                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia


LEROY LEO EDMONDS, JR.
                                         MEMORANDUM OPINION * BY
v.         Record No. 1853-95-1         JUDGE SAM W. COLEMAN III
                                              JULY 16, 1996
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                       Verbena M. Askew, Judge
           Ruthie Litvin (Kevin M. Diamonstein;
           Diamonstein, Becker & Staley, on brief), for
           appellant.

           Marla Graff Decker, Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.



     Leroy Leo Edmonds, Jr. appeals his bench conviction for

possession of heroin with intent to distribute in violation of

Code § 18.2-248.   Edmonds contends that the trial court erred by

denying his motion to suppress the heroin because the police

illegally took it from his pocket.    He asserts that the police

seized the heroin after obtaining his consent to be searched,

which consent was coerced and was not freely and voluntarily

given.   We hold that the heroin was lawfully seized, and we

affirm the defendant's conviction.

     Officer W. S. Warren observed the driver of a vehicle make a

turn without signalling.   He stopped the vehicle in order to

issue the driver a traffic summons.   Officer Warren spoke to the
     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
driver, who consented to being searched and to having the vehicle

searched.   After talking with the driver, Officer Warren asked

the passengers to exit the car one at a time.   The defendant was

sitting in the front passenger seat and another individual was

sitting in the backseat.   Officer Warren testified that he

stopped the car solely because of the illegal turn and that he

had no information that the occupants were engaged in any

criminal activity.   The record contains no explanation as to why

Officer Warren requested to search the driver or the vehicle in

what appears to have been a routine traffic infraction.
     In response to Officer Warren's request, the defendant

exited the vehicle and produced identification.   Officer Warren

asked the defendant "if he had weapons, knives or drugs on his

person," to which the defendant responded that he did not.    When

Officer Warren asked the defendant whether he would consent to a

pat down search, the defendant refused.    According to Warren, the

defendant "was acting somewhat nervous."   Officer Warren then

requested that the other passenger exit the vehicle.   The other

passenger did so and consented to a pat down search.

     After searching and talking with the other passenger,

Officer Warren again asked the defendant again "if he had any

weapons or anything on his person."    Officer Warren then said to

the defendant:
          Sir, if I have reasonable suspicion you might
          be carrying a weapon on your person, I have
          the obligation to pat you down, and in the
          course of the pat down if I feel something I
          felt could be contraband I have cause to



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             arrest you.


Immediately after this statement, the defendant responded that he

had "two packs of something in [his] pocket," and he began to

reach into his pocket.      Officer Warren stopped the defendant,

reached into the defendant's pocket, and retrieved twelve packs

of heroin.

     "On appeal, the burden is on appellant to show, considering

the evidence in the light most favorable to the Commonwealth,

that the denial of the motion to suppress constituted reversible

error."   Stanley v. Commonwealth, 16 Va. App. 873, 874, 433

S.E.2d 512, 513 (1993).      In making our review of whether a

warrantless search is legal under the Fourth Amendment, we give

deference to the trial court's findings of historical facts and

the inferences that reasonably may have been drawn therefrom.

But, in determining whether the Commonwealth proved legal consent

to search, our review of whether the search was in accordance

with the defined legal standards and criteria, as applied to the

facts, is de novo.     Ornelas v. United States, ___ U.S. ___

(1996).

     Here, Officer Warren lawfully stopped the vehicle and its

occupants after witnessing the driver make a turn without giving

the required signal.       When the driver consented to Officer Warren

searching the vehicle, the driver expanded the scope of the

lawful search beyond what would have been justified by a routine

traffic stop.     Bethea v. Commonwealth, 245 Va. 416, 419, 429




                                   - 3 -
S.E.2d 211, 213 (1993); see also Limonja v. Commonwealth, 7 Va.

App. 416, 424, 375 S.E.2d 12, 16-17 (1988) (stating that after

receiving consent to search the vehicle, the officers "had [the

occupants] exit the car and stand to the rear"), aff'd en banc, 8

Va. App. 532, 383 S.E.2d 476 (1989), cert. denied, 495 U.S. 905,

110 S. Ct. 1925, 109 L.Ed.2d 288 (1990).    Although Officer Warren

had no reason to suspect that the defendant had engaged in

criminal activity or possessed weapons and was dangerous, the

driver's permission to search the vehicle "reasonably warrant[ed]

th[e] intrusion" of asking the passengers to exit the vehicle.
Id.

      The defendant contends that after exiting the vehicle he did

not freely and voluntarily consent to be searched but rather was

coerced into doing so.   He asserts that when he admitted to

possessing heroin he did so only because Officer Warren pressured

the admission by continuing to seek his consent for a pat down

search, after he had refused, and by explaining that he could

frisk the defendant for weapons if he had reason to believe that

the defendant might be carrying a weapon.   He argues that on

these facts the Commonwealth has failed in its burden of

establishing the voluntariness of a consent to search "[w]hen
[it] seeks to rely upon consent to justify the lawfulness of a

search."   Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct.

2041, 2045, 36 L.Ed.2d 854 (1973) (quoting Bumper v. North
Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792, 20 L.Ed.2d 797




                               - 4 -
(1968)) (emphasis added).

     On the other hand, the Commonwealth contends that this case

does not involve a consensual frisk or pat down and that we

should not reach that issue.   Rather, the Commonwealth argues

that Officer Warren had probable cause to search the defendant

when the defendant admitted that he possessed two packets of

heroin and began to reach into his pocket.   Thus, the relevant

inquiry is whether, on this record, Officer Warren had probable

cause to search the defendant.    The Commonwealth asserts that the

trial court did not have to determine whether the defendant

freely and voluntarily consented to a search in deciding the

motion to suppress.   See Commonwealth v. Kilgore, 15 Va. App.

684, 695, 426 S.E.2d 837, 843 (1993) ("When a trial court makes

the correct decision, it will be upheld even though the wrong

reason for the decision was stated at the time the opinion was

rendered").   We agree that no search or seizure occurred until

after the defendant admitted that he had heroin and reached for

his pocket, at which time the officer had probable cause to

search him or seize the heroin.

     Officer Warren did not violate the Fourth Amendment by

questioning the defendant or by asking him for permission to

conduct a search, or by continuing to seek consent for a search

after the defendant initially refused such consent.    See United

States v. Morrow, 731 F.2d 233, 236 (4th Cir.), cert. denied, 467

U.S. 1230, 104 S. Ct. 2689, 81 L.Ed.2d 883 (1984); State v.



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Green, 575 A.2d 1308, 1315 (N.H. 1990); 3 Wayne R. LaFave, Search

and Seizure § 8.2(f), at 673 (3d ed. 1996).   Furthermore, in

attempting to persuade the defendant to consent to a search, it

was not improper for Officer Warren to explain his authority and

obligations under the law, so long as the explanation did not

misrepresent the law or otherwise mislead the defendant.   See

Deer v. Commonwealth, 17 Va. App. 730, 735, 441 S.E.2d 33, 36

(1994); Bosworth v. Commonwealth, 7 Va. App. 567, 571, 375 S.E.2d

756, 758 (1989).
     Officer Warren testified that he told the defendant, in a

normal tone of voice, that
          if I have reasonable suspicion you might be
          carrying a weapon on your person, I have the
          obligation to pat you down, and in the course
          of the pat down if I feel something I felt
          could be contraband I have cause to arrest
          you.


This was not a misstatement of the law; if a police officer

"'perceive[s]' a suspicious object" in the course of conducting a

lawful Terry frisk, he has probable cause to "seize it

immediately" and arrest the individual.   Ruffin v. Commonwealth,

13 Va. App. 206, 209, 409 S.E.2d 177, 179 (1991).   After Officer

Warren gave a correct explanation of the law, the defendant

stated, "I've got two packs of something in my pocket," and began

to reach into his pocket.   Warren testified that he understood

the defendant to have said that he had heroin in his pocket.

     In determining whether probable cause existed to conduct a

warrantless search, "the test of constitutional validity is



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whether at the moment of arrest the arresting officer had

knowledge of sufficient facts and circumstances to warrant a

reasonable man in believing that an offense has been committed."

 DePriest v. Commonwealth, 4 Va. App. 577, 583-84, 359 S.E.2d

540, 543 (1987) (quoting Bryson v. Commonwealth, 211 Va. 85, 86-

87, 175 S.E.2d 248, 250 (1970)).   The defendant's admission that

he had "two packs of something in [his] pocket" and began to

reach for it provided Officer Warren with probable cause to

search the defendant's pocket and retrieve the heroin.   See Allen

v. Commonwealth, 3 Va. App. 657, 662, 353 S.E.2d 162, 165 (1987)

(holding that "[a]t the moment of the detention appellant['s]

. . . statement that he was carrying a concealed weapon furnished

sufficient probable cause to justify the search of his person").

Accordingly, the trial court properly denied the motion to

suppress the heroin, and we affirm the defendant's conviction.

                                                         Affirmed.




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