Londono v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Clements and Agee *
Argued at Richmond, Virginia

JOHN LONDONO
OPINION BY
v. Record No. 2628-01-2 JUDGE JEAN HARRISON CLEMENTS
APRIL 29, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge

Stephen R. Cutright (David L. Carlson, on
brief), for appellant.

John H. McLees, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.

John Londono was convicted of transporting into the

Commonwealth more than one ounce of heroin with intent to

distribute, in violation of Code § 18.2-248.01, and of conspiring

to transport into the Commonwealth more than one ounce of heroin

with intent to distribute, in violation of Code § 18.2-248.01.

On appeal, Londono contends the trial court erred (1) in denying

his motion to dismiss under Code § 19.2-294 on the grounds he had

already been prosecuted for the same conduct and acts in federal

court, (2) in denying his motion to suppress on the grounds he

was illegally seized in violation of his Fourth Amendment rights,

and (3) in denying his motion to exclude evidence previously

* Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
suppressed in federal court under the doctrines of res judicata

and collateral estoppel. Finding no error, we affirm the

convictions.

I. BACKGROUND

In accordance with familiar principles of appellate review,

we view the evidence and all reasonable inferences fairly

deducible from that evidence in the light most favorable to the

Commonwealth, the party that prevailed below. See Dowden v.

Commonwealth, 260 Va. 459, 461, 536 S.E.2d 437, 438 (2000).
So viewed, the evidence established that, on October 7,

2000, at approximately 10:00 a.m., Detective Anthony Patterson of

the Petersburg Police Department and Detective Jack O'Connor of

the Richmond Police Department boarded Amtrak train number 92 at

the Amtrak Station located on Staples Mill Road in Henrico

County. Patterson and O'Connor were both narcotics detectives

assigned at the time to the Richmond Metropolitan Interdiction

Unit (RMIU or Unit), a cooperative task force made up of officers

assigned to it from the police departments of the Cities of

Richmond and Petersburg; the Counties of Henrico, Chesterfield,

and Hanover; the Virginia State Police; and the Richmond

International Airport and an agent with the Drug Enforcement

Agency (DEA).

The RMIU is a hybrid entity. The salary of each officer or

agent assigned to the Unit is paid by his or her respective

police department or agency, and the participating jurisdictions

contribute to underwrite the expenses of the Unit. The Unit was

created and is operated pursuant to a written agreement entered

into by the chief law enforcement officials of the participating
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jurisdictions and the DEA. The RMIU's mission is to interdict,

arrest, and prosecute "narcotic couriers using public

transportation, specifically, rail, aircraft, bus and parcel

packages" in the Richmond metropolitan area. Each officer in the

Unit is sworn in as a special officer with the Virginia State

Police and, thus, empowered with the authority of the State

Police to enforce the narcotics laws of the Commonwealth.

Based upon information received from the DEA regarding a

"suspicious ticket" purchased by "two subjects riding from Miami

to New York in a sleeper car," Detectives Patterson and O'Connor

went to Sleeper Car 9211, Room 8. Patterson's role was to speak

to the occupants of the room, and O'Connor's role was to back up

Patterson. Both detectives were in plain clothes and did not

have their weapons displayed.
Detective O'Connor rang the bell and stepped back into the

doorway of the vacant sleeper-car room across the hall to allow

passengers to pass while the confrontation was occurring. When

Londono opened the sliding door to the room, Detective Patterson

displayed his badge, identified himself as a police officer, and

asked if he could speak with Londono. Londono replied, "Yes," in

English. Another man, later identified as Orlando Betancourt,

was sitting on the bed inside the room.

Following his standard procedure, Patterson advised the men

that he was "trying to stem the flow of narcotics coming to the

Commonwealth and through the Commonwealth." He did not accuse

the men of having narcotics in the room or otherwise make any

accusatory statements. Patterson then asked Londono and

Betancourt if they had "any weapons, large amounts of money, or
- 3 -
drugs" on their persons or in the room. Londono answered that he

did not. Patterson turned to Betancourt to obtain his response

to the question but Londono told him that Betancourt did not

speak English.

Patterson then asked to see Londono's tickets. Londono

retrieved the tickets from inside the room, stepped back into the

doorway, and showed the tickets to Patterson. Patterson did not

take the tickets but observed that Londono was breathing heavily,

had a look of panic on his face, and was visibly shaking as he

displayed the tickets to the detective. Patterson, who was also

standing in the doorway in order to allow passengers to pass

behind him through the narrow hallway, asked again whether

Londono had any guns, drugs, or large amounts of money, and

Londono again answered, "No."
Detective Patterson then asked Londono if he could search

the sleeper-car room. Londono said, "Yes, go ahead," and

motioned Patterson into the room. Patterson asked Londono and

Betancourt to step out into the hallway while he conducted the

search, and they left the room. Neither exit of the train car

was blocked while Londono and Betancourt were in the hall.

Detective O'Connor testified that Detective Patterson did

not raise his voice during the encounter and was his usual

"soft-spoken" and "low key" self. Patterson testified that,

throughout the encounter with Londono, he and Londono spoke

entirely in English and that at no time did Londono indicate that

he did not understand what the detective was saying and doing.

Patterson further testified that he "[d]id not have any concerns

about [Londono's] ability to understand [him]."
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 Searching the sleeper-car room, Patterson found a black tote

bag in an upper compartment of the room. Patterson asked Londono

whose bag it was, and Londono said, "It's mine." Patterson

opened the bag and found a "large amount" of what he suspected

were illegal drugs inside. The suspected drugs, which were later

determined by laboratory analysis to be nearly two thousand grams

of heroin with eighty-eight percent purity, were packaged in the

"fingertips of latex gloves cut out, wrapped in black tape."

At that point, Detective Patterson told Detective O'Connor

what he had found and told him to place Londono under arrest.

O'Connor handcuffed Londono, and Patterson handcuffed Betancourt.

O'Connor advised both men of their Miranda rights in English
while Patterson continued searching the sleeper-car room.

Londono indicated, in English, that he understood his rights and

informed O'Connor that Betancourt did not speak English.

After Detective Patterson had gathered up all the belongings

from the sleeper-car room, Detective O'Connor led Londono and

Betancourt out of the train onto the platform and into the

terminal. O'Connor and Londono conversed in English as they

walked. During that conversation, Londono asked O'Connor to let

him go, assuring him that he would "never do it again." He also

told O'Connor that he was interested in cooperating with the

detectives.

Detective Patterson then drove Betancourt to the

interdiction task force office on Westwood Avenue in Richmond,

and Detective O'Connor followed with Londono in his car. During

the drive, O'Connor and Londono resumed their conversation, which

was again held in English. Londono told O'Connor that a man
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named "Alonzo" had given the drugs to Betancourt and him in

Florida and told them to take them by train to New York City,

where he would meet them to pick up the drugs, reimburse them for

their train tickets, and pay them each "around a thousand

dollars." Londono also told O'Connor that he would be interested

in helping himself and the police by delivering the drugs to

Alonzo.

Upon reaching the interdiction task force office, Londono

continued to talk with Detective O'Connor, telling him about

where he lived and worked. When asked why he had decided to

transport the drugs, Londono said, "I just got greedy." Saying

it was "the first time" and he would "never do it again," Londono

again asked O'Connor to let him go. Eventually, Londono stated

that he was "getting afraid" and was "going to call a lawyer," at

which point the interrogation ceased.
Detective O'Connor testified that Londono gave no indication

that he had any difficulty understanding the detective during any

of their conversations. According to O'Connor, he and Londono

engaged in "back and forth" discussion and Londono spoke in

"complete sentences in English." O'Connor testified that, based

on Londono's ability to converse in English and his appropriate

responses to the questions put to him in English, the detective

had no doubt that Londono "spoke English" and that he "understood

what was going on" and "what [the detectives] were asking" during

the encounter on the train and during the ensuing conversations.

Because the weight of the suspected drugs recovered from

the sleeper-car room exceeded the amount necessary for federal

mandatory minimum sentencing provisions to apply, Detectives
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Patterson and O'Connor contacted Brian Bonifant, the DEA agent

assigned to the RMIU, who indicated that he wanted to present

the case to federal prosecutors. 1 Accordingly, Londono was taken

to the DEA offices and processed there. During that processing,

Bonifant engaged in conversation with Londono, in English, for

approximately five minutes. According to Bonifant, he had no

difficulty communicating in English with Londono and Londono

gave no indication that he had any trouble understanding the DEA

agent.

Later, while being held on federal charges in the Northern

Neck Correctional Facility, Londono had "counseling sessions"

with Reverend Murphy Brooks, a pastor at that facility.

Reverend Brooks, who does not speak Spanish, testified that the

sessions were conducted in English and that Londono spoke with

him in complete sentences in English. At no point, according to

Reverend Brooks, did Londono ever indicate that he did not

1
Although the RMIU's written agreement is silent on the
subject, its officers routinely follow the policy that, if an
investigation leads to discovery of a controlled substance
sufficient in weight to qualify for federal minimum sentencing
or if the investigation indicates that the arrest and
prosecution of the suspect may lead to the apprehension of an
interstate drug operation, the suspect, when arrested, will be
charged with federal violations by the DEA agent assigned to the
Unit. Otherwise, the charges will generally be based on
violations of the Code of Virginia. The ultimate determination
of whether the suspect will be prosecuted on federal charges is
made by the United States Attorney's Office, and the authority
to prosecute on state charges rests with the Commonwealth's
Attorney of the jurisdiction in which the offense occurs.
- 7 -
understand the pastor and, when asked whether he understood what

the pastor was saying, Londono said that he did.

On October 18, 2000, Londono was indicted in the United

States District Court for the Eastern District of Virginia,

Richmond Division. He was charged with conspiracy to distribute

heroin, in violation of 21 U.S.C. § 846, and possession of heroin
with intent to distribute, in violation of 21 U.S.C.

§ 841(b)(1)(A)(i). On January 10, 2001, at the conclusion of a

suppression hearing, the federal district court granted Londono's

motion to suppress the heroin found in his possession and his

confession. The United States Attorney's Office subsequently

dropped all charges against Londono.

On January 11, 2001, various officers of the RMIU, including

Detective O'Connor, were at their office discussing the outcome

of the federal suppression hearing with their supervisor,

Detective Robert Cerillo. Russell Stone, the Special Counsel for

the Richmond Metropolitan Multi-Jurisdictional Grand Jury, 2 was

in his office only a few feet away and overheard the discussion.

Leaving his office, he joined the discussion. The officers told

Stone that the federal court had suppressed the evidence because

it had found that Londono's consent was not valid. The officers

expressed their surprise that Londono had been able to convince

the judge that he could not understand English.

2
Although the Richmond Metropolitan Multi-Jurisdictional
Grand Jury has offices on Westwood Avenue in Richmond, in the
same building as the RMIU, it is a separate entity funded
through grants by the Commonwealth. It investigates narcotics
offenses in the City of Richmond and Henrico, Hanover, and
Chesterfield Counties but does not normally consider the cases
originated by the RMIU.
- 8 -
 Stone, who, "because of the weight of the substance

involved," was "immediately interested" in prosecuting Londono on

state charges if possible, told the officers he would look into

the matter. Concerned about the issues of double jeopardy,
collateral estoppel, and the potential applicability of Code

§ 19.2-294, Stone researched the matter on his own.

Based on that research, Stone devised a tentative plan to

prosecute Londono under Code § 18.2-248.01 for transporting

heroin into the Commonwealth with intent to distribute and for
conspiring to do so. Stone believed a state prosecution on such

charges would not be barred under Code § 19.2-294 because the

charges required the separate act of transportation. Stone

called the Virginia Attorney General's Office to discuss his plan

to prosecute Londono in Henrico County. None of the attorneys

with whom he spoke told him his plan was legally unsound.

Consistent with his usual practice of securing approval from

the Commonwealth's Attorney of the jurisdiction in which he

sought to prosecute a case, Stone called the Commonwealth's

Attorney for Henrico County, Wade Kizer, and discussed the matter

with him. Kizer approved of Stone's planned prosecution.

Kizer's Chief Deputy, Duncan Reid, testified that Kizer had the

ultimate authority to decide whether or not to prosecute state

charges arising from offenses occurring in Henrico County.

On January 16, 2001, Stone, who did not speak with any of

the federal prosecutors involved in Londono's federal prosecution

until "weeks after the [state] charges were placed," told

Detective Cerillo to obtain arrest warrants in Henrico County

- 9 -
charging Londono with transporting heroin into Virginia with

intent to distribute, in violation of Code § 18.2-248.01, and

with conspiring to do so. Cerillo relayed these instructions to

Detective O'Connor, who went to the magistrate to obtain the

warrants. O'Connor obtained warrants charging Londono with

transporting more than one ounce of heroin into the Commonwealth,

in violation of Code § 18.2-248.01, and a second, incorrectly

written warrant for conspiracy to possess with intent to

distribute heroin that was later "nolle prossed."

The regular grand jury in Henrico County issued indictments

against Londono on March 12, 2001. However, those indictments

were subsequently "nolle prossed" because their wording was

improper.

On March 29, 2001, the Richmond Metropolitan

Multi-Jurisdictional Grand Jury issued indictments charging

Londono with transporting into the Commonwealth more than one

ounce of heroin with intent to distribute, in violation of Code

§ 18.2-248.01, and conspiring to transport into the Commonwealth

more than one ounce of heroin with intent to distribute. Those

indictments constitute the charges on which Londono was

ultimately tried and convicted.

On April 4, 2001, the Circuit Court of Henrico County

(trial court) conducted a hearing on Londono's motion to dismiss

the indictments based on his special plea of former jeopardy

under Code § 19.2-294. The trial court denied the motion.

On May 1, 2001, the trial court held a hearing on Londono's

motion to exclude evidence previously suppressed in the United

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States District Court on the basis of res judicata and

collateral estoppel. The trial court denied the motion.

On May 8, 2001, the trial court held a hearing on Londono's

motion to suppress the evidence based on Fourth Amendment

grounds. Finding that no seizure had occurred and that

Londono's consent to search his sleeper-car room was valid, the

trial court denied the motion.

On June 5, 2001, Londono filed a motion to reconsider the

issue of res judicata and collateral estoppel. Following

Londono's introduction into the record of the transcripts of the

related federal proceedings, the trial court took the matter

under advisement. Following a bench trial held that same day,

the trial court convicted Londono of both counts charged in the

indictments. The trial court ultimately denied the motion to

reconsider, sentenced Londono to ten years' incarceration with

five years suspended on each count, and assessed a $50,000 fine.

This appeal followed.

II. MOTION TO DISMISS

Londono contends on appeal that the trial court erred in

denying his motion to dismiss based on his special plea of former

jeopardy under Code § 19.2-294. 3 Code § 19.2-294, Londono

argues, bars his prosecution by the Commonwealth on the charged

3
In asserting this assignment of error, Londono relies
exclusively upon the preclusion of Code § 19.2-294 to bar the
present prosecution. He presents no claim invoking the
constitutional defense of double jeopardy.
- 11 -
offenses because he had already been prosecuted for the same

conduct and acts in federal court.

The Commonwealth contends its prosecution for transporting

and conspiring to transport heroin into the Commonwealth is not

barred under Code § 19.2-294 because the statute Londono was

charged with having violated in the state proceeding criminalizes

acts that are separate and distinct from those acts Londono was

charged with having violated in the federal proceeding. We agree

with the Commonwealth.
Under the version of Code § 19.2-294 applicable to this

case, "if the same act be a violation of both a state and a

federal statute a prosecution under the federal statute shall be

a bar to a prosecution under the state statute." The prosecution

under the federal statute is deemed to have commenced "with the

return of an indictment by a grand jury or the filing of an

information by a United States Attorney." Code § 19.2-294.

Although the language of Code § 19.2-294
does not state that it provides a defense of
former jeopardy, "it amounts to such a
defense in purpose and desired effect." Epps
v. Commonwealth, 216 Va. 150, 155, 216 S.E.2d
64, 68 (1975); Sigmon v. Commonwealth, 200
Va. 258, 263, 105 S.E.2d 171, 175-76 (1958).
Like the Fifth Amendment bar of former
jeopardy, Code § 19.2-294 prevents the
Commonwealth from "subjecting an accused to
the hazards of vexatious, multiple
prosecutions." Hall v. Commonwealth, 14
Va. App. 892, 899, 421 S.E.2d 455, 460 (1992)
(en banc).

Phillips v. Commonwealth, 257 Va. 548, 551-52, 514 S.E.2d 340,

342 (1999).

However, unlike the Fifth Amendment prohibition against

double jeopardy, which is dependent on "the identity of the

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offense, and not the act," Epps, 216 Va. at 153-54, 216 S.E.2d at

67, the prohibition of Code § 19.2-294 "is dependent upon 'the

identity of the act,'" rather than the identity of the offense,

Lash v. County of Henrico, 14 Va. App. 926, 930, 421 S.E.2d 851,

853 (1992) (en banc) (quoting Jones v. Commonwealth, 218 Va. 757,

760, 240 S.E.2d 658, 661 (1978)). In other words, Code

§ 19.2-294 "speaks to 'acts' of the accused, not elements of the

offense." Wade v. Commonwealth, 9 Va. App. 359, 365, 388 S.E.2d

277, 280 (1990). Thus, because "[t]he prohibition only 'forbids

multiple prosecution of offenses springing from the same criminal
act[,]'" if the federal and state "statutory violations involve

different acts, the prohibition is not applicable." Lash, 14

Va. App. at 930, 421 S.E.2d at 853 (quoting Jones, 218 Va. at

761, 240 S.E.2d at 661 (emphasis in original)).

"The test of whether there are separate acts sustaining

several offenses 'is whether the same evidence is required to

sustain them.'" Treu v. Commonwealth, 12 Va. App. 996, 997, 406

S.E.2d 676, 677 (1991) (quoting Estes v. Commonwealth, 212 Va.

23, 24, 181 S.E.2d 622, 623-24 (1971)); see also Hundley v.
Commonwealth, 193 Va. 449, 451, 69 S.E.2d 336, 337 (1952)

(holding that a "test of the identity of acts or offenses is

whether the same evidence is required to sustain them; if not,

then the fact that several charges relate to and grow out of one

transaction or occurrence does not make a single act or offense

where two separate acts or offenses are defined by statute").

"In applying the 'same evidence' test, 'the particular criminal

transaction must be examined to determine whether the acts are

the same in terms of time, situs, victim, and the nature of the
- 13 -
act itself.'" Johnson v. Commonwealth, 38 Va. App. 137, 146, 562

S.E.2d 341, 345 (2002) (quoting Hall, 14 Va. App. at 898, 421

S.E.2d at 459); see also Billington v. Commonwealth, 13 Va. App.

341, 345, 412 S.E.2d 461, 463 (1991) (observing that, to

determine whether a defendant's conviction under a state statute

is based upon the "same acts" underlying a prior federal

prosecution, we must compare the acts upon which the defendant's

state conviction was based with the acts underlying the

violations charged in the federal proceeding).
Here, Londono was indicted federally for possessing heroin

with intent to distribute and conspiring with Betancourt to

possess heroin with intent to distribute. The specific acts

underlying those charges were Londono's possession of the illegal

drugs when the drugs were discovered in his bag at the train

station in Richmond and his being in agreement with Betancourt at

the time to possess the heroin, with intent to distribute.

Accordingly, the federal prosecution resulted from acts that

occurred in Richmond at the time the illegal drugs were

discovered in Londono's possession. To sustain that prosecution,

the federal government was not required to prove that Londono had

transported the drugs into Virginia, only that he possessed them

when they were found in his bag.

In the instant state case, Londono was indicted, tried, and

convicted of transporting heroin into the Commonwealth with

intent to distribute, in violation of Code § 18.2-248.01, and

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conspiring to do so, in violation of Code § 18.2-248.01. 4 The

specific acts that gave rise to the state prosecution were

Londono's transportation of the heroin into Virginia and his

conspiracy with Betancourt to transport the heroin into Virginia.

"[A] violation of Code § 18.2-248.01 occurs at the moment a

person transporting illegal substances penetrates the borders of

the Commonwealth." Seke v. Commonwealth, 24 Va. App. 318, 325,

482 S.E.2d 88, 91 (1997). Accordingly, the acts underlying the

state prosecution occurred the instant Londono transported the

illegal drugs across the border into Virginia and conspired to do

so, both of which took place well before the train on which

Londono and Betancourt were travelling reached Richmond. To

sustain Londono's conviction, the Commonwealth was not required

to prove that Londono was in possession of the drugs when they

were discovered in his bag at the train station in Richmond, only

that he was in the act of transporting them when he crossed the

border coming into the Commonwealth.
Thus, the specific acts that served as the basis of each

prosecution are different in terms of when and where they

occurred, as well as in terms of the nature of the acts

4
Code § 18.2-248.01 provides, in pertinent part, as

follows:

[I]t is unlawful for any person to
transport into the Commonwealth by any means
with intent to sell or distribute . . . one
ounce or more of any . . . Schedule I or II
controlled substance . . . . A violation of
this section shall constitute a separate and
distinct felony.

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themselves. 5 Consequently, the evidence required to sustain a

conviction in the state prosecution was not the same as the

evidence required to sustain a conviction in the federal

prosecution. Hence, the instant prosecution is not barred by

Code § 19.2-294, and the trial court did not err in denying

Londono's motion to dismiss.

III. MOTION TO SUPPRESS

"In reviewing a trial court's denial of a motion to suppress,

'[t]he burden is upon [the defendant] to show that th[e] ruling,

when the evidence is considered most favorably to the

Commonwealth, constituted reversible error.'" McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en

banc) (alterations in original) (quoting Fore v. Commonwealth, 220

Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). "'Ultimate questions

of reasonable suspicion and probable cause to make a warrantless

search' involve questions of both law and fact and are reviewed de

novo on appeal." Id. (quoting Ornelas v. United States, 517 U.S.

690, 691 (1996)). "Similarly, the question whether a person has

been seized in violation of the Fourth Amendment is reviewed de
novo on appeal." Reittinger v. Commonwealth, 260 Va. 232, 236,

532 S.E.2d 25, 27 (2000). However, "we are bound by the trial

court's findings of historical fact unless 'plainly wrong' or

without evidence to support them and we give due weight to the

inferences drawn from those facts by resident judges and local law

5
This view is buttressed by the fact that, unlike Code
§ 18.2-248, which mirrors the federal possession statute Londono
was charged with violating, Code § 18.2-248.01 specifically
proscribes the act of transporting illegal drugs into the
Commonwealth "by any means" and declares that "[a] violation of
this section shall constitute a separate and distinct felony."
- 16 -
enforcement officers." McGee, 25 Va. App. at 198, 487 S.E.2d at

261 (citing Ornelas, 517 U.S. at 699).

Londono contends he was seized by Detectives Patterson and

O'Connor when they confronted him in the cramped confines of the

sleeper car. That encounter, he argues, was not consensual

because a reasonable person, so confronted, would not feel free

to leave. Thus, he asserts, the seizure violated his Fourth

Amendment rights because it was not based on a reasonable,

articulable suspicion that he was engaged in criminal activity.

Accordingly, he concludes, the trial court erred in refusing to

suppress the heroin and his statements to the police, "fruit" of

the unlawful seizure.
The Commonwealth contends the encounter was consensual.

Londono, the Commonwealth argues, was not seized for Fourth

Amendment purposes until Detective Patterson found the suspected

drugs in Londono's tote bag and had him placed under arrest by

Detective O'Connor. At that point, the Commonwealth argues,

Patterson had probable cause that Londono had committed a crime.

Hence, the Commonwealth concludes, the search and subsequent

seizure were proper.

A passenger on a train does not enjoy the same expectation

of privacy as he would at home. See United States v. Whitehead,

849 F.2d 849, 854 (4th Cir. 1988) (noting that the Supreme Court

has consistently held that "the privacy interests of individuals

engaged in transit on public thoroughfares are substantially less

than those that attach to fixed dwellings"). "While occupants of

train roomettes may properly expect some degree of privacy, it is

less than the reasonable expectations that individuals rightfully
- 17 -
possess in their homes or their hotel rooms." Id. "The

diminished privacy aspects of public transportation result in

part from the law enforcement exigency created by ready mobility

and its potential for immediate flight from the jurisdiction, as

well as from the web of governmental regulation that surrounds

most forms of transportation." Id. (citation omitted).

"Passengers in sleeping cars are repeatedly subject to inquiry

and oversight by conductors and other railroad personnel.

Intrusions such as these necessarily reduce privacy interests

from what they would be had the passengers elected to stay at

home." Id. at 855 (citation omitted).

Thus, as a passenger on the train, Londono had no reasonable

expectation that no one would use the public hallway of the train

to approach his room and ring the doorbell to his room.

Accordingly, neither the detectives' act of approaching Londono's

room nor their ringing the bell to his room implicated the Fourth

Amendment. See Shaver v. Commonwealth, 30 Va. App. 789, 796, 520

S.E2d 393, 397 (1999) (noting that one who has a "'reasonable

expectation that various members of society may enter the

property in their personal or business pursuits . . . should find

it equally likely that the police will do so'" (quoting State v.
Corbett, 516 P.2d 487, 490 (Or. Ct. App. 1973))).

We turn next to the encounter itself. Encounters between

the police and citizens "generally fall into one of three

categories." McGee, 25 Va. App. at 198, 487 S.E.2d at 261.

First, there are consensual encounters which
do not implicate the Fourth Amendment.
Next, there are brief investigatory stops,
commonly referred to as "Terry" stops, which
must be based upon reasonable, articulable
- 18 -
 suspicion that criminal activity is or may
be afoot. Finally, there are "highly
intrusive, full-scale arrests" or searches
which must be based upon probable cause to
believe that a crime has been committed by
the suspect.

Id. (citations omitted) (quoting United States v. Sokolow, 490

U.S. 1, 7 (1939)).

In Dickerson v. Commonwealth, 35 Va. App. 172, 178-79, 543

S.E.2d 623, 626-27 (2001), we summarized the law governing

consensual encounters, as follows:
A voluntary police-citizen encounter
becomes a seizure for Fourth Amendment
purposes "[o]nly when the officer, by means
of physical force or show of authority, has
in some way restrained the liberty of a
citizen." Florida v. Bostick, 501 U.S. 429,
434 (1991). "So long as a reasonable person
would feel free 'to disregard the police and
go about his business,' the encounter is
consensual and no reasonable suspicion is
required." Id. (citation omitted). . . . In
determining whether the encounter was
consensual, we 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." Id. at 439.
In determining whether a reasonable
person would feel he or she was not free to
terminate an encounter with the police,
several jurisdictions, including Virginia,
have utilized a set of factors first
articulated by Justice Stewart in his opinion
in United States v. Mendenhall, 446 U.S. 544
(1980) (opinion of Stewart, J.). See United
States v. Galvan-Muro, 141 F.3d 904, 906 (8th
Cir. 1998); United States v. Turner, 928 F.2d
956, 959 (10th Cir. 1991); Parker v.
Commonwealth, 255 Va. 96, 101-02, 496 S.E.2d
47, 50 (1998); Baldwin v. Commonwealth, 243
Va. 191, 196, 413 S.E.2d 645, 648 (1992).
Those factors include: "the threatening
presence of several officers, the display of
a weapon by an officer, some physical
touching of the person of the citizen, or the
use of language or tone of voice indicating
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 that compliance with the officer's request
might be compelled." Mendenhall, 446 U.S. at
554 (opinion of Stewart, J.).

"An encounter between a law enforcement officer and a

citizen in which the officer merely identifies himself and states

that he is conducting a[n] . . . investigation, without more, is

not a seizure within the meaning of the Fourth Amendment but is,

instead, a consensual encounter." McGee, 25 Va. App. at 199, 487

S.E.2d at 262. Moreover, "even when officers have no basis for

suspecting a particular individual, they may generally ask

questions of that individual . . . and request consent to

search[,] as long as the police do not convey a message that

compliance with their requests is required." Bostick, 501 U.S.

at 434-35 (citations omitted). Fourth Amendment scrutiny is

triggered only if the encounter "loses its consensual nature."

Piggot v. Commonwealth, 34 Va. App. 45, 49, 537 S.E.2d 618, 619

(2000).

Londono maintains the encounter in this case was different

because it took place on a train in the cramped confines of a

sleeper car. Because he was "isolated in a sleeper car and the

officers were blocking the only exit," he could not, he argues,

"simply turn and walk away." A reasonable person, he asserts,

would not feel free to leave under such circumstances.

Accordingly, he concludes, the encounter was not consensual.

In making this argument, however, Londono focuses on the

wrong inquiry. In Bostick, a case involving a police-citizen
encounter on a bus, the United States Supreme Court held that the

relevant inquiry in a case like this is not whether a reasonable

person would feel "free to leave" but whether "a reasonable
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person would feel free to decline the officers' requests or

otherwise terminate the encounter." 501 U.S. at 435-36. As the

Court reasoned:

When police attempt to question a person who
is walking down the street or through an
airport lobby, it makes sense to inquire
whether a reasonable person would feel free
to continue walking. But when the person is
. . . on a bus and has no desire to leave,
the degree to which a reasonable person would
feel that he or she could leave is not an
accurate measure of the coercive effect of
the encounter.
Id.

In this case, taking into account all the circumstances

surrounding the encounter between Londono and Detectives

Patterson and O'Connor, we conclude that, prior to Londono's

arrest, the detectives did nothing that would lead a reasonable

person to feel that he or she was not free to decline the

detectives' requests and terminate the encounter. Both

detectives involved in the encounter were in plain clothes, and

neither had his weapon displayed. After ringing the doorbell to

Londono's room, Detective O'Connor stepped back into the doorway

of the room across the hall and was merely an observer until

called on to place Londono under arrest. When Londono opened the

door, Detective Patterson displayed his badge, identified himself

as a police officer, and stated the purpose of the investigation.

He made no accusations.

During the encounter, neither detective's manner was

intimidating or threatening. The exchange between Detective

Patterson and Londono was conversational and brief. Patterson

did not raise his voice or use harsh language. There was no

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persistent questioning by the detectives or lengthy interaction

between the detectives and Londono. Prior to the arrest, neither

detective physically touched Londono or prevented him from

terminating the encounter by simply retreating into the room and

shutting the door. Additionally, when Londono left the room to

allow Patterson to search it, the sleeper car's exits were not

blocked.

In other words,

[t]here was no application of force, no
intimidating movement, no overwhelming show
of force, no brandishing of weapons, no
blocking of exits, no threat, no command, not
even an authoritative tone of voice. It is
beyond question that had this encounter
occurred on the street, it would be
constitutional. The fact that an encounter
takes place [in the close quarters of a
vehicle used for public transportation] does
not on its own transform standard police
questioning of citizens into an illegal
seizure.
United States v. Drayton, 536 U.S. 194, 204 (2002).

During the encounter, Londono willingly agreed to talk with

Detective Patterson and answer his inquiries. When asked by

Patterson if he could search his room, Londono, without

hesitation, gave his consent, saying, "Yes, go ahead," and

motioned Patterson into the room. At no time did he revoke that

consent. In the course of searching the room, Patterson

discovered what he reasonably suspected were illegal drugs in

Londono's tote bag, which gave rise to probable cause to arrest

Londono. See Buck v. Commonwealth, 20 Va. App. 298, 304, 456

S.E.2d 534, 536-37 (1995) ("If an officer has reason to believe

that a person is committing a felony in his presence by

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possessing contraband or a controlled substance, the officer has

probable cause to arrest the individual without a warrant.").

Accordingly, because the detectives merely asked questions

of Londono and requested consent to search his room and did not

utilize force or make a show of authority that conveyed the

message that compliance with their requests was required, the

encounter between Londono and the detectives was consensual until

the search of the sleeper-car room revealed incriminating

evidence. Consequently, Londono was not seized for purposes of

the Fourth Amendment prior to the arrest.
Londono, however, also contends that, in view of his limited

ability to understand and speak English, his consent to the

search of the sleeper-car room was invalid. He argues that he

"lack[ed] the necessary language skills . . . to give voluntary

consent to the search." He "did not," he asserts, "understand

what the officers were asking at the time of the alleged consent

to search."

"[S]earches made by the police pursuant to a valid consent

do not implicate the Fourth Amendment." McNair v. Commonwealth,

31 Va. App. 76, 82, 521 S.E.2d 303, 306 (1999) (en banc).

"Consent to a search must be freely and voluntarily given."

Davis v. Commonwealth, 37 Va. App. 421, 433, 559 S.E.2d 374, 379

(2002) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227

(1973)). "When the Commonwealth bases its authority to conduct a

warrantless search upon a claim that the defendant consented, the

Commonwealth has the burden at trial to prove by a preponderance

of the evidence that the consent was voluntary." Camden v.

Commonwealth, 17 Va. App. 725, 727, 441 S.E.2d 38, 39 (1994).
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Whether a consent to search was voluntarily given "is a question

of fact to be determined from the totality of all the

circumstances." Schneckloth, 412 U.S. at 227. In making that

determination, "it is appropriate to consider the characteristics

of the accused." United States v. Lattimore, 87 F.3d 647, 650

(4th Cir. 1996) (en banc).

After hearing evidence regarding Londono's consent to search

and its attendant circumstances, the trial court ruled that the

consent was voluntary. In reaching that determination, the trial

judge stated:

[A]s I've listened to the evidence, I
find that [Londono] was aware of what was
going on, he, he answered the questions that
. . . Detective Patterson asked him. He
carried on a conversation later on. I, I
don't find that there's any reason he didn't
give a valid consent. I think the consent
was a good consent, and I think the
Commonwealth has carried the burden by a
preponderance of the evidence.

Based on our review of the totality of the surrounding

circumstances, we cannot say that the factual finding of the

trial court that Londono's consent to search was voluntarily

given is plainly wrong or without evidence to support it.

Indeed, the record is replete with evidence showing that

Londono's ability to speak and understand English was not so

limited that his consent to search was rendered invalid.

Detective Patterson testified that, throughout the encounter

with Londono, he and Londono spoke entirely in English and that

at no time did Londono indicate that he did not understand what

the detective was saying and doing. Patterson further testified

that he "[d]id not have any concerns about [Londono's] ability to
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understand [him]." Detective O'Connor, who observed Patterson's

interaction with Londono during the encounter and who conversed

extensively with Londono after the arrest, testified that Londono

engaged in "back and forth" discussion and spoke in "complete

sentences in English." O'Connor further testified that, based on

Londono's ability to converse in English and his appropriate

responses to the questions put to him in English, the detective

had no doubt that Londono "spoke English" and that he "understood

what was going on" and "what [the detectives] were asking" during

the encounter. Additionally, Agent Bonifant, who also spoke with

Londono following his arrest, testified that Londono had no

difficulty communicating with him in English and that Londono

gave no indication that he had any trouble understanding him.
Of further significance, Reverend Brooks, who counseled

Londono following his arrest, testified that the counseling

sessions were conducted in English and that Londono spoke with

him in complete sentences in English. Reverend Brooks further

testified that Londono never indicated he did not understand him.

Indeed, when asked by Reverend Brooks if he understood what the

reverend was saying, Londono specifically told him that he did.

This evidence amply supports the trial court's factual

determination that Londono's alleged limited ability to

understand and speak English did not render him incapable of

voluntarily consenting or withholding consent to the search of

the sleeper-car room. Accordingly, we affirm the trial court's

ruling that the search of the sleeper-car room was a valid

consensual search under the Fourth Amendment.

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 For these reasons, we conclude the trial court did not err

in denying Londono's motion to suppress.

IV. MOTION TO EXCLUDE PREVIOUSLY SUPPRESSED EVIDENCE

Londono contends the trial court erred in denying his motion

to exclude evidence that had been previously suppressed in

federal district court. He argues exclusively that, because the

issue of the suppression of the heroin found in his sleeper-car

room and his post-arrest statements to the police had already

been fully litigated by the federal court, the related doctrines

of res judicata and collateral estoppel precluded the
Commonwealth from relitigating the same issue in state court. 6

Under the dual sovereignty doctrine, the doctrines of res

judicata and collateral estoppel generally do not apply when, as

here, "different sovereigns and, thus, different parties are

involved in criminal litigation." United States v. Kummer, 15

F.3d 1455, 1461 (8th Cir. 1994); see also United States v.

Peterson, 100 F.3d 7, 12 (2d. Cir. 1996) (noting that estoppel

principles "generally may not be invoked against one sovereign on

the basis of a ruling in a prosecution brought by a different

sovereign"). "The dual sovereignty concept may yield, however,

if one sovereign effectively controlled the other, for example if

'the state prosecution was a sham and a cover for a federal

prosecution, and thereby in essential fact another federal

prosecution.'" Peterson, 100 F.3d at 12 (quoting Bartkus v.

6
Although the doctrines of res judicata and collateral
estoppel represent two distinct defenses, the question of which
of the two doctrines is the applicable defense in this case is
not before us on appeal, as neither party raised that question
at trial or on appeal.

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Illinois, 359 U.S. 121, 124 (1959)); see also United States v.

Sutherland, 929 F.2d 765, 771 (1st Cir. 1991) (stating that the

ruling in a prosecution by one sovereign will bind the

prosecutors in a subsequent prosecution by another sovereign only

if the latter sovereign "substantially controlled" the earlier

action or was "virtually represented" by the prosecutors in that

prior action); United States v. Safari, 849 F.2d 891, 893 (4th

Cir. 1988) (observing that estoppel principles apply against a

sovereign in a subsequent prosecution only if that sovereign was

a party to the earlier prosecution in some manner). A

prosecution may be considered a "sham" only if "one sovereign so

thoroughly dominate[d] or manipulate[d] the prosecutorial

machinery of another that the latter retain[ed] little or no

volition in its own proceedings." United States v. Guzman, 85

F.3d 823, 827 (1st Cir. 1996).

The record in this case is devoid of evidence showing that

the Commonwealth exercised any control over the federal

prosecution or that it was represented in or a party to that

prosecution in any manner. Likewise, there is no evidence in the

record showing that federal authorities manipulated the

Commonwealth into prosecuting Londono for violation of state

statutes or otherwise exercised any control over the state

prosecution such that the Commonwealth's prosecution was a "sham

and a cover for a federal prosecution." Indeed, there is

absolutely no evidence that state prosecutors were involved in

the prosecution of the federal action or that federal prosecutors

were involved in the prosecution of the state action. The record

makes clear that, although there were cooperative efforts between
- 27 -
the state and federal members of the task force and between the

governments' witnesses and the prosecutors, the prosecution of

the federal claims was handled entirely by the United States

Attorney's Office and the state charges were prosecuted strictly

by the Commonwealth's Attorney's Office. The record further

shows that, following the unsuccessful federal prosecution, the

Commonwealth's prosecutors undertook an independent analysis and,

acting without influence of the federal prosecutors, concluded

that the state interests left unvindicated by the federal

proceeding were worth pursuing in state court.
The composition of the RMIU task force and the investigatory

cooperation between the local law enforcement agencies and the

DEA are not dispositive of this issue. See Guzman, 85 F.3d at

828 ("Cooperative law enforcement efforts between independent

sovereigns are commendable, and, without more, such efforts will

not furnish a legally adequate basis for invoking the [sham

prosecution] exception to the dual sovereign rule."); United

States v. Davis, 906 F.2d 829, 834 (2d Cir. 1990) (stating that,

in determining whether one sovereign controlled another

sovereign's prosecution, "the focus of [the] inquiry must be on

those with the authority to act in their sovereign's name, the

prosecutors, and not the law enforcement officers assigned to the

[t]ask [f]orce"); Peterson, 100 F.3d at 12 (observing that the
mere participation by a sovereign's law enforcement officers in

an investigation that leads to a prosecution by another sovereign

does not render the former sovereign a party to the latter

sovereign's prosecution); United States v. Claiborne, 92 F. Supp.

2d 503, 508 (E.D. Va. 2000) (noting that, "under existing law,
- 28 -
there is no exception to the dual sovereignty doctrine based upon

the cooperation of federal and state investigations and

prosecutions"). Likewise, the fact that the members of the task

force had the discretion to elect to initiate prosecution in

either federal or state court does not alter the fact that the

ultimate authority to file charges and control the prosecution in

federal court belonged exclusively to the federal prosecutors and

the ultimate authority to file charges and control the

prosecution in state court belonged solely to the Commonwealth's

prosecutors.
We conclude, therefore, that, because the Commonwealth

exercised no control over the federal prosecution, was not

represented in or a party to that prosecution, and acted of its

own volition as an independent sovereign in prosecuting Londono

for violation of Virginia statutes, the doctrines of res judicata

and collateral estoppel are not applicable in this case.

Accordingly, the trial court was not bound by the earlier

decision of the United States District Court and did not err in

denying Londono's motion to exclude the previously suppressed

evidence.

For these reasons, we affirm the judgment of the trial court

and, accordingly, affirm Londono's convictions.
Affirmed.

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