                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Elder
Argued at Salem, Virginia


ROBERT LAYTON STOCKDALE
                                         MEMORANDUM OPINION * BY
v.        Record No. 1732-95-3          JUDGE SAM W. COLEMAN III
                                            OCTOBER 15, 1996
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                     Richard S. Miller, Judge
          Vanessa E. Hicks, Assistant Public Defender
          (Office of the Public Defender, on brief),
          for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Robert Layton Stockdale was convicted in a bench trial for

possession of cocaine in violation of Code § 18.2-50.    Stockdale

contends that the trial court erred by denying his motion to

suppress statements he made to the police on the ground that he

was subjected to a custodial interrogation without being advised

of his Miranda rights and by finding that the evidence was
sufficient to prove that he constructively possessed cocaine.      We

find no error and affirm the defendant's conviction.

                   I.     CUSTODIAL INTERROGATION

     The police cannot lawfully conduct a custodial interrogation

until they advise a suspect of his rights under Miranda v.

Arizona, 384 U.S. 436 (1966).     Cherry v. Commonwealth, 14 Va.
     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
App. 135, 140, 415 S.E.2d 242, 244 (1992).   In Miranda, "[t]he

[Supreme] Court defined 'custodial interrogation' as 'questioning

initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of his freedom of action

in any significant way.'"   Stroud v. Commonwealth, 6 Va. App.

633, 637, 370 S.E.2d 721, 723 (1988) (quoting Miranda, 384 U.S.

at 444).
           [A] suspect is "in custody" when the
           objective circumstances would lead a
           reasonable person to believe he was under
           arrest, thereby subjecting him or her to
           pressure impairing the free exercise of the
           privilege against self-incrimination. The
           circumstances may include factors such as the
           familiarity or neutrality of the
           surroundings, the number of officers present,
           the degree of physical restraint, the
           duration and character of the interrogation,
           the presence of probable cause to arrest, and
           whether the suspect has become the focus of
           the investigation.

Cherry, 14 Va. App. at 140, 415 S.E.2d at 245.    The usual traffic

stop or a brief Terry-type investigative detention does not

involve the degree of restraint that raises concern about

intimidation or abuse which Miranda was designed to protect.
Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984).

     Here, Officers M. S. Murphy and J. L. Hise were on patrol at

approximately 1:20 a.m. when they observed a truck parked in an

area known as a "high drug, high crime, open-air drug market."

The officers decided to investigate and to inquire about the

identity and activity of the truck's occupants.   The officers

pulled their patrol car behind the truck, but did not activate



                               - 2 -
the patrol car's lights or siren.

     After talking with the defendant, who was sitting in the

passenger's seat, and determining that he owned the truck,

Officer Murphy requested the defendant's consent to search the

truck for illegal drugs and firearms.   According to Officer

Murphy, he advised the defendant that he was free to leave.

Nevertheless, the defendant consented to the search and exited

the vehicle.   Officer Murphy conducted a pat-down search of the

defendant and asked the defendant to stand at the rear of the

truck.    The defendant was not handcuffed or restrained in any

manner.
     Officer Hise searched the truck and found a "homemade

smoking device made from a Rexal Ibuprofen bottle" in a pouch

located on the part of the driver's seat below the driver's legs.

Officer Murphy showed the pipe to the defendant and asked him

"whose pipe it was."   According to Murphy, the defendant replied

that he "and his wife had had problems some months back with

crack."    The defendant further stated that "the pipe belonged to

him, but . . . it had been months since it had been used."

Officer Murphy observed what appeared to be "burnt residue"

inside the pipe, but he had no means available to field test the

residue.   The officer seized the pipe based upon his belief that

it contained cocaine residue but he did not arrest the defendant.

When the lab analysis proved positive for cocaine, the defendant

was arrested and charged.




                                - 3 -
     The defendant contends that he was subjected to a custodial

interrogation when the officers found the pipe in the truck and

Officer Murphy asked him who owned the pipe.   Thus, he asserts

that his inculpatory response should have been suppressed because

he was not given the Miranda warnings. We disagree.
          If an officer has a reasonable, articulable
          basis to suspect that an individual has
          committed or is about to commit a crime, the
          officer is justified in briefly detaining the
          suspect and asking him a limited number of
          questions without giving Miranda warnings in
          order to quell or confirm the officer's
          suspicion of criminal activity.

Cherry, 14 Va. App. at 140, 415 S.E.2d at 244.   Here, the

officers were justified in briefly detaining and questioning the

defendant after conducting a consensual search of the truck and

finding a "homemade smoking device which [they] believed was used

to ingest some type of illegal drug."   Although other officers

were at the scene, Officers Murphy and Hise were the only ones

who approached the truck.   Neither officer drew his weapon or

attempted to physically restrain the defendant in any manner.
Cf. Wass v. Commonwealth, 5 Va. App. 27, 34, 359 S.E.2d 836, 840

(1987) (noting that twelve armed police officers arrived in

trucks and a helicopter to execute a search warrant, surrounded

Wass's house, and threatened to kill one of Wass's dogs if he did

not control it).   Furthermore, Murphy merely asked the defendant

who owned the pipe.   Murphy did not arrest or intend to arrest

the defendant before the pipe could be analyzed, even though

Murphy suspected that the pipe contained drug residue.



                               - 4 -
     A seizure does not occur and the Fourth Amendment is not

implicated when the police merely approach a vehicle that is

parked in a public area and ask the occupants for identification

information.   Carson v. Commonwealth, 12 Va. App. 497, 500, 404

S.E.2d 919, 920, aff'd en banc, 13 Va. App. 280, 410 S.E.2d 412

(1991), aff'd, 244 Va. 293, 421 S.E.2d 415 (1992).     If no

"seizure" occurred in such situation that would implicate the

Fourth Amendment privacy protections, then certainly such a

suspect would not have been restrained to the degree that he

would have been "in custody" requiring Miranda warnings.
Berkemer, 468 U.S. at 439-40.   Where, as part of an investigatory

detention or consensual search, an officer merely asks about the

ownership of a device that is not itself illegal, the detention

does not become tantamount to arrest.   Under these circumstances,

a reasonable person would not have concluded that he was in

custody or being arrested because a pipe that might be used to

smoke drugs was found during a consensual search.    Thus, the

trial court did not err by overruling the defendant's motion to

suppress the statements he made to Officer Murphy.

                 II.   SUFFICIENCY OF THE EVIDENCE

     "To sustain a conviction for possession of a controlled

substance in violation of Code § 18.2-250, the evidence must

prove beyond a reasonable doubt that the accused was aware of the

presence and character of the controlled substance."     Jones v.
Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864 (1994).




                                - 5 -
Although proximity to a controlled substance is not sufficient,

standing alone, to prove that an accused is aware of the presence

and character of drugs, it is one factor for the fact finder to

consider.   Id.

     Here, the defendant, who was in close proximity to the

cocaine, was also the registered owner of the truck in which the

cocaine was found.   See Glenn v. Commonwealth, 10 Va. App. 150,

154, 390 S.E.2d 505, 507 (1990).   Furthermore, the pipe was in

the seat cover pouch under the driver's seat in which the

defendant/owner was one of the only two occupants.   But, most

importantly, the defendant admitted to Officer Murphy that he

owned the pipe and that he had used crack cocaine in the past.
See May v. Commonwealth, 3 Va. App. 348, 356, 349 S.E.2d 428, 432

(1986); see also Glenn, 10 Va. App. at 154, 390 S.E.2d at 507.

The trial court could reasonably infer from these declarations

"that [the defendant] knew of the existence of [the cocaine

residue] at the place where [it] was found," and was consciously

exercising dominion and control of it.   Jones, 17 Va. App. at

574, 439 S.E.2d at 864 (quoting Hairston v. Commonwealth, 5 Va.

App. 183, 186, 360 S.E.2d 893, 895 (1987) (quoting People v.

Pigrenet, 26 Ill.2d 224, 227, 186 N.E.2d 306, 308 (1962))).

Although the drug residue in the pipe may not have been a usable

amount of cocaine, knowing possession of only a modicum of an

illegal substance is sufficient for a conviction.    Robbs v.
Commonwealth, 211 Va. 153, 154-55, 176 S.E.2d 429, 430 (1970).




                               - 6 -
     The evidence, viewed in the light most favorable to the

Commonwealth, is sufficient to prove beyond a reasonable doubt

that the defendant constructively possessed the cocaine found in

the truck.

     For the foregoing reasons, we affirm the defendant's

conviction.

                                                        Affirmed.




                              - 7 -
