                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia


RAHEEM SHABAZZ ALLAH
                                         MEMORANDUM OPINION * BY
v.   Record No. 2180-95-2              JUDGE JAMES W. BENTON, JR.
                                            JANUARY 28, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Walter W. Stout, III, Judge
           Cullen D. Seltzer, Assistant Public Defender
           (David J. Johnson, Public Defender, on
           briefs), for appellant.

           Eugene Murphy, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



      Raheem Shabazz Allah was indicted on the charges of

possession of cocaine with intent to distribute, see Code

§ 18.2-248, and transportation of cocaine into the Commonwealth

with intent to distribute.   See Code § 18.2-248.01.   The trial

judge denied Allah's motion to suppress the cocaine and convicted

Allah of both charges after Allah entered a conditional guilty

plea preserving his right to appeal.   In this appeal, Allah

argues that he was unlawfully searched.   Because the evidence did

not prove the lawfulness of the search, we reverse the trial

judge's decision.




      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                                FACTS

     The evidence proved that on March 22, 1995, Officer

Armistead and Detective Ruffin were assigned to a narcotics

interdiction team that was working at the Greyhound bus terminal

in Richmond.   They observed Allah arrive at the terminal in an

automobile driven by another man.    Allah and the man went to the

ticket counter and obtained a ticket.     Allah, who was not

carrying luggage, then boarded a bus travelling to New York City.

A full twenty-four hours later, at 3:15 a.m. on the following

day, Allah returned to Richmond wearing the same clothes and

still carrying no luggage.   Allah went from the bus into the

terminal and made a telephone call.     After placing a telephone

call, Allah played video games.
     Detective Ruffin approached Allah, displayed her badge, and

asked if she could speak with him.      Officer Armistead testified

that he stood outside the game room.     Detective Ruffin asked

Allah if Officer Armistead could search him.     Allah refused to be

searched and asked why Detective Ruffin needed to speak with him.

Detective Ruffin stated that she was in the terminal to stop the

flow of illegal narcotics, told Allah about their observations of

him, and told Allah that his actions had made the police

suspicious.    Detective Ruffin then again asked Allah if he would

allow Officer Armistead to search him.     Allah asked why she

wanted to search him and stated that he did not want to be

searched.   Detective Ruffin testified that the encounter was not



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consensual.

     Detective Ruffin advised Allah that they would detain him

until they obtained a search warrant.    Detective Ruffin took

Allah to a customer service office where Officer Armistead

detained him.

     Detective Ruffin left the terminal to seek a warrant.       While

she was typing the application, she spoke to a Commonwealth's

Attorney.   Based on their conversation, Detective Ruffin

concluded that she did not have sufficient grounds to obtain a

warrant.    Detective Ruffin talked to Officer Armistead on the

telephone and learned that Officer Armistead had unsuccessfully

attempted to get a drug dog and a criminal record check of Allah.
     Officer Armistead said that he told Allah about their

efforts to obtain a warrant, drug dog, and a criminal record

check.   He also testified that while he was detaining Allah in

the office, he saw the man, who had brought Allah to the terminal

the day before, enter the terminal.

     After Detective Ruffin notified Officer Armistead that she

was unable to get a search warrant, Officer Armistead told Allah

to accompany him.   He walked Allah outside the terminal near

Gates 6 and 7.   Officer Armistead testified that he then told

Allah he was no longer being detained.   Officer Armistead then

asked, however, "do you mind if I continue talking."   He said

Allah "agreed by shaking his head up and down."   Officer

Armistead testified that he advised Allah of the reasons for his




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suspicion and explained why they detained him.   He said Allah

stated, "it sounds like probable cause to me."

     Officer Armistead then asked Allah whether he was carrying

any illegal drugs.   Officer Armistead testified that he then

"told [Allah], I just want to ask you again, can I search your

person for drugs, and by that I mean, just want to squeeze your

pockets from the outside."   Allah began taking items out of his

pockets.    However, Armistead stated "don't pull anything out of

your pockets" and said that he only wanted to feel the outside of

Allah's pockets.    He testified that Allah said, "go ahead."
     Officer Armistead felt a long oval object in Allah's upper

breast area, and when he squeezed the object, he discovered that

it was irregularly shaped and "crunchy."   Officer Armistead then

told Allah that he was under detention again.    He said that he

told Allah that the object "feels consistent to . . . crack

cocaine."   Officer Armistead then took Allah back to the service

office.    Officer Armistead testified that after they entered the

office, Allah attempted to run when Armistead turned to look for

Detective Ruffin.    The officers stopped Allah and searched him.

They removed the object from Allah's pocket, opened it, and saw

what was later tested to be cocaine.    The officers arrested Allah

at 5:03 a.m.

     The trial judge concluded that Allah's "acceptance of the

search was voluntary" and overruled Allah's suppression motion.

For the reasons that follow, we hold that Allah was unlawfully




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detained and that the search was tainted by the illegal

detention.




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                            THE DETENTION

     Officer Armistead testified that "the reason [Allah] was

detained was that he was observed coming into the [bus] terminal

with a heavyset, light complected male, having no luggage,

getting on the bus, going to New York and then coming back on a

quick turnaround."   Because these "circumstances describe a very

large category of presumably innocent travelers, who would be

subject to virtually random seizures were the Court to conclude

that as little foundation as there was in this case could justify

a seizure," Reid v. Georgia, 448 U.S. 438, 441 (1980), we hold

that the officers lacked a reasonable suspicion "that criminal

activity may be afoot."     Terry v. Ohio, 392 U.S. 1, 30 (1968).

Therefore, the detention of Allah while the police attempted to

find a search warrant was unlawful.      See Reid, 448 U.S. at 441.

                              THE SEARCH

     When the police search a person without a search warrant,

"the burden is on the Commonwealth to establish an exception to

the warrant requirement."     Walls v. Commonwealth, 2 Va. App. 639,

645, 347 S.E.2d 175, 178 (1986).    "When trying to establish that

there was a voluntary consent after an illegal stop, the

[Commonwealth] has a much heavier burden to carry than when the

consent is given after a permissible stop."      United States v.

Ballard, 573 F.2d 913, 916 (5th Cir. 1978).     Even if the

Commonwealth discharges its heavy burden to prove a voluntary

consent, the Commonwealth then must establish that the consent



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was "sufficiently an act of free will to purge the primary taint"

of the illegal seizure.    Wong Sun v. United States, 371 U.S. 471,

486 (1963).    "The fact that the consent was voluntary . . . does

not mean that it was sufficiently an act of free will to purge

the primary [illegal] taint."    Walls v. Commonwealth, 2 Va. App.

639, 654, 347 S.E.2d 175, 183 (1986).

     Because we hold that the evidence proved that the illegal

detention tainted the alleged consent to search, we assume,

without deciding, that the consent was voluntary.   The principle

is well established by this Court that evidence must be

suppressed if it was "obtained pursuant to . . . [a] voluntary

consent to search [that] was '"come at by exploitation of [the

initial] illegality" rather than "by means sufficiently

distinguishable to be purged of the primary taint."'"
Commonwealth v. Ealy, 12 Va. App. 744, 757, 407 S.E.2d 681, 689

(1991) (citations omitted).    In determining whether a consent was

"sufficiently attenuated from the [illegal detention] to purge

its taint," this Court has "considered, in addition to the

voluntariness of the consent, the temporal proximity and the

presence of intervening circumstances between the [illegality]

and the consent, [the defendant's] awareness of a right to

withhold consent, and the purpose and flagrancy of the police

misconduct."    Id. at 755, 407 S.E.2d at 688.

     The evidence shows that the consent was given shortly after

the illegal detention ended.    Allah was detained for a period of



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forty-five minutes to an hour while the officers sought a search

warrant.   After Officer Armistead notified Allah that he was "no

longer under detention," Officer Armistead continued his

investigation by continuing to speak with Allah.    He obtained

Allah's consent to the search in that conversation.    Thus, no

intervening circumstances occurred that would break the chain of

events.    See Walls, 2 Va. App. at 654, 347 S.E.2d at 184.

     The police misconduct in unlawfully detaining Allah was

directly related to the ensuing conduct.     See id. at 655, 347

S.E.2d at 184.   Officer Armistead testified that after he was

denied a warrant, he wanted to extract Allah's consent.    Officer

Armistead's objective to search Allah was clearly manifested by

his testimony that "I wanted to receive his consent and I believe

Detective Ruffin wanted to receive his consent also."

     Although Officer Armistead had earlier told Allah that they

were seeking a search warrant and a drug dog, the record does not

indicate that he told Allah that they had been unable to procure

either.    Officer Armistead sought to keep Allah at the terminal

by talking to him and by conveying the facts that formed the

basis for the officers' suspicions.     However, Armistead testified

that the reason why he informed Allah of the grounds for his

suspicions was "[j]ust to advise him of that."

     After Allah had been detained for up to one hour, Officer

Armistead was still confronting him and describing the

circumstances that arose Armistead's suspicions.    Allah now was



                                - 8 -
aware, however, that his earlier refusal to allow a search

resulted in a lengthy detention.   The Commonwealth's evidence

therefore does not negate the reasonable conclusion that Allah

consented to the search just to free himself from police

interference.   Certainly, the evidence proved that the police

exploited the initial illegal detention to provoke a consent.

     Because the evidence proved that the consent was tainted by

the illegal detention, the trial judge erred in denying Allah's

motion to suppress.   Therefore, we reverse the trial judge's

refusal to suppress the evidence and set aside the convictions.

                                         Reversed and remanded.




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