COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Senior Judge Coleman
Argued at Alexandria, Virginia
BRUCE JEROME JONES
MEMORANDUM OPINION* BY
v. Record No. 0733-06-4 JUDGE ROBERT J. HUMPHREYS
SEPTEMBER 4, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
John E. Kloch, Judge
Paul E. Pepper, Deputy Public Defender, for appellant.
Joanne V. Frye, Assistant Attorney General (Robert F. McDonnell,
Attorney General; Denise C. Anderson, Assistant Attorney General,
on brief), for appellee.
Bruce Jerome Jones (“Jones”) appeals his convictions for possession of cocaine with
intent to distribute, possession of a firearm after previously being convicted of a violent felony,
and possession of a firearm while in possession of cocaine, in violation of Code §§ 18.2-248,
18.2-308.2, and 18.2-308.4, respectively. Jones argues on appeal that his initial detention was
not supported by reasonable, articulable suspicion, and thus his consent to search the car was
invalid, as it was a “fruit of the poisonous tree.” For the following reasons, we affirm the trial
court.
ANALYSIS
In reviewing the denial of a motion to suppress based on the alleged violation of an
individual’s Fourth Amendment rights, we consider the facts in the light most favorable to the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth. Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). The
burden is on the defendant to show that the trial court committed reversible error, id., and we are
bound by the trial court’s factual findings unless those findings are “plainly wrong” or without
evidence to support them, Pyramid Development, L.L.C. v. D & J Associates, 262 Va. 750, 753,
553 S.E.2d 725, 727 (2001). However, the trial court’s application of the law is reviewed de
novo. Brown v. Commonwealth, 270 Va. 414, 419, 620 S.E.2d 760, 762 (2005).
A. The Initial Stop
In appropriate circumstances, a police officer may detain a person for the purpose of
investigating possible criminal behavior, even though there is no probable cause to make an
arrest. Terry v. Ohio, 392 U.S. 1, 22 (1968); see also Ewell v. Commonwealth, 254 Va. 214,
217, 491 S.E.2d 721, 722 (1997). However, in order to justify the brief seizure of a person by
such an investigatory stop, the police officer must “have a reasonable suspicion, based on
objective facts, that the individual is involved in criminal activity.” Whitfield v.
Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003) (citing Brown v. Texas, 443 U.S.
47, 51 (1979)). A court must consider the totality of the circumstances to determine whether a
police officer had a particularized and objective basis for suspecting that the person stopped may
be involved in criminal activity. Ewell, 254 Va. at 217, 491 S.E.2d at 722-23 (citing United
States v. Cortez, 449 U.S. 411, 417-18 (1981)).
In this case, Jones was in possession of a car that had been reported stolen. Clearly, this
satisfies the “reasonable suspicion” standard allowing Officer Seckler to approach Jones and
briefly detain him in order to investigate whether Jones lawfully possessed the vehicle. As such,
we disagree with Jones that he was unlawfully detained, in violation of his Fourth Amendment
rights, and that the items recovered pursuant to the subsequent searches of his person and the
vehicle were “fruits of the poisonous tree.” Because we hold that Jones was subject to a lawful
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Terry stop, we must next determine whether Jones’s subsequent consent to search the vehicle
was valid.
B. Consent to Search
“The Fourth Amendment test for a valid consent to search is that the consent be
voluntary, and ‘voluntariness is a question of fact to be determined from all the circumstances.’”
Ohio v. Robinette, 519 U.S. 33, 40 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218,
248-49 (1973)). This is not a bright-line rule, as “the proper inquiry necessitates a consideration
of ‘all the circumstances surrounding the encounter.’” Id. at 39 (quoting Florida v. Bostick, 501
U.S. 429, 439 (1991)).
“The fact that the defendant has been lawfully seized at the time consent is given does not
in itself invalidate the consent,” Deer v. Commonwealth, 17 Va. App. 730, 735, 441 S.E.2d 33,
36 (1994) (citing Reynolds v. Commonwealth, 9 Va. App. 430, 439, 388 S.E.2d 659, 665
(1990)), nor do police have to warn a suspect who has been lawfully seized that he has a right to
refuse the search, Schneckloth, 412 U.S. at 227. However, the consent must be “the product of
an essentially free and unconstrained choice by its maker,” and the defendant’s will must not
have “been overborne and his capacity for self-determination [must not have been] critically
impaired.” Lowe v. Commonwealth, 218 Va. 670, 678, 239 S.E.2d 112, 117 (1977) (citing
Schneckloth, 412 U.S. at 225). A search conducted with the free and voluntary consent of the
accused is not an unreasonable search, but the burden is upon the Commonwealth to show that
consent is freely and voluntarily given. Hairston v. Commonwealth, 216 Va. 387, 388, 219
S.E.2d 668, 669 (1975) (citing Rees v. Commonwealth, 203 Va. 850, 866, 127 S.E.2d 406, 417
(1962)).
In Lowe, the Supreme Court of Virginia affirmed a trial court’s finding of consent when
the defendant was in custody, handcuffed, sitting on the floor, and surrounded by armed officers.
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218 Va. at 677-78, 239 S.E.2d at 117. Because the officer’s guns were not drawn, there were no
threats or promises, and the officers read and explained a search form to the defendant, the Court
held that the trial court did not err in holding that the defendant nevertheless gave verbal consent
to search. Id. at 678, 239 S.E.2d at 117. In other words, the defendant’s consent was “‘the
product of an essentially free and unconstrained choice by its maker[,]’” and [the] defendant’s
will had not ‘been overborne and his capacity for self-determination [had not been] critically
impaired.’” Id. (quoting Schneckloth, 412 U.S. at 225).
In this case, although Jones was seized for purposes of the Fourth Amendment, he was
not restrained in any manner. In fact, he was allowed to remain on the sidewalk with another
officer while Seckler confirmed the status of the vehicle. At no time during the encounter did
either officer ever make any threats toward Jones, nor did either officer draw his weapon until
after Jones fled the scene. In fact, Seckler’s weapon was never visible during the initial stages of
the stop. Moreover, although Seckler did not read Jones a consent form, he gave Jones the
option of denying the request to search. Specifically, he stated, “Can I search it, yes or no.”
When compared against the facts presented in Lowe, we cannot say that Jones’s will was ever
overborne, nor was his capacity for self-determination critically impaired. Accordingly, we hold
that the trial court did not err in finding that Jones’s consent to search the vehicle was valid and,
thus, that the search did not violate Jones’s Fourth Amendment rights.
CONCLUSION
We hold that Seckler had reasonable suspicion to detain Jones for a Terry stop. We also
hold that during the stop, Jones voluntarily consented to a search of his vehicle. Accordingly, we
hold that neither the seizure nor the search were in violation of Jones’s Fourth Amendment
rights. Thus, we affirm the trial court.
Affirmed.
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Bruce Jerome Jones v. Commonwealth
Combined Opinion