                       COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Senior Judge Baker
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.   Record No. 0328-99-4                  JUDGE JOSEPH E. BAKER
                                               JUNE 29, 1999
TOMIKA DAVELIA WHITE


             FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                     James H. Chamblin, Judge

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General,
          Attorney General, on brief), for appellant.

          Lorie E. O'Donnell, Public Defender (Office
          of the Public Defender, on brief), for
          appellee.


     In this appeal by the Commonwealth of Virginia (Commonwealth)

from an order of the Circuit Court of Loudoun County (trial court)

that sustained the motion of Tomika Davelia White (White) to

suppress evidence of illegal drugs discovered during a search by a

drug enforcement agent of White's suitcases, the pivotal issue

presented is whether the search exceeded the consent given to the

agent by White.   The trial court held that White consented to a

search of the suitcases, but ruled that the actual search

conducted was "beyond the scope" of the consent given by White and

ordered that the discovered evidence be suppressed.   Pursuant to


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the provisions of Code § 19.2-398, the Commonwealth appeals that

decision. 1

     The record discloses that Drug Enforcement Special Agent

James Wekes (Wekes) received information that a black female in

her twenties, with red hair, going by the name of "Brooke Simms,"

who walked with a cane, would be arriving at Dulles International

Airport on American Airlines Flight 76 from Los Angeles.   "Simms"

was reported to be traveling with two new, locked suitcases, and

she had paid for her tickets at the last minute with $1,141 in

cash--all factors consistent with drug courier activity.

     After Flight 76 arrived, Wekes saw White, who is a black

female, and confirmed that she had debarked from that flight.

White was carrying a crutch and pushing a wheelchair.   White

retrieved her luggage--two locked suitcases--and was being pushed

in the wheelchair by a "sky cap," when Wekes approached her.

Walking alongside White, Wekes identified himself as a DEA agent

and asked whether White would mind speaking to him.   He told her

that she did not have to talk to him, and White twice stated that

she did not mind speaking to Wekes.   White allowed Wekes to see

her flight tickets, and she also produced identification at his



     1
       In her brief, White claimed that her encounter with the
drug enforcement agent was not consensual, and that she was
unlawfully seized. White did not, however, file a notice of
cross-appeal. See Code § 19.2-401. At oral argument, White
conceded this failure and abandoned her claim of unlawful
seizure.


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request.   Wekes testified that he was alone when he approached

White, that he was not in uniform, that he did not display a

weapon, that he never physically restrained White, and that he

never raised his voice with her.   There were two sky caps present

as Wekes spoke to White, and the encounter occurred in a public

area in the airport.

     Wekes told White that he was checking flights to see if

anyone was carrying weapons, explosives, drugs, or large sums of

undeclared money.    White denied that she possessed any contraband.

She told Wekes that the two suitcases were hers and that she had

keys to the cases.    White consented to Wekes' request to search

the suitcases, and she provided him with her keys.

     None of the keys White gave to Wekes opened the locks on the

suitcases.   Wekes asked White whether she had any other keys, at

which point she told him that she did not.   Wekes then opened the

suitcases by using a pen to "pop" the zippers on the cases.    Wekes

did not damage the suitcases, and White neither protested nor

complained when or after Wekes opened the suitcases in this

manner.

     White admitted that Wekes did not physically seize her and

that she voluntarily answered his questions.   She admitted that

she gave Wekes permission to search her luggage and that she

initially told him she had keys for the locks.   When she gave him

the keys, she believed one would open the suitcases, and she and



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Wekes did not discuss how or whether he could open the cases if

none of the keys worked.   White conceded that she did not protest

or withdraw the consent given when Wekes "popped" the zippers to

open the suitcases.   At the suppression hearing, White asserted,

however, that her consent did not extend to breaking into the

luggage.

     "On appeal, we view the evidence in the light most favorable

to the prevailing party, granting to it all reasonable inferences

fairly deducible therefrom."   Commonwealth v. Gilmore, 27 Va. App.

320, 331, 498 S.E.2d 464, 470 (1998).   While we apply a "clear

error" standard to the trial court's factual findings, see Ornelas

v. United States, 517 U.S. 690, 699 (1996), whether a search or

seizure is reasonable under the Fourth Amendment is an issue of

law that we review de novo, see Taylor v. Commonwealth, 28 Va.

App. 638, 641-42, 507 S.E.2d 661, 663 (1998).

     "A consensual search is reasonable if the search is within

the scope of the consent given."   Grinton v. Commonwealth, 14 Va.

App. 846, 850-51, 419 S.E.2d 860, 862 (1992).   "The United States

Supreme Court has articulated the standard for measuring the scope

of an individual's consent under the Fourth Amendment to be

'"objective" reasonableness--what would the typical reasonable

person have understood by the exchange between the officer and the

suspect?'"   Bolda v. Commonwealth, 15 Va. App. 315, 317, 423

S.E.2d 204, 206 (1992) (quoting Florida v. Jimeno, 500 U.S. 248,



                               - 4 -
251 (1991)).   "The scope of a search is generally defined by its

expressed object."   Jimeno, 500 U.S. at 251.

     "'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.'"   Bynum v. Commonwealth, 23 Va. App.

412, 418, 477 S.E.2d 750, 753 (1996).     See Cardenas v. State,

857 S.W.2d 707, 712-13 (Tex. App. 1993) (holding that police

acted within the scope of the defendant's consent to search his

car where the officers forcibly removed a plate welded over the

covering to the car's tire well, but where the car was not

structurally damaged by the removal); United States v.

Milian-Rodriguez, 759 F.2d 1558, 1563-64 (11th Cir. 1985)

(holding that police did not exceed the scope of consent to

search defendant's office when they picked the lock on the

office closet door in order to search the closet), cert. denied,

474 U.S. 845 (1985); United States v. Martinez, 949 F.2d 1117,

1120-21 (11th Cir. 1997) (holding that police did not exceed the

scope of the defendant's consent to search a mini-warehouse unit

when the officers forced open the trunk of an automobile parked

inside the unit).

     "The scope of a 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,

                               - 5 -
419 S.E.2d at 863.    In Grinton, the defendants consented to a

search of the "'contents and containers'" in their vehicle where

the police officer indicated that he was looking for evidence of

weapons or drug smuggling.    See id. at 848, 419 S.E.2d at 861.

The officer asked one of the defendants to open the car's trunk,

but the defendant stated that he did not have a key to the trunk.

The defendants also represented that there was nothing in the

trunk.   The police officer retrieved some tools from his patrol

car and accessed the car's trunk by removing the back seat.   See

id.   In holding that the search was reasonable, we noted that

"[t]he defendants got out of the vehicle upon request and did not

ask that the search be terminated at any time.   Although they

claimed not to have had a key to the trunk and asserted that they

had nothing in the trunk, they did not withdraw consent to search

the trunk."    Id. at 851, 419 S.E.2d at 863.

      White consented to Wekes' request for permission to open and

search the suitcases.    She gave Wekes keys that she believed would

control the locks, and she placed no limitation on the search.

The expressed object of the search was to investigate the contents

of the suitcases to see if White was transporting contraband.

White never objected when Wekes opened the two suitcases by

"popping" the zippers.    White's failure to object was sufficient

to confirm a reasonable person's belief that Wekes was not

exceeding the scope of White's consent by opening the cases in

this manner.    See Lawrence v. Commonwealth, 17 Va. App. 140, 146,

                                - 6 -
435 S.E.2d 591, 594 (1993), aff'd, 247 Va. 339, 443 S.E.2d 160

(1994).

     White does not claim that there was physical damage done to

the luggage by Wekes' method of making a keyless entry therein,

and nothing in the record shows that the cases were damaged.    Cf.

United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990)

(holding that general consent to search defendant's car did not

extend to slashing open the spare tire).    White does not allege

that Wekes or any other officer physically coerced her, offered

her any promise or inducement, or otherwise used any means of

persuasion to obtain her consent or to prevent her from objecting

if she wished to withdraw or limit her consent.   Moreover, once it

was clear that White did not have a key to the luggage locks,

White had ample time to withdraw her consent or object to any

further entry into the suitcases, yet failed to do either.

     Applying the objective reasonableness rule to this

evidence, we find that the trial court erred when it found that

Wekes' action was not within the scope of the consent given.

Accordingly, the suppression order of the trial court is

reversed and this case is remanded to that court for such

further action as the Commonwealth may be advised.

                                           Reversed and remanded.




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