                  COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Clements
Argued at Alexandria, Virginia


MICHAEL JEROME BOLDEN
                                         MEMORANDUM OPINION * BY
v.   Record No. 1951-00-4            JUDGE RUDOLPH BUMGARDNER, III
                                              MAY 22, 2001
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                      Paul F. Sheridan, Judge

          Marvin D. Miller (Law Offices of Marvin D.
          Miller, on briefs), for appellant.

          Thomas M. McKenna, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     The trial court convicted Michael Jerome Bolden of

transporting marijuana into the Commonwealth with intent to

distribute, Code § 18.2-248.01, 1 and possession of marijuana with



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
          [Code] § 18.2-248.01. Transporting
          controlled substances into the Commonwealth;
          penalty. -- Except as authorized in the Drug
          Control Act (§ 54.1-3400 et seq.) it is
          unlawful for any person to transport into
          the Commonwealth by any means with intent to
          sell or distribute . . . five or more pounds
          of marijuana. A violation of this section
          shall constitute a separate and distinct
          felony. Upon conviction, the person shall
          be sentenced to not less than five years nor
          more than forty years imprisonment, three
          years of which shall be a minimum, mandatory
intent to distribute, Code § 18.2-248. 2   He contends the trial

court erred (1) in ruling the possession of marijuana was not a

lesser-included offense of transporting marijuana and (2) in

denying his motion to suppress the evidence.    Because the

defendant pled guilty to transporting marijuana into the

Commonwealth, we only address these arguments as they apply to

the conviction for possession of marijuana.    Finding the trial

court did not err, we affirm.

     The Commonwealth obtained separate indictments for

transporting marijuana into the Commonwealth and possession of

marijuana.    The trial court denied the defendant's motion to

suppress and convicted him of transporting marijuana on his

guilty plea to that charge.    The trial court continued the

possession charge to a later date for trial on a plea of not

guilty.   The defendant subsequently moved to dismiss arguing the

possession charge was a lesser-included offense of the

transportation charge on which he had been convicted.    The trial

court denied the motion and convicted the defendant on the

second charge.


             term of imprisonment, and a fine not to
             exceed $1,000,000.
     2
       Code § 18.2-248(A) provides that "it shall be unlawful for
any person to . . . possess with intent to manufacture, sell,
give or distribute a controlled substance . . . ." Where the
quantity of marijuana, is "[m]ore than five pounds . . . [the
defendant] is guilty of a felony punishable by imprisonment of
not less than five nor more than thirty years." Code
§ 18.2-248.1.

                                 - 2 -
     First, we consider whether possessing with intent to

distribute is a lesser-included offense of transporting into the

Commonwealth.   The doctrine of double jeopardy protects against

(1) a second prosecution for the same offense after acquittal,

(2) a second prosecution for the same offense after a

conviction, and (3) multiple punishments in a single trial for

the same offense.   North Carolina v. Pearce, 395 U.S. 711, 717

(1969).   However, "we have found it unnecessary to apply

Blockburger [v. United States, 284 U.S. 299, 304 (1932)], where

the General Assembly has 'clearly indicated its intent to impose

multiple punishments.'"    Fitzgerald v. Commonwealth, 223 Va.

615, 635, 292 S.E.2d 798, 810 (1982), cert. denied, 459 U.S.

1228 (1983) (citation omitted).

     Code § 18.2-248.01, transporting drugs into the

Commonwealth, declares:    "A violation of this section shall

constitute a separate and distinct felony."   The defendant

contends that language does not reflect an intent by the General

Assembly to impose a separate punishment.   However, the language

is clear and unambiguous, and adopting the defendant's

interpretation renders it meaningless.    See Sims Wholesale Co.,

Inc. v. Brown-Forman Corp., 251 Va. 398, 405, 468 S.E.2d 905,

909 (1996) ("Every part of a statute is presumed to have some

effect and no part will be treated as meaningless unless

absolutely necessary.").



                                - 3 -
     Code § 18.2-248 links the verb "possess" with the related

verbs "manufacture, sell, give, distribute" in a list of

proscribed acts.    When proscribing the act of "transporting,"

the General Assembly delineated a separate offense and

designated it with a unique code number, Code § 18.2-248.01.      By

so doing, "transporting" was not listed with the series of verbs

in Code § 18.2-248, "manufacture, sell, give, distribute,

possess," that would have limited and defined it under standard

concepts of construction such as ejusdem generis.

     In common usage, transporting is not synonymous with

possessing.   Transporting does not necessarily require

possessing.   The legislature ascribed "transporting" its

broadest meaning by employing the phrase "by any means" to

modify the term.    That phrase appears commonly throughout the

Code of Virginia when the General Assembly defines an action to

encompass any device or stratagem by which the human mind could

conceive to accomplish it.   Transporting by any means would

encompass something more than simple possession, or simply

personally moving the drug from point to point.

     We also note two final differences between the two code

sections.   The statutes require different amounts of marijuana

for conviction and carry different penalties.   The General

Assembly clearly indicated it intended to impose multiple

punishments for possession of marijuana and transporting it into

the Commonwealth.

                                - 4 -
     Next, we consider whether the trial court erred in denying

the defendant's motion to suppress.    The trial court determined

that the defendant's initial encounter with the police was

consensual, that he was not detained, and that his consent to

search was voluntary.   At trial the defendant contended that

under the totality of the circumstances the encounter was not a

consensual encounter but a seizure.    He also contended his

consent to search was involuntary and his will was overborne.

     "A person has been 'seized' within the meaning of the

Fourth Amendment only if, in view of all the circumstances

surrounding the incident, a reasonable person would have

believed that he was not free to leave."    United States v.

Mendenhall, 446 U.S. 544, 554 (1980).    The determination of

seizure is objective, whether a reasonable person would have

felt restrained.

     Consent to a search must be freely and voluntarily given.

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).    "[T]he

determination of consent to search is subjective."     United

States v. Wilson, 895 F.2d 168, 171 (4th Cir. 1990).    The

determination of voluntariness of consent is subjective, whether

this defendant gave his consent freely and voluntarily.

     Both decisions are reviewed de novo on appeal, but

historical facts are entitled to special consideration.    Whether

a defendant is seized in violation of the Fourth Amendment is a

question that is reviewed de novo on appeal.    Mendenhall, 446

                               - 5 -
U.S. at 551 n.5.   We "should take care both to review findings

of historical fact only for clear error and to give due weight

to inferences drawn from those facts by resident judges and

local law enforcement officers."    Ornelas v. United States, 517

U.S. 690, 699 (1996).   Voluntariness is ultimately a legal

rather than a factual question.    Miller v. Fenton, 474 U.S. 104,

110 (1985).   Subsidiary factual findings, however, are entitled

to a presumption of correctness.    Id. at 112.   Both issues are

determined under the totality of the circumstances.

     Viewing the evidence in the light most favorable to the

Commonwealth, Officer Garrett Daniel Polowy began observing and

tracking a gold SUV at a stoplight at approximately 1:15 p.m. on

December 29, 1999.   When it parked, he pulled in front of the

entrance to an Econo Lodge and continued observing through

shrubbery that separated him from the SUV.    When the defendant

came through the shrubbery and emerged next to the police

cruiser, Polowy exited the car and approached.    He asked in a

normal, friendly tone if the defendant noticed the gold car or

if he knew who was in it.   The defendant denied knowledge of the

gold car.   The defendant indicated he was investigating a store

on the other side of the shrubs and stated he was a guest at the

hotel.   They walked toward the hotel.

     Within ten seconds of entering the small lobby, the

defendant received a telephone call.     He talked for no more than

twenty seconds, then sat in the only chair.    Polowy confirmed

                               - 6 -
with the desk clerk that the defendant had been a guest in room

313 but had checked out.   Polowy radioed Corporal Dean Edward

Matthews to come to the hotel.    Matthews arrived within two

minutes.

     After Polowy explained the situation, Matthews spoke with

the clerk who advised him that the defendant had checked out at

5:00 a.m.   Matthews then approached the defendant, still seated,

and started talking with him.    The defendant explained that he

had gotten lost the previous night, spent the night in the

motel, and was waiting for his cousin to come get him.    While

Matthews talked to the defendant, a third officer arrived, and

the clerk received a second phone call for the defendant.

Polowy walked over, took the phone, and asked whom the caller

wanted.    The caller asked for Brown in room 313 and hung up when

Polowy asked who was calling.

     Matthews asked the defendant for identification, and he

voluntarily provided it.   Matthews took several minutes to

determine it "checked out with everything" and then returned the

identification.   Matthews then asked for consent to search the

defendant in the lobby.    The defendant consented.   Polowy

searched him and found nothing illegal.

     The hotel manager suggested the officers move to her office

away from the lobby.   Instead of going to the office, which

Matthews knew was in the basement, he suggested, "How about if

we just step out into the parking lot?"   Matthews turned and

                                 - 7 -
walked out, and the defendant "came with us."   The conversation

resumed outside.

      The defendant said he was from New Mexico and repeated his

explanation that he had gotten lost and was now waiting for his

cousin.   Matthews asked if the defendant had any luggage, and

the defendant, mentioning a car for the first time, said it was

in his car.   The defendant pointed to a car, and they walked to

it.

      Matthews saw a green bag on the rear seat.   The defendant

admitted it was his but denied it contained drugs or weapons.

When Matthews asked if he could search the green bag, the

defendant said nothing, but "took a deep breath and put his head

straight down to the ground."   Matthews did not open the door or

search the bag.    He asked if there was anything else in the car,

and the defendant told him he had a suitcase in the trunk.   He

denied it contained drugs or weapons.

      Matthews asked if they could open the trunk.   The defendant

took out his keys and leaned awkwardly behind the car to open it

because the trunk extended over a three-to-four foot drop.   When

the defendant opened the trunk, Matthews saw only a suitcase.

He asked the defendant if he could take it out and search it.

The defendant replied "that he would rather it stay in the

trunk."

      The defendant volunteered to move the car because they were

unable to search the suitcase while the trunk protruded over the

                                - 8 -
ledge.    The defendant walked to the driver's door, opened it,

slid in, started the engine, and "pulled [the car] up a little

bit."    The trunk was then flush with the drop-off.    Matthews

asked if the defendant would pull up a bit more, and he did.

        Matthews walked past the defendant toward the suitcase and

asked if he could search it.    The defendant "just took a deep

breath, and he put his head down."       Matthews testified, "because

of his behavior, his nervousness, . . . , I felt like there was

probably something illegal in the car."      Matthews then advised

the defendant that "if he had anything, I would prefer him just

to give it to me than for me to have to search."      The defendant,

who already had his head down, pointed his head towards the

suitcase and said, "you can look."

        Matthews again advised the defendant he'd rather the

defendant give him whatever he had than to search for it.      The

defendant just "nodded at the suitcase again with his head and

said, Go ahead and look, man."    Upon opening the suitcase,

Matthews observed some layers of fabric softener on top of some

clothes.    Underneath the clothes, he "could see a taped-up

bundle, brick."    It contained fifty pounds of marijuana worth

about $45,000.

        The defendant testified that Polowy "directed" him to have

a seat in the lobby and went to the front desk when they entered

the hotel.    He did not believe he was free to go.    He testified

they "directed me to go outside," and "directed me to my car."

                                 - 9 -
The defendant said he was probably going to leave if the officer

had not directed him to stay.    The trial court rejected this

version specifically.

     Police officers are free to approach individuals and ask

questions.    "The purpose of the Fourth Amendment is not to

eliminate all contact between the police and the citizenry, but

'to prevent arbitrary and oppressive interference by enforcement

officials with the privacy and personal security of

individuals.'"    United States v. Martinez-Fuerte, 428 U.S. 543,

554 (1976).   To characterize all such encounters as seizures,

"'would impose wholly unrealistic restrictions upon a wide

variety of legitimate law enforcement practices.'"     Parker v.

Commonwealth, 255 Va. 96, 101, 496 S.E.2d 47, 50 (1998) (asking

questions is an effective law enforcement tool) (quoting

Mendenhall, 446 U.S. at 554).

     The defendant was headed to the lobby because he was

waiting for a phone call.   Officer Polowy approached him and

started asking questions.   A citizen's "voluntarily responding

to a police request, . . . , does not negate 'the consensual

nature of the response.'"    Grinton v. Commonwealth, 14 Va. App.

846, 849, 419 S.E.2d 860, 862 (1992) (citation omitted).    They

continued into the lobby.   As long as the citizen's

participation is voluntary, the encounter remains consensual.

See Richards v. Commonwealth, 8 Va. App. 612, 615, 383 S.E.2d

268, 270 (1989) (no Fourth Amendment violation when police

                                - 10 -
officers approached defendant standing outside an airport

terminal and asked to see his airline ticket and

identification).    The defendant was where he wanted to be,

waiting to meet his cousin.

     Three uniformed officers eventually arrived at the hotel.

They talked in conversational tones, never surrounded or touched

the defendant, and never pulled their guns.      They did not direct

him to do anything, did not request that he stay, or restrain

his movement in any way.    "Examples of circumstances that might

indicate a seizure, even where the person did not attempt to

leave, would be the threatening presence of several officers,

the display of a weapon by an officer, some physical touching of

the person of the citizen, or the use of language or tone of

voice indicating that compliance with the officer's request

might be compelled."     Mendenhall, 446 U.S. at 553-54.

     Corporal Matthews asked if the defendant had identification

and returned it after checking it.       "[A] police request made in

a public place for a person to produce some identification, by

itself, generally does not constitute a Fourth Amendment

seizure."     McCain v. Commonwealth, ___ Va. ___, ___, ___ S.E.2d

___, ___ (Record No. 001989, April 20, 2001) (citations

omitted).   Even retention of the license would only be one

factor to be considered in the totality of the circumstances.

Commonwealth v. Rice, 28 Va. App. 374, 381-82, 504 S.E.2d 877,

881 (1998).

                                - 11 -
     The total encounter took 25 to 30 minutes.        The defendant

was a mature, knowledgeable person who exhibited a strong

presence and obvious intellect.   He was free to go; he knew he

had a choice.   "A seizure does not occur in the absence of

physical force used by a law enforcement officer or a

defendant's submission to an officer's assertion of authority."

McCain, ___ Va. at ___, ___ S.E.2d at ___ (citations omitted).

The police did not assert authority; the defendant did not

submit to it.

     In determining if this defendant consented to the search

voluntarily, the trial court made specific observations about

the defendant's demeanor, character, and intellect exhibited at

trial and while testifying.   Those traits illuminated the

crucial events surrounding the consent.       The trial court

portrayed the "impression the defendant makes on me:"

               He maintained a controlled demeanor
          . . . has a strong presence about him and
          obvious intelligence.

           *       *      *       *       *        *       *

               He pondered, reflected, thought about
          it, implying that he didn't have to let them
          do this, implying that he knew he had a
          choice.

           *       *      *       *       *        *       *

               The defendant's state of mind demeanor,
          all fit into reasonably evaluating what a
          person less mature, perhaps less aware of
          his rights would have done. . . .




                              - 12 -
                 And very important is the fact that he
            elects to open the car. He elects to move
            it. He elects to facilitate access to the
            trunk. He is not coerced. He is not
            without a freedom of choice.

                 His actions speak along with his
            eventual consent to search that he knew what
            he was doing.

                 I find that he knew he didn't have to
            consent and . . . made an election to let
            them search.

             *       *        *      *       *       *      *

                  He knew what he was doing.

     The record supports those findings.         The decision of the

trial judge will not be disturbed unless plainly wrong.          Greene

v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139

(1994).   The Commonwealth met its burden to prove that consent

was in fact freely and voluntarily given.         Schneckloth, 412 U.S.

at 222, 248-49.

     The appellate court is required to give deference to the

factual finding of the trial court but is to determine

independently whether the constitutional requirements are met.

McCain, ___ Va. at ___, ___ S.E.2d at ___.         Under the totality

of the circumstances, a reasonable man would not have felt

restrained; there was no seizure.        Under those circumstances,

this defendant gave consent freely and voluntarily; there was

consent to search.       Accordingly, the defendant's conviction is

affirmed.

                                                     Affirmed.


                                  - 13 -
