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Suspect Said He Denied Consent, But Search OK

A defendant stopped during a police “spotting operation” at a convenience store, who challenged police discovery of heroin capsules in his pocket by denying at trial that he nodded his head in consent to the officers’ request to search, has his drug convictions affirmed by the Court of Appeals.

The most unique fact in this case is defendant’s sworn testimony denying he consented to the search. Instead, he felt perfectly free to refuse consent and, in fact, claimed he expressly did so. It is certainly true that citizens should not be coerced to comply with a request that they would prefer to refuse. But it is equally true that a trial court sensibly can conclude that citizens, like defendant, were not coerced into compliance after testifying under oath they refused to comply.

On appeal, defendant essentially asks us to hold that the trial court erred (as a matter of law) by not finding (as a matter of fact) that he involuntarily consented to the search, even though he swore under oath that he voluntarily refused to consent to the search. In other words, for defendant to prevail on appeal he must first prove that he perjured himself in the trial court. A criminal defendant, no less than any other litigant, is bound by his testimony on appeal. We need not rest our holding solely on this ground, however, because the other circumstances of this case confirm the trial court’s finding that defendant was not coerced into consenting to the search.

We hold the facts amply support the trial court finding that defendant was not coerced into consenting to the officer’s request to search. By testifying that he voluntarily refused consent, defendant undermined his counsel’s argument that he involuntarily consented. Equally damaging is what defendant did not say. He never testified he heard any threats, saw any brandished firearms, observed an overwhelming number of officers, experienced any overt or implicit coercion, or felt he had no choice but to consent. Nor can any coercion be- inferred as a matter of law from defendant’s temporary detention or his knowledge of the ongoing criminal investigation. The trial court did not err in denying defendant’s pretrial motion to suppress.

Elliott v. Commonwealth (Kelsey) No. 1784-11-1, Oct. 23, 2012; Portsmouth Cir.Ct. (Morrison) Kurt A. Gilchrist for appellant; Alice T. Armstrong, AAG II, for appellee. VLW 012-3-291, 7 pp.

VLW 012-3-291

Virginia Lawyers Weekly

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