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common sense and ordinary human experience must govern over rigid criteria.” Hoye, 18
Va. App. at 135 (quoting United States v. Sharpe, 470 U.S. 675, 685 (1985)). Therefore,
“[w]hether a search or seizure is unreasonable is determined by balancing the individual’s right
to be free from arbitrary government intrusions against society’s countervailing interest in
preventing or detecting crime and in protecting its law enforcement officers.” Stanley v.
Commonwealth, 16 Va. App. 873, 875 (1993).
Here, we find that the detention occurred when Officer McLaughlin grabbed Chisholm’s
wrist.4 As stated earlier, a person has been seized when “under a totality of the circumstances, a
reasonable person would have believed that he or she was not free to leave.” City of Danville, 44
Va. App. at 603 (quoting McGee, 25 Va. App. at 199-200). The relevant factors to consider are
the number of police officers, whether officers displayed their weapons, the tone of their voices,
and physical conduct between officers and Chisholm. Mendenhall, 446 U.S. at 554.
In this case, Chisholm believed that the detention occurred when officers approached him
while he was walking down the street. However, the United States Supreme Court has been
clear that when a person is approached by police officers, “he may decline to listen to the
questions at all and may go on his way.” Florida v. Royer, 460 U.S. 491, 498 (1983). Therefore,
the officers approaching Chisholm and asking whether he was carrying any weapons did not start
the detention since a reasonable person under the circumstances would have been free to ignore
the officers and keep walking.
4
On appeal, the Commonwealth argued the encounter between Chisholm and officers
was a consensual encounter. At the suppression hearing, however, the Commonwealth conceded
numerous times that it was “not a consensual encounter” and argued that Chisholm had “not
been seized or detained until Officer McLaughlin puts his hands” on him. Therefore, the
Commonwealth cannot now argue, contrary to its argument at the hearing, that the encounter
between Chisholm and officers was consensual on appeal. Hence, this Court “will not consider
an argument on appeal which was not presented to the trial court.” See Rule 5A:18; Ohree v.
Commonwealth, 26 Va. App. 299, 308 (1998).
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