COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Baker Argued by teleconference
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 0328-99-4 JUDGE JOSEPH E. BAKER JUNE 29, 1999 TOMIKA DAVELIA WHITE
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY James H. Chamblin, Judge
Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, Attorney General, on brief), for appellant.
Lorie E. O'Donnell, Public Defender (Office of the Public Defender, on brief), for appellee.
In this appeal by the Commonwealth of Virginia (Commonwealth)
from an order of the Circuit Court of Loudoun County (trial court)
that sustained the motion of Tomika Davelia White (White) to
suppress evidence of illegal drugs discovered during a search by a
drug enforcement agent of White's suitcases, the pivotal issue
presented is whether the search exceeded the consent given to the
agent by White. The trial court held that White consented to a
search of the suitcases, but ruled that the actual search
conducted was "beyond the scope" of the consent given by White and
ordered that the discovered evidence be suppressed. Pursuant to
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. the provisions of Code § 19.2-398, the Commonwealth appeals that
decision. 1
The record discloses that Drug Enforcement Special Agent
James Wekes (Wekes) received information that a black female in
her twenties, with red hair, going by the name of "Brooke Simms,"
who walked with a cane, would be arriving at Dulles International
Airport on American Airlines Flight 76 from Los Angeles. "Simms"
was reported to be traveling with two new, locked suitcases, and
she had paid for her tickets at the last minute with $1,141 in
cash--all factors consistent with drug courier activity.
After Flight 76 arrived, Wekes saw White, who is a black
female, and confirmed that she had debarked from that flight.
White was carrying a crutch and pushing a wheelchair. White
retrieved her luggage--two locked suitcases--and was being pushed
in the wheelchair by a "sky cap," when Wekes approached her.
Walking alongside White, Wekes identified himself as a DEA agent
and asked whether White would mind speaking to him. He told her
that she did not have to talk to him, and White twice stated that
she did not mind speaking to Wekes. White allowed Wekes to see
her flight tickets, and she also produced identification at his
1 In her brief, White claimed that her encounter with the drug enforcement agent was not consensual, and that she was unlawfully seized. White did not, however, file a notice of cross-appeal. See Code § 19.2-401. At oral argument, White conceded this failure and abandoned her claim of unlawful seizure.
- 2 - request. Wekes testified that he was alone when he approached
White, that he was not in uniform, that he did not display a
weapon, that he never physically restrained White, and that he
never raised his voice with her. There were two sky caps present
as Wekes spoke to White, and the encounter occurred in a public
area in the airport.
Wekes told White that he was checking flights to see if
anyone was carrying weapons, explosives, drugs, or large sums of
undeclared money. White denied that she possessed any contraband.
She told Wekes that the two suitcases were hers and that she had
keys to the cases. White consented to Wekes' request to search
the suitcases, and she provided him with her keys.
None of the keys White gave to Wekes opened the locks on the
suitcases. Wekes asked White whether she had any other keys, at
which point she told him that she did not. Wekes then opened the
suitcases by using a pen to "pop" the zippers on the cases. Wekes
did not damage the suitcases, and White neither protested nor
complained when or after Wekes opened the suitcases in this
manner.
White admitted that Wekes did not physically seize her and
that she voluntarily answered his questions. She admitted that
she gave Wekes permission to search her luggage and that she
initially told him she had keys for the locks. When she gave him
the keys, she believed one would open the suitcases, and she and
- 3 - Wekes did not discuss how or whether he could open the cases if
none of the keys worked. White conceded that she did not protest
or withdraw the consent given when Wekes "popped" the zippers to
open the suitcases. At the suppression hearing, White asserted,
however, that her consent did not extend to breaking into the
luggage.
"On appeal, we view the evidence in the light most favorable
to the prevailing party, granting to it all reasonable inferences
fairly deducible therefrom." Commonwealth v. Gilmore, 27 Va. App.
320, 331, 498 S.E.2d 464, 470 (1998). While we apply a "clear
error" standard to the trial court's factual findings, see Ornelas
v. United States, 517 U.S. 690, 699 (1996), whether a search or
seizure is reasonable under the Fourth Amendment is an issue of
law that we review de novo, see Taylor v. Commonwealth, 28 Va.
App. 638, 641-42, 507 S.E.2d 661, 663 (1998).
"A consensual search is reasonable if the search is within
the scope of the consent given." Grinton v. Commonwealth, 14 Va.
App. 846, 850-51, 419 S.E.2d 860, 862 (1992). "The United States
Supreme Court has articulated the standard for measuring the scope
of an individual's consent under the Fourth Amendment to be
'"objective" reasonableness--what would the typical reasonable
person have understood by the exchange between the officer and the
suspect?'" Bolda v. Commonwealth, 15 Va. App. 315, 317, 423
S.E.2d 204, 206 (1992) (quoting Florida v. Jimeno, 500 U.S. 248,
- 4 - 251 (1991)). "The scope of a search is generally defined by its
expressed object." Jimeno, 500 U.S. at 251.
"'A suspect may of course delimit as he chooses the scope
of the search to which he consents. But if his consent would
reasonably be understood to extend to a particular container,
the Fourth Amendment provides no grounds for requiring a more
explicit authorization.'" Bynum v. Commonwealth, 23 Va. App.
412, 418, 477 S.E.2d 750, 753 (1996). See Cardenas v. State,
857 S.W.2d 707, 712-13 (Tex. App. 1993) (holding that police
acted within the scope of the defendant's consent to search his
car where the officers forcibly removed a plate welded over the
covering to the car's tire well, but where the car was not
structurally damaged by the removal); United States v.
Milian-Rodriguez, 759 F.2d 1558, 1563-64 (11th Cir. 1985)
(holding that police did not exceed the scope of consent to
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Baker Argued by teleconference
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 0328-99-4 JUDGE JOSEPH E. BAKER JUNE 29, 1999 TOMIKA DAVELIA WHITE
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY James H. Chamblin, Judge
Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, Attorney General, on brief), for appellant.
Lorie E. O'Donnell, Public Defender (Office of the Public Defender, on brief), for appellee.
In this appeal by the Commonwealth of Virginia (Commonwealth)
from an order of the Circuit Court of Loudoun County (trial court)
that sustained the motion of Tomika Davelia White (White) to
suppress evidence of illegal drugs discovered during a search by a
drug enforcement agent of White's suitcases, the pivotal issue
presented is whether the search exceeded the consent given to the
agent by White. The trial court held that White consented to a
search of the suitcases, but ruled that the actual search
conducted was "beyond the scope" of the consent given by White and
ordered that the discovered evidence be suppressed. Pursuant to
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. the provisions of Code § 19.2-398, the Commonwealth appeals that
decision. 1
The record discloses that Drug Enforcement Special Agent
James Wekes (Wekes) received information that a black female in
her twenties, with red hair, going by the name of "Brooke Simms,"
who walked with a cane, would be arriving at Dulles International
Airport on American Airlines Flight 76 from Los Angeles. "Simms"
was reported to be traveling with two new, locked suitcases, and
she had paid for her tickets at the last minute with $1,141 in
cash--all factors consistent with drug courier activity.
After Flight 76 arrived, Wekes saw White, who is a black
female, and confirmed that she had debarked from that flight.
White was carrying a crutch and pushing a wheelchair. White
retrieved her luggage--two locked suitcases--and was being pushed
in the wheelchair by a "sky cap," when Wekes approached her.
Walking alongside White, Wekes identified himself as a DEA agent
and asked whether White would mind speaking to him. He told her
that she did not have to talk to him, and White twice stated that
she did not mind speaking to Wekes. White allowed Wekes to see
her flight tickets, and she also produced identification at his
1 In her brief, White claimed that her encounter with the drug enforcement agent was not consensual, and that she was unlawfully seized. White did not, however, file a notice of cross-appeal. See Code § 19.2-401. At oral argument, White conceded this failure and abandoned her claim of unlawful seizure.
- 2 - request. Wekes testified that he was alone when he approached
White, that he was not in uniform, that he did not display a
weapon, that he never physically restrained White, and that he
never raised his voice with her. There were two sky caps present
as Wekes spoke to White, and the encounter occurred in a public
area in the airport.
Wekes told White that he was checking flights to see if
anyone was carrying weapons, explosives, drugs, or large sums of
undeclared money. White denied that she possessed any contraband.
She told Wekes that the two suitcases were hers and that she had
keys to the cases. White consented to Wekes' request to search
the suitcases, and she provided him with her keys.
None of the keys White gave to Wekes opened the locks on the
suitcases. Wekes asked White whether she had any other keys, at
which point she told him that she did not. Wekes then opened the
suitcases by using a pen to "pop" the zippers on the cases. Wekes
did not damage the suitcases, and White neither protested nor
complained when or after Wekes opened the suitcases in this
manner.
White admitted that Wekes did not physically seize her and
that she voluntarily answered his questions. She admitted that
she gave Wekes permission to search her luggage and that she
initially told him she had keys for the locks. When she gave him
the keys, she believed one would open the suitcases, and she and
- 3 - Wekes did not discuss how or whether he could open the cases if
none of the keys worked. White conceded that she did not protest
or withdraw the consent given when Wekes "popped" the zippers to
open the suitcases. At the suppression hearing, White asserted,
however, that her consent did not extend to breaking into the
luggage.
"On appeal, we view the evidence in the light most favorable
to the prevailing party, granting to it all reasonable inferences
fairly deducible therefrom." Commonwealth v. Gilmore, 27 Va. App.
320, 331, 498 S.E.2d 464, 470 (1998). While we apply a "clear
error" standard to the trial court's factual findings, see Ornelas
v. United States, 517 U.S. 690, 699 (1996), whether a search or
seizure is reasonable under the Fourth Amendment is an issue of
law that we review de novo, see Taylor v. Commonwealth, 28 Va.
App. 638, 641-42, 507 S.E.2d 661, 663 (1998).
"A consensual search is reasonable if the search is within
the scope of the consent given." Grinton v. Commonwealth, 14 Va.
App. 846, 850-51, 419 S.E.2d 860, 862 (1992). "The United States
Supreme Court has articulated the standard for measuring the scope
of an individual's consent under the Fourth Amendment to be
'"objective" reasonableness--what would the typical reasonable
person have understood by the exchange between the officer and the
suspect?'" Bolda v. Commonwealth, 15 Va. App. 315, 317, 423
S.E.2d 204, 206 (1992) (quoting Florida v. Jimeno, 500 U.S. 248,
- 4 - 251 (1991)). "The scope of a search is generally defined by its
expressed object." Jimeno, 500 U.S. at 251.
"'A suspect may of course delimit as he chooses the scope
of the search to which he consents. But if his consent would
reasonably be understood to extend to a particular container,
the Fourth Amendment provides no grounds for requiring a more
explicit authorization.'" Bynum v. Commonwealth, 23 Va. App.
412, 418, 477 S.E.2d 750, 753 (1996). See Cardenas v. State,
857 S.W.2d 707, 712-13 (Tex. App. 1993) (holding that police
acted within the scope of the defendant's consent to search his
car where the officers forcibly removed a plate welded over the
covering to the car's tire well, but where the car was not
structurally damaged by the removal); United States v.
Milian-Rodriguez, 759 F.2d 1558, 1563-64 (11th Cir. 1985)
(holding that police did not exceed the scope of consent to
search defendant's office when they picked the lock on the
office closet door in order to search the closet), cert. denied,
474 U.S. 845 (1985); United States v. Martinez, 949 F.2d 1117,
1120-21 (11th Cir. 1997) (holding that police did not exceed the
scope of the defendant's consent to search a mini-warehouse unit
when the officers forced open the trunk of an automobile parked
inside the unit).
"The scope of a search may be further defined during the
course of the search by the passive acquiescence of the person
whose property is being searched." Grinton, 14 Va. App. at 851,
- 5 - 419 S.E.2d at 863. In Grinton, the defendants consented to a
search of the "'contents and containers'" in their vehicle where
the police officer indicated that he was looking for evidence of
weapons or drug smuggling. See id. at 848, 419 S.E.2d at 861.
The officer asked one of the defendants to open the car's trunk,
but the defendant stated that he did not have a key to the trunk.
The defendants also represented that there was nothing in the
trunk. The police officer retrieved some tools from his patrol
car and accessed the car's trunk by removing the back seat. See
id. In holding that the search was reasonable, we noted that
"[t]he defendants got out of the vehicle upon request and did not
ask that the search be terminated at any time. Although they
claimed not to have had a key to the trunk and asserted that they
had nothing in the trunk, they did not withdraw consent to search
the trunk." Id. at 851, 419 S.E.2d at 863.
White consented to Wekes' request for permission to open and
search the suitcases. She gave Wekes keys that she believed would
control the locks, and she placed no limitation on the search.
The expressed object of the search was to investigate the contents
of the suitcases to see if White was transporting contraband.
White never objected when Wekes opened the two suitcases by
"popping" the zippers. White's failure to object was sufficient
to confirm a reasonable person's belief that Wekes was not
exceeding the scope of White's consent by opening the cases in
this manner. See Lawrence v. Commonwealth, 17 Va. App. 140, 146,
- 6 - 435 S.E.2d 591, 594 (1993), aff'd, 247 Va. 339, 443 S.E.2d 160
(1994).
White does not claim that there was physical damage done to
the luggage by Wekes' method of making a keyless entry therein,
and nothing in the record shows that the cases were damaged. Cf.
United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990)
(holding that general consent to search defendant's car did not
extend to slashing open the spare tire). White does not allege
that Wekes or any other officer physically coerced her, offered
her any promise or inducement, or otherwise used any means of
persuasion to obtain her consent or to prevent her from objecting
if she wished to withdraw or limit her consent. Moreover, once it
was clear that White did not have a key to the luggage locks,
White had ample time to withdraw her consent or object to any
further entry into the suitcases, yet failed to do either.
Applying the objective reasonableness rule to this
evidence, we find that the trial court erred when it found that
Wekes' action was not within the scope of the consent given.
Accordingly, the suppression order of the trial court is
reversed and this case is remanded to that court for such
further action as the Commonwealth may be advised.
Reversed and remanded.
- 7 -