" ⁷⁰¹

5.103 What Is a Seizure?

A. In General.

Prior to expanding on these police-citizen encounters, identifying what constitutes a seizure is necessary. True constitutional scrutiny begins when an actual seizure takes place (namely, something other than a consensual encounter). A seizure occurs in one of three ways (or a combination thereof):

1. The application of physical force or acquisition of the person by law enforcement; ⁷⁰²

2. Submission of the person to a claim of law enforcement authority; ⁷⁰³ or

3. Facts and circumstances that indicate, objectively, that a person is not free to leave. ⁷⁰⁴

B. Investigatory Stops: Reasonable Articulable Suspicion.

Law enforcement may conduct a limited and temporary detention of a person based on less than probable cause (namely, reasonable articulable suspicion) in order to confirm or dispel that criminal activity is afoot. ⁷⁰⁵ Those brief investigatory detentions are known as "Terry stops."

Reasonable suspicion to justify a Terry stop requires that officers have a "'particularized and objective basis for suspecting the particular person stopped' of breaking the law." ⁷⁰⁶ The justification for the brief stop "must be based upon specific and articulable facts of criminal activity." ⁷⁰⁷ Reviewing courts determine whether reasonable suspicion exists for suspected wrongdoing based upon the totality of circumstances, considering the whole picture, and taking into account the particular officer's experience. ⁷⁰⁸

Additional principles also guide the court's inquiry when determining whether a Terry stop was constitutionally sound. "First, the facts and circumstances on which the officer relies must have been available to him at the moment of the stop, not discovered thereafter." ⁷⁰⁹ Second, although the officer's experience contributes to the inquiry, "the officer's subjective thoughts are irrelevant." ⁷¹⁰ "The test is not what the officer thought, but rather whether the facts and circumstances apparent to him at the time of the stop were such as to create in the mind of a reasonable officer in the same position a suspicion that a violation of the law was occurring or was about to occur." ⁷¹¹

Although the disruption of an ongoing crime warrants a seizure based upon reasonable articulable suspicion, a seizure is also permitted if a person is about to commit a crime. "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." ⁷¹²

Importantly, an officer does not need to observe any elements of a crime or be investigating a particular crime to conduct a limited detention. "A general suspicion of some criminal activity is enough, as long as the officer can, based on the circumstances...