                                         COURT OF APPEALS OF VIRGINIA

            Present: Judges Kelsey, McCullough and Senior Judge Clements
PUBLISHED

            Argued at Chesapeake, Virginia

            LEON ELLIOTT, JR.
                                                                                  OPINION BY
            v.     Record No. 1784-11-1                                     JUDGE D. ARTHUR KELSEY
                                                                                OCTOBER 23, 2012
            COMMONWEALTH OF VIRGINIA

                          FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                         Johnny E. Morrison, Judge

                             Kurt A. Gilchrist for appellant.

                             Alice T. Armstrong, Assistant Attorney General II
                             (Kenneth T. Cuccinelli, II, Attorney General, on brief),
                             for appellee.


                   The trial court convicted Leon Elliott, Jr., of heroin possession. On appeal, Elliott

            contends the arresting officer violated the Fourth Amendment by discovering the heroin during a

            warrantless search of Elliott’s pocket. We disagree and affirm Elliott’s conviction.

                                                                I.

                   When reviewing a denial of a suppression motion, we review the evidence “in the light

            most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.” Glenn

            v. Commonwealth, 49 Va. App. 413, 416, 642 S.E.2d 282, 283 (2007) (en banc) (citation

            omitted), aff’d, 275 Va. 123, 654 S.E.2d 910 (2008). This standard requires us to “give due

            weight to inferences drawn from those facts by resident judges and local law enforcement

            officers.” Malbrough v. Commonwealth, 275 Va. 163, 169, 655 S.E.2d 1, 3 (2008) (citation

            omitted). In doing so, we consider facts presented both at the suppression hearing and at trial.

            See Testa v. Commonwealth, 55 Va. App. 275, 279, 685 S.E.2d 213, 215 (2009).

                   From this perspective, the evidentiary record shows that Portsmouth police officers

            conducted a “spotting operation” at a convenience store during a narcotics investigation. App. at
7. They observed a man in possession of a “clear plastic baggie that contained suspected

capsules of heroin.” Id. at 10. The man entered the passenger side of a parked car, which then

drove away. The spotting officer radioed his observations to other officers in the vicinity.

       The supervising officer, Lieutenant Scott Agee, was parked down the street in an

unmarked police cruiser. He heard the broadcast and saw the suspect’s vehicle traveling down

the road from the convenience store. After Agee stopped the vehicle, several other officers

arrived on the scene. When asked whether any of the officers “had their guns fully drawn,”

Agee testified, “No, not to my knowledge, not that I can recall; I didn’t.” Id. at 18. Instead, he

had his handgun “out in a covered down position.” Id. 1

       Officer Robert Dyer arrived at the scene in a marked police cruiser. Dyer saw the driver,

Elliott, next to the stopped vehicle and conducted a weapons frisk. Dyer informed Elliott that the

stop involved a narcotics investigation. After confirming Elliott was not concealing a firearm,

Dyer asked Elliott for consent to a more thorough search. At the time, neither Dyer nor any of

the other officers had their guns drawn. Id. at 24. Though not “completely sure,” Dyer recalled

being in the second police vehicle to arrive on the scene. Id. at 23. Dyer did not recall how

many police vehicles were on the scene as “the stop was being conducted.” Id.

       Dyer testified that when asked for consent to search, Elliott responded “yes” while

“nodding his head up and down in an affirmative motion.” Id. at 21. Dyer then reached into

Elliott’s pocket and retrieved a clear plastic bag containing thirteen heroin capsules. Elliott was

arrested and later indicted for possession of heroin, a violation of Code § 18.2-250.


       1
          None of the witnesses defined the phrase “covered down position.” App. at 18. In the
trial court, Elliott’s counsel interpreted it to mean the officer merely had “his hand on his hip at
his gun.” Id. at 28. At oral argument on appeal, however, Elliott’s counsel claimed the officer
“brandished” his firearm. Oral Argument Audio 04:08 to 04:11 (Sept. 20, 2012). The record
does not support this new factual assertion.


                                                 -2-
        Prior to trial, Elliott moved to suppress the heroin evidence. He did not challenge the

legality of the stop or the weapons frisk. Instead, he elected to take the witness stand and

testified about his encounter with Officer Dyer. Elliott confirmed Dyer asked for consent to

search. But “I told him no,” Elliott testified. Id. at 50. Elliott further denied nodding his head in

the affirmative.

        Elliott never testified that he felt he could not say no or that he involuntarily said yes to

the officer’s search. Nor did he testify that he was aware of how many officers were on the

scene or whether any of them were armed. He said nothing about any of the officers shouting at

him, threatening him, or cajoling him into consenting. Likewise, Elliott did not mention Dyer’s

explanation for the purpose of the stop or suggest that the explanation intimidated him into

agreeing to the search. From start to finish, his testimony was simply that he expressly refused

to consent to the requested search. The trial court denied the motion to suppress and convicted

Elliott as charged. 2

                                                  II.

        On appeal, Elliott argues the trial court erred as a matter of law in not finding that the

police coerced him into consenting to the search. We find no basis, either in legal precedent or

in common sense, for reversing Elliott’s conviction on this ground.




        2
         Without objection, the trial court collapsed the suppression hearing and the trial on the
merits into a single evidentiary proceeding. During Elliott’s testimony, he admitted he was a
heroin user and had, in fact, possessed heroin that day. App. at 50-51. Given our ruling, we
need not address whether his testimony renders harmless the allegedly unconstitutional
admission of evidence. See Luginbyhl v. Commonwealth, 48 Va. App. 58, 66, 628 S.E.2d 74,
78-79 (2006) (en banc) (finding that defendant’s confession rendered “harmless” any
“constitutional error” in admitting cumulative incriminating evidence). A “confession is like no
other evidence” and is “probably the most probative and damaging evidence that can be admitted
against him.” Arizona v. Fulminante, 499 U.S. 279, 296 (1991).


                                                 -3-
       Our reasoning begins with the general rule that “a search authorized by consent is wholly

valid.” Kyer v. Commonwealth, 45 Va. App. 473, 483, 612 S.E.2d 213, 218 (2005) (en banc)

(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)); Ellis v. Commonwealth, 52

Va. App. 220, 226, 662 S.E.2d 640, 643 (2008). “Police officers act in full accord with the law

when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the

police of his or her wishes and for the police to act in reliance on that understanding.” Barkley v.

Commonwealth, 39 Va. App. 682, 696, 576 S.E.2d 234, 241 (2003) (quoting United States v.

Drayton, 536 U.S. 194, 206-07 (2002)). Consequently, courts have “long approved consensual

searches because it is no doubt reasonable for the police to conduct a search once they have been

permitted to do so.” Florida v. Jimeno, 500 U.S. 248, 250-51 (1991).

       To be effective, of course, consent must be voluntarily given. That said, the presence or

absence of “official coercion cannot be resolved by any infallible touchstone.” Schneckloth, 412

U.S. at 229. Instead, the “question of the voluntariness of a consent is one of fact to be

determined by the trial court.” Stamper v. Commonwealth, 220 Va. 260, 268, 257 S.E.2d 808,

814 (1979); see also Ohio v. Robinette, 519 U.S. 33, 40 (1996); Gray v. Commonwealth, 233 Va.

313, 327, 356 S.E.2d 157, 164 (1987). Using the “traditional definition of ‘voluntariness,’”

Schneckloth, 412 U.S. at 229, the trial court’s determination of voluntariness must take into

account the unique facts and circumstances of each case.

       The most unique fact in this case is Elliott’s sworn testimony denying he consented to the

search. Instead, he felt perfectly free to refuse consent and, in fact, claimed he expressly did so.

It is certainly true that citizens should not be “coerced to comply with a request that they would

prefer to refuse.” Florida v. Bostick, 501 U.S. 429, 438 (1991). But it is equally true that a trial

court sensibly can conclude that citizens, like Elliott, were not coerced into compliance after

testifying under oath that they refused to comply.

                                                -4-
       In essence, Elliott asks us to hold the trial court erred (as a matter of law) by not finding

(as a matter of fact) that he involuntarily consented to the search, even though he swore under

oath that he voluntarily refused to consent to the search. In other words — lest we appear to be

splitting hairs — for Elliott to prevail on appeal he must first prove that he perjured himself in

the trial court. Such a self-defeating argument ordinarily brings appellate review to a standstill.

A criminal defendant, no less than any other litigant, “is bound by [his] testimony on appeal.”

Waters v. Commonwealth, 39 Va. App. 72, 79, 569 S.E.2d 763, 766 (2002) (citing Delawder v.

Commonwealth, 214 Va. 55, 57, 196 S.E.2d 913, 915 (1973)). 3 We need not rest our holding

solely on this ground, however, because the other circumstances of this case confirm the trial

court’s finding that Elliott was not coerced into consenting to the search.

       On appeal, Elliott lays heavy emphasis on the fact that the officers physically detained

him and stated they stopped the vehicle pursuant to a narcotics investigation. Elliott concedes

the officers did not expressly identify him as a suspect, but claims the coercive effect was the

same as if they had done so. We disagree with the premise underlying this assertion and hold

these facts, taken at face value, do not raise even a prima facie showing of coercion.

       Consent searches “are part of the standard investigatory techniques of law enforcement

agencies.” Schneckloth, 412 U.S. at 231-32. They can “develop quickly or be a logical

extension of investigative police questioning.” Id. at 232. The fact that the request occurs

during a criminal investigation does not, by itself, vitiate the consent — for that is the very

context in which such requests would naturally arise. “If consent is freely given, it makes no


       3
         Accord Am. Commc’ns Network, Inc. v. Williams, 264 Va. 336, 342, 568 S.E.2d 683,
687 (2002) (holding a litigant’s sworn “statements of fact and the necessary inferences therefrom
are binding upon him” (citation omitted)); Beeton v. Beeton, 263 Va. 329, 336-37, 559 S.E.2d
663, 667 (2002) (recognizing “a litigant should not be permitted to ask a court to make findings
that contradict the litigant’s own sworn statements regarding such facts”).


                                                 -5-
difference that an officer may have approached the person with the hope or expectation of

obtaining consent.” Kentucky v. King, 131 S. Ct. 1849, 1858 (2011).

        It could not be otherwise. If merely accusing a suspect of a crime rendered a later

consent to search involuntary, then innocent suspects would be precluded from consenting to a

search that might immediately exonerate them. A suspect wrongfully accused of a crime could

plead with police officers to conduct a search only to be told the Fourth Amendment forbids

them from accepting the offer. Such a result would be wholly inconsistent with society’s “real

interest in encouraging consent” not only to convict the guilty but also to “ensure that a wholly

innocent person is not wrongly charged with a criminal offense.” Jimeno, 500 U.S. at 252

(quoting Schneckloth, 412 U.S. at 243).

        To be sure, an officer may lawfully arrest a suspect and thereafter request consent from

the arrestee (whether needed or not) 4 to search for incriminating evidence. Neither the arrest

itself nor the obvious fact that the arrestee is the target of the requested search undermines the

voluntariness of the arrestee’s consent. Schneckloth, 412 U.S. at 233 (summarizing Davis v.

United States, 328 U.S. 582 (1946)). Absent “force,” “threat of force,” or some other uniquely

coercive circumstance, the Fourth Amendment does not invalidate the consent. See id. Under

settled law, “the fact of custody alone has never been enough in itself to demonstrate a coerced

confession or consent to search.” United States v. Watson, 423 U.S. 411, 424 (1976); see also

Gray, 233 Va. at 327, 356 S.E.2d at 164; accord United States v. Boone, 245 F.3d 352, 363 (4th

Cir. 2001). 5


        4
         An arresting officer needs no consent for searches incident to arrest, Virginia v. Moore,
553 U.S. 164, 178 (2008), rev’g, 272 Va. 717, 636 S.E.2d 395 (2006), or for certain automobile
searches, Powell v. Commonwealth, 57 Va. App. 329, 338-40, 701 S.E.2d 831, 835 (2010).
        5
         Elliott relies on McGee v. Commonwealth, 25 Va. App. 193, 487 S.E.2d 259 (1997) (en
banc), for the proposition that being told “there [was] a criminal investigation” contributed to his

                                                -6-
       Nor do officers have a constitutional duty to inform a suspect of his “right to refuse when

seeking permission to conduct a warrantless consent search.” Drayton, 536 U.S. at 206;

Robinette, 519 U.S. at 39-40; Schneckloth, 412 U.S. at 227. The prosecution need not “establish

such knowledge as the sine qua non of an effective consent.” Robinette, 519 U.S. at 39-40

(quoting Schneckloth, 412 U.S. at 227). Consent can be invalidated only upon a showing that

one’s “will ha[d] been overborne and his capacity for self-determination critically impaired.”

Watson, 423 U.S. at 424 (quoting Schneckloth, 412 U.S. at 225).

       Given these principles, we hold the facts amply support the trial court’s finding that

Elliott was not coerced into consenting to the officer’s request to search. By testifying that he

voluntarily refused consent, Elliott undermined his counsel’s argument that he involuntarily

consented. Equally damaging is what Elliott did not say. He never testified he heard any threats,

saw any brandished firearms, observed an overwhelming number of officers, experienced any

overt or implicit coercion, or felt he had no choice but to consent. Nor can any coercion be

inferred as a matter of law from Elliott’s temporary detention or his knowledge of the ongoing

criminal investigation. For these reasons, the trial court did not err in denying Elliott’s pretrial

motion to suppress.

                                                 III.

       Finding no error in the trial court’s denial of Elliott’s motion to suppress, we affirm.


                                                                                            Affirmed.



inability to refuse the search request, see Appellant’s Br. at 4-5. McGee, however, addressed this
issue as one of many factors in determining whether a Fourth Amendment seizure had taken
place, not whether a lawfully seized person could provide voluntary consent to search. See
Barkley, 39 Va. App. at 692, 576 S.E.2d at 242 (clarifying further that, even under McGee,
merely informing a suspect that officers are “conducting a general investigation in response to a
report of drug dealing” does not implicate a seizure).

                                                 -7-
