548 F.3d 1124 (2008)
UNITEDHEALTH GROUP INC., Plaintiff-Appellee,
v.
WILMINGTON TRUST CO., not in its individual capacity, but solely in its capacity as Indenture Trustee on behalf of all Holders of 5.800% Notes Due March 15, 2036, of UnitedHealth Group Inc., Defendant-Appellant.
No. 08-1904.
United States Court of Appeals, Eighth Circuit.
Submitted: November 13, 2008.
Filed: December 1, 2008.
*1125 Jeff Irving Ross, argued, John B. Orenstein and Steven M. Pincus, Minneapolis, *1126 MN, and Eric A. Schaffer, Pittsburgh, PA, on the brief, for appellant.
Robert J. Giuffra, argued, New York, NY, Peter William Carter, Gretchen A. Agee, Minneapolis, MN, William Henry Wagener, Jennifer Sheinfeld, New York, NY, on the brief, for appellee.
Before MURPHY, HANSEN, and RILEY, Circuit Judges.
MURPHY, Circuit Judge.
UnitedHealth Group (UHG) brought suit seeking a declaratory judgment that its failure to file timely reports with the Securities and Exchange Commission (SEC) violated no duties owed to its noteholders. Wilmington Trust Company (Wilmington Trust), as trustee for certain UHG notes, filed counterclaims asserting violations of the notes indenture, the Trust Indenture Act of 1939, and an implied covenant of good faith and fair dealing. The parties filed cross motions for summary judgment, and the district court[1] granted judgment in favor of UHG on all claims and counterclaims. We affirm.

I.
The basic facts of this case are undisputed and relatively straightforward. On March 2, 2006, UHG publicly issued $850 million of 5.800% senior notes due March 15, 2036 (the notes). The notes were issued pursuant to an indenture entered into by UHG and the Bank of New York as trustee. As trustee, the Bank of New York was charged with enforcing, as necessary, the indenture provisions against UHG. Throughout the life of the notes, UHG has made all required interest payments and the debt has continuously been rated investment grade.
As a publicly traded company, UHG is required to make periodic financial disclosures, including quarterly filings on SEC form 10-Q. See Securities and Exchange Act of 1934 (Exchange Act) §§ 13, 15(d), 15 U.S.C. §§ 78m, 78o(d). UHG came under public scrutiny in 2006 for backdating employee stock options by using the benefit of hindsight to assign option grant dates retroactively in order to reflect the most favorable historical market values. In response to public concerns about this practice, UHG formed a committee of independent directors to study its financial affairs. Because of this ongoing review, UHG failed to file its 2006 second quarter form 10-Q (2Q 10-Q) by its August 9 due date. Under such circumstances, SEC regulations require a delinquent filer to submit a form 12b-25 notification of late filing. 17 C.F.R. § 240.12b-25. UHG complied with this requirement on August 10. The company's 12b-25 filing explained the reasons for the delay and was accompanied by a 44 page appendix containing substantially the same information as the company would have included in a timely form 10-Q. A copy of this filing was forwarded to the trustee on August 14.
On August 25, 2006, a notice of default was sent to UHG on behalf of certain hedge funds which collectively owned more than twenty five percent of the outstanding principal balance on the notes. The notice claimed that UHG's failure to file a timely 2Q 10-Q violated § 504(i) of the trust indenture. That section reads as follows:
So long as any of the Securities remain Outstanding, the Company shall cause copies of all current, quarterly and annual financial reports on Forms 8-K, 10-Q and 10-K, respectively, and all *1127 proxy statements, which the Company is then required to file with the [Securities and Exchange] Commission pursuant to Section 13 or 15(d) of the Exchange Act to be filed with the Trustee and mailed to the Holders of such series of Securities at their addresses appearing in the Security Register maintained by the Security Registrar, in each case, within 15 days of filing with the Commission. The Company shall also comply with the provisions of TIA [Trust Indenture Act] ss. 314(a).
(emphasis added). At the very least, § 504(i) requires that UHG forward to the indenture trustee copies of the company's required financial reports within fifteen days of actually filing such reports with the SEC. The notice of default claimed that § 504(i) also imposed an affirmative duty to file timely reports with the SEC and that UHG's failure in that regard constituted a default under the indenture. The notice gave UHG sixty days to cure the default.
UHG publicly disclosed the notice of default in an SEC form 8-K filing. The company asserted it was not in default and intended to defend itself against the allegation. In mid October, the company filed another form 8-K in which it reported the findings and recommendations of the review committee and added that it was still digesting the report and had not yet determined if it needed to restate its past financials. It further announced it would delay filing a third quarter 10-Q.
On October 25, 2006, UHG filed this action against the Bank of New York as trustee,[2] seeking a declaratory judgment that it had not violated the terms of the indenture by failing to file a timely 2Q 10-Q. Shortly thereafter, on October 30, the hedge funds caused a notice of acceleration to be served on UHG. The notice observed that UHG had not cured the alleged default under § 504(i) and, based on that failure, demanded accelerated payment of the full principal amount of the notes. Effective January 18, 2007, Wilmington Trust Company succeeded the Bank of New York as trustee and was substituted as the defendant. On January 26, 2007, Wilmington Trust counterclaimed for breach of contract, violation of the Trust Indenture Act of 1939(TIA) § 314(a), 15 U.S.C. § 77nnn(a), and breach of an implied covenant of good faith and fair dealing.
UHG finally filed its 2Q 10-Q on March 6, 2007, almost seven months late. It simultaneously submitted an amended form 10-Q for the first quarter of 2006, a tardy form 10-Q for the third quarter of that year, and a form 10-K for the year ending December 31, 2006. The financial information contained in the 2Q 10-Q differed by less than one percent from the preliminary data which had accompanied the August form 12b-25 notice of late filing.
Both parties filed cross motions for summary judgment. The district court granted summary judgment in favor of UHG on all claims and counterclaims. Wilmington Trust now appeals, arguing the district court erroneously construed UHG's contractual and statutory duties. UHG urges that we affirm the district court.

II.
We review de novo the district court's grant of summary judgment. Carraher v. Target Corp., 503 F.3d 714, 716 (8th Cir.2007). Summary judgment is proper where there are no genuine issues of material facts and the moving party is entitled to judgment as a matter of law. *1128 Id. Here the basic facts are undisputed, and the outstanding issues are purely legal questions of contract interpretation and statutory construction. Resolution of the issues by summary judgment was therefore appropriate.
Section 1306 of the indenture provides that its terms "shall be governed by and interpreted under the laws of the State of New York." Under New York principles of contract interpretation, "[t]he words and phrases used by the parties must . . . be given their plain meaning." Brooke Group Ltd. v. JCH Syndicate 488, 87 N.Y.2d 530, 640 N.Y.S.2d 479, 663 N.E.2d 635, 638 (1996); see also Whitebox Convertible Arbitrage Partners, LP v. IVAX Corp., 482 F.3d 1018, 1021 (8th Cir. 2007).

III.
Wilmington Trust advances three main arguments, all of which relate to UHG's failure to file a timely 2Q 10-Q. According to Wilmington Trust, this failure violated UHG's obligations under § 504(i) of the indenture, TIA § 314(a), and an implied covenant of good faith and fair dealing. We examine each in turn.

A. Section 504(i) of the Indenture
Wilmington Trust argues that § 504(i) of the indenture imposes an independent obligation on UHG to file timely SEC reports and, within fifteen days afterwards, to forward copies of such reports to the trustee. Under the Trust's interpretation, when UHG failed to file its 2Q 10-Q on time, it not only ran afoul of the Exchange Act and SEC regulations, but it also violated the indenture duties to its noteholders. UHG asserts that § 504(i) imposes no independent obligation to make timely SEC filings. Rather, the provision merely requires the company to transmit to the trustee copies of whatever reports it actually files with the SEC. Based on this analysis UHG maintains that its indenture obligations were not even triggered until March 2007 when it finally filed its tardy 2Q 10-Q. Since the company forwarded a copy to Wilmington Trust within fifteen days of actual filing, UHG argues that it has not defaulted under the indenture.
Section 504(i), reduced to its essence, reads as follows: "the Company shall cause copies of . . . financial reports . . . which the Company is then required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act to be filed with the Trustee . . . within fifteen days of filing with the Commission." Wilmington Trust argues that the plain meaning of the phrase "then required to file" imposes an independent obligation to file timely reports. Wilmington Trust correctly notes that the word "then" means "at that time." But for our purposes the word's placement and function within the sentence are just as important as its definition.
In § 504(i) the phrase "then required to file" is part of a longer clause introduced by the relative pronoun "which." The antecedent of "which" is clearly and unambiguously the word "reports." Thus, as a simple matter of syntax, the phrase "then required to file" modifies the word "reports" and indicates which reports are subject to § 504(i)'s terms. Just as clearly and just as unambiguously, the phrase "within fifteen days of filing with the Commission" modifies "shall cause . . . to be filed" and indicates when § 504(i)'s command must be fulfilled. The plain meaning of § 504(i) thus imposes only a relative time constraint: copies of the indicated reports must be forwarded to the trustee within fifteen days of actually filing them with the SEC. The clause imposes no absolute timetable or independent obligation to comply with the Exchange Act or SEC regulations. In fact, the plain language of § 504(i) makes clear *1129 that any duty actually to file the reports is imposed "pursuant to Section 13 or 15(d) of the Exchange Act" and not pursuant to the indenture itself. The provision does not incorporate the Exchange Act; it merely refers to it in order to establish which reports must be forwarded.
Wilmington Trust also argues that New York law, while respecting the plain meaning of words and phrases, further requires that "primary attention must be given to the manifest purpose" of the parties. In re Herzog, 301 N.Y. 127, 93 N.E.2d 336, 339 (1950). Wilmington Trust notes that in the Internet age, SEC filings are readily available online through the agency's EDGAR database. Based on this fact it maintains that a ministerial duty to forward copies of widely available reports would be meaningless and of no value to noteholders. The purpose of the provision, Wilmington Trust asserts, must therefore be to impose an independent obligation to file timely reports. Wilmington Trust ignores the origin of § 504(i), however. As UHG points out, the language is derived from a Model Simplified Indenture drafted by the American Bar Association in 1983. See 38 Bus. Law. 741, 755 (1983). At the time the model provision was promulgated, the Internet did not exist as we know it today. The fact that § 504(i) may be of slight value in the Internet age does not empower Wilmington Trust to impose unbargained for duties on UHG simply to breathe new relevance into an outdated provision.
UHG notes that another model indenture agreement does incorporate the SEC filing deadlines. A 1967 proposal prepared by the American Bar Foundation requires that an issuer "will . . . file with the Trustee, within 15 days after the Company is required to file the same, copies of the [reports]." This language differs from that of § 504(i) in at least one critical respect: § 504(i)'s fifteen day window opens when the company actually files its reports with the SEC, while the 1967 model's fifteen day window opens when the company is required to file regardless of when it actually does. The parties in this case are sophisticated and represented by teams of experienced attorneys. They could have chosen the 1967 ABF model over the 1983 ABA model, or they could have drafted their own language imposing a rigid timetable or explicitly incorporating SEC regulations. But, as the district court found, "this is not the agreement they made." UnitedHealth Group Inc. v. Wilmington Trust Co., 538 F.Supp.2d 1108, 1114 (D.Minn.2008).
The precise issue in this case is a matter of first impression in the Eighth Circuit. It has recently been presented to three federal district courts and to a New York State trial court. Although none of the decisions of these courts is binding on us, we note that the three federal courts all concluded, on nearly identical facts, that similar indenture provisions did not impose independent obligations to file timely SEC reports. See Finisar Corp. v. U.S. Bank Trust Nat'l Ass'n, No. C 07-4052, 2008 WL 3916050 (N.D.Cal. Aug.25, 2008); Affiliated Computer Servs., Inc. v. Wilmington Trust Co., No. 3:06-CV-1770-D, 2008 WL 373162 (N.D.Tex. Feb. 12, 2008); Cyberonics, Inc. v. Wells Fargo Bank Nat'l Ass'n, No. H-07-121, 2007 WL 1729977 (S.D.Tex. June 13, 2007).
In an unpublished opinion, the commercial division of the New York trial court reached the opposite conclusion. Bank of N.Y. v. BearingPoint, Inc., No. 600169/06, 13 Misc.3d 1209(A), 2006 WL 2670143 (N.Y.Sup.Ct. Sept.18, 2006). The Bearing-Point court rejected a debt issuer's argument that a similar indenture provision made "SEC filings optional under the Indenture." Id. at *7. The court's analysis focused on the mandatory language of the *1130 indenture but did not distinguish between two distinct duties: one to file reports with the SEC in the first instance and another to forward copies of the reports to the trustee. More importantly, the court did not consider any timing issues and simply eliminated the phrase "within 15 days after it files such . . . reports . . . with the SEC," replacing it with a set of ellipses.
The Finisar, Affiliated Computer Services, and Cyberonics courts all considered and rejected BearingPoint, as did the district court in this case. They did so after coming to the same conclusion: the indenture provisions at issue imposed nothing more than the ministerial duty to forward copies of certain reports, identified by reference to the Exchange Act, within fifteen days of actually filing the reports with the SEC. As previously discussed, the clear and unambiguous language of the indenture in this case leads to the same conclusion. We therefore decline to follow BearingPoint.
Based on the plain meaning of § 504(i), we hold that the indenture imposes no independent obligation to file timely SEC reports. UHG's delay in filing its 2006 2Q 10-Qwhile potentially a violation of SEC regulationsdid not constitute a default under the indenture. Since UHG did ultimately file with the SEC its "then required" reports and within fifteen days afterwards did transmit to the trustee copies of the same, it fulfilled its contractual duties.

B. TIA § 314(a)
The Trust Indenture Act provides in part as follows:
Each person who . . . is or is to be an obligor upon the indenture securities covered thereby shall: (1) file with the indenture trustee copies of the annual reports and of the information, documents, and other reports . . . which such obligor is required to file with the [Securities and Exchange] Commission pursuant to [§ 13] or [§ 15(d)] of [the Exchange Act]. . . .
TIA § 314(a), 15 U.S.C. § 77nnn(a). The TIA therefore imposes on UHG a statutory obligation to provide copies of required SEC reports to the indenture trustee. The provision is obviously closely related to § 504(i) of the indenture, and in fact § 504(i) expressly incorporates the provisions of TIA § 314(a).
Nevertheless, the TIA imposes no new obligations or duties and is actually less burdensome than § 504(i) of the indenture insofar as it imposes no time constraints whatsoever. While the indenture creates a relative deadline of fifteen days after actual filing with the SEC, the TIA is completely silent as to when copies of SEC reports must be forwarded to the trustee. As was the case with § 504(i) of the indenture, the TIA's reference to §§ 13 and 15(d) of the Exchange Act merely identifies which reports must eventually be forwarded to the trustee. It does not independently impose any particular timetable for filing nor does it incorporate the SEC's regulatory deadlines.
As before, Wilmington Trust argues that a ministerial obligation without a corresponding duty to file timely reports is meaningless in today's world of instant Internet communication, particularly in light of the TIA's stated purpose to provide "adequate current information" to investors. See TIA § 302(a)(4), 15 U.S.C. § 77bbb(a)(4) (emphasis added). But the TIA was drafted in 1939. Under the circumstances of that era, the dissemination of "adequate current information" was certainly advanced by a ministerial duty to forward financial reports. What seems redundant in the 21st Century was once a critical mechanism for keeping investors informed as to a company's financial health. The development of more efficient *1131 electronic alternatives is no reason to expand UHG's duties under the TIA.
Wilmington Trust next maintains that the SEC has itself interpreted TIA § 314(a) to impose an independent obligation to file timely reports. For this argument, Wilmington Trust relies on SEC Rule 19a-1, 17 C.F.R. § 260.19a-1. Following the indictment of accounting firm Arthur Andersen, the SEC drafted Rule 19a-1 to provide guidance to companies once audited by that firm. In the wake of Andersen's implosion, the SEC created a temporary safe harbor allowing the firm's previous clients to file unaudited financials with their quarterly and yearly reports. Rule 19a-1 merely clarifies that such unaudited filings would also satisfy the TIA: a company "that files with the indenture trustee those Exchange Act reports filed with the Commission in accordance with [the temporary safe harbor] has met its duty under Section 314(a)(1) of the [TIA]." 17 C.F.R. § 260.19a-1(c). Thus, Rule 19a-1 merely indicates that what is good enough for the Exchange Act is good enough for the TIA. There is no indication that the TIA imposes any separate or independent obligation to file timely reports with the SEC.
The Northern District of Texas addressed this same issue in Affiliated Computer Services and rejected Wilmington Trust's argument for the same reason. Although the New York trial court held otherwise in BearingPoint, its reasoning was not persuasive. We conclude that TIA § 314(a) requires only that debt issuers forward to their trustees copies of such reports as are actually filed with the SEC. Since UHG ultimately filed all required reports with the agency and promptly forwarded copies of the same to the trustee, the company violated no statutory duties under the TIA.

C. Covenant of Good Faith and Fair Dealing
New York recognizes an implied covenant of good faith and fair dealing in every contract. The covenant "precludes each party from engaging in conduct that will deprive the other party of the benefits of their agreement." Filner v. Shapiro, 633 F.2d 139, 143 (2d Cir.1980). Wilmington Trust argues that UHG's failure to file its 2Q 10-Q on time left investors in the dark for many months. In fact, UHG seemed to acknowledge as much in a December 2006 form 8-K: "Because we are not current with our filings with the SEC, investors in our securities do not have the information required by SEC rules regarding our business and financial condition with which to make decisions regarding investment in our securities."
On the other hand, as the district court noted, UHG undertook to provide as much information as it reasonably could under the circumstances. It submitted a form 12b-25 notice of late filing which offered its bestalbeit uncertifiedestimates regarding its then current financial position. These estimates differed by less than one percent from the certified 2Q 10-Q which UHG ultimately filed in March 2007. UHG also provided to investors current updates on its backdating investigation through form 8-K filings in October and December of 2006. We conclude that UHG took all reasonable and necessary steps to provide its noteholders with as much information as possible and as accurately as possible. More importantly UHG continued to make all required payments on the notes. We conclude therefore that UHG acted prudently and responsibly with respect to its investors and that the company's delay in filing a certified 2Q 10-Q breached no express or implied covenant of the indenture agreement.

*1132 IV.
UHG was indisputably delinquent in filing its form 10-Q for the second quarter of 2006. Nonetheless whatever duties UHG might have neglected were imposed by the SEC and the Exchange Act and not by the indenture or the TIA. UHG's obligation to its noteholders was simply to forward to the trustee copies of the required SEC reports within fifteen days of actually filing them. UHG's late filing therefore did not amount to a default on the notes. Moreover in all cases UHG diligently forwarded to the trustee copies of its required reports within fifteen days of actually submitting them to the SEC. Consequently, UHG has met all of its contractual and statutory duties, and the noteholders are not entitled to accelerated payments. The judgment of the district court is affirmed.
NOTES
[1]  The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota.
[2]  The registered holder of the note, Cede and Co., was also initially named as a defendant but was later voluntarily dismissed.


Order entered January 23, 2015

                                         In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                   No. 05-14-00504-CV

                   IN THE MATTER OF THE MARRIAGE OF
               DAVID SCOTT HAYES AND SHERRY COOKE HAYES
                       AND IN THE INTEREST OF J.D.H.

                    On Appeal from the 199th Judicial District Court
                                 Collin County, Texas
                        Trial Court Cause No. 199-56446-2010

                                        ORDER
      Appellant David Scott Hayes’s motion for an extension of time in which to file a reply

brief is GRANTED. TEX. R. APP. P. 38.6(d). Appellant’s reply brief is due on or before

February 9, 2015.

                                                  /s/   ELIZABETH LANG-MIERS
                                                        JUSTICE


937 F.2d 694
Bankr. L. Rep.  P 74,064In re Andrew J. LANE, Debtor.Peter H. McCALLION, et al., Appellants,v.Andrew J. LANE, Appellee.
No. 91-1022.
United States Court of Appeals,First Circuit.
Heard May 7, 1991.Decided July 2, 1991.

Peter H. McCallion, Garrison, N.Y., for appellants.
Charles R. Dougherty with whom Marguerite T. Grant and Hill & Barlow were on brief, Boston, Mass., for appellee.
Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.
CYR, Circuit Judge.

1
This is an appeal from a district court order affirming the bankruptcy court's dismissal of an action brought by appellants for the imposition of a constructive trust on certain funds in the chapter 11 estate of appellee Andrew J. Lane, and for a determination that Lane's indebtedness to appellants is nondischargeable.  We affirm in part, vacate in part, and remand.

2
* BACKGROUND

3
The amended complaint alleges that appellants agreed to sell their shares of stock in Indian Hill Associates, Inc. to appellee Lane for $1,675,000, which was to include a $375,000 downpayment, three installment payments of $350,000 each, and a final installment payment of $250,000.  The agreement expressly states that appellants "agree to accept payment from an escrow fund" or in the form of an irrevocable letter of credit.  Lane subsequently refused to tender the downpayment until appellants agreed that the last two installment payments were to be contingent upon Lane's obtaining approval for a subdivision.  Although appellants acceded to Lane's demands on or about February 12, 1988, Lane had not yet applied for subdivision approval by the time appellants filed their complaint with the bankruptcy court, approximately twenty months later.

4
Lane ultimately obtained interim credit with which to make the downpayment.  Later, Indian Hill Associates, Inc., then controlled by Lane, obtained a $5.7 million line of credit with Bankers Trust, the proceeds of which were to be used only to refinance the purchase of certain real property and to fund Lane's payments to appellants under the Indian Hill stock purchase agreement.

5
On August 1, 1988, Bankers Trust wired the first installment payment directly to appellants.  In early October 1988, Bankers Trust advanced Lane funds with which to make the second installment, but Lane never remitted the second installment to appellants.  On October 17, 1988, Lane informed Bankers Trust that he was litigating the stock purchase agreement, and requested that the bank

6
hold all advances against the stock purchase price as may become due and payable, in an interest bearing escrow account;  such account to be disbursed in accord with the terms of a final judgment or settlement in the aforesaid litigation [between Lane and appellants].  In the event that you advise us that this arrangement is acceptable, we [Indian Hill Associates, Inc.] will send you a check for $365,876.71 [the amount Bankers Trust had disbursed to Lane for the second installment payment, with accrued interest].1

7
There is no contention that Bankers Trust acceded to the proposal.

8
Lane filed a chapter 11 petition on March 24, 1989, and appellants eventually initiated the adversary proceeding which precipitated the present appeal.

II
DISCUSSION

9
At the time the bankruptcy court ruled on Lane's motion to dismiss, it had before it, and did not expressly exclude from consideration, certain matters outside the pleadings.  Nevertheless, we restrict our review to the complaint and certain exhibits attached to the complaint, which are properly considered part of the pleadings for rule 12(b)(6) purposes.2   See Fed.R.Civ.P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.");    Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir.1988);  see also PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 29 n. 1 (1st Cir.1991) (unnecessary to address propriety of trial court's consideration of matters outside pleadings when appellate court limits its own analysis to the pleadings);  O'Brien v. DiGrazia, 544 F.2d 543, 545 (1st Cir.1976) (district court's error in considering matters outside pleadings should not be basis for setting aside a dismissal justifiable without reference to extrinsic matters), cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977).  See generally 5 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1327 (1990) (hereinafter "Wright & Miller").

10
A rule 12(b)(6) dismissal is subject to de novo review.  We will affirm the dismissal "only if it clearly appears, according to the facts alleged," and any reasonable inferences therefrom, "that the plaintiff cannot recover on any viable theory."    Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990).

A. "Constructive Trust" Claim

11
Four elements are required to establish a constructive trust under New York law:3  "(1) the existence of a ... fiduciary relationship, (2) the making of a promise, (3) a transfer in reliance on the promise, [and] (4) unjust enrichment."    Hutton v. Klabal, 726 F.Supp. 67, 73 (S.D.N.Y.1989) (citing Sharp v. Kosmalski, 40 N.Y.2d 119, 386 N.Y.S.2d 72, 74-75, 351 N.E.2d 721, 723-24 (1976)).  Appellants attempt the required showing of a fiduciary relationship by claiming that Lane agreed to act as escrow agent of the monies Bankers Trust disbursed to Lane to fund the second installment payment.  Appellants allege three bases for their contention:  (i) Lane's assent to the stock purchase agreement, (ii) the October 17 letter, and (iii) Lane's receipt of funds allegedly intended for appellants' benefit by Lane and Bankers Trust.  These grounds are considered in the order presented.

12
First, the stock purchase agreement provides:  "Sellers agree to accept payment from an escrow fund to be released by the bank funding the land purchase in lieu of a letter of credit."    (Emphasis added).  The quoted language neither constituted an escrow agreement between Lane and appellants, nor purported to obligate Lane to establish or fund an escrow account.  Appellants simply agreed to accept any payment disbursed from escrow, in place of payment in the form of a letter of credit.

13
Second, the October 17 letter merely requests Bankers Trust to escrow future advances scheduled for disbursement under the Indian Hill Associates, Inc. line of credit;  it did not create or fund an escrow account, nor did it obligate Lane to disburse funds directly to appellants from escrow in the event Bankers Trust acceded to the proposed escrow arrangement.  Furthermore, there is no allegation that Bankers Trust ever acceded to Lane's proposal.  Finally, even if an escrow arrangement had eventuated under the October 17 letter, Bankers Trust, not Lane, would have been the escrow agent.4

14
Third, appellants' putative status as intended beneficiaries of the line of credit with Bankers Trust provides no footing for casting Lane in the role of a fiduciary.  Appellants adduce no New York caselaw supporting an intended beneficiary claim to the proceeds from the Indian Hill Associates, Inc. line of credit.  Indeed, it does not appear that appellants could qualify as intended beneficiaries under New York law, since any derivative benefit to appellants would be dependent on the decision of Lane and/or Indian Hill Associates, Inc. to draw on the latter's line of credit with Bankers Trust.  See World Trade Knitting Mills, Inc. v. Lido Knitting Mills, Inc., 154 A.D.2d 99, 551 N.Y.S.2d 930, 933 (1990) (performance required under contract must flow directly to putative intended beneficiary);  Strauss v. Belle Realty Co., 98 A.D.2d 424, 469 N.Y.S.2d 948, 950 (1983) (same), aff'd, 65 N.Y.2d 399, 492 N.Y.S.2d 555, 482 N.E.2d 34 (1985).

15
In sum, appellants allege no set of facts sufficient to demonstrate the fiduciary relationship required for the establishment of a constructive trust under New York law.5

B. "Conversion" Claim

16
Appellants allege that Lane's wrongful refusal to remit the funds disbursed by Bankers Trust for the second installment payment gave rise to a nondischargeable debt for willful conversion under Bankruptcy Code Sec. 523(a)(6).  Assuming without deciding that Sec. 523(a)(6) is applicable, appellants' claim cannot succeed as a matter of law, due to their failure to allege facts sufficient to show that the funds allegedly converted belonged to appellants.6   Appellants assert merely that Lane was obliged to transfer the funds to them, not that actual title to the funds was in appellants at the time of the alleged conversion.7   See Ahles v. Aztec Enter., Inc., 120 A.D.2d 903, 502 N.Y.S.2d 821, 822 (1986) (in action for conversion, "plaintiff must establish legal ownership of a specific identifiable piece of property and the defendant's exercise of dominion over or interference with the property in defiance of the plaintiff's rights").

C. Sec. 523(a)(2)(A) Claim

17
The complaint alleges that Lane did not intend to comply with the stock purchase agreement from the outset, as evidenced by his refusal to tender the downpayment until appellants acceded to a disadvantageous amendment of the stock purchase agreement which conditioned payment of the last two installments on Lane's obtaining a subdivision approval for which he had not even applied by the time the amended complaint was filed.  Appellants insist that these allegations state a claim under Bankruptcy Code Sec. 523(a)(2)(A) that the entire amount Lane owes appellants is nondischargeable as a debt incurred for property (Indian Hill stock) obtained by "false pretenses, false representations, and actual fraud."    See, e.g., In re Krause, 114 B.R. 582, 606 (Bankr.N.D.Ind.1988) ("if a debtor enters into a contract intending not to comply with its terms and later defaults under that contract, such contract may provide a basis for exceptions to discharge on the grounds of fraud").  At most, an actionable Sec. 523(a)(2)(A) claim must state that the debt was incurred as a proximate result of the claimant's reasonable reliance on a material misrepresentation of fact knowingly made by the debtor with intent to deceive.  See In re Rubin, 875 F.2d 755, 759 (9th Cir.1989).8

18
Appellants minimally state an actionable nondischargeability claim under Bankruptcy Code Sec. 523(a)(2)(A).  The elements of a fraud claim were either alleged in, or reasonably inferable from, the complaint.  The allegation that Lane executed the stock purchase agreement states a claim that Lane knowingly made a material representation that he would comply with its terms.  The allegation that appellants transferred their Indian Hill shares to Lane plainly implies that the transfer was made in reliance on Lane's fraudulent promise to pay and that appellants' financial loss proximately resulted from its breach.  Their allegation that Lane never intended to comply with the stock purchase agreement was sufficient to plead the scienter required under Sec. 523(a)(2)(A).  See Bankruptcy Rule 7009 (adopting Fed.R.Civ.P. 9(b) for application in adversary proceedings) ("intent, knowledge, and other condition of mind of a person may be averred generally").

19
Moreover, appellants allege that, after the Indian Hill shares were transferred, Lane refused to make the promised downpayment until appellants acceded to a disadvantageous amendment of the stock purchase agreement.  Finally, appellants allege that Lane never applied for the subdivision approval on which appellants' right to payment of the last two installments was made contingent under the terms of the amended agreement.  We cannot agree that proof of these allegations, together with all reasonable inferences therefrom, could not support a finding of fraudulent intent sufficient to sustain a determination that some or all of Lane's debt to appellants is nondischargeable.  Thus, appellants state a minimally sufficient claim for relief under Bankruptcy Code Sec. 523(a)(2)(A).  See In re Krause, 114 B.R. at 606 (allegation that debtor fraudulently intended not to comply with agreement at time it was made states claim for relief under Sec. 523(a)(2)(A)).9

D. Sec. 523(a)(2)(B) Claim

20
Although appellants charge that Lane fraudulently induced them to transfer their Indian Hill shares by means of a materially false financial statement, see Bankruptcy Code Sec. 523(a)(2)(B), their complaint does not allege any particular omission or false information in Lane's financial statement.  See Bankruptcy Rule 7009 and Federal Rule of Civil Procedure 9(b) ("In all averments of fraud ... the circumstances constituting fraud ... shall be stated with particularity.").  See also Wayne Investment, Inc. v. Gulf Oil Corp., 739 F.2d 11, 13 (1st Cir.1984) (rule 9 "requires specification of the time, place, and content of an alleged false representation") (emphasis added) (quoting McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228 (1st Cir.1980));  DiLeo v. Ernst & Young, 901 F.2d 624, 626-27 (7th Cir.)  (complaint alleging that financial statements failed fully to reflect bad loans was inadequate under 9(b) for failure to identify the bad loans), cert. denied, --- U.S. ----, 111 S.Ct. 347, 112 L.Ed.2d 312 (1990).

E. Sec. 523(a)(4) Claim

21
Appellants' Sec. 523(a)(4) nondischargeability claim, charging fraud or defalcation by Lane while acting in a fiduciary capacity, fails for the reasons adduced in the foregoing discussion of their constructive trust claim.  See supra pp. 696-697.

III
CONCLUSION

22
Appellants took a credit risk when they surrendered their Indian Hill shares in return for Lane's unsecured promise to pay them $1,675,000 later.  Lane did not deliver and the parties did not resolve their differences.  Although the intervention of bankruptcy is seldom a welcome development for any unsecured creditor, we cannot paint an arm's-length promise to pay as a fiduciary obligation without impermissibly blurring commercial law.  At the same time, the complaint distinctly states a minimally sufficient nondischargeability claim under Bankruptcy Code Sec. 523(a)(2)(A) which was erroneously dismissed under rule 12(b)(6).10

23
For the foregoing reasons, we vacate the district court order affirming the dismissal of appellants' nondischargeability claim under Bankruptcy Code Sec. 523(a)(2)(A), and remand to the district court with directions to remand to the bankruptcy court for further proceedings thereon.  In all other respects the order appealed from is affirmed.  All parties are to bear their own costs.

1
 Appellants were provided with a copy of Lane's letter

2
 Exhibit A is the Indian Hill Associates, Inc. stock purchase agreement.  Exhibit B is the order of a New York State Supreme Court judge in a related case.  Exhibit C is the October 17 letter from Lane to Bankers Trust

3
 As the district court applied New York substantive law, and the parties rely on it, we do likewise.  See Sheinkopf v. Stone, 927 F.2d 1259, 1264 (1st Cir.1991) (ordinarily, federal court should honor parties' shared view as to applicable substantive law)

4
 Appellants similarly argue that the October 17 letter amounted to a promise that Lane would place the funds for the second installment payment in escrow with Bankers Trust.  The reality is, however, that the October 17 letter, at best, was a proposal by Lane to return the second installment to Bankers Trust under certain conditions.  Once again, there is no allegation that Bankers Trust accepted the escrow proposal

5
 Even assuming that Lane somehow became a fiduciary of the funds disbursed for the second installment payment, appellants still could not establish a constructive trust, as they have not alleged a transfer in reliance on Lane's fiduciary promise, or in reliance on his fiduciary status.  See Sharp, 40 N.Y.2d at 122, 386 N.Y.S.2d 72, 351 N.E.2d 721 (even in the absence of an express promise, constructive trust may be imposed on property transferred in reliance on a fiduciary relationship)
Appellants also conclude, without citation to caselaw, that a "resulting trust" was created for their benefit when Lane did not remit to appellants the funds received for the second installment payment.  Assuming without deciding that it is appropriate to address such an underdeveloped theory of recovery, see United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990), we find no legal basis for it.  A resulting trust may arise where:  (1) an express trust fails, (2) an express trust is fully performed without exhausting the trust estate, or (3) a seller conveys property to a third party at the direction of the purchaser of the property.  Saulia v. Saulia, 31 A.D.2d 640, 295 N.Y.S.2d 980, 982 (1968) (quoting 4 Scott on Trusts Sec. 404.1 at 2922 (2d ed.)), modified, 25 N.Y.2d 80, 302 N.Y.S.2d 775, 250 N.E.2d 197 (1969) (declining to apply law of trusts);  see also Restatement (Second) of Trusts ch. 12 introductory note at 323 (1959) (same).  The present circumstances do not conduce to the creation of a resulting trust.

6
 Appellants likewise claim that Lane's retention of the second installment gave rise to a nondischargeable debt for larceny under Bankruptcy Code Sec. 523(a)(4).  Their failure to allege facts sufficient to show title to the funds dictates dismissal of their Sec. 523(a)(4) claim.  See In re Graziano, 35 B.R. 589, 594 (Bankr.E.D.N.Y.1983) (defining larceny as requiring, inter alia, the taking of another's property without consent of the owner)

7
 Appellants' summary legal conclusion that the funds disbursed to Lane for the second installment were "property of the plaintiffs [appellants]" is belied by the facts alleged in the pleadings, which demonstrate at best a contractual claim to payment of the second installment.  See Kadar Corp. v. Milbury, 549 F.2d 230, 235 (1st Cir.1977) ("the court will not accept conclusory allegations on the legal effect of the events plaintiff has set out if these allegations do not reasonably follow from his description of what happened") (quoting 5A Wright & Miller Sec. 1357 at 597);  Nelson v. Monroe Regional Medical Center, 925 F.2d 1555, 1559 (7th Cir.1991) (court need not accept legal conclusions in evaluating pleadings);  2A J. Moore & J. Lucas, Moore's Federal Practice, p 12.07[2.-5] at 12-63 to -64 & n. 6 (2d ed. 1990) (legal conclusions, deductions or opinions not given presumption of correctness)

8
 Not all courts require that a sufficient Sec. 523(a)(2)(A) claim state that the claimant acted in reasonable reliance on the false representation.  See, e.g., In re Ophaug, 827 F.2d 340, 342-43 & n. 1 (8th Cir.1987).  As the rule 12(b)(6) record in the present case adequately avers reasonable reliance, we take no position on the matter

9
 Assuming without deciding that appellants presented a sufficient motion for summary judgment merely by filing their "Memorandum in Opposition to Motion to Dismiss and in Support of Motion for Summary Judgment," summary judgment would not be warranted on their Sec. 523(a)(2)(A) claim, as the summary judgment record would not compel a finding that Lane had no intention to comply with the terms of the stock purchase agreement from the outset.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (summary judgment not proper if there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party");  Siegal v. American Honda Motor Co., Inc., 921 F.2d 15, 17 (1st Cir.1990) (summary judgment warranted only if moving party is entitled to judgment as a matter of law)

10
 Of course, we intimate no view as to how the Sec. 523(a)(2)(A) claim is to be resolved on remand


                      COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Humphreys and Clements
Argued at Richmond Virginia

SHARON PEACE
                                          MEMORANDUM OPINION * BY
v.   Record No. 2651-99-2                JUDGE ROBERT J. HUMPHREYS
                                             NOVEMBER 14, 2000
COMMONWEALTH OF VIRGINIA

               FROM THE CIRCUIT COURT OF ESSEX COUNTY
                  Horace A. Revercomb, III, Judge

          Joseph D. Morrissey (James T. Maloney;
          Morrissey & Hershner, PLC, on brief), for
          appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellee.

     Sharon Peace appeals her convictions after a bench trial for

contributing to the delinquency of a minor and maintaining a

common nuisance.   Peace contends that the trial court erred in

finding the evidence sufficient to convict her of these offenses.

     "Where the sufficiency of the evidence is challenged after

conviction, it is our duty to consider it in the light most

favorable to the Commonwealth and give it all reasonable

inferences fairly deducible therefrom.    We should affirm the

judgment unless it appears from the evidence that the judgment

is plainly wrong or without evidence to support it.     Code

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
§ 8-491."     Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975).

     Furthermore, "[a]n appellate court must discard all

evidence of the accused that conflicts with that of the

Commonwealth."     Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).    "The credibility of witnesses, the

weight accorded testimony, and the inferences to be drawn from

proven facts are matters to be determined by the fact finder."

Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476

(1989).   The judgment of a trial court will be disturbed on

appeal only if plainly wrong or unsupported by the evidence.

See Code § 8.01-680.

     In the present case, the relevant evidence established that

Peace was a single parent who, between the time period of June 1,

1998 and March 15, 1999, attended nursing classes and worked

several hours out of each day of the week.    Her son, Sean Peace,

who was 15 years of age, lived with her at her home.   Sean lived

in the garage of Peace's house.    The garage was detached from the

main house by a distance of about four feet.

     During this time period, several of Sean's friends from Essex

High School, ranging in ages from fourteen to nineteen, would

visit Sean in his garage bedroom and smoke marijuana, cigarettes

and cigars.    Marijuana was often passed between the individuals

who were there at the time, and one individual sold marijuana

while there.

                                 - 2 -
       Peace claimed that she knew nothing about the marijuana.

However, several young men testified at trial that Peace would

often enter the room just after they had been smoking marijuana.

Sean and his friends usually kept the door to the garage locked

while they were smoking marijuana and when they heard Peace try to

enter, they would hide it and burn candles and incense, and smoke

cigarettes and cigars to cover up the smell.   Despite this effort,

at least one "bong" and some number of "bowls", used as smoking

paraphernalia, were often in view when Peace would enter the room.

       On one occasion when Peace entered the garage after Sean and

his friends had been smoking marijuana, cigarettes, and cigars,

she stated that "they were not to be doing it with the garage door

open".   She often told the kids that "it shouldn't be happening,"

"don't do it . . . or get out".

       In addition, at some point, Peace saw a "bong" in Sean's room

and told the kids to "get rid of it, or she was going to trash

it."   She later told the owner of the bong to "get rid of it" and

that "she didn't want [it] in her house".

       Code § 18.2-371 provides, in pertinent part, that:

            Any person eighteen years of age or older,
            including the parent of any child, who (i)
            willfully contributes to, encourages, or
            causes any act, omission, or condition which
            renders a child delinquent, in need of
            services, in need of supervision, or abused
            or neglected as defined in § 16.1-228
            . . . shall be guilty of a Class 1
            misdemeanor.

(Emphasis added.)

                                - 3 -
       "'Willful' generally means an act done with a bad purpose,

without justifiable excuse, or without ground for believing it

is lawful.   The term denotes 'an act which is intentional, or

knowing, or voluntary, as distinguished from accidental.'      The

terms 'bad purpose' or 'without justifiable excuse,' while

facially unspecific, necessarily imply knowledge that particular

conduct will likely result in injury or illegality."     Ellis v.

Commonwealth, 29 Va. App. 548, 554, 513 S.E.2d 453, 456 (1999).

       The trial court found that, based on the evidence, there

was "no doubt" Peace "knew what was going on."   Accordingly, the

court held that by Peace's failure to act, she "encouraged" the

activity, within the meaning of the statute.   The trial court

also stated "I think it may be under the omission part of the

Statute."    On appeal, Peace contends that the evidence was

insufficient to prove that she had any knowledge the activity

was taking place.   She also argues that the evidence failed to

prove she "encouraged" the activity, or "willfully" omitted to

act.

       "Where inferences are relied upon to establish guilt, they

must point to guilt so clearly that any other conclusion would

be inconsistent therewith."    Person v. Commonwealth, 10 Va. App.

36, 38, 398 S.E.2d 907, 909 (1990)(citation omitted).

"Inferences may be taken from proved circumstances only to the

extent those inferences are reasonable and justified."     Webb v.

Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).

                                - 4 -
"Furthermore, where the Commonwealth's evidence as to an element

of an offense is wholly circumstantial, 'all necessary

circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'"   Moran v. Commonwealth, 4 Va. App.

310, 314, 357 S.E.2d 551, 553 (1987) (citation omitted).

However, "[t]he factfinder need not believe an accused's

explanation and, if that explanation is not believed, may infer

that the accused is lying to conceal his guilt."    Phan v.

Commonwealth, 258 Va. 506, 511, 521 S.E.2d 282, 284 (1999).

     Viewing the evidence in the light we must, we find that the

trial court could conclude, beyond a reasonable doubt, that

Peace knew her son and his friends were smoking marijuana.

However, we do not agree that by failing to act on this

knowledge, Peace "willfully" "encouraged" the activity within

the meaning of the statute, nor that she engaged in a "willful"

"omission" to act.

     First, the word "encourage" is not defined in the statute

itself, nor do we find a controlling definition of the word, so

we look to other sources to define its meaning.    Webster's Third

New International Dictionary defines "encourage" as "to give

courage to," to "inspire with courage, spirit, or hope," to

"hearten," "to spur on," to "stimulate," to "incite," "to give

help or patronage," to "foster," "to call forth," to "produce,"

                               - 5 -
or "create."    Webster's Third New International Dictionary

(1993).

       Each of these defining terms describes the word as

encompassing an affirmative act, not an omission or failure to

act.   Here, there was no evidence which established that Peace

took any affirmative act to "encourage" Sean and his friends to

smoke marijuana.   In fact, the trial court specifically stated

that the evidence did not establish that she "caused" the

activity.

       In addition, the trial court found, as a matter of fact,

that when Peace found the bong, "she was upset," "she was very

blunt," and told the owner to "get rid of it."   We do not agree

that Peace's action in this regard constitutes willfully

"encouraging" the activity.   Instead, a reasonable inference is

that Peace was attempting, although unsuccessfully and perhaps

ineffectually, to discourage the activity.    Moreover, based on

these facts and the reasonable inference already noted, we

cannot find as a matter of law that Peace omitted to act.

Accordingly, we reverse and dismiss the conviction for

contributing to the delinquency of a minor.

       By holding here that Peace did not "encourage" the activity

by failing to act, and by finding that based on these facts

there was no willful omission, we do not find that a parent's

refusal to act may never fall within the statute.   However, in

this case, the evidence simply does not establish a willful

                                - 6 -
omission to act which proximately resulted in a continuation of

delinquent activity.

     Next, Code § 18.2-258 provides:

            A. Any . . . dwelling house, apartment,
            building of any kind . . . which with the
            knowledge of the owner . . . is frequented
            by persons under the influence of illegally
            obtained controlled substances or marijuana,
            as defined in § 54.1-3401, or for the
            purpose of illegally obtaining possession
            of, manufacturing or distributing controlled
            substances or marijuana, or is used for the
            illegal possession, manufacture or
            distribution of controlled substances or
            marijuana, shall be deemed a common
            nuisance. Any such owner . . . who knowingly
            permits, establishes, keeps or maintains
            such a common nuisance is guilty of a Class
            1 misdemeanor . . . .

     The statute very clearly requires 1) that the owner of the

premises have knowledge that it is being frequented for the

purpose of the illegal possession and distribution of marijuana,

and 2) that the owner knowingly permit, keep, or maintain the

nuisance.     See St. Clair v. Commonwealth, 174 Va. 480, 5 S.E.2d

512 (1939).

     Peace again argues that the evidence was insufficient to

prove her knowledge of the marijuana use and was therefore

inadequate to support a conviction pursuant to this statute.

However, as we have noted above, we find that the trial court

reasonably concluded that Peace knew about the marijuana.

     Nevertheless, Peace did not "establish," "keep," or

"maintain" the premises for the purpose of the prohibited

                                 - 7 -
activity, as indicated by the factual findings of the trial

court referenced above.   The question is whether Peace, by

knowing about the illegal activity and, as the trial court

stated, "allowing [it] to continue," "permitted" the activity.

Given the trial court's factual findings, we do not find that

there is any evidence in this record to establish that Peace

"permitted" the activity within the meaning of Code § 18.2-258.

     The Supreme Court of Virginia has noted that "Webster's

International Dictionary, 2d ed. defines the verb 'permit' to

mean 'to allow the act or existence of; to consent to expressly

or formally; to grant (one) license or liberty; to authorize; to

give leave.'   The word 'allow' is not as positive as the word

'permit,' being more of a synonym with the word 'suffer,' while

the word 'permit' denotes a decided assent."   Nolde Bros. v.

Chalkley, 184 Va. 553, 566-567, 35 S.E.2d 827, 833

(1945)(citation omitted).

     The trial court found no such affirmative act or "decided

assent" in this case, and very clearly indicated that Peace did

not "allow" the activity by finding that she became upset and

discouraged the activity when she was confronted with it.

     Accordingly, we also reverse and dismiss Peace's conviction

under § 18.2-258.

                                         Reversed and dismissed.

                               - 8 -


                                             NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              _____________

            Nos. 09-2837 and 09-2917
                 _____________

             JOHN J. LYNCH, SR.,
        Trading as Harley's Transp Service
                   Appellant No. 09-2837

                        v.

       THE CITY OF PHILA; SGT QUINN;
     OFFICER MELODY; OFFICER FELICE;
    OFFICER JOHN DOE; OFFICER JIM DOE;
  TOM DOE; THE FIRST JUDICIAL DIST OF PA;
   C DARNELL JONES; FREDERICA MESSIAH
JACKSON; THE PHILADELPHIA TRAFFIC COURT,
        Admin; BERNICE DE ANGELIS;
  THE PHILADELPHIA PARKING AUTHORITY
                _____________

                JOHN J. LYNCH,
        trading as Harley's Transp Service

                        v.

     THE CITY OF PHILA; SGT QUINN ;
    OFFICER MELODY ;OFFICER FELICE;
   OFFICER JOHN DOE; OFFICER JIM DOE;
 TOM DOE; THE FIRST JUDICIAL DIST OF PA;
     HONORABLE C. DARNELL JONES;
HONORABLE FREDERICA MESSIAH JACKSON;
   THE PHILADELPHIA TRAFFIC COURT;
          BERNICE DE ANGELIS;
 THE PHILADELPHIA PARKING AUTHORITY

  THE PHILADELPHIA PARKING AUTHORITY
                     Appellant No. 09-2917
                                      _____________

                      Appeals from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Civil No. 2-08-cv-04780)
                       District Judge: Honorable Juan R. Sanchez
                                    _____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    July 11, 2011

               Before: RENDELL, SMITH and FISHER, Circuit Judges.

                              (Opinion Filed: July 26, 2011)
                                    _____________

                               OPINION OF THE COURT
                                   _____________

RENDELL, Circuit Judge.

       Plaintiff John Lynch, Sr. appeals the District Court for the Eastern District of

Pennsylvania’s grant of the Philadelphia Parking Authority’s and other defendants’1

motion to dismiss pursuant to Rule 12(b)(6). Fed. R. Civ. P. 12(b)(6). The Philadelphia

Parking Authority (“PPA”), on cross-appeal, claims that the District Court erred in

denying its Motion for Sanctions and Future Litigation Restrictions. We will affirm the

District Court’s dismissal and its denial of the PPA’s motion.

       The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 1331.

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over a district court’s order granting defendants’ motion to dismiss, Port Auth. of N.Y. &

N.J. v. Arcadian Corp., 189 F.3d 305, 311 (3d Cir. 1999), and we review the imposition

 1
   The defendants named in the plaintiff’s complaint include the City of Philadelphia, the
State of Pennsylvania, judicial entities, three judges, and three police officers.
                                             2
or denial of Rule 11 sanctions for an abuse of discretion, Teamsters Local Union No. 430

v. Cement Exp., Inc., 841 F.2d 66, 68 (3d Cir. 1988).

                                                  I.

       Because we write solely for the benefit of the parties, we recite only the facts

relevant to our analysis. This case arises out of a dispute between Lynch and the City of

Philadelphia surrounding the ticketing and towing of various vehicles, some of which

Lynch owns. Proceeding pro se, Lynch originally filed this action in three handwritten

parts, contesting the towing of three vehicles,2 the constitutionality of the Joint General

Court Regulation 2001-02, known as “Live Stop,” which permits the impounding and

sale of vehicles resulting from traffic violations,3 and the denial of his motion to certify a

class action. In a Memorandum Opinion issued on May 20, 2009, the District Court

granted defendants’ motion to dismiss all of Lynch’s claims. In the accompanying Order,

it denied the PPA’s Motion for Sanctions and Future Litigation Restrictions, without

explanation. After reviewing the record, we conclude that there is little to add to the

 2
    With regard to the first vehicle, Lynch alleged that, on May 20, 2007, three
Philadelphia police officers called the PPA to remove a 1973 Ford F-350 tow truck from
private property, then falsified a traffic citation and towing report to make it appear the
truck was found on a public highway. The second vehicle, towed on June 19, 2007, was
a 1990 Chevrolet Lumina, owned by Nathaniel Williams. Lynch alleged that he was
arrested on June 19, 2007 while sitting in the parked Lumina and an unknown police
officer had the car towed by the PPA. The third vehicle, towed on October 15, 2007, was
a 1990 Chevrolet Geo. Lynch alleged that the Geo was also confiscated pursuant to a
falsified traffic citation.
 3
   Lynch’s challenge to Live Stop alleged civil rights violations under § 1983 and named
three Philadelphia police officers, the PPA, the City of Philadelphia, the First Judicial
District of Pennsylvania, three judges, and the Philadelphia Traffic Court as defendants.
                                              3
District Court’s analysis, and we will affirm its dismissal of Lynch’s claims for the

reasons set forth in its May 20, 2009 Memorandum and Order.

                                              II.

       The District Court dismissed Lynch’s claims against the First Judicial District, its

judge and former judge, and the Traffic Court and its judge because all are entitled to

Eleventh Amendment immunity or are not persons for § 1983 purposes. The state court

defendants, it explained, are Commonwealth entities because the courts are part of the

unified judicial system subject to the control of the state Supreme Court. See Benn v.

First Judicial Dist. of Pa., 426 F.3d 233, 240 (3d Cir. 2005); Callahan v. City of Phila.,

207 F.3d 668, 673 (“[J]udicial defendants are not independent of the Commonwealth and

hardly can be regarded as having significant autonomy from the Pennsylvania Supreme

Court.”). Thus, they are entitled to Eleventh Amendment immunity from suit, Hans v.

Louisiana, 134 U.S. 1, 13-14 (1890), and are not considered § 1983 “persons.” Callahan,

307 F.3d at 673. The result is the same for the local court defendants that are “funded

locally,” like the Philadelphia Traffic Court—they too “are not persons within section

1983.” Id. Further, when judges act legislatively, as they did in adopting Live Stop, they

are entitled to legislative immunity. See Gallas v. Sup. Ct. of Pa., 211 F.3d 760, 776-77

(3d Cir. 2000).

       As to Lynch’s claims regarding the three vehicles, the District Court is correct that

he only has standing to challenge the towing of the 1973 Ford tow truck, because he is

not the registered owner of the 1990 Chevrolet Lumina towed on June 19, 2007, or the

Chevrolet Geo towed on October 15, 2007. Accordingly, as to the Lumina and the Geo,

                                             4
Lynch has failed to allege any facts showing that he suffered an “invasion of a legally

protected interest” as a result of defendants’ actions. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992).

       Though Lynch has standing to contest the towing of the 1973 Ford, his challenges

to this act also must fail. As the District Court ruled, his claims regarding the 1973 Ford

are barred by the doctrine of issue preclusion, because the identical issue was fully and

fairly litigated in state court. Lynch brought an earlier action in replevin, seeking return

of the truck, in the Philadelphia Court of Common Pleas. The court granted the PPA’s

preliminary objections and terminated the case. See Lynch v. Phila. Parking Auth., No.

03908, June Term 2007 (Phila. Ct. Com. Pl. Feb. 8, 2008). Under Pennsylvania law,

issue preclusion applies when: (1) the issue decided in the prior adjudication was

identical with the one presented in the later action; (2) there was a final judgment on the

merits; (3) the party against whom the plea is asserted was a party or in privity with a

party in the prior adjudication; and (4) the party against whom it is asserted has had a full

and fair opportunity to litigate the issue in question in a prior action. Shuder v.

McDonald’s Corp., 859 F.2d 266, 273 (3d Cir. 1988). In a thorough analysis, the District

Court found that each element was satisfied, and we agree with that conclusion.

       The District Court also properly dismissed Lynch’s request for prospective

injunctive relief on the grounds that the Live Stop program constitutes an ongoing federal

                                              5
violation.4 Because the state courts and the District Court found no violation in the

seizure of Lynch’s vehicle, there is no ground for prospective relief.

       As his claims must all fail, it follows that his appeal from the District Court’s

denial of his Motion to Certify as a class action fails as well.

                                                  III.

       The PPA argues on cross-appeal that the District Court erred in denying the PPA’s

Motion for Rule 11 Sanctions and Future Litigation restrictions. The PPA submits that it

is entitled to the imposition of sanctions and future litigation restrictions against Lynch

on the grounds that he has brought “numerous frivolous, baseless and harassing lawsuits”

against the PPA and other parties and is likely to do so again in the future. We hold that

the District Court did not abuse its discretion in denying the imposition of sanctions or

restrictions, and hence its judgment on that issue will be affirmed.

       For the foregoing reasons, we will affirm the District Court’s grant of defendants’

Motion to Dismiss, denial of plaintiff’s Motion for Class Certification, and denial of the

PPA’s Motion for Rule 11 Sanctions and Future Litigation Restrictions.

 4
    Under Ex parte Young, which creates an exception to Eleventh Amendment immunity,
one may bring suit “against individual state officers for prospective and declaratory relief
to end an ongoing violation of federal law.” MCI Telecomm. Corp. v. Bell Atl. of Pa.,
271 F.3d 491, 506 (3d Cir. 2001); Ex parte Young, 209 U.S. 123 (1908).
                                              6


581 S.E.2d 206 (2003)
266 Va. 28
Leon Thomas HARRIS
v.
COMMONWEALTH of Virginia.
Record No. 022168.
Supreme Court of Virginia.
June 6, 2003.
*208 Elliott B. Bender, for appellant.
Virginia B. Theisen, Asst. Atty. Gen. (Jerry W. Kilgore, Atty. Gen., Leah A. Darron, Asst. Atty. Gen., on brief), for appellee.
Present: HASSELL, C.J., LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and CARRICO, S.J.
OPINION BY Justice ELIZABETH B. LACY.
In this appeal, we consider whether Leon Thomas Harris was illegally detained by police and whether evidence obtained in a search of his truck should have been suppressed because it was obtained as a result of the illegal detention.

FACTS
On May 25, 2000, at approximately 4:00 a.m., Officer Blaine Davis initiated a traffic stop based on a broken license plate light he observed on a truck. Harris, the driver, and a single passenger were in the truck. Shortly after Officer Davis stopped the truck, a second police officer arrived on the scene. Both police vehicles were marked cars, and their flashing lights were activated.
Officer Davis asked Harris for his driver's license and vehicle registration, but Harris produced only his social security card. Harris told Officer Davis that he knew he had been stopped because he had no license plate light. Officer Davis told Harris to get out of the truck. While they were standing outside of the truck, Officer Davis asked Harris questions to confirm Harris' identity. After confirming Harris' identity and, using a hand-held radio, verifying that Harris had a valid driver's license with the Virginia Department of Motor Vehicles, Officer Davis returned the social security card to Harris. He did not charge Harris with a traffic offense.
The officer then asked Harris if he had anything illegal in the truck or on his person. Harris replied that he did not. When Officer Davis asked Harris if he could search the truck, Harris consented. Officer Davis performed a pat down search on Harris and, after finding no weapons, told Harris to sit in the front passenger seat of Officer Davis' patrol car. The passenger in the truck was told to get out of the vehicle. The passenger complied and stood beside the passenger side of Officer Davis' vehicle.
Officer Davis testified that during this time he had no reasonable articulable suspicion that either Harris or his passenger "had done anything illegal" and that Harris was free to go. However, Officer Davis did not tell either Harris or his passenger that they were free to go.
Officer Davis found several stolen items when he searched the vehicle. Harris was subsequently charged with two counts of grand larceny.
Prior to his trial, Harris filed a motion to suppress all evidence seized during the search of his truck, maintaining that the search and seizure violated his rights under the Fourth and Fourteenth Amendments of the United States Constitution and under *209 Article I, § 10 of the Constitution of Virginia. trial judge denied Harris' motion, finding that the stop was a "Terry-stop with a consent to search." Following a bench trial, was convicted of two counts of petit and sentenced to twelve months in jail on each count, with eleven months suspended, and the sentences to run concurrently.
The Court of Appeals affirmed the convictions, finding that the officer returned Harris' social security card, terminating the original traffic stop, the continuing encounter was a consensual encounter, and that Harris' subsequent consent to the search was voluntary. The Court of Appeals also concluded that the evidence was sufficient to support the convictions. See Harris v. Commonwealth, 38 Va.App. 680, 568 S.E.2d 385 (2002). We granted Harris an appeal limited to the issues concerning whether Harris was illegally detained and whether the evidence obtained in the search of Harris' truck should have been suppressed.

THE DETENTION
Harris does not challenge the legality of the initial traffic stop. He contends that Officer Davis violated his Fourth Amendment rights when the officer extended a lawful detention for a traffic infraction into an unlawful, non-consensual seizure. Harris further contends that his consent to the search was not voluntary and, therefore, the evidence obtained as a result of his illegal seizure must be suppressed.
The Fourth Amendment protects persons from unreasonable searches and seizures. U.S. Const. amend. IV. Police officers do not violate the Fourth Amendment when they stop and question an individual if they have reasonable articulable suspicion that the person is engaged in criminal activity, Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), or when the person's encounter with the police is consensual. Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). There is no "litmus test" for determining whether an encounter is consensual or constitutes an illegal seizure. Id. at 506, 103 S.Ct. 1319. If, however, a reasonable person would not feel free to decline an officer's requests or would not feel free to leave, the encounter is not consensual and constitutes an illegal seizure under the Fourth Amendment. United States v. Mendenhall, 446 U.S. 544, 558-59, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
Various factors have been identified as relevant in determining whether a seizure has occurred, including the threatening presence of a number of police officers, the display of weapons by officers, physical contact between an officer and a citizen, an officer's language or tone of voice compelling compliance, the retention of documents requested by an officer, and whether a citizen was told that he or she was free to leave. See Ohio v. Robinette, 519 U.S. 33, 36, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); Royer, 460 U.S. at 504, 103 S.Ct. 1319; Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. The decision whether the encounter was consensual must be made based on the totality of the circumstances. Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870.
On appeal, we apply a de novo standard of review in determining whether a person has been seized in violation of the Fourth Amendment. McCain v. Commonwealth, 261 Va. 483, 489, 545 S.E.2d 541, 545 (2001). However, we also must review findings of historical fact for clear error and give due weight to inferences drawn from those facts. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000).
In this case, when Harris was stopped initially, he told Officer Davis that he knew his license plate light was not working. Harris also knew that, when asked for his driver's license and vehicle registration card, he handed Officer Davis only his social security card. Although Officer Davis, after returning Harris' social security card, considered Harris free to go, he did not tell Harris that he could leave. Furthermore, Officer Davis testified that he did not suspect Harris of any other criminal activity when he asked Harris for consent to search the truck.
*210 The traffic stop was concluded when Officer Davis returned the social security card to Harris and, as stated by the Court of Appeals, "the detention supported by reasonable articulable suspicion ended." Harris, 38 Va.App. at 687, 568 S.E.2d at 388. Thus, lawful continuation of the encounter between Harris and Officer Davis required that it proceed on a consensual basis. The Court of Appeals found that the ensuing encounter was consensual because there was no indication that Harris was restrained. Id. at 688, 568 S.E.2d at 389. We disagree.
At the time Harris was questioned about possession of illegal goods, he had not been told that he was free to leave or that Officer Davis was not going to charge him with a traffic violation. The failure to affirmatively inform Harris that he was free to leave does not by itself require a finding that the ensuing encounter was non-consensual. Robinette, 519 at 39-40, 117 S.Ct. 417. But in this case Harris knew he had committed a traffic violation and knew he had not complied with the officer's request for his driver's license and vehicle registration. The officer did nothing to indicate to Harris that he was no longer subject to detention for a traffic violation. Additionally, Harris remained in the presence of two armed, uniformed police officers and two patrol vehicles with activated flashing lights.
Under these circumstances, we believe that a reasonable person would not have known that the investigation of the traffic offense had terminated and, thus, would not have felt free to disregard the officer's questions or have felt free to leave. Therefore, when Officer Davis began questioning Harris about possession of contraband, the encounter was not consensual and Harris was seized for purposes of the Fourth Amendment. Because Officer Davis had neither a warrant nor reasonable suspicion to believe that Harris was engaged in any criminal activity, this seizure violated Harris's Fourth Amendment rights.

SUPPRESSION OF EVIDENCE
Harris maintains that because the evidence obtained in the search of his vehicle was obtained as a result of a violation of his Fourth Amendment rights, it should have been suppressed under the "fruit of the poisonous tree" doctrine. That doctrine, initially discussed in Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), provides that "statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention and not the result of an independent act of free will." Royer, 460 U.S. at 501, 103 S.Ct. 1319.
In this case, both the trial court and the Court of Appeals found that Harris' consent to search was voluntary. The validity of this finding is suspect, however, because both courts considered Harris' consent to have taken place during a legal encounter between Officer Davis and Harris.[*] Nevertheless, as stated above, voluntariness alone is not sufficient to overcome the taint arising from the unlawful seizure. Evidence obtained in the search of Harris' truck is admissible only if it is not the product of an illegal seizure and is the result of an independent act of free will.
Here, the consent to search occurred within minutes of the illegal detention and under circumstances in which Harris was not free to leave or disregard the officer's inquiry. The consent, search, and evidence recovered were the products of an illegal detention. Furthermore, nothing on this record indicates that the evidence in issue was obtained by the police pursuant to an independent act of free will. See Hart v. Commonwealth, 221 Va. 283, 289, 269 S.E.2d 806, 810 (1980). But see Reese v. Commonwealth, 220 Va. 1035, 1040, 265 S.E.2d 746, 749 (1980).
The Commonwealth has the burden to establish that Harris' consent to search was not "obtained by exploitation of the illegal action." Hart, 221 Va. at 288, 269 S.E.2d at 809. Based on this record, we conclude that the Commonwealth failed to meet this burden. Thus, the evidence obtained as a result of the illegal seizure should have been *211 suppressed as the "fruit" of an illegal seizure. Accordingly, we will reverse the judgment of the Court of Appeals, vacate Harris' conviction, and remand the case to the Court of Appeals with direction that the case be remanded to the trial court for further proceedings if the Commonwealth be so advised.
Reversed and remanded.
Justice KINSER, with whom Senior Justice CARRICO joins, dissenting.
Unlike the majority, I conclude that the encounter that ensued between Officer Blaine Davis and the defendant, Leon Thomas Harris, after Officer Davis returned the social security card to Harris was consensual because a reasonable person in those circumstances would have felt free to leave and to refuse Officer Davis' request to search the vehicle. I further conclude that Harris voluntarily consented to the search. Thus, I respectfully dissent.
"Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen." United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). Even when a law enforcement officer has no basis to suspect that a particular individual is engaged in criminal activity, the officer "may pose questions, ask for identification, and request consent to search provided [the officer does] not induce cooperation by coercive means." Id. at 201, 122 S.Ct. 2105. "[T]o determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). "If a reasonable person would feel free to terminate the encounter, then he or she has not been seized." Drayton, 536 U.S at 201, 122 S.Ct. 2105. The "reasonable person" test is objective and "presupposes an innocent person." Bostick, 501 U.S. at 437-38, 111 S.Ct. 2382.
When determining whether a reasonable person would feel free to terminate an encounter, a court may consider the language and tone of voice used by the police officer, whether the officer displayed a weapon, and whether there was physical contact between the officer and the individual. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); see also, Bolden v. Commonwealth 263 Va. 465, 471, 561 S.E.2d 701, 704 (2002). Other relevant factors include the number of officers present, the location, time and duration of the encounter, United States v. Lattimore, 87 F.3d 647, 650 (4th Cir.1996), and whether the police officer retained the individual's identification or personal property, United States v. Weaver, 282 F.3d 302, 310 (4th Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 186, 154 L.Ed.2d 75 (2002).
In Reittinger v. Commonwealth, 260 Va. 232, 532 S.E.2d 25 (2000), this Court considered whether a defendant was unlawfully seized following a routine traffic stop. A deputy sheriff stopped a van being operated by Reittinger because the van had "`only one operable headlight.'" Id. at 234, 532 S.E.2d at 26. After Reittinger displayed a new headlight that he planned to install on the van, the deputy issued only a verbal warning and told Reittinger that he was "`free to go.'" Id. The deputy then asked Reittinger if he had any illegal weapons or drugs in the vehicle. Id. When Reittinger replied that he did not, the deputy asked to search the van and repeated the request twice more while Reittinger consulted with the passengers in the vehicle. Id. Reittinger never answered the deputy's repeated requests to search but simply exited the vehicle. Id. During a subsequent "pat down" search of Reittinger, the deputy found a smoking pipe containing marijuana residue. Id.
In considering the circumstances of the encounter, we noted that Reittinger had been stopped in a rural area in the nighttime, was in the presence of two armed deputies, and was asked repeatedly for consent to search the vehicle. Id. at 236-37, 532 S.E.2d at 27. We determined that, in those circumstances, *212 a reasonable person would not have felt "free to disregard the deputies and simply drive away." Id. at 237, 532 S.E.2d at 28.
In the present case, the majority notes that, although Officer Davis returned Harris' social security card, he did not inform Harris that he was free to leave or state whether he would be charged with a traffic offense. Further noting that Harris was in the presence of two armed police officers and two patrol vehicles with activated flashing lights, the majority concludes that a reasonable person would not have felt free to terminate the encounter. I disagree.
In my view, the majority ignores several important factors that demonstrate that Harris was not seized after the traffic stop ended. The encounter between Harris and Officer Davis occurred at 4:00 a.m. Thus, the flashing lights on the patrol cars served an important safety function, i.e., they alerted other drivers to the presence of vehicles and people along the roadside. The encounter here, unlike that in Reittinger, took place in "a built-up commercial area." Although two officers were present, that fact is not dispositive. See Drayton, 536 U.S. at 205, 122 S.Ct. 2105 (presence of second officer at front of bus did not "tip the scale in respondents' favor"); Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 219, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (no seizure even though several uniformed INS agents were positioned near exits of factory). In this case, the second officer's participation in the encounter was limited to "watching" the passenger. Further, there is no evidence that either officer brandished his weapon, physically touched Harris, or used a tone of voice or language indicating that Harris was not free to leave or that compliance with the request to search was compelled.
Instead, Officer Davis returned Harris' social security card to him after verifying that Harris had provided accurate information about his identity and had a valid driver's license. Only then did Officer Davis ask Harris whether he had anything illegal in the vehicle or on his person. See Lattimore, 87 F.3d at 653. Finally, in my view, the most important distinction between this case and Reittinger is the fact that Harris, unlike Reittinger, was asked only once for permission to search his vehicle and that he expressly consented in response to that single request. See United States v. Hernandez, 93 F.3d 1493, 1499 (10th Cir.1996) ("`accusatory, persistent, and intrusive' questioning may turn an otherwise voluntary encounter into a coercive one if it conveys the message that compliance is required") (quoting United States v. Little, 60 F.3d 708, 712 (10th Cir. 1995)). Thus, I conclude that Harris was not unlawfully seized in violation of the Fourth Amendment.
I must now determine whether Harris' consent to search was valid. "The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and `[v]oluntariness is a question of fact to be determined from all the circumstances.'" Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Where, as here, "the question of voluntariness pervades both the search and seizure inquiries, the respective analyses turn on very similar facts." Drayton, 536 U.S. at 206, 122 S.Ct. 2105.
The evidence shows that Harris expressly consented to the search of his truck. All the circumstances demonstrating that the encounter between Harris and Officer Davis was consensual also establish that Harris's consent to search was voluntarily given. The only additional step Officer Davis could have taken to ensure that Harris' consent was voluntary would have been to inform Harris of his right to refuse the request to search the vehicle. However, "`[w]hile knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.'" Robinette, 519 U.S. at 39, 117 S.Ct. 417 (quoting Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041).
Based on the totality of the circumstances, I conclude that Harris' consent to search was voluntary. Therefore, the search did not violate the Fourth Amendment. Other courts have found that consents to search given in similar circumstances were voluntary. E.g., United States v. Erwin, 155 F.3d *213 818, 823 (6th Cir.1998) (finding consent to search given following lawful traffic stop was voluntary where evidence showed that deputies did not show force or use threatening language); State v. Ready, 252 Neb. 816, 565 N.W.2d 728, 733 (1997) (finding that the totality of the circumstances established defendant's consent was voluntary where evidence showed that he agreed to let the officer search his vehicle and no evidence of coercion was presented); Burgos-Seberos v. State, 969 P.2d 1131, 1135 (Wyo.1998) (finding that the trial court did not abuse its discretion by denying motion to suppress where evidence showed defendant "voluntarily grant[ed] his permission for [the officer] to search his car" and there was no evidence of coercion al though "two officers were present and the hour was late").
For these reasons, I respectfully dissent and would affirm the judgment of the Court of Appeals of Virginia.
NOTES
[*]  The trial court considered the consent to search part of a lawful "Terry-stop." The Court of Appeals held that the consent to search was part of a consensual encounter.


676 F.2d 682
U. S.v.Zackular
81-1296
UNITED STATES COURT OF APPEALS First Circuit
2/26/82

1
D.Mass.

AFFIRMED