                   COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Annunziata
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.   Record No. 2741-01-2                  JUDGE LARRY G. ELDER
                                             FEBRUARY 26, 2002
ROBERT LEE BROWN


              FROM THE CIRCUIT COURT OF HENRICO COUNTY
                        Gary A. Hicks, Judge

          Steven A. Witmer, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on
          brief), for appellant.

          Christopher A. Bain (Goodwin, Sutton & DuVal,
          P.L.C., on brief), for appellee.


     Robert Lee Brown (defendant) stands indicted for possession

of cocaine.   Pursuant to Code § 19.2-398, the Commonwealth

appeals a pretrial ruling granting defendant's motion to

suppress all evidence resulting from a routine traffic stop

which he contended evolved into an unlawful seizure.     The trial

court apparently found that the questioning which led to

defendant's arrest constituted both an unreasonable seizure and

a custodial interrogation for which defendant had not been read

his Miranda rights.   Under the particular facts of this case, we

hold that the brief stop supported by probable cause and the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
limited questioning which led to defendant's admitting he had

illegal drugs in his possession violated neither the Fourth nor

the Fifth Amendment.    Thus, we reverse the trial court's ruling

and remand for further proceedings consistent with this opinion.

                                  I.

                              BACKGROUND

     On March 28, 2001, while on routine patrol on the interstate

in Henrico County, State Trooper D.J. Corbett observed a vehicle

traveling 68 miles per hour in a 55-mile-per-hour zone.     Trooper

Corbett activated his blue lights, and the vehicle pulled to the

shoulder and stopped.   Trooper Corbett asked the driver,

defendant, for his license and registration.   Because the car was

rented, the rental agreement served as the registration.

     Defendant gave Trooper Corbett his license, and while

defendant was retrieving his rental agreement, Trooper Corbett

asked him why he was speeding.    Defendant responded that he was

late for court in New York.    Trooper Corbett asked defendant why

he was going to court, and defendant replied "that he had a

possession charge."    Suspecting defendant might have drugs in

his possession at that time, as well, Trooper Corbett then asked

defendant, "[W]ell, you don't have anything illegal on your

person now, do you?"    Defendant said he did, and when Trooper

Corbett asked him what it was, defendant responded that he had

some marijuana.   At the time defendant admitted having marijuana



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in his possession, he was still looking for his rental

agreement.

     Trooper Corbett then asked defendant "if he minded [Trooper

Corbett's] search[ing] his person."      Defendant responded, "No,"

and said "it was in his left front pants pocket."     Trooper

Corbett then found a small glass vial containing a powdered

substance which he concluded was cocaine, and he placed defendant

under arrest for possessing cocaine.     The arrest occurred five to

ten minutes after Trooper Corbett first activated his blue lights

to effect the traffic stop.

     Defendant moved to suppress the evidence.      In granting the

suppression motion, the trial court concluded that Trooper

Corbett's questions to defendant about "possession" were not

supported by reasonable suspicion and, thus, impermissibly

exceeded the scope of the stop.    It also ruled that by pursuing

this alternate investigation, Trooper Corbett turned the

encounter into a custodial interrogation.

                                  II.

                              ANALYSIS

     On appeal of a ruling on a motion to suppress, we view the

evidence in the light most favorable to the prevailing party,

here the defendant, granting to the evidence all reasonable

inferences deducible therefrom.     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

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wrong' or without evidence to support them," McGee v.

Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997)

(en banc), but we review de novo the trial court's application

of defined legal standards such as probable cause and reasonable

suspicion to the particular facts of the case, Ornelas v. United

States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d

911 (1996).

                                  A.

        CUSTODIAL INTERROGATION UNDER THE FIFTH AMENDMENT

     Although "Miranda warnings are required whenever a suspect

is subject to 'custodial interrogation,'" not every detention

"constitute[s] a custodial interrogation for purposes of

Miranda."     Cherry v. Commonwealth, 14 Va. App. 135, 140, 415

S.E.2d 242, 244 (1992) (quoting Miranda v. Arizona, 384 U.S.

436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966)).

                 A routine, roadside traffic stop and
            the usual questioning associated with such a
            brief stop generally will not be considered
            "custodial interrogation" because the
            detention is usually of very short duration
            and the attendant circumstances "are not
            such that the motorist feels completely at
            the mercy of police." Such stops are
            usually in public and only one or perhaps
            two officers are usually present.
            Consequently, Miranda warnings are not
            required prior to the type [of] questioning
            usually associated with such stops.

Id. at 138-39, 415 S.E.2d at 243-44 (quoting Berkemer v.

McCarty, 468 U.S. 420, 437-38, 104 S. Ct. 3138, 3148-49, 82

L. Ed. 2d 317 (1984)) (citation omitted).    Although a stop based

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on reasonable suspicion to conduct a narcotics investigation may

not be a "routine" traffic stop, it nevertheless does not become

a custodial interrogation simply because the subject is

narcotics.   Id.   A suspect is "'in custody' for purposes of

Miranda [only] if [he] has been arrested or if his freedom of

action has been curtailed to a degree associated with arrest."

United States v. Sullivan, 138 F.3d 126, 130 (4th Cir. 1998).

     Here, Trooper Corbett had probable cause to stop defendant

for speeding.   The stop occurred on the interstate, in public

view, Trooper Corbett was the only officer at the scene, and the

stop was brief, lasting no more than five to ten minutes.

Trooper Corbett immediately requested defendant's driver's

license and registration and asked him why he was speeding,

routine actions in a traffic stop.      Defendant indicated he was

late for a court appearance.   When Corbett inquired about the

nature of the court appearance, defendant responded that it was

a possession charge.   Trooper Corbett's inquiry as to whether

defendant had any illegal substances in his possession at that

time, although unrelated to the reasons for an ordinary traffic

stop, did not convert the brief encounter into a formal arrest

or indicate to defendant that his freedom of movement was being

curtailed to the degree associated with a formal arrest.

     Thus, although we defer to the trial court's findings of

fact, we hold as a matter of law that defendant was not subject



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to a custodial interrogation when he admitted having marijuana

in his possession.

                                 B.

  QUESTIONING ABOUT DRUG POSSESSION UNDER THE FOURTH AMENDMENT

     "The 'custody' that implicates the Miranda rule is

conceptually distinct from a seizure implicating the Fourth

Amendment. . . .   Even though a routine traffic stop does not

amount to a custodial detention of the motorist, it does

constitute a 'seizure' within the meaning of the Fourth

Amendment."   Sullivan, 138 F.3d at 131.

     An officer may effect a traffic stop when, inter alia, he

has probable cause to believe a traffic violation has occurred.

See Dickerson v. Commonwealth, 35 Va. App. 172, 177, 543 S.E.2d

623, 626 (2001).   He may "request a driver's license, insurance

papers, vehicle registration, run a computer check thereon, and

issue a citation."    United States v. Shabazz, 993 F.2d 431, 437

(5th Cir. 1993).   Once the purpose of the stop has been

completed, the stop may not be extended absent consent or

additional information amounting to reasonable suspicion or

probable cause.    See Dickerson, 35 Va. App. at 178, 543 S.E.2d

at 626.   However, during the stop, the officer may question the

person on subjects not directly related to the reasons which

provided the basis for the stop, even if he lacks reasonable

suspicion as to the unrelated subjects, as long as "the

detention to that point continue[s] to be supported by the facts

                                - 6 -
that justified its initiation" and "the questioning [does]

nothing to extend the duration of the initial, valid seizure."

Shabazz, 993 F.2d at 437 (approving questioning about travel

plans and request for consent to search from driver stopped for

speeding while police awaited results of computer check of

driver's license); see also United States v. Childs, ___ F.3d

___, ___ (7th Cir. 2002) (en banc); State v. Hickman, 763 A.2d

330, 336-38 (N.J. Super. Ct. App. Div. 2000).   But see United

States v. Holt, 264 F.3d 1215, 1229-30 (10th Cir. 2001) (en

banc) (rejecting reasoning of Shabazz).

     Here, the evidence establishes that, at the time Trooper

Corbett asked defendant whether he had "anything illegal on

[his] person" and defendant responded that he was carrying

marijuana, defendant was searching for and had not yet found the

rental car agreement which served as the registration for the

vehicle.   Thus, the purpose of the stop had not yet been

achieved when defendant admitted he had marijuana in his

possession.   The evidence also established that the entire stop,

from the time Trooper Corbett activated his blue lights until he

found the cocaine in defendant's pocket, took no more than five

to ten minutes.   Thus, at the time defendant told Trooper

Corbett he had marijuana in his possession, which provided

probable cause to arrest defendant for possession of marijuana,

"the detention . . . continued to be supported by the facts that

justified its initiation" and "the questioning did nothing to

                               - 7 -
extend the duration of the initial, valid seizure."    Shabazz,

993 F.2d at 437.

     In short, under the facts of this case, Trooper Corbett's

seizure of the cocaine violated neither the Fourth nor the Fifth

Amendment.   The questioning which led to the discovery of the

cocaine occurred during a routine traffic stop supported by

probable cause, in which Trooper Corbett was entitled to obtain

defendant's license and registration.   The trooper's inquiry

regarding whether defendant had anything illegal in his

possession occurred before defendant had located his vehicle

registration and, thus, did not unduly prolong the stop.

Further, this questioning flowed logically from defendant's

response to the officer's inquiry about why he was speeding and

involved only a limited number of questions.   Finally, the stop

was of limited duration, lasting no more than five to ten

minutes.   Once defendant admitted he had marijuana in his

possession, Trooper Corbett had probable cause to arrest him for

that offense and to search him incident to arrest.    Pursuant to

that search, Trooper Corbett found what he believed to be

cocaine, giving him probable cause to arrest defendant for

possession of cocaine.   Thus, we reverse the trial court's

decision to grant the suppression motion, and we remand for

further proceedings consistent with this opinion.

                                            Reversed and remanded.



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