COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Bray Argued at Norfolk, Virginia
LEROY LEO EDMONDS, JR. MEMORANDUM OPINION * BY v. Record No. 1853-95-1 JUDGE SAM W. COLEMAN III JULY 16, 1996 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Verbena M. Askew, Judge Ruthie Litvin (Kevin M. Diamonstein; Diamonstein, Becker & Staley, on brief), for appellant.
Marla Graff Decker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Leroy Leo Edmonds, Jr. appeals his bench conviction for
possession of heroin with intent to distribute in violation of
Code § 18.2-248. Edmonds contends that the trial court erred by
denying his motion to suppress the heroin because the police
illegally took it from his pocket. He asserts that the police
seized the heroin after obtaining his consent to be searched,
which consent was coerced and was not freely and voluntarily
given. We hold that the heroin was lawfully seized, and we
affirm the defendant's conviction.
Officer W. S. Warren observed the driver of a vehicle make a
turn without signalling. He stopped the vehicle in order to
issue the driver a traffic summons. Officer Warren spoke to the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. driver, who consented to being searched and to having the vehicle
searched. After talking with the driver, Officer Warren asked
the passengers to exit the car one at a time. The defendant was
sitting in the front passenger seat and another individual was
sitting in the backseat. Officer Warren testified that he
stopped the car solely because of the illegal turn and that he
had no information that the occupants were engaged in any
criminal activity. The record contains no explanation as to why
Officer Warren requested to search the driver or the vehicle in
what appears to have been a routine traffic infraction. In response to Officer Warren's request, the defendant
exited the vehicle and produced identification. Officer Warren
asked the defendant "if he had weapons, knives or drugs on his
person," to which the defendant responded that he did not. When
Officer Warren asked the defendant whether he would consent to a
pat down search, the defendant refused. According to Warren, the
defendant "was acting somewhat nervous." Officer Warren then
requested that the other passenger exit the vehicle. The other
passenger did so and consented to a pat down search.
After searching and talking with the other passenger,
Officer Warren again asked the defendant again "if he had any
weapons or anything on his person." Officer Warren then said to
the defendant: Sir, if I have reasonable suspicion you might be carrying a weapon on your person, I have the obligation to pat you down, and in the course of the pat down if I feel something I felt could be contraband I have cause to
- 2 - arrest you.
Immediately after this statement, the defendant responded that he
had "two packs of something in [his] pocket," and he began to
reach into his pocket. Officer Warren stopped the defendant,
reached into the defendant's pocket, and retrieved twelve packs
of heroin.
"On appeal, the burden is on appellant to show, considering
the evidence in the light most favorable to the Commonwealth,
that the denial of the motion to suppress constituted reversible
error." Stanley v. Commonwealth, 16 Va. App. 873, 874, 433
S.E.2d 512, 513 (1993). In making our review of whether a
warrantless search is legal under the Fourth Amendment, we give
deference to the trial court's findings of historical facts and
the inferences that reasonably may have been drawn therefrom.
But, in determining whether the Commonwealth proved legal consent
to search, our review of whether the search was in accordance
with the defined legal standards and criteria, as applied to the
facts, is de novo. Ornelas v. United States, ___ U.S. ___
(1996).
Here, Officer Warren lawfully stopped the vehicle and its
occupants after witnessing the driver make a turn without giving
the required signal. When the driver consented to Officer Warren
searching the vehicle, the driver expanded the scope of the
lawful search beyond what would have been justified by a routine
traffic stop. Bethea v. Commonwealth, 245 Va. 416, 419, 429
- 3 - S.E.2d 211, 213 (1993); see also Limonja v. Commonwealth, 7 Va.
App. 416, 424, 375 S.E.2d 12, 16-17 (1988) (stating that after
receiving consent to search the vehicle, the officers "had [the
occupants] exit the car and stand to the rear"), aff'd en banc, 8
Va. App. 532, 383 S.E.2d 476 (1989), cert. denied, 495 U.S. 905,
110 S. Ct. 1925, 109 L.Ed.2d 288 (1990). Although Officer Warren
had no reason to suspect that the defendant had engaged in
criminal activity or possessed weapons and was dangerous, the
driver's permission to search the vehicle "reasonably warrant[ed]
th[e] intrusion" of asking the passengers to exit the vehicle. Id.
The defendant contends that after exiting the vehicle he did
not freely and voluntarily consent to be searched but rather was
coerced into doing so. He asserts that when he admitted to
possessing heroin he did so only because Officer Warren pressured
the admission by continuing to seek his consent for a pat down
search, after he had refused, and by explaining that he could
frisk the defendant for weapons if he had reason to believe that
the defendant might be carrying a weapon. He argues that on
these facts the Commonwealth has failed in its burden of
establishing the voluntariness of a consent to search "[w]hen [it] seeks to rely upon consent to justify the lawfulness of a
search." Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct.
2041, 2045, 36 L.Ed.2d 854 (1973) (quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792, 20 L.Ed.2d 797
- 4 - (1968)) (emphasis added).
On the other hand, the Commonwealth contends that this case
does not involve a consensual frisk or pat down and that we
should not reach that issue. Rather, the Commonwealth argues
that Officer Warren had probable cause to search the defendant
when the defendant admitted that he possessed two packets of
heroin and began to reach into his pocket. Thus, the relevant
inquiry is whether, on this record, Officer Warren had probable
cause to search the defendant. The Commonwealth asserts that the
trial court did not have to determine whether the defendant
freely and voluntarily consented to a search in deciding the
motion to suppress. See Commonwealth v. Kilgore, 15 Va. App.
684, 695, 426 S.E.2d 837, 843 (1993) ("When a trial court makes
the correct decision, it will be upheld even though the wrong
reason for the decision was stated at the time the opinion was
rendered").
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Bray Argued at Norfolk, Virginia
LEROY LEO EDMONDS, JR. MEMORANDUM OPINION * BY v. Record No. 1853-95-1 JUDGE SAM W. COLEMAN III JULY 16, 1996 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Verbena M. Askew, Judge Ruthie Litvin (Kevin M. Diamonstein; Diamonstein, Becker & Staley, on brief), for appellant.
Marla Graff Decker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Leroy Leo Edmonds, Jr. appeals his bench conviction for
possession of heroin with intent to distribute in violation of
Code § 18.2-248. Edmonds contends that the trial court erred by
denying his motion to suppress the heroin because the police
illegally took it from his pocket. He asserts that the police
seized the heroin after obtaining his consent to be searched,
which consent was coerced and was not freely and voluntarily
given. We hold that the heroin was lawfully seized, and we
affirm the defendant's conviction.
Officer W. S. Warren observed the driver of a vehicle make a
turn without signalling. He stopped the vehicle in order to
issue the driver a traffic summons. Officer Warren spoke to the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. driver, who consented to being searched and to having the vehicle
searched. After talking with the driver, Officer Warren asked
the passengers to exit the car one at a time. The defendant was
sitting in the front passenger seat and another individual was
sitting in the backseat. Officer Warren testified that he
stopped the car solely because of the illegal turn and that he
had no information that the occupants were engaged in any
criminal activity. The record contains no explanation as to why
Officer Warren requested to search the driver or the vehicle in
what appears to have been a routine traffic infraction. In response to Officer Warren's request, the defendant
exited the vehicle and produced identification. Officer Warren
asked the defendant "if he had weapons, knives or drugs on his
person," to which the defendant responded that he did not. When
Officer Warren asked the defendant whether he would consent to a
pat down search, the defendant refused. According to Warren, the
defendant "was acting somewhat nervous." Officer Warren then
requested that the other passenger exit the vehicle. The other
passenger did so and consented to a pat down search.
After searching and talking with the other passenger,
Officer Warren again asked the defendant again "if he had any
weapons or anything on his person." Officer Warren then said to
the defendant: Sir, if I have reasonable suspicion you might be carrying a weapon on your person, I have the obligation to pat you down, and in the course of the pat down if I feel something I felt could be contraband I have cause to
- 2 - arrest you.
Immediately after this statement, the defendant responded that he
had "two packs of something in [his] pocket," and he began to
reach into his pocket. Officer Warren stopped the defendant,
reached into the defendant's pocket, and retrieved twelve packs
of heroin.
"On appeal, the burden is on appellant to show, considering
the evidence in the light most favorable to the Commonwealth,
that the denial of the motion to suppress constituted reversible
error." Stanley v. Commonwealth, 16 Va. App. 873, 874, 433
S.E.2d 512, 513 (1993). In making our review of whether a
warrantless search is legal under the Fourth Amendment, we give
deference to the trial court's findings of historical facts and
the inferences that reasonably may have been drawn therefrom.
But, in determining whether the Commonwealth proved legal consent
to search, our review of whether the search was in accordance
with the defined legal standards and criteria, as applied to the
facts, is de novo. Ornelas v. United States, ___ U.S. ___
(1996).
Here, Officer Warren lawfully stopped the vehicle and its
occupants after witnessing the driver make a turn without giving
the required signal. When the driver consented to Officer Warren
searching the vehicle, the driver expanded the scope of the
lawful search beyond what would have been justified by a routine
traffic stop. Bethea v. Commonwealth, 245 Va. 416, 419, 429
- 3 - S.E.2d 211, 213 (1993); see also Limonja v. Commonwealth, 7 Va.
App. 416, 424, 375 S.E.2d 12, 16-17 (1988) (stating that after
receiving consent to search the vehicle, the officers "had [the
occupants] exit the car and stand to the rear"), aff'd en banc, 8
Va. App. 532, 383 S.E.2d 476 (1989), cert. denied, 495 U.S. 905,
110 S. Ct. 1925, 109 L.Ed.2d 288 (1990). Although Officer Warren
had no reason to suspect that the defendant had engaged in
criminal activity or possessed weapons and was dangerous, the
driver's permission to search the vehicle "reasonably warrant[ed]
th[e] intrusion" of asking the passengers to exit the vehicle. Id.
The defendant contends that after exiting the vehicle he did
not freely and voluntarily consent to be searched but rather was
coerced into doing so. He asserts that when he admitted to
possessing heroin he did so only because Officer Warren pressured
the admission by continuing to seek his consent for a pat down
search, after he had refused, and by explaining that he could
frisk the defendant for weapons if he had reason to believe that
the defendant might be carrying a weapon. He argues that on
these facts the Commonwealth has failed in its burden of
establishing the voluntariness of a consent to search "[w]hen [it] seeks to rely upon consent to justify the lawfulness of a
search." Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct.
2041, 2045, 36 L.Ed.2d 854 (1973) (quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792, 20 L.Ed.2d 797
- 4 - (1968)) (emphasis added).
On the other hand, the Commonwealth contends that this case
does not involve a consensual frisk or pat down and that we
should not reach that issue. Rather, the Commonwealth argues
that Officer Warren had probable cause to search the defendant
when the defendant admitted that he possessed two packets of
heroin and began to reach into his pocket. Thus, the relevant
inquiry is whether, on this record, Officer Warren had probable
cause to search the defendant. The Commonwealth asserts that the
trial court did not have to determine whether the defendant
freely and voluntarily consented to a search in deciding the
motion to suppress. See Commonwealth v. Kilgore, 15 Va. App.
684, 695, 426 S.E.2d 837, 843 (1993) ("When a trial court makes
the correct decision, it will be upheld even though the wrong
reason for the decision was stated at the time the opinion was
rendered"). We agree that no search or seizure occurred until
after the defendant admitted that he had heroin and reached for
his pocket, at which time the officer had probable cause to
search him or seize the heroin.
Officer Warren did not violate the Fourth Amendment by
questioning the defendant or by asking him for permission to
conduct a search, or by continuing to seek consent for a search
after the defendant initially refused such consent. See United
States v. Morrow, 731 F.2d 233, 236 (4th Cir.), cert. denied, 467
U.S. 1230, 104 S. Ct. 2689, 81 L.Ed.2d 883 (1984); State v.
- 5 - Green, 575 A.2d 1308, 1315 (N.H. 1990); 3 Wayne R. LaFave, Search
and Seizure § 8.2(f), at 673 (3d ed. 1996). Furthermore, in
attempting to persuade the defendant to consent to a search, it
was not improper for Officer Warren to explain his authority and
obligations under the law, so long as the explanation did not
misrepresent the law or otherwise mislead the defendant. See
Deer v. Commonwealth, 17 Va. App. 730, 735, 441 S.E.2d 33, 36
(1994); Bosworth v. Commonwealth, 7 Va. App. 567, 571, 375 S.E.2d
756, 758 (1989). Officer Warren testified that he told the defendant, in a
normal tone of voice, that if I have reasonable suspicion you might be carrying a weapon on your person, I have the obligation to pat you down, and in the course of the pat down if I feel something I felt could be contraband I have cause to arrest you.
This was not a misstatement of the law; if a police officer
"'perceive[s]' a suspicious object" in the course of conducting a
lawful Terry frisk, he has probable cause to "seize it
immediately" and arrest the individual. Ruffin v. Commonwealth,
13 Va. App. 206, 209, 409 S.E.2d 177, 179 (1991). After Officer
Warren gave a correct explanation of the law, the defendant
stated, "I've got two packs of something in my pocket," and began
to reach into his pocket. Warren testified that he understood
the defendant to have said that he had heroin in his pocket.
In determining whether probable cause existed to conduct a
warrantless search, "the test of constitutional validity is
- 6 - whether at the moment of arrest the arresting officer had
knowledge of sufficient facts and circumstances to warrant a
reasonable man in believing that an offense has been committed."
DePriest v. Commonwealth, 4 Va. App. 577, 583-84, 359 S.E.2d
540, 543 (1987) (quoting Bryson v. Commonwealth, 211 Va. 85, 86-
87, 175 S.E.2d 248, 250 (1970)). The defendant's admission that
he had "two packs of something in [his] pocket" and began to
reach for it provided Officer Warren with probable cause to
search the defendant's pocket and retrieve the heroin. See Allen
v. Commonwealth, 3 Va. App. 657, 662, 353 S.E.2d 162, 165 (1987)
(holding that "[a]t the moment of the detention appellant['s]
. . . statement that he was carrying a concealed weapon furnished
sufficient probable cause to justify the search of his person").
Accordingly, the trial court properly denied the motion to
suppress the heroin, and we affirm the defendant's conviction.
Affirmed.
- 7 -