COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia
JERMAINE THOMAS
MEMORANDUM OPINION * BY
v. Record No. 0192-95-2 JUDGE MARVIN F. COLE
JULY 9, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on
briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Appellant, Jermaine Thomas, in a bench trial was convicted
of possession of cocaine with the intent to distribute. On
appeal, he contends that the trial court erred in refusing to
suppress evidence secured as a result of an unlawful search and
seizure. We disagree and affirm the conviction.
On July 23, 1994, Detective Stephanie Ruffin was on
assignment at the Greyhound bus station in Richmond. She was
part of an interdiction team seeking to prevent illegal narcotics
from entering the Commonwealth. She was standing at a gate when
a bus arrived from Washington, D.C. She observed appellant near
the gate carrying a gray suitcase and a tan backpack. The night
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
before, Ruffin saw a person who resembled appellant board a bus
for Washington.
Thomas entered the game room of the terminal and sat down
upon the suitcase he was carrying. Detective Ruffin watched
Thomas about thirty minutes. She then approached him, displayed
her identification badge and picture I.D., and identified herself
as a police officer. In a "very pleasant" tone of voice, Ruffin
asked Thomas if she could speak with him for a moment. Appellant
said "sure." Ruffin "asked him if he would mind following [her]
to the baggage area where [they] could speak in private." Thomas
accompanied Ruffin to the baggage area for privacy. The baggage
area was separated from the passenger area of the terminal by a
half-gate. Appellant picked up his bags and followed her to the
baggage area.
Ruffin explained to Thomas that she was involved in the drug
interdiction effort at the bus terminal. She "asked him if [she]
could search his bags and his person." Thomas answered, "Yeah,"
and stated that he was going to a family reunion in Greensboro
and that there were only clothes in the bag. Trooper Koushel,
who was present in the baggage area, searched Thomas while Ruffin
searched the gray suitcase and the backpack. In the backpack
Ruffin found an oval package wrapped in black electrical tape.
Believing the package contained narcotics, Ruffin cut the package
open with a knife. Inside was a brown paper bag containing 95.11
grams of cocaine and 66 yellow glassine envelopes. Ruffin placed
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Thomas under arrest for possessing cocaine with the intent to
distribute. At no time during the search of his person or bags
did Thomas ask the officers to stop or indicate in any way that
he no longer consented to the search. He did not object to the
search of anything within the bags.
Thomas contends that his initial encounter with Detective
Ruffin was a seizure and that he did not voluntarily consent to a
search of the backpack. He further argues that even if he did
consent to the search, Ruffin exceeded the scope of his consent
and, therefore, the seized cocaine was erroneously admitted into
evidence. The Commonwealth contends that the encounter and the
search of Thomas and his bags were consensual and did not
implicate the Fourth Amendment. Citing Rule 5A:18, it asserts
that appellant did not raise in the trial court the issue of the
scope of the consent, and he cannot raise it for the first time
on appeal.
We review the evidence in the light most favorable to the
Commonwealth and grant to it "all reasonable inferences fairly
deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). The appellant must show that
the denial of his motion to suppress evidence was reversible
error. Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437
S.E.2d 232, 233 (1993). To constitute reversible error, we will
disturb the decision of the trial court only if plainly wrong or
if not supported by credible evidence. Commonwealth v.
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Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
It is axiomatic that for a person to claim the protection of
the Fourth Amendment, he or she must first be subjected to a
search or seizure.
[L]aw enforcement officers do not violate the
Fourth Amendment by merely approaching an
individual on the street or in another public
place, by asking him if he is willing to
answer some questions, by putting questions
to him if the person is willing to listen, or
by offering in evidence in a criminal
prosecution his voluntary answers to such
questions. Nor would the fact that the
officer identifies himself as a police
officer, without more, convert the encounter
into a seizure requiring some level of
objective justification.
Florida v. Royer, 460 U.S. 491, 497 (1983) (citations omitted)
(plurality opinion). See also Richards v. Commonwealth, 8 Va.
App. 612, 615, 383 S.E.2d 268, 270 (1989).
Furthermore, if a person consents to being searched, the
Fourth Amendment is not implicated if a reasonable person would
understand he could refuse to cooperate and rely upon the
protection of the Fourth Amendment. Lawrence v. Commonwealth, 17
Va. App. 140, 144, 435 S.E.2d 591, 593 (1993), aff'd, 247 Va.
339, 443 S.E.2d 160 (1994) (citing United States v. Wilson, 953
F.2d 116, 121 (4th Cir. 1991)). Consensual encounters and
searches remain consensual as long as the citizen voluntarily
cooperates with the police. Payne v. Commonwealth, 14 Va. App.
86, 88, 414 S.E.2d 869, 879 (1992).
The Commonwealth must prove that consent was freely and
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voluntarily given. Elliotte v. Commonwealth, 7 Va. App. 234,
238, 372 S.E.2d 416, 419 (1988). If consent is proven, then
probable cause to search and a search warrant are not required.
Schneckloth v. Busamonte, 412 U.S. 218, 219 (1973). Whether the
consent to search was freely given is a question of fact to be
determined from the totality of circumstances. Limonja v.
Commonwealth, 8 Va. App. 532, 540, 383 S.E.2d 476, 481 (1989) (en
banc), cert. denied, 495 U.S. 905 (1990).
The Virginia Supreme Court has defined a seizure as follows:
"[A] person has been 'seized' within the
meaning of the Fourth Amendment only if, in
view of all of the circumstances surrounding
the incident, a reasonable person would have
believed that he was not free to leave.
Examples of circumstances that might indicate
a seizure, even where the person did not
attempt to leave, would be 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
that compliance with the officer's request
might be compelled."
Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 648
(1992) (quoting United States v. Mendenhall, 446 U.S. 544, 554
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(1980)).
Nothing in the record supports Thomas's claim that his
encounter with Detective Ruffin in the bus station was a seizure.
She identified herself as a police officer and asked permission
to speak with him. He consented. Detective Ruffin asked Thomas
if he would mind following her to the baggage area where they
could speak in private. He demonstrated his consent by carrying
his bags and voluntarily following her to the baggage area.
Thus, we find no merit to the appellant's argument that he was
illegally seized in violation of the Fourth Amendment.
As soon as Thomas entered the baggage area with Detective
Ruffin and Trooper Koushel, he consented to the searches of his
person and his bags. At no point during the searches did he
withdraw his consent or in any way indicate that he wanted the
police to cease the searches. His consent to the search of his
person and his bags was general, unlimited in scope as to his
person or bags, voluntary, and was never withdrawn or limited
subsequently. The trial court held that the searches were
consensual, and evidence in the record supports this conclusion.
Appellant further asserts that even if his encounter with
Detective Ruffin was not a seizure and he validly consented to
the search, the search conducted by Ruffin exceeded the scope of
that consent when she cut open the oval package containing
cocaine, which she found in the backpack. The record does not
reveal that appellant made this argument in the trial court, and
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it cannot now be made for the first time on appeal. Rule 5A:18.
In any event, the discovery of the package containing 95.11
grams of cocaine was within the scope of the general consent to
search the backpack given by Thomas, as was the right to open the
package. See Grinton v. Commonwealth, 14 Va. App. 846, 851, 419
S.E.2d 860, 863 (1992).
For the reasons stated, we affirm the judgment of the trial
court.
Affirmed.
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