Michael L. Hamlin, s/k/a Michael Leon Hamlin v. CW ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia
MICHAEL L. HAMLIN, S/K/A
MICHAEL LEON HAMLIN
MEMORANDUM OPINION * BY
v. Record No. 1279-99-2 JUDGE LARRY G. ELDER
APRIL 25, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
Mary K. Martin, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
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.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
FACTS
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
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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 search.
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,"
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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 sentence.
II.
ANALYSIS
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. Commonwealth, 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. Grimstead, 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. Commonwealth, 23
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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
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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. Commonwealth, 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 206.
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
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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
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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. Commonwealth, 17
Va. App. 140, 146, 435 S.E.2d 591, 594 (1993).
For these reasons, we hold the trial court did not err in
denying the motion to suppress, and we affirm appellant's
conviction.
Affirmed.
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