                   COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Frank and Humphreys
Argued at Richmond, Virginia


JESSIE LAMONT TATE, S/K/A
 JESSE TATE
                                              MEMORANDUM OPINION * BY
v.   Record No. 1860-99-2                      JUDGE ROBERT P. FRANK
                                                  OCTOBER 10, 2000
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                       Thomas N. Nance, Judge

           S. Jane Chittom, Appellate Counsel (Public
           Defender Commission, on briefs), for
           appellant.

           Donald E. Jeffrey, III, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     Jessie Lamont Tate (appellant) was convicted in a bench trial

of possession with intent to distribute cocaine in violation of

Code § 18.2-248.   On appeal, he contends the trial court erred in

denying his motion to suppress the cocaine found in his mouth,

asserting that the search of his mouth exceeded the scope of his

consent.   For the reasons stated, we affirm the conviction.

                            I.   BACKGROUND

     Officer Scott Shapiro of the Richmond Police Department

received information from a "reliable informant" that Clifford


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Brunson was in possession of cocaine in a gold Volvo automobile,

which was parked outside a delicatessen on Meadowbridge Road.     The

informant, by telephone, told Shapiro he had "just seen" Brunson

with cocaine.    The informant did not tell Shapiro whether Brunson

was armed.   Within "two to three minutes," Shapiro and Officer

Bohannon arrived at the location and observed a Volvo, which

matched the description, "going down the street."    The officers

stopped the vehicle.   Brunson, with whom Shapiro was familiar, was

seated in the driver's seat, and appellant was the only passenger

in the vehicle.

     Shapiro testified that past information he received from the

same informant had "led to search warrants, numerous arrests and

convictions in the Circuit Court of Richmond."

     The officers patted down Brunson for weapons.     They did not

discover any weapons during the pat-down, and there were no

weapons in the vehicle in "plain view."   Officers McQuail and

Boyett arrived while Shapiro was talking to Brunson.    Brunson gave

the officers permission to search him, and Shapiro took Brunson

behind a building and made a thorough search.

     Officer Steven McQuail stated he looked inside the vehicle

and observed appellant "breathing hard" and "moving around the

vehicle."    McQuail also stated appellant "looked anxious."

McQuail testified appellant "had been coughing," "threw a

cigarette out," and "opened the door and spit out of the car."



                                - 2 -
McQuail said Officer Boyett asked appellant why he was "so

nervous."

        McQuail testified he asked appellant to "step out of the

vehicle."    He made the request because "of the information from

Officer Shapiro" regarding the possibility of drugs in the vehicle

and because he was uncomfortable in the location because it was a

"high drug trafficking area."    McQuail testified he was worried

about his safety because appellant was nervous and "drugs are

associated with weapons."

        McQuail stated he then asked appellant if he could "search

his person."    Appellant responded affirmatively and raised his

arms.    McQuail immediately patted down appellant for weapons

because of the safety concerns, but did not locate any weapons.

McQuail asked appellant to step to the rear of the vehicle so he

could "conduct a search."

        The officer noticed a bulge in appellant's left jacket pocket

but it did not feel like a weapon.       McQuail proceeded to search

appellant's person and then noticed appellant's right cheek was

"extended outward as if something was inside his mouth."      McQuail

pressed against appellant's cheek and "asked him to open his

mouth."    As appellant did so, his tongue appeared to be "covering

something" because it was "raised up from the bottom of his

mouth."    McQuail asked him to "raise his tongue."    Appellant

"manipulated his mouth and it appeared as though he was trying to

shuffle something in his mouth."

                                 - 3 -
     During this process, McQuail observed "a white object which

[he] believed to be [crack] cocaine" based on his training and

experience.   McQuail retrieved the object, placed appellant under

arrest, handcuffed him, continued the search, and advised

appellant of his Miranda rights.   In a search incident to the

arrest, McQuail located a large amount of cash in appellant's left

jacket pocket.

     McQuail then took appellant behind a building to conduct a

more thorough search, specifically of the groin area.   McQuail did

not complete the search because the area was too public.    He took

appellant to the police station where appellant was re-advised of

his Miranda rights.   Appellant also signed a written waiver of his

Miranda rights.   Appellant admitted he had more drugs on his

person.   McQuail began to search appellant but was unable to find

additional contraband.   Then, Boyett found a bag, appearing to

contain cocaine, concealed in appellant's groin area.

     During cross-examination, McQuail admitted he allayed any

concerns he had about weapons on appellant's person by doing the

pat-down.   He stated he also asked appellant to exit the vehicle

because of the possibility of drugs on his person.    He stated he

intended to investigate further based on appellant's consent as

well as the information related to illegal drugs.    He further said

he had repeatedly asked appellant to open his mouth.

     On re-direct examination, McQuail said that from the time he

asked appellant if he could search him until the time he located

                               - 4 -
the suspected cocaine, appellant never asked him to "stop

searching" or gave any indication that he wanted him to do so.     He

said he asked appellant to open his mouth after seeing the bulge

because he had "found drugs in people's mouths before."    McQuail

said he knew the mouth is a "common place to hold drugs."

     The trial court denied the motion to suppress.    Appellant

pled guilty to the offense, reserving the search and seizure

issue.

                           II.    ANALYSIS

     On review of a trial court's denial of a suppression motion,

"we view the evidence in a light most favorable to . . . the

prevailing party below, and we grant all reasonable inferences

fairly deducible from that evidence."    Commonwealth v. Grimstead,

12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991) (citing

Commonwealth v. Holloway, 9 Va. App. 11, 20, 384 S.E.2d 99, 104

(1989)).   In our review, "we 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) (citation omitted).

However, we consider de novo whether those facts implicate the

Fourth Amendment and, if so, whether the officers unlawfully

infringed upon an area protected by the Fourth Amendment.   See id.



                                 - 5 -
     "[T]he fourth amendment proscribes all unreasonable searches

and seizures and '"searches conducted outside the judicial

process, without prior approval of a judge or magistrate, are per

se unreasonable under the Fourth Amendment–-subject only to a few

specifically established and well-delineated exceptions."'"

Cantrell v. Commonwealth, 7 Va. App. 269, 282, 373 S.E.2d 328, 334

(1988) (citations omitted).    However, searches made by the police

with the consent of a person authorized to give consent "do not

implicate the fourth amendment."    Iglesias v. Commonwealth, 7 Va.

App. 93, 99, 372 S.E.2d 170, 173 (1988).    Once consent is given,

the search remains lawful:    1) as long as the consenting

individual does not withdraw the consent and 2) if the police do

not exceed the scope of the consent.     See Grinton v. Commonwealth,

14 Va. App. 846, 850-51, 419 S.E.2d 860, 862-63 (1992).      "The

question of whether a particular 'consent to a search was in fact

voluntary or was the product of duress or coercion, express or

implied, is a question of fact to be determined from the totality

of all the circumstances,'" and will not be reversed on appeal

unless clearly erroneous.    Deer v. Commonwealth, 17 Va. App. 730,

735, 441 S.E.2d 33, 36 (1994) (citation omitted).    Similarly,

whether the search exceeds the scope of consent is a factual

matter and a trial court's findings will be upheld unless clearly

erroneous.   See United States v. Pena, 920 F.2d 1509, 1514 (10th

Cir. 1990) (citation omitted).    Whether the consent to search was

withdrawn is a factual question to be determined from the totality

                                 - 6 -
of the circumstances.   See United States v. Maldonado, 38 F.3d

936, 942 (7th Cir. 1994).

     While conducting a consensual search, the police may lawfully

seize an item that they discover in plain view if they "'have

probable cause to believe that the item in question is evidence of

a crime or contraband.'"    McNair v. Commonwealth, 31 Va. App. 76,

82-83, 521 S.E.2d 303, 307 (1999) (en banc) (citation omitted).

     In Grinton, we held:

               A consensual search is reasonable if the
          search is within the scope of the consent
          given. United States v. Martinez, 949 F.2d
          1117, 1119 (11th Cir. 1992). The scope of a
          person's consent is determined by whether it
          is objectively reasonable for the police to
          believe that the consent permitted them to
          search where they did. Florida v. Jimeno,
          500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04,
          114 L.Ed.2d 297 (1991). It is objectively
          reasonable for a police officer to search a
          container within a car based on a general
          consent to search the car for narcotics and
          where no specific limitations are placed on
          the scope of the search. Id.

               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. See e.g. United
          States v. DeWitt, 946 F.2d 1497, 1501 (10th
          Cir. 1991) (officer's placement of his hand
          in cleft between back seat cushions of car
          did not exceed scope of consent, where
          defendant did not object until after
          discovery of narcotics), cert. denied, 502
          U.S. 1118, 112 S. Ct. 1233, 117 L.Ed.2d 467
          (1992); United States v. Alfaro, 935 F.2d 64,
          67 (5th Cir. 1991) (defendant fails to
          withdraw consent where he asks to go outside
          to talk to another but makes no protest).
          Cf. United States v. Patacchia, 602 F.2d 218,
          219 (9th Cir. 1979) (saying "I would but I

                                - 7 -
          can't" open car trunk, is not consent where
          prior consent not given).

Grinton, 14 Va. App. at 850-51, 419 S.E.2d at 862-63.

     Appellant does not contest the voluntariness of his consent,

but argues his consent only was for a pat-down for weapons.         The

record belies this contention.    Officer McQuail asked appellant if

he could "search his person."    The request was not limited to a

search for weapons.    McQuail testified he advised appellant he was

investigating the possibility of drugs.      It is uncontroverted that

appellant consented.    Once the pat-down revealed no weapons, the

officer continued with his search.       Appellant knew of the drug

investigation prior to the pat-down.       We, therefore, reject

appellant's contention that his consent was limited to a pat-down

for weapons.

     Appellant further contends his reluctance to open his mouth

and his efforts to conceal the drugs under his tongue were

evidence of his desire to withdraw his consent.      We disagree.

     Appellant argues Reittinger v. Commonwealth, 260 Va. 232, 532

S.E.2d 25 (2000), applies.   In Reittinger, the police stopped the

appellant's vehicle because it only had one operable headlight.

See Reittinger, 260 Va. at 234, 532 S.E.2d at 26.      The appellant

showed the officer a new headlight that he stated he was planning

to install the following day.    See id.     The officer gave the

appellant a verbal warning, told the appellant he was "'free to

go,'" and then asked the appellant if there were illegal weapons


                                 - 8 -
or drugs in the van.   See id.   The appellant stated that there

was nothing illegal in the van, and the officer asked for

permission to search the van.     See id.    The officer repeated his

request twice and the appellant appeared to be consulting with

the passengers in his vehicle.     See id.    The appellant did not

answer the officer and, instead, exited the van.       See id.     The

officer noticed a "bulge" in the appellant's pants pocket and

conducted a pat-down search.     See id.    The bulge felt hard and

the officer asked the appellant to empty his pocket.        See id.

The appellant removed from his pocket a smoking pipe that

contained marijuana residue.     See id.    The Supreme Court of

Virginia held that the appellant's encounter with the officer

was not consensual under the Fourth Amendment.       See id. at

236-37, 532 S.E.2d at 27-28.     The Court noted that the

circumstances of the encounter would not lead a reasonable

person to believe they were free to leave.       See id.   Holding

that the appellant was unlawfully seized, the Court reversed the

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

product of the search.   See id. at 237, 532 S.E.2d at 28.

Appellant argues that McQuail's requests for him to open his

mouth and raise his tongue are similar to the repeated requests

of the officer in Reittinger.     Appellant argues that a series of

requests and refusals does not imply consent.      We hold that

Reittinger is not applicable to this case.      In Reittinger, the

appellant never consented to the search, and, instead, merely

                                 - 9 -
exited the van.     In this case, it is uncontested that appellant

consented to a search of his person and was aware that McQuail

was conducting a drug investigation.     Appellant argues that he

did not consent to a search of his mouth.    However, when McQuail

noticed appellant's cheek was "extended outward as if something

was inside his mouth" and asked appellant to open his mouth,

appellant did so.    McQuail noticed that appellant's tongue

appeared to be covering something and asked appellant to raise his

tongue.    Appellant then appeared to shuffle something in his

mouth.    Appellant never stated that he would not open his mouth,

nor did he state that he withdrew his consent to the search.       We,

therefore, find that appellant did not withdraw his consent to the

search but, in opening his mouth and complying with McQuail's

request, specifically consented to a search of his mouth.1     Once

McQuail observed what he believed was crack cocaine, he had

probable cause to seize the object in appellant's mouth.     We,

therefore, conclude appellant's "conduct thus falls far short of

an unequivocal act or statement of withdrawal, something found in

most withdrawal of consent cases."    Alfaro, 935 F.2d at 67

(citations omitted).    "More likely, [appellant's] hesitancy places

his appeal within the ambit of United States v. Brown, 884 F.2d

1309, 1312 (9th Cir. 1989), . . . where a defendant who consented


     1
       We do not address whether the mouth is a body cavity under
Hughes v. Commonwealth, 31 Va. App. 447, 524 S.E.2d 155 (2000)
(en banc), because we find appellant consented not only to a
general search but a specific search of his mouth.

                                - 10 -
to a search of his suitcase but then became extremely reluctant to

hand over his suitcase keys was held not to have taken back his

consent."    Id.   Based on the totality of the circumstances, the

trial court could properly conclude appellant did not withdraw his

consent.

     We further find McQuail did not exceed the scope of the

consent.    Based on the totality of the circumstances, we conclude

appellant, by consenting to a search, agreed to a search of any

place where drugs could reasonably be found.    The "failure to

object to the continuation of the search under these circumstances

may be considered an indication that the search was within the

scope of the consent."    United States v. Espinosa, 782 F.2d 888,

892 (10th Cir. 1986).

     For these reasons, we affirm the judgment of the trial court.

                                                            Affirmed.




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