                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Bray
Argued at Richmond, Virginia


WAYNE THOMAS IMEL
                                         MEMORANDUM OPINION * BY
v.   Record No. 1740-00-2                 JUDGE LARRY G. ELDER
                                              MAY 15, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                   Herbert C. Gill, Jr., Judge

          Matthew P. Geary (Barbara J. Gaden, L.L.C.,
          on briefs), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Wayne Thomas Imel (appellant) appeals from his bench trial

convictions for two counts of robbery, two counts of use of a

firearm in the commission of robbery, and one count each of

entering a bank with a weapon and possessing cocaine.     On

appeal, he contends the trial court erroneously (1) denied his

motion to suppress the cocaine, which was seized when he was

detained at a shopping mall and subjected to a pat-down search

for weapons; (2) denied his motion to suppress his statement to

police in which he admitted the bank robbery; and (3) concluded

the evidence was sufficient to sustain his convictions in light


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
of the erroneous rulings on the motions to suppress.    We hold

the weapons frisk of appellant in the shopping mall incident was

not supported by reasonable, articulable suspicion to believe

that appellant was armed and dangerous.    Thus, the denial of the

motion to suppress the cocaine was erroneous, and we reverse the

conviction for possessing cocaine and remand for further

proceedings if the Commonwealth be so advised.    However, the

evidence, viewed in the light most favorable to the

Commonwealth, supported the trial court's finding that appellant

knowingly and intelligently waived his right to counsel.    Thus,

the trial court's denial of the motion to suppress the robbery

confession was not erroneous, and we affirm the robbery and

related firearm convictions.

                                 I.

     At a hearing on a defendant's motion to suppress, the

Commonwealth has the burden of proving that the challenged

behavior did not violate the defendant's constitutional rights.

See Mills v. Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718,

722-23 (1992).   "In determining whether the Commonwealth has met

its burden, the trial court, acting as fact finder, must

evaluate the credibility of the witnesses . . . and resolve the

conflicts in their testimony . . . ."     Witt v. Commonwealth, 215

Va. 670, 674, 212 S.E.2d 293, 297 (1975).    On appeal, we view

the evidence in the light most favorable to the prevailing

party, here the Commonwealth.    Mills, 14 Va. App. at 468, 418

                                - 2 -
S.E.2d at 723.   "[W]e are bound by the trial court's findings of

historical fact unless 'plainly wrong' or without evidence to

support them[,] and we give due weight to the inferences drawn

from those facts by resident judges and local law enforcement

officers."   McGee v. Commonwealth, 25 Va. App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc).    However, we review de novo

the trial court's application of defined legal standards, such

as whether the police had reasonable suspicion or probable cause

for a search or seizure or whether a confession was voluntary,

to the particular facts of the case.    See Ornelas v. United

States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d

911 (1996); Mills, 14 Va. App. at 468, 418 S.E.2d at 723.

                                A.

                    MOTION TO SUPPRESS COCAINE

     "Fourth Amendment jurisprudence recognizes three categories

of police-citizen confrontations:    (1) consensual encounters,

(2) brief, minimally intrusive investigatory detentions, based

upon specific, articulable facts, commonly referred to as Terry

stops, see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20

L. Ed. 2d 889 (1968), and (3) highly intrusive arrests and

searches founded on probable cause."    Wechsler v. Commonwealth,

20 Va. App. 162, 169, 455 S.E.2d 744, 747 (1995).   An officer

who develops reasonable suspicion that criminal activity is

occurring may stop a person "in order to identify him, to

question him briefly, or to detain him briefly, while attempting

                               - 3 -
to obtain additional information" in order to confirm or dispel

his suspicions.     Hayes v. Florida, 470 U.S. 811, 816, 105 S. Ct.

1643, 1647, 84 L. Ed. 2d 705 (1985).

     The right to conduct a full search of a person is automatic

only in the case of a custodial arrest.     See Rhodes v.

Commonwealth, 29 Va. App. 641, 644-46, 513 S.E.2d 904, 905-06

(1999) (en banc).    An officer may not conduct a full search of a

suspect simply because he is effecting a Terry stop, but he may

conduct a pat-down search for weapons during a Terry stop if

reasonable suspicion of criminal activity supports the stop and,

additionally, the officer has reasonable, articulable suspicion

that the person is armed and dangerous.     See Adams v. Williams,

407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612

(1972); 4 Wayne R. LaFave, Search and Seizure § 9.5(a), at

246-47 (3d ed. 1996).    Our review of the existence of reasonable

suspicion involves application of an objective rather than

subjective standard.     See, e.g., Whren v. United States, 517

U.S. 806, 812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89

(1996).   The exclusionary rule provides that items discovered in

violation of these principles may not be admitted into evidence.

Warlick v. Commonwealth, 215 Va. 263, 265, 208 S.E.2d 746,

747-48 (1974).

     Here, the evidence, viewed in the light most favorable to

the Commonwealth, was sufficient to support the trial court's

implicit finding that the officers had reasonable suspicion to

                                 - 4 -
believe appellant was personally involved in criminal activity.

Detective Norris, who had worked as a "loss merchant" for four

years, thought, based on his experience and his observations of

appellant, that appellant was behaving strangely and might

"steal something while in the store."   Thereafter, Norris saw a

sales clerk take appellant's shopping bag and heard appellant

call someone on his cell phone to report that he "needed some

help in here."   Norris believed appellant was talking to someone

who was elsewhere in the mall, and within two minutes, Norris

saw another male enter the store with a large shopping bag and

make eye contact with appellant.   That other male then went to

the men's department, concealed a belt in his shopping bag, and

rejoined appellant.   When a uniformed police officer walked

through the store, appellant and his companion worked their way

to the store's side door and exited into the parking lot.

     These facts, viewed together by a police officer

experienced in loss prevention, provided reasonable suspicion

that appellant and his companion were involved in a shoplifting

scheme and justified Detective Norris' request to Detective

Bailey to "place [appellant] under investigative detention"

while Detective Norris arrested appellant's companion and

examined the contents of the bag the sales clerk had taken from

appellant.

     The objective facts did not, however, provide Detective

Bailey with reasonable, articulable suspicion to believe that

                               - 5 -
appellant was armed and dangerous.      Detective Bailey's only

justification for the pat-down was that appellant was "very

jittery and nervous" and that Bailey believed appellant's

reaction "was not normal for someone . . . in that kind of

situation."

       We previously have held that a person's extreme nervousness

during a routine traffic stop for a speeding violation, standing

alone, is insufficient to provide the reasonable suspicion

necessary for a pat-down search.       Moore v. Commonwealth, 12 Va.

App. 404, 406-07, 404 S.E.2d 77, 78 (1991).      In Moore, the stop

took place during daylight hours while Moore was alone in his

car.    Id. at 406, 404 S.E.2d at 78.    Moore made no attempt to

evade the police and no unusual gestures to suggest that he

might have a weapon on his person or inside the car.          Id.   The

officer conducting the stop "admitted that it is common for a

person to be nervous when stopped by the police."       Id.    Although

the officer conducting the stop knew other officers had Moore

under surveillance, he did not know the reason for the

surveillance and was aware of no other basis for believing Moore

might be armed and dangerous.    Id.    Under these facts, we held

the officer improperly "based the pat-down on his subjective

evaluation of Moore's nervousness" and that he lacked

reasonable, articulable suspicion to believe Moore was armed and

dangerous.    Id. at 406-07, 404 S.E.2d at 78.



                                - 6 -
     We see no reason to distinguish appellant's case from

Moore.   Although the offense appellant was suspected of

committing, shoplifting, was more serious than speeding,

shoplifting is not the sort of crime with which weapons

possession is routinely associated.    Compare Logan v.

Commonwealth, 19 Va. App. 437, 445, 452 S.E.2d 364, 369 (1994)

(en banc) (observing that "[t]he relationship between the

distribution of controlled substances . . . and the possession

and use of dangerous weapons is now well recognized").     We hold

that Detective Bailey's testimony that it was unusual for

someone stopped by police for shoplifting to be nervous was

objectively unreasonable as a matter of law and, in any event,

that such testimony was insufficient, standing alone, to

establish an objectively reasonable suspicion of weapons

possession.   Here, as in Moore, appellant made no unusual

gestures indicating he might be armed, and Detective Bailey

described no unusual bulges in appellant's clothing.      Compare,

e.g., James v. Commonwealth, 22 Va. App. 740, 745-46, 473 S.E.2d

90, 92 (1996) (upholding frisk of passenger who was in vehicle

with person wanted on a felony warrant and who appeared nervous,

failed to comply with officer's request to keep his hands on

dashboard, and kept asking to exit the vehicle).

     For these reasons, we reverse appellant's conviction for

possession of cocaine and remand for further proceedings if the

Commonwealth be so advised.

                               - 7 -
                                  B.

              MOTION TO SUPPRESS ROBBERY CONFESSION

     A suspect must knowingly and intelligently waive his rights

against self-incrimination and to the assistance of legal

counsel in order for a confession made during a custodial

interrogation to be found voluntary and, therefore, admissible

in evidence against him.   See Morris v. Commonwealth, 17 Va.

App. 575, 579, 439 S.E.2d 867, 870 (1994).   Assessing the

voluntariness of a confession requires an examination of the

totality of the circumstances to determine whether the statement

is the "product of an essentially free and unconstrained choice

by its maker," or whether the maker's will "has been overborne

and his capacity for self-determination critically impaired."

Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041,

2046, 36 L. Ed. 2d 854 (1973).    In assessing the totality of the

circumstances, the court must consider both "the details of the

interrogation" and "the characteristics of the accused."

Kauffmann v. Commonwealth, 8 Va. App. 400, 405, 382 S.E.2d 279,

281 (1989).

     A defendant who has "expressed his desire to deal with the

police only through counsel[] is not subject to further

interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the police."

Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885,

                                 - 8 -
68 L. Ed. 2d 378 (1981); see Michigan v. Jackson, 475 U.S. 625,

636, 106 S. Ct. 1404, 1411, 89 L. Ed. 2d 631 (1986).   Where a

defendant has invoked his right to counsel but subsequently

initiates further contact with the police, "the trial court may

admit the statement if it determines that the defendant

thereafter 'knowingly and intelligently waived the right he had

invoked.'"   Quinn v. Commonwealth, 25 Va. App. 702, 712, 492

S.E.2d 470, 475 (1997) (quoting Smith v. Illinois, 469 U.S. 91,

96, 105 S. Ct. 490, 493, 83 L. Ed. 2d 488 (1984)).

     Here, we assume without deciding that appellant invoked his

right to counsel when he said to the officers that he told his

mother he wished to talk to the officers but only with his

lawyer present.   Nevertheless, the evidence, viewed in the light

most favorable to the Commonwealth, supports the trial court's

conclusion that appellant thereafter voluntarily waived his

right to counsel before confessing his participation in the

robbery.

     So viewed, the evidence establishes that the detectives

came to talk to appellant only after receiving word that he

wanted to speak to them.   When appellant said he had told his

mother to have his attorney present, the detectives treated this

as an assertion of the right to counsel and prepared to leave.

Detective Leonard told appellant he could call them the next day

after making the necessary arrangements with his lawyer.   When

appellant said, "I want to talk to you," Detective Smith

                               - 9 -
re-advised appellant of his Miranda rights, and appellant signed

a Miranda waiver form.

     Appellant did not again request an attorney and did not

seek to terminate the interview.   At the beginning of the

portion of the interview that was audiotaped and transcribed,

appellant agreed that he had been advised of his Miranda rights

and confirmed that he understood them.   Appellant's only

reference to counsel during the taped portion of the interview

was at the end, when he said, "I wanted to talk to a lawyer."

(Emphasis added).   When Detective Smith responded, "That's not

what your mom said" and "[t]hat's not what you agreed to here,"

appellant did not dispute these statements.   Instead, he said

merely that he was "so stupid" for "running [his] . . . mouth."

     Appellant argues that his waiver was not voluntary because

he was suffering from severe heroin withdrawal, which included

confusion, nausea, shaking and sweating.   As a result of his

weakened physical condition, he contends he was more easily

coerced into confessing.   What appellant fails to acknowledge,

however, is that the evidence regarding his condition was

conflicting and that the trial court, as the finder of fact, was

free to reject his testimony of impairment and to accept the

testimony of Officers Leonard and Smith and appellant's own

statements on the audiotaped portion of his confession.

Although Leonard acknowledged that appellant may have reported

being a heroin user and said something about "having a hard time

                              - 10 -
in there," Leonard testified that he believed the comment

related to appellant's desire to smoke cigarettes, which he was

unable to do because of the jail's no-smoking policy.    Both

detectives testified that appellant's physical appearance during

the interview was normal and that they observed no symptoms of

heroin withdrawal.   Although appellant may have been tired,

"nervous and confused about what he should do, . . . he seemed

to understand and comprehend what [he and the officers] were

talking about."   Finally, the trial court expressly found that

"[t]he best evidence of [appellant's] condition is the statement

itself."

     Other evidence further supported the trial court's

conclusion that appellant's waiver of his right to counsel and

his confession were voluntary.   Although appellant was unable to

smoke, the detectives provided him with soda and a candy bar.

Further, appellant was no stranger to the criminal justice

system and knew how to exercise his rights.    He had been

arrested on January 26, 1999, less than ten days earlier, on the

shopping mall cocaine possession charge for which he was tried

at the same time as the robbery offenses.    Further, when

appellant was initially arrested for the subject robbery

offenses on the evening of February 3, 1999, the police informed

him of his Miranda rights and, after signing a form

acknowledging his understanding of those rights, he chose to

exercise them by remaining silent.     It was uncontested that

                              - 11 -
appellant remembered signing that form and understood its

contents.   Although he claimed not to have read or comprehended

the contents of an identical form he signed less than

twenty-four hours later, immediately before giving the

challenged confession, the trial court found appellant "was

aware of his rights and made a voluntary waiver of those rights

by telling the detectives he would talk."    Thus, our independent

evaluation of the totality of the circumstances supports the

trial court's conclusion that appellant's waiver of his right to

counsel and his subsequent confession were voluntary.    The

finding of voluntariness implicitly encompassed a finding that

the waiver was knowing and intelligent.     See, e.g., Kauffmann, 8

Va. App. at 404-06, 382 S.E.2d at 281-82 (holding confession

voluntary despite Fifth Amendment challenge without specifically

discussing whether it was "knowing" and "intelligent").

     In reaching this conclusion, the trial court was free to

reject the testimony of Dr. George Bright regarding the effect

of heroin withdrawal on appellant's ability to make a voluntary

confession.   See Witt, 215 Va. at 674, 212 S.E.2d at 297; see

also Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665,

668-69 (1997) (en banc).   Bright's expert opinion regarding the

effect of heroin withdrawal on appellant was based on

appellant's own testimony of the amount of heroin he was using

prior to his arrest and when he last used it.    Appellant's

testimony conflicted with the testimony of the detectives that

                              - 12 -
appellant appeared no more than nervous and tired and exhibited

no physical signs of heroin withdrawal.    Bright had not seen

appellant for more than two and one half months prior to his

arrest on the robbery charges and, therefore, had no independent

knowledge of appellant's condition at the time of his arrest and

interrogation.   See Street, 25 Va. App. at 389, 488 S.E.2d at

669 (affirming trial court's rejection of expert testimony

because it was based on information relayed by party and

"[e]xperts do not determine the credibility of a witness").

     Thus, we conclude, under the totality of the circumstances,

that the trial court's denial of appellant's motion to suppress

his confession was not erroneous.     Because appellant's only

challenge to the sufficiency of the evidence to support the

robbery and related firearm convictions pertained to the court's

ruling on the suppression motion, which we have upheld as

proper, we affirm these convictions.

                                II.

     For these reasons, we hold the denial of the motion to

suppress the cocaine was erroneous, and we reverse the

conviction for possessing cocaine and remand for further

proceedings if the Commonwealth be so advised.    We hold the

trial court's denial of the motion to suppress the robbery




                              - 13 -
confession was not erroneous, and we affirm the robbery and

related firearm convictions.

                                        Affirmed in part,
                                        and reversed
                                        and remanded in part.




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