COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Agee
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0645-01-2 JUDGE JERE M. H. WILLIS, JR.
JULY 24, 2001
DWAYNE MARK LEWIS
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
William P. Irwin, V (Bowen, Bryant,
Champlin & Carr, on brief), for appellee.
Dwayne Mark Lewis stands indicted for possession of cocaine
with the intent to distribute, a violation of Code § 18.2-248.
The Commonwealth contends that the trial court erroneously
suppressed the cocaine found during a search of his person. We
reverse the trial court's suppression order and remand the case
for further proceedings consistent with this opinion.
I. BACKGROUND
On September 19, 2000, City of Richmond Police Officer
Timothy D. Wyatt assisted Sergeant McNamara in stopping a
vehicle for defective equipment. Lewis was a passenger in that
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
vehicle. Officer Wyatt testified that he approached the
passenger side of the vehicle and noticed Lewis' "hands were
shaking," leading him to believe that Lewis was nervous. Before
Officer Wyatt said a word, Lewis told him, "I am just trying to
get a ride." Officer Wyatt replied, "Relax. Don't worry about
it." Nevertheless, Lewis continued to try to explain to the
officer that he had done nothing wrong.
Officer Wyatt testified that based upon Lewis' nervousness,
he "had him exit the vehicle." Officer Wyatt asked Lewis "if he
had any weapons or narcotics on him." Lewis replied, "no."
Officer Wyatt then asked Lewis "if he had a problem if [the
officer] checked him." Lewis said, "Naw. Go ahead," and "put
his hands up in the air." Officer Wyatt turned Lewis around so
that he had his back to the officer, put Lewis' hands on the
roof of the vehicle, and began to "search him." During the
search, Officer Wyatt found cocaine.
In moving to suppress the cocaine, Lewis argued that he was
seized when Officer Wyatt "asked" him to exit the vehicle. He
further argued that his statement, "Naw. Go ahead," was
equivocal and, therefore, not freely and voluntarily given. The
Commonwealth argued that the encounter was consensual, that
Lewis voluntarily exited the vehicle, and that by his words and
actions Lewis consented to the search of his person.
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The trial court held:
Under the circumstances of this case, it is
difficult . . . to conclude that a
reasonable person, who found themselves in
the position of Mr. Lewis, would have
concluded, when directed to exit the
vehicle, that he had an option to sit in the
vehicle and, once having exited the vehicle,
to conclude that he had the option to leave.
Therefore, the trial court concluded Lewis was unlawfully seized
when he was directed to exit the vehicle. It granted Lewis'
motion to suppress without addressing whether he had consented
to the search.
II. ANALYSIS
In a pretrial appeal of a ruling on a motion to suppress,
we view the evidence in the light most favorable to the party
prevailing below, in this case Lewis, granting to him all
reasonable inferences fairly deducible therefrom. See
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991). "'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." McGee
v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261
(1997) (en banc) (quoting Ornelas v. United States, 517 U.S.
690, 691 (1996)). 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
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law enforcement officers." Id. at 198, 487 S.E.2d at 261
(citing Ornelas, 517 U.S. at 699).
The trial court erred in holding that Lewis was unlawfully
seized when he was asked to exit the vehicle. Officer Wyatt was
permitted to detain Lewis briefly, as a passenger in the
vehicle, pending the completion of the traffic stop. See Harris
v. Commonwealth, 27 Va. App. 554, 561-63, 500 S.E.2d 257, 260-61
(1998) (holding that law enforcement officers are permitted,
following a lawful traffic stop, to detain the occupants of the
vehicle, pending the completion of the traffic stop); see also
Hatcher v. Commonwealth, 14 Va. App. 487, 491-92, 419 S.E.2d
256, 258-59 (1992) (holding that in effecting a traffic stop, an
officer, to ensure his safety and to maintain control of a
potentially hazardous situation, may detain briefly not only the
driver but the passengers as well).
In Maryland v. Wilson, 519 U.S. 408, 415 (1997), the United
States Supreme Court held that "an officer making a traffic stop
may order passengers to get out of the car pending completion of
the stop." Id. The Court reasoned:
[D]anger to an officer from a traffic stop
is likely to be greater when there are
passengers in addition to the driver in the
stopped car. While there is not the same
basis for ordering the passengers out of the
car as there is for ordering the driver out,
the additional intrusion on the passenger is
minimal.
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Id. at 414-15. In Wilson, the Court extended its holding in
Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam), that "a
police officer may as a matter of course order the driver of a
lawfully stopped car to exit his vehicle," to passengers of the
vehicle. Wilson, 519 U.S. at 410. The Court in Wilson found
that the "same weighty interest in officer safety is present
regardless of whether the occupant of the stopped car is a
driver or passenger." Id. at 413.
Mimms and its progeny, including Wilson, authorized Officer
Wyatt to order Lewis out of the vehicle.
Once he exited the vehicle, Lewis voluntarily consented to
the search of his person.
[I]n 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. Implicit in the
waiver of the warrant requirement is the
waiver of the requirement of probable cause.
The test of a valid consent search is
whether it was "freely and voluntarily
given." . . . 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."
Deer v. Commonwealth, 17 Va. App. 730, 734-35, 441 S.E.2d 33, 36
(1994) (citations omitted).
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Officer Wyatt testified that he asked Lewis whether he had
any weapons or narcotics on his person. Immediately after Lewis
said that he did not, Officer Wyatt asked Lewis if he had a
problem if he "checked him." Lewis told Officer Wyatt, "Naw.
Go ahead," and lifted his hands into the air without prompting
by the officer. This consent was freely given and was
unequivocal. Officer Wyatt did not touch Lewis until given
permission. Officer Wyatt did not draw his weapon. Lewis asked
no question and expressed no concern about Officer Wyatt's
request to search him. He merely agreed. Therefore, we hold
that Lewis voluntarily consented to the search of his person.
Accordingly, the judgment of the trial court is reversed,
and this case is remanded for further proceedings consistent
with this opinion.
Reversed and remanded.
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