COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued by teleconference
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 0961-98-2 JUDGE DONALD W. LEMONS
SEPTEMBER 29, 1998
RICHARD H. RICE
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
Andre A. Hakes (Gallo and Hakes, on brief),
for appellee.
Richard H. Rice was indicted for carrying a concealed weapon
after having been previously convicted of a felony, a violation
of Code § 18.2-308.2. By order dated April 23, 1998, the Circuit
Court for the County of Albemarle granted Rice's motion to
suppress the weapon. The Commonwealth appealed and, for the
reasons stated below, we reverse and remand.
BACKGROUND
On June 2, 1997, Officer Mike Wagner of the Albemarle County
Police Department observed a car driven by Richard H. Rice with
its left headlight out. Officer Wagner stopped the car and asked
Rice for his driver's license. Finding no outstanding warrants
for Rice and that his license was valid, Wagner returned to
Rice's car and, while still holding Rice's license, asked if he
could search his vehicle and person. Rice responded, "[w]hat
for? You ain't [sic] got no probable cause." Officer Wagner
agreed that he did not have probable cause and affirmatively
stated that he would need Rice's permission to search. Once
again, Wagner asked if he could search Rice's person and vehicle.
Rice verbally consented to the search. Officer Wagner searched
his car, and a second officer searched his person. The second
officer found brass knuckles concealed in Rice's pocket.
Rice moved to suppress the evidence recovered in the traffic
stop on the basis that the officer's continued possession of
Rice's driver's license resulted in an unlawful detention and
that any evidence seized pursuant to such detention must be
suppressed as the "fruit of the poisonous tree." The trial court
found that the officer did not have "articulable and specific
facts that would allow him to detain Rice after [he] checked his
license and found it to be valid." Finding that Rice had been
illegally detained and that such detention "tainted" the consent
to search, the trial court granted Rice's motion to suppress the
brass knuckles found in his pocket. On appeal, the Commonwealth
argues that the officers had reasonable and articulable suspicion
to stop the vehicle, that the traffic stop had not concluded at
the time consent to search was requested, and that Rice's consent
to the search was freely and voluntarily given.
The Commonwealth may seek an interlocutory appeal of a trial
court's order which suppresses evidence on the grounds that it
has been obtained in violation of the provisions of the Fourth,
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Fifth or Sixth Amendments to the Constitution of the United
States or Article I, Sections 8, 10 or 11 of the Constitution of
Virginia. See Code § 19.2-398. In reviewing the ruling of a
trial court on a motion to suppress, we will "consider the
evidence in the light most favorable to the prevailing party
below, and the decision will not be disturbed unless it is
plainly wrong or without evidence to support it." Commonwealth
v. Thomas, 23 Va. App. 598, 609, 478 S.E.2d 715, 720 (1996)
(citing Lee v. Commonwealth, 18 Va. App. 235, 238, 443 S.E.2d
180, 181 (1994); Commonwealth v. Grimstead, 12 Va. App. 1066,
1067, 407 S.E.2d 47, 48 (1991)).
CONSENT TO THE SEARCH
Rice does not contest the validity of the initial stop of
his vehicle; rather, he maintains that the purpose of the stop
had concluded by the time the officer requested permission to
search his person and his vehicle, thereby rendering his
detention unlawful and his consent invalid. The record reveals
that the officer determined that no outstanding warrants were on
file for Rice and that his driver's license was valid. The
officer returned to Rice's vehicle with the driver's license in
his hand. At that time, the officer had several options,
including issuing a warning and allowing Rice to continue on his
way, issuing a summons for operating a motor vehicle with
defective equipment, or confiscating the registration card,
license plates and any decals of the vehicle pursuant to Code
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§ 46.2-1000. While the lawful detention of Rice continued, the
officer requested permission to search.
In Bumper v. North Carolina, 391 U.S. 543 (1968), the United
States Supreme Court held that the Fourth Amendment right to be
free from unreasonable seizures may be waived, orally or in
writing, by voluntary consent to a warrantless search of a
person, property or premises. Id. at 548. The test of a valid
consent search is whether it was "freely and voluntarily given."
Id. The burden rests with the Commonwealth to demonstrate the
lack of duress. See Lowe v. Commonwealth, 218 Va. 670, 678, 239
S.E.2d 112, 117 (1977), cert. denied, 435 U.S. 930 (1978). The
question of whether a particular "consent to a search was in fact
voluntary or was the product of duress or coercion, express or
implied, is a question of fact to be determined from the totality
of all the circumstances." Schneckloth v. Bustamonte, 412 U.S.
218, 227 (1973). Police need not warn the suspect that he or she
has a right to refuse the search, but the suspect's knowledge of
his or her right to refuse falls within the totality of the
circumstances the court must consider. See id.; see also Ohio v.
Robinette, 519 U.S. 33 (1996); Limonja v. Commonwealth, 8 Va.
App. 532, 383 S.E.2d 476 (1989). The fact that the defendant is
in custody at the time consent is given does not itself
invalidate the consent. See Reynolds v. Commonwealth, 9 Va. App.
430, 388 S.E.2d 659 (1990).
In Limonja, the defendants were stopped for failing to pay a
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toll at a tollbooth. The officer obtained the license of the
driver and determined that it was valid. The majority opinion
does not indicate whether the license was returned to the driver
before permission was requested to search the vehicle. However,
the dissent provides this important fact by observing, as
follows:
Although the documents were in order, [the
officer] did not then issue a citation for
the traffic violation. Instead, while
retaining their identification, he asked
Limonja why she had run the tollgate.
Because [the officer] intended to pursue his
suspicions that they were drug couriers, he
sought and obtained from Limonja and Brooks
consent to search the interior of the
automobile and trunk.
Limonja, 8 Va. App. at 548, 383 S.E.2d at 486.
Using a "totality of the circumstances" test, the majority
in the en banc opinion in Limonja found that the consent was
freely and voluntarily given. The court stated:
The evidence in this case adequately
establishes that Limonja and Brooks
voluntarily and intelligently consented to a
search of the vehicle. [The officer]
approached the defendants' vehicle and
explained to them that he had stopped them
because the operator had run the automatic
tollbooth. At that point [the officer] asked
for permission to search the vehicle. Both
defendants gave oral consent, first Limonja
and then Brooks. [The officer] had them exit
the car and stand to the rear in order to be
away from traffic. The search was not made
upon any claim of authority by the police;
there was no show of force by the police;
there were no threats; the defendants have
claimed no mental or emotional infirmity nor
does the record disclose any; and there has
been no deception as to identity or purpose
on behalf of the police. Furthermore, [the
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officer's] failure to inform the defendants
of their fourth amendment protections or
their right to refuse consent does not render
the consent involuntary.
Id. at 540-41, 383 S.E.2d at 480-81.
Rice relies primarily upon Richmond v. Commonwealth, 22 Va.
App. 257, 468 S.E.2d 708 (1996); Deer v. Commonwealth, 17 Va.
App. 730, 441 S.E.2d 33 (1994); and United States v. Rusher, 966
F.2d 868 (4th Cir. 1992). In Richmond, a Hanover County
sheriff's deputy approached Richmond's car parked in a public
parking lot behind a gas station with its lights off. The deputy
asked Richmond for his driver's license, and Richmond complied.
The deputy returned to his patrol car to complete a record check
on the license; finding nothing improper, he returned to
Richmond's automobile but did not return the license. The deputy
continued to interrogate Richmond and asked for his consent to
search the automobile. When Richmond told the deputy that he
could not search the automobile, the deputy utilized his
flashlight to illuminate the interior of the vehicle. Seeing
something on the floorboard of the vehicle that appeared to be a
device for smoking crack cocaine or marijuana, the deputy asked
Richmond to hand it to him. Richmond complied and was arrested.
The Court found that "[t]he initial encounter between the
officer and appellant was permissible and did not implicate the
Fourth Amendment" because of its consensual nature. Richmond, 22
Va. App. at 261, 468 S.E.2d at 709. However, the Court found
that "what began as a consensual encounter quickly became an
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investigative detention once the officer received appellant's
driver's license and did not return it to him." Id. at 261, 468
S.E.2d at 710 (citing United States v. Lambert, 46 F.3d 1064,
1068 (10th Cir. 1995)).
This case is distinguishable from Richmond in two critical
respects: (1) the initial encounter in Richmond was consensual,
including the voluntary relinquishment of the driver's license,
while the initial encounter with Rice was the result of a valid
traffic stop; and, (2) the request to search in Richmond was
denied whereas the request to search in this case was granted by
Rice.
In Deer, the defendant did not contest the initial stop for
a speeding violation. However, he did claim that he was
unlawfully detained after the trooper issued him a citation.
After the issuance of a citation, the trooper requested the
defendant's permission to search his automobile. Deer at first
refused to allow the search but gave his consent only after the
trooper indicated that he would detain the automobile and call
the K-9 unit and indicated that such a procedure could take up to
an hour.
The Court held that no reasonable, articulable suspicion of
additional criminal activity justified Deer's continued detention
after the issuance of the traffic citation. The Commonwealth
argued that Deer's consent justified the continued detention;
however, the Court noted that the consent was not "freely and
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voluntarily given" because the trooper's indication that he would
call the K-9 unit without reasonable, articulable suspicion of
drug possession amounted to "coercion under the color of lawful
authority." Deer, 17 Va. App. at 735, 441 S.E.2d at 36 (citing
Bumper, 391 U.S. at 550).
In the matter now before us, the officer clearly indicated
to Rice that he could not search without Rice's permission. Upon
request for permission to search, Rice responded, "[w]hat for?
You ain't [sic] got no probable cause." After the officer agreed
with Rice, permission to search was granted. The coercion found
unacceptable in Deer is not present in this case.
The defendant cites Rusher for the proposition that the
return of the license is the critical aspect of the case at bar.
In Rusher, the officer issued a ticket to Flannery, the driver
of a truck, for driving without proper registration. The officer
returned the driver's license to Flannery and told him he was
"free to go." Thereafter, the officer asked whether there were
"any weapons, illegal contraband, alcohol or anything of an
illegal nature in the vehicle." Rusher, 966 F.2d at 872.
Permission to search was granted by Flannery both orally and in
writing. The court upheld the trial court's denial of the motion
to suppress, finding that the detention of Flannery had
terminated and a consensual encounter had begun before the
officer questioned him further about contraband and requested
permission to search the truck.
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Unlike Rusher, the lawful detention of Rice had not
terminated before the officer requested permission to search. A
policeman has the right to stop and temporarily detain a person
to issue him or her a traffic citation. See Limonja, 8 Va. App.
at 543, 383 S.E.2d at 482-83.
Nonetheless, Rice maintains that the failure of the officer
to return his driver's license tainted the consent to search the
vehicle. Certainly, the retention of the license is a factor to
consider in determining if Rice's consent was freely and
voluntarily given, but it is not dispositive of the question.
Rice was stopped for a defective headlight. The officer took
Rice's driver's license to run a computer check and determined
that Rice was properly licensed and there were no outstanding
warrants for his arrest. It is beyond speculation that Rice knew
he did not have to consent to the search. His response, "[w]hat
for? You ain't [sic] got no probable cause," was followed by the
officer's agreement and assurance that he could not search
without consent.
Consent was given. The search was not made upon claim of
authority; indeed, the opposite is true--the officer disclaimed
authority to search without consent. The officer made no show of
force and made no threats. Rice has claimed no mental or
emotional infirmity. He has made no claim of deception by
police. Rice's contention that his consent was tainted by the
officer's retention of the driver's license is contrary to Rice's
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clear declaration and understanding, confirmed by the officer,
that Rice did not have to consent to the search and that his
permission would be required before a search could lawfully take
place. The continued detention of Rice was not unlawful.
Considering the totality of the circumstances, the Commonwealth
has borne its burden of proving by a preponderance of the
evidence that Rice's consent to search his person and his vehicle
was freely and voluntarily given during a valid detention for a
traffic violation.
The trial court's order suppressing the evidence is
reversed, and the case is remanded to the trial court for further
proceedings consistent with this opinion.
Reversed and remanded.
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