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APRIL 25, 2000

Record No. 1279-99-2





Oliver A. Pollard, Jr., Judge

Present: Judges Elder, Bray and Bumgardner

Argued at Richmond, Virginia

Mary K. Martin, Senior Assistant Public
Defender (Office of the Public Defender, on brief), for

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General; Shelly R. James, Assistant
Attorney General, on brief), for appellee.


Michael L. Hamlin (appellant) appeals from his
bench trial conviction for possession of cocaine. On appeal, he
contends the trial court erroneously denied his motion to
suppress because the scope of the arresting officer’s search of
his person exceeded the scope of his consent and violated the
Fourth Amendment. We hold the officer’s search was within the
scope of the consent given, and we affirm appellant’s conviction.



Appellant was arrested for possession of
cocaine and moved to suppress the evidence as the product of an
illegal search.

The evidence adduced at the suppression
hearing, viewed in the light most favorable to the party
prevailing below, was as follows:

While on patrol in his police vehicle shortly
after 8:00 p.m. on September 29, 1998, Officer Keith Schilke
saw appellant and a woman standing in the middle of the street.
He approached the pair and asked them "how they felt about
narcotics in the area." He also asked them if they minded
talking to him, and they said they did not. Schilke asked them
for identification, and both provided it to him. He spoke first
to the woman and asked her for consent to search her person. She
declined and asked to leave. Schilke returned her identification
and told her she could go, and she left.

Schilke then turned his attention to appellant.
Schilke testified on direct examination that he asked appellant
"if I could search his person, if he had any illegal weapons
or narcotics or anything like that on his person." On
cross-examination, Schilke testified that he asked appellant if
he could pat him down for weapons, that the initial pat-down was
for weapons for safety. Appellant consented. After completing the
weapons pat-down, Schilke then asked appellant if he had anything
in his pockets and if Schilke could search them. Schilke
initially testified that he asked appellant if he had any illegal
contraband in his pockets. He later admitted that, although this
question was part of his usual procedure, he could not recall
whether he asked appellant specifically about narcotics or
anything else. Appellant again consented to Schilke’s request to

While searching appellant’s pockets, Schilke
removed an empty cigarette pack which was folded up. Schilke
testified that the pack felt like an empty pack of cigarettes and
contained nothing that he suspected to be a weapon. When he
opened the pack, he found two clear "zips" containing
an off-white residue which proved to be cocaine.

The trial court denied the motion to suppress,
reasoning as follows:

There doesn’t seem to be any disagreement that
there were two people there, that the officer asked permission to
search the female, she said no, and then she was permitted to
leave. . . . This was in [appellant’s] presence,
so it can’t be argued that he wasn’t aware of these
circumstances. One person refused any further contact and said
she didn’t want to be searched, and she was given her ID and
left, no problem.

He then turns to [appellant] and the mention of
the pat down for weapons, and he does that, he finishes that.
Then he said, "Do you mind if I go in your pockets?"
[Appellant] has to know that this was beyond the pat down
. . . search for weapons. It’s pretty obvious. And he
says, "No problem," knowing all the time that the
female had said no and was permitted to leave.

The trial court convicted appellant of the
charged offense and sentenced him to a two-year suspended



At a hearing on a defendant’s motion to
suppress, the Commonwealth has the burden of proving that a
warrantless search or seizure did not violate the defendant’s
Fourth Amendment rights. See Simmons v. Commonwealth,
238 Va. 200, 204, 380 S.E.2d 656, 659 (1989); Alexander v.
, 19 Va. App. 671, 674, 454 S.E.2d 39, 41 (1995).
On appeal, we view the evidence in the light most favorable to
the prevailing party, granting to it all reasonable inferences
fairly deducible therefrom. See Commonwealth v.
, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
"[W]e 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 law enforcement
officers." McGee v. Commonwealth, 25 Va. App. 193,
198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas
v. United States
, 517 U.S. 690, 699, 116 S. Ct. 1657, 1659,
134 L. Ed. 2d 911 (1996)). However, we review de novo
the trial court’s application of defined legal standards to the
particular facts of the case. See Shears v.
, 23 Va. App. 394, 398, 477 S.E.2d 309, 311
(1996); see also Ornelas, 517 U.S. at 699,
116 S. Ct. at 1659.

"[T]he Fourth Amendment . . .
protects people from unreasonable government intrusions." United
States v. Chadwick
, 433 U.S. 1, 7, 97 S. Ct. 2476, 2481,
53 L. Ed. 2d 538 (1977). "A consensual search is
reasonable if the search is within the scope of the consent
given." Grinton v. Commonwealth, 14 Va. App. 846,
850, 419 S.E.2d 860, 862 (1992). The standard for measuring the
scope of an individual’s consent under the Fourth Amendment is
"objective" reasonableness-what would the typical
reasonable person have understood by the exchange between the
officer and the suspect? . . . The scope of a search is
generally defined by its expressed
object. . . .  A suspect may, of course,
delimit as he chooses the scope of the search to which he
consents. But if his consent would reasonably be understood to
extend to a particular container, the Fourth Amendment provides
no grounds for requiring a more explicit authorization.

Florida v. Jimeno, 500 U.S. 248, 251-52,
111 S. Ct. 1801, 1803-04, 114 L. Ed. 2d 297
(1991). "The scope of [the] search may be further defined
during the course of the search by the passive acquiescence of
the person whose property is being searched." Grinton,
14 Va. App. at 851, 419 S.E.2d at 863. "Both the presence of
consent to search and any related limitations are factual issues
for the trial court to resolve after consideration of the
attendant circumstances." Bynum v. Commonwealth, 23
Va. App. 412, 418, 477 S.E.2d 750, 753 (1996).

We applied these principles in Bolda v.
, 15 Va. App. 315, 423 S.E.2d 204 (1992). Bolda
was a passenger in a vehicle whose operator was arrested for
driving while intoxicated. See id. at 316, 423
S.E.2d at 205. The arresting officer then asked Bolda "’if
he was carrying any guns, knives, weapons . . . or
anything on his person.’" Id. Bolda said he was not
and consented to the officer’s request to search Bolda’s person. See
id. The officer did not recall making any additional
reference to weapons when he asked to conduct the search but said
it was possible he made such a reference. See id.
In a subsequent pat-down, the officer felt a substance which was
"kind of hard" and "felt like plastic on the
outside." See id. He removed the item from
Bolda’s pocket and discovered it was a rolled up baggie
containing a psilcyn mushroom. See id.

Based on these facts, we held that "[t]he
method and order in which [the officer] posed his questions to
Bolda implied only a concern about weapons" such that it was
unreasonable for the officer to conclude that Bolda had consented
to a general search. See id. at 317, 423 S.E.2d at

Thus, Bolda’s response could only reasonably
have been related to the scope of the request. Significantly,
[the officer] himself testified that it was possible he asked
Bolda if he could search only for weapons. In addition, [the
officer] did not testify that he ever mentioned drugs or other
contraband in his questioning of Bolda.

Id. Ultimately, we held that
"[t]hese circumstances prove[d] an implicit limitation on
Bolda’s consent, limiting [the officer] to a search only for
weapons." Id. Because the only reason the officer
articulated for examining the article was that he believed it
might have been a weapon and because it was clear the item was
not a weapon once he removed it from Bolda’s pocket, we held that
he lacked authority to unroll the baggie and examine its
contents. See id. at 318, 423 S.E.2d at 206.

Appellant’s case is distinguishable from Bolda.
First, in appellant’s case, it is undisputed that Officer Schilke
mentioned narcotics when he first approached appellant and his
companion, asking them "how they felt about narcotics in the
area." Second, Bolda involved only one search,
preceded by the questions whether he had any weapons in his
possession and whether the officer could search his person. In
appellant’s case, by contrast, the trial court found that the
officer conducted two searches, and the evidence, viewed in the
light most favorable to the Commonwealth, supports this finding.
Before the first search, the officer asked appellant if he could
pat him down for weapons, and he completed the pat-down search
without finding anything. Before the second search, the officer
asked appellant if he could search his pockets and did not state
any specific category of items for which he was looking. It was
within the authority of the trial court, as the finder of fact,
to determine that a reasonable person in appellant’s situation
would conclude that the weapons search was over when the pat-down
was completed. It also was within the court’s authority to find
that the request to "go in [appellant’s] pockets" was a
request to perform a more generalized search and that appellant’s
initial consent to such a search, coupled with his failure to
object as the officer removed and examined the cigarette pack,
were sufficient to render the search reasonable and the resulting
contraband admissible. See United States v. Espinosa,
782 F.2d 888, 892 (10th Cir. 1986) ("Failure to object to
the continuation of the search . . . may be considered
an indication that the search was within the scope of the consent
given."), quoted with approval in Lawrence v.
, 17 Va. App. 140, 146, 435 S.E.2d 591, 594

For these reasons, we hold the trial court did
not err in denying the motion to suppress, and we affirm
appellant’s conviction.





[1] Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.