Opinion
Record No. 1363-93-3
Decided: January 10, 1995
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG, Richard S. Miller, Judge
Elizabeth P. Murtagh, Office of the Public Defender, for appellant.
Thomas C. Daniel, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Barrow and Coleman
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The appellant was convicted of possession of cocaine with intent to distribute in violation of Code Sec. 18.2-248. He contends that the trial court erred by failing to grant his motion to suppress the seized cocaine because (1) the police officer made an investigatory stop of him without having the requisite reasonable articulable suspicion of criminal activity, or (2) if the encounter was consensual rather than a seizure, then the appellant terminated his consent by walking away from the officer, and alternatively (3) the officer's search into the package found on the appellant exceeded the scope of any consent. For the following reasons, we affirm the decision of the trial court.
On appeal we view 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, 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. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
On January 13, 1993, the appellant, Stanley Careem Fuller, arrived via Greyhound bus in Lynchburg, Virginia, at approximately 3:00 p.m. The bus originated in New York City and passed through Washington, D.C., before arriving in Lynchburg. An officer of the Lynchburg Vice and Narcotics Unit observed the appellant, a young, casually dressed male, exit the bus carrying only a gym bag. The officer testified that Fuller appeared "nervous."
The officer approached, identified himself, and asked to speak with Fuller. Fuller agreed and walked approximately fifteen feet to the vending machines. The officer walked with Fuller, meanwhile asking him questions about his name, address, and bus ticket. Fuller stated that he had no identification and that he was visiting his family, but did not know their address. Eventually, the officer asked "do you mind if I search you and your luggage?" Fuller said "no, go ahead." The officer searched his bag and his person. Located within Fuller's waistband was a package wrapped in a paper towel and sealed with clear tape. The officer cut the package open with a knife. The package contained cocaine. At no time during the above actions did Fuller withdraw his consent or protest the officer's actions.
At the suppression hearing, Fuller testified that he only consented to the search of his gym bag.
First, the appellant contends that the police officer conducted a Terry type investigatory stop without the requisite reasonable articulable suspicion that criminal activity might "be afoot." We disagree.
The Fourth Amendment of the United States Constitution guarantees "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." U.S. Const. amend. IV. It is axiomatic that for a person to claim the protection of this amendment, one 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) (plurality opinion). See also Richards v. Commonwealth, 8 Va. App. 612, 615, 383 S.E.2d 268, 270 (1989) ("Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual in a public place.").
Furthermore, if a person consents to being searched, the Fourth Amendment is not implicated, 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), if a reasonable person would understand he could refuse to cooperate and rely upon the protection of the Fourth Amendment. Lawrence, 17 Va. App. at 144, 435 S.E.2d at 593 (citing United States v. Wilson, 953 F.2d 116, 121 (4th Cir. 1991). Consensual encounters, including consensual 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) (citations omitted).
The Commonwealth must prove that consent was freely and voluntarily given. Elliotte v. Commonwealth, 7 Va. App. 234, 239, 372 S.E.2d 416, 419 (1988) (citations omitted). 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) (reh'g en banc) (citations omitted).
From the record, Fuller consented to the officer questioning him. At no time did Fuller indicate he did not want to talk with the officer or refuse to cooperate with him. Although Fuller argues that his walking approximately fifteen feet to the vending area was an act terminating his consent to talk with the officer, nothing in the record supports this assertion. The record supports the trial court's finding that Fuller consented to cooperate with the officer by continuing to answer questions. Eventually, the officer asked Fuller if he objected to him and his luggage being searched. Fuller answered "no, go ahead." The colloquy between Fuller and the officer supports the trial court's ruling that this was a consensual encounter.
A person's voluntary consent, once given, remains in effect until the person withdraws that consent. To effectively withdraw one's consent, a person must make some unequivocal act or statement manifesting the intention to withdraw the consent. See Lawrence, 17 Va. App. at 146, 435 S.E.2d at 594; see also United States v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991). Fuller did not withdraw his consent. The only act which arguably could be viewed as a withdrawal of consent was his walking to the vending machines. However, during direct examination, Fuller acknowledged that the officer suggested "[l]et's walk over there by the vending machine." Thus, the act, even by Fuller's own account, was not intended to withdraw his consent, but rather was in response to the officer's suggestion. After Fuller accompanied the officer to the machines, Fuller continued to answer the officer's questions.
Thereafter, Fuller consented to be searched. While the evidence was in conflict as to the scope of the consent, the officer said that he consented to a search of his person and luggage, without limitation. "The scope of a search may be further defined during the course of a search by passive acquiescence of the person whose property is being searched." Grinton v. Commonwealth, 14 Va. App. 846, 851, 419 S.E.2d 860, 863 (1992). During the search, Fuller did not object; according to the record, he passively acquiesced in the officer's search of him. Fuller's consent to be searched was general, unlimited in scope as to Fuller's person and luggage, voluntary, and was not withdrawn or subsequently limited.
The discovery of the package in the appellant's waistband was within the scope of the general consent given by Fuller, as was the right to open the package found upon him. Therefore, because the search was consensual, it was reasonable. Grinton, 14 Va. App. at 850-51, 419 S.E.2d at 863 (citations omitted).
We affirm the judgment of the trial court.
Affirmed.