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PRESENT:    Keenan, Koontz, Kinser, Lemons, Goodwyn, and Millette,
JJ., and Lacy, S.J.
CHAUNCEY LAMONT MONTAGUE
v.      Record No.  090337                                            OPINION BY
JUSTICE BARBARA MILANO KEENAN
November  5,  2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the record supports a
circuit court’s denial of a defendant’s motion to suppress
evidence.    The defendant contended that he was unlawfully seized
when two police officers approached him requesting information
regarding his identity, and used that information to determine
whether there were outstanding warrants for his arrest and
whether he was trespassing on private property.    We also
consider whether the evidence was sufficient to support the
defendant’s conviction for assault and battery of a law
enforcement officer.
Chauncey Lamont Montague was convicted in a bench trial in
the Circuit Court of the City of Danville for possession of
cocaine, in violation of Code  §  18.2-250; possession of a
firearm by a convicted felon, in violation of Code  §  18.2-308.2;
possession of a firearm while in possession of cocaine, in
violation of Code  §  18.2-308.4; and assault and battery of a law
enforcement officer, in violation of Code  §  18.2-57(C).    Before




trial, Montague filed a motion to suppress the evidence, arguing
that the cocaine and firearm were obtained as a result of an
unlawful seizure of his person in violation of the Fourth
Amendment.    The circuit court denied Montague’s motion.    At the
conclusion of the bench trial, the circuit court sentenced
Montague to a total of fifteen years and six months’
imprisonment, with ten years suspended.
The Court of Appeals affirmed Montague’s convictions in an
unpublished order.    Montague v. Commonwealth, No.  1663-07-3
(January  20,  2009).    The Court held that the circuit court did
not err in denying Montague’s motion to suppress the evidence,
because the encounter between the police and Montague was
consensual in nature.    Id., slip op. at  5.    The Court also held
that the evidence was sufficient to support Montague’s
conviction for assault and battery of a law enforcement officer.
Id., slip op. at  6.
The evidence at trial showed that in January  2007,
Lieutenant Gary Wilson and Officer Larry D. Land were engaged in
off-duty employment at a local apartment complex.    The officers
were patrolling the premises in an effort to prevent individuals
who had been barred from the complex from trespassing.    The
officers, who were wearing their police uniforms, observed
Montague and a female companion leave one of the apartment
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buildings and walk toward a nearby unoccupied vehicle that had
its engine running.
When Officer Land asked Montague whether he lived at the
apartment complex, Montague responded that he did not.    Officer
Land also asked Montague whether he owned the vehicle, and
Montague replied that he did.    Although Montague was unable to
produce any documentation establishing his identity, he provided
the officers with his name, social security number, and date of
birth.
After receiving that information, Officer Land contacted a
police  “dispatcher” to determine whether there were any
outstanding arrest warrants for Montague.    Angela Davis,
Montague’s companion, heard Officer Land contacting the
dispatcher.    However, the record contains no evidence indicating
whether Montague was aware that Officer Land was attempting to
obtain this information.
During the two or three minutes that the officers waited
for a response from the dispatcher, the officers engaged in
general conversation with Montague and remained a distance of
between four and five feet from him.    Meanwhile, Davis walked
about five feet away from the officers and sat on the steps of
an apartment building.
During this time, Montague did not ask the officers whether
he was free to leave, nor did he attempt to leave.    Also, the
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officers did not discuss with Montague whether he was permitted
to leave.
As the officers continued to wait for a response from the
dispatcher, Officer Land reviewed the  “ban list” of individuals
who were barred by the owner of the property from entering the
premises.    Officer Land testified that he customarily reviewed
this list while waiting for a response regarding outstanding
warrants because this procedure  “makes it a little bit quicker
for” the person talking with the police.    Montague’s name did
not appear on the  “ban list.”
When the dispatcher relayed to the officers that there were
two outstanding warrants for Montague’s arrest, the officers
immediately informed Montague that he was under arrest.    As the
officers attempted to take Montague into custody, Montague began
“struggling,”  “twisting,” and  “jerking,” in an apparent attempt
to resist the officers’ joint efforts to place him in handcuffs.
During this struggle, Montague repeatedly tried to reach
into one of his pants pockets.    When Officer Land pulled
Montague’s hand out of that pocket, a handgun fell onto the
ground.    Officer Land also observed some  “packets” fall from
Montague’s sweatshirt pocket.
As Montague continued to resist the officers’ attempt to
place handcuffs on him, Lieutenant Wilson saw Montague push
Officer Land and strike him in the chest with an elbow.
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Ultimately, after a period of several minutes, the officers were
able to subdue Montague.    The officers then retrieved the
firearm and the  “packets” that later were determined to contain
cocaine.
In his first argument on appeal, Montague contends that the
Court of Appeals erroneously upheld the circuit court’s denial
of his motion to suppress the evidence.    Montague asserts that
his encounter with the police officers was not consensual, and
that the officers lacked any reasonable suspicion to believe
that he was engaged in criminal activity.    According to
Montague, the officers unlawfully seized him at the time that
they asserted the authority to check for outstanding warrants
and to ascertain whether he was trespassing at the apartment
complex.    Montague maintains that under these circumstances, a
reasonable person would not have thought that he was free to
leave the officers’ presence.    We disagree with Montague’s
arguments.
The determination whether a person has been seized within
the meaning of the Fourth Amendment presents a mixed question of
law and fact that we review de novo on appeal.    Jones v.
Commonwealth,  277 Va.  171,  177,  670 S.E.2d  727,  731  (2009);
McCain v. Commonwealth,  275 Va.  546,  551-52,  659 S.E.2d  512,  515
(2008).    Under the Fourth Amendment, any seizure of a person, no
matter how brief, must have an objective justification related
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to law enforcement.    United States v. Mendenhall,  446 U.S.  544,
551  (1980); see Baldwin v. Commonwealth,  243 Va.  191,  195,  413
S.E.2d  645,  647  (1992).
A person is seized for purposes of the Fourth Amendment
when the police  “by means of physical force or show of
authority” restrain that person’s freedom of movement.
Mendenhall,  446 U.S. at  553-54; see Terry v. Ohio,  392 U.S.  1,
19 n.  16  (1968); McCain v. Commonwealth,  261 Va.  483,  490,  545
S.E.2d  541,  545  (2001); Baldwin,  243 Va. at  196,  413 S.E.2d at
647.    Conversely, a voluntary encounter between the police and a
citizen does not constitute a seizure prohibited by the Fourth
Amendment.    See Florida v. Bostick,  501 U.S.  429,  434  (1991);
Malbrough v. Commonwealth,  275 Va.  163,  169,  655 S.E.2d  1,  4
(2008); Harris v. Commonwealth,  266 Va.  28,  32,  581 S.E.2d  206,
209  (2003).    Thus, even when the police do not have a reasonable
suspicion that an individual may be engaged in criminal
activity, they may approach that person and request information
regarding the person’s identity without violating the Fourth
Amendment.    See Bostick,  501 U.S. at  435; Immigration &
Naturalization Service v. Delgado,  466 U.S.  210,  216  (1984);
Florida v. Royer,  460 U.S.  491,  497-98  (1983)  (plurality
opinion); McCain,  261 Va. at  491,  545 S.E.2d at  546.
The Fourth Amendment also is not implicated when a person
voluntarily responds to a police request to produce
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identification, even if the person’s response later is used
against him in a criminal prosecution.    See Bostick,  501 U.S. at
434; Royer,  460 U.S. at  497-98; Baldwin,  243 Va. at  196,  413
S.E.2d at  648.    As long as the police do not convey, by word or
deed, that compliance with their request is mandatory, there is
no requirement that these encounters be based on an objective or
particularized suspicion regarding the person approached.    See
Bostick,  501 U.S. at  434; Mendenhall,  446 U.S. at  553-54;
Baldwin,  243 Va. at  196,  413 S.E.2d at  647-48.
The Supreme Court has acknowledged that most individuals
will feel obligated to respond when asked questions by a police
officer, but has held that this fact alone will not convert a
consensual encounter into a seizure.    Delgado,  466 U.S. at  216;
Baldwin,  243 Va. at  197,  413 S.E.2d at  648.    The Court has
explained that a contrary conclusion would create constitutional
barriers to everyday encounters between the police and
individual citizens, imposing unrealistic burdens on  “a wide
variety of legitimate law enforcement practices.”    Mendenhall,
446 U.S. at  554.    Thus, the Supreme Court has concluded that 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.”    Mendenhall,  446 U.S. at  554; Harris,
266 Va. at  32,  581 S.E.2d at  209; Baldwin,  243 Va. at  196,  413
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S.E.2d at  647-48; see Malbrough,  275 Va. at  169,  655 S.E.2d at
4.
If the person to whom the police questions are directed
objectively  “remains free to disregard the questions and walk
away,” there is no demonstrable restriction on the person’s
liberty and the encounter does not result in a seizure.
Mendenhall,  446 U.S. at  553-54; Baldwin,  243 Va. at  196,  413
S.E.2d at  647.    Some factors that might indicate the occurrence
of a seizure include the threatening presence of several police
officers, their display of weapons, a physical touching of the
person to whom the questions are directed, and the use of
language indicating that compliance with the police request is
required.    Mendenhall,  446 U.S. at  555; McCain,  261 Va. at  491,
545 S.E.2d at  545-46; Baldwin,  243 Va. at  196,  413 S.E.2d at
648.
Based on the facts and circumstances before us, we conclude
that the evidence supports the circuit court’s conclusion that
the police encounter with Montague was consensual, and that
Montague was not seized until the police attempted to take him
into custody upon learning of the outstanding arrest warrants.
At the outset of the encounter, the police merely approached
Montague and asked whether he resided at the apartment complex.
When Montague replied that he did not live there, the police
requested that Montague provide some information regarding his
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identity.    Montague willingly provided the police his name,
social security number, and date of birth.
During the encounter, which lasted only two or three
minutes, the police checked the  “ban list” but did not engage in
any show of force or use language indicating that Montague was
required to remain at that location.    Also, the police did not
tell Montague that he was required to stay, and Montague did not
make any attempt to leave.*    Instead, Montague remained in the
area, standing about five feet away from the officers while his
companion moved to sit on some nearby steps.    Thus, the evidence
supports the circuit court’s conclusion that a reasonable person
in Montague’s position would not have thought that he was
required to remain in the police officers’ presence after
providing them with the requested information regarding his
identity.
The fact that the officers did not explicitly tell Montague
that he was free to leave is not determinative of the issue
whether a seizure occurred.    Harris,  266 Va. at  33,  581 S.E.2d
at  210; see Ohio v. Robinette,  519 U.S.  33,  39-40  (1996).
Rather, that evidence is only one fact among many that we
consider based on the record before us.    See Samson v.
California,  547 U.S.  843,  848  (2006); McCain,  275 Va. at  552,
* The record does not contain any evidence indicating that
Montague was aware of Officer Land’s contact with the police
dispatcher.
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659 S.E.2d at  515.    Accordingly, we conclude that the Court of
Appeals did not err in confirming the circuit court’s denial of
Montague’s motion to suppress the evidence.
We next consider Montague’s argument that the evidence was
insufficient to support his conviction under Code  §  18.2-57(C)
for assault and battery of a law enforcement officer.    According
to Montague, the evidence failed to establish that Montague
intended to inflict physical harm on Officer Land.    We disagree
with this argument.
Code  §  18.2-57(C) prohibits a person from committing an
assault and battery knowing or having reason to know that the
victim is a law enforcement officer.    Because Montague does not
dispute that he knew Officer Land was a law enforcement officer,
the sole issue before us is whether the evidence supports the
circuit court’s determination that Montague committed an assault
and battery on Officer Land.
In this challenge to the sufficiency of the evidence, we
review the evidence in the light most favorable to the
Commonwealth.    Britt v. Commonwealth,  276 Va.  569,  573,  667
S.E.2d  763,  765  (2008); Jay v. Commonwealth,  275 Va.  510,  524,
659 S.E.2d  311,  319  (2008); Bolden v. Commonwealth,  275 Va.  144,
148,  654 S.E.2d  584,  586  (2008).    We will affirm the circuit
court’s judgment unless it is plainly wrong or without evidence
to support it.    Code  §  8.01-680; Britt,  276 Va. at  574,  667
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S.E.2d at  765; Jay,  275 Va. at  524,  659 S.E.2d at  319; Bolden,
275 Va. at  148,  654 S.E.2d at  586.
Assault and battery are common law crimes.    An assault is
an  “attempt with force and violence, to do some bodily hurt to
another, whether from wantonness or malice, by means calculated
to produce the end if carried into execution; it is any act
accompanied with circumstances denoting an intention, coupled
with a present ability, to use actual violence against another
person.”    Zimmerman v. Commonwealth,  266 Va.  384,  387,  585
S.E.2d  538,  539  (2003); accord Carter v. Commonwealth,  269 Va.
44,  47,  606 S.E.2d  839,  841  (2005); Jones v. Commonwealth,  184
Va.  679,  681,  36 S.E.2d  571,  572  (1946).    Battery is the actual
infliction of corporal hurt on another that is done willfully or
in anger.    Commonwealth v. Vaughn,  263 Va.  31,  35,  557 S.E.2d
220,  222  (2002); see Jones,  184 Va. at  682,  36 S.E.2d at  572.
The intent to harm may be shown by the circumstances of the
offense, including the actor’s words and conduct.    Vaughn,  263
Va. at  36,  557 S.E.2d at  223.
Here, the evidence showed that Montague pushed Officer Land
and struck him in the chest with an elbow.    This sequence of
events occurred as Montague was trying to prevent the police
officers from taking him into custody on outstanding arrest
warrants.    Viewed in this context, the evidence was sufficient
to establish that Montague acted with the intent to inflict
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physical harm on Officer Land in order to impede the officers’
ability to subdue Montague.    Accordingly, we hold that the Court
of Appeals did not err in concluding that the evidence was
sufficient to convict Montague under Code  §  18.2-57(C) of the
crime of assault and battery of a law enforcement officer.
For these reasons, we will affirm the Court of Appeals’
judgment.
Affirmed.
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