                     COURT OF APPEALS OF VIRGINIA


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


MICHAEL L. HAMLIN, S/K/A
 MICHAEL LEON HAMLIN
                                           MEMORANDUM OPINION * BY
v.   Record No. 1279-99-2                   JUDGE LARRY G. ELDER
                                                APRIL 25, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                   Oliver A. Pollard, Jr., Judge

             Mary K. Martin, Senior Assistant Public
             Defender (Office of the Public Defender, on
             brief), for appellant.

             Leah A. Darron, Assistant Attorney General
             (Mark L. Earley, Attorney General; Shelly R.
             James, Assistant Attorney General, on brief),
             for appellee.


     Michael L. Hamlin (appellant) appeals from his bench trial

conviction for possession of cocaine.     On appeal, he contends

the trial court erroneously denied his motion to suppress

because the scope of the arresting officer's search of his

person exceeded the scope of his consent and violated the Fourth

Amendment.     We hold the officer's search was within the scope of

the consent given, and we affirm appellant's conviction.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                I.

                               FACTS

     Appellant was arrested for possession of cocaine and moved

to suppress the evidence as the product of an illegal search.

     The evidence adduced at the suppression hearing, viewed in

the light most favorable to the party prevailing below, was as

follows:

     While on patrol in his police vehicle shortly after

8:00 p.m. on September 29, 1998, Officer Keith Schilke saw

appellant and a woman standing in the middle of the street.       He

approached the pair and asked them "how they felt about

narcotics in the area."   He also asked them if they minded

talking to him, and they said they did not.    Schilke asked them

for identification, and both provided it to him.    He spoke first

to the woman and asked her for consent to search her person.

She declined and asked to leave.     Schilke returned her

identification and told her she could go, and she left.

     Schilke then turned his attention to appellant.        Schilke

testified on direct examination that he asked appellant "if I

could search his person, if he had any illegal weapons or

narcotics or anything like that on his person."    On

cross-examination, Schilke testified that he asked appellant if

he could pat him down for weapons, that the initial pat-down was

for weapons for safety.   Appellant consented.   After completing

the weapons pat-down, Schilke then asked appellant if he had

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anything in his pockets and if Schilke could search them.

Schilke initially testified that he asked appellant if he had

any illegal contraband in his pockets.   He later admitted that,

although this question was part of his usual procedure, he could

not recall whether he asked appellant specifically about

narcotics or anything else.    Appellant again consented to

Schilke's request to search.

     While searching appellant's pockets, Schilke removed an

empty cigarette pack which was folded up.   Schilke testified

that the pack felt like an empty pack of cigarettes and

contained nothing that he suspected to be a weapon.   When he

opened the pack, he found two clear "zips" containing an

off-white residue which proved to be cocaine.

     The trial court denied the motion to suppress, reasoning as

follows:

                There doesn't seem to be any
           disagreement that there were two people
           there, that the officer asked permission to
           search the female, she said no, and then she
           was permitted to leave. . . . This was in
           [appellant's] presence, so it can't be
           argued that he wasn't aware of these
           circumstances. One person refused any
           further contact and said she didn't want to
           be searched, and she was given her ID and
           left, no problem.
                He then turns to [appellant] and the
           mention of the pat down for weapons, and he
           does that, he finishes that. Then he said,
           "Do you mind if I go in your pockets?"
           [Appellant] has to know that this was beyond
           the pat down . . . search for weapons. It's
           pretty obvious. And he says, "No problem,"


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             knowing all the time that the female had
             said no and was permitted to leave.

The trial court convicted appellant of the charged offense and

sentenced him to a two-year suspended sentence.

                                  II.

                               ANALYSIS

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

Commonwealth has the burden of proving that a warrantless search

or seizure did not violate the defendant's Fourth Amendment

rights.   See Simmons v. Commonwealth, 238 Va. 200, 204, 380

S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va. App.

671, 674, 454 S.E.2d 39, 41 (1995).       On appeal, we view the

evidence in the light most favorable to the prevailing party,

granting to it all reasonable inferences fairly deducible

therefrom.     See Commonwealth v. Grimstead, 12 Va. App. 1066,

1067, 407 S.E.2d 47, 48 (1991).    "[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) (citing

Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657,

1659, 134 L. Ed. 2d 911 (1996)).    However, we review de novo the

trial court's application of defined legal standards to the

particular facts of the case.     See Shears v. Commonwealth, 23


                                 - 4 -
Va. App. 394, 398, 477 S.E.2d 309, 311 (1996); see also Ornelas,

517 U.S. at 699, 116 S. Ct. at 1659.

     "[T]he Fourth Amendment . . . protects people from

unreasonable government intrusions."       United States v. Chadwick,

433 U.S. 1, 7, 97 S. Ct. 2476, 2481, 53 L. Ed. 2d 538 (1977).

"A consensual search is reasonable if the search is within the

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

App. 846, 850, 419 S.E.2d 860, 862 (1992).      The standard for

measuring the scope of an individual's consent under the Fourth

Amendment is

             "objective" reasonableness-what would the
             typical reasonable person have understood by
             the exchange between the officer and the
             suspect? . . . The scope of a search is
             generally defined by its expressed
             object. . . . 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.

Florida v. Jimeno, 500 U.S. 248, 251-52, 111 S. Ct. 1801,

1803-04, 114 L. Ed. 2d 297 (1991).       "The scope of [the] 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, 419 S.E.2d at 863.

"Both the presence of consent to search and any related

limitations are factual issues for the trial court to resolve




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after consideration of the attendant circumstances."      Bynum v.

Commonwealth, 23 Va. App. 412, 418, 477 S.E.2d 750, 753 (1996).

      We applied these principles in Bolda v. Commonwealth, 15

Va. App. 315, 423 S.E.2d 204 (1992).    Bolda was a passenger in a

vehicle whose operator was arrested for driving while

intoxicated.   See id. at 316, 423 S.E.2d at 205.    The arresting

officer then asked Bolda "'if he was carrying any guns, knives,

weapons . . . or anything on his person.'"     Id.   Bolda said he

was not and consented to the officer's request to search Bolda's

person.   See id.   The officer did not recall making any

additional reference to weapons when he asked to conduct the

search but said it was possible he made such a reference.      See

id.   In a subsequent pat-down, the officer felt a substance

which was "kind of hard" and "felt like plastic on the outside."

See id.   He removed the item from Bolda's pocket and discovered

it was a rolled up baggie containing a psilcyn mushroom.      See

id.

      Based on these facts, we held that "[t]he method and order

in which [the officer] posed his questions to Bolda implied only

a concern about weapons" such that it was unreasonable for the

officer to conclude that Bolda had consented to a general

search.   See id. at 317, 423 S.E.2d at 206.

           Thus, Bolda's response could only reasonably
           have been related to the scope of the
           request. Significantly, [the officer]
           himself testified that it was possible he
           asked Bolda if he could search only for

                                - 6 -
           weapons. In addition, [the officer] did not
           testify that he ever mentioned drugs or
           other contraband in his questioning of
           Bolda.

Id.   Ultimately, we held that "[t]hese circumstances prove[d] an

implicit limitation on Bolda's consent, limiting [the officer]

to a search only for weapons."     Id.   Because the only reason the

officer articulated for examining the article was that he

believed it might have been a weapon and because it was clear

the item was not a weapon once he removed it from Bolda's

pocket, we held that he lacked authority to unroll the baggie

and examine its contents.   See id. at 318, 423 S.E.2d at 206.

      Appellant's case is distinguishable from Bolda.     First, in

appellant's case, it is undisputed that Officer Schilke

mentioned narcotics when he first approached appellant and his

companion, asking them "how they felt about narcotics in the

area."   Second, Bolda involved only one search, preceded by the

questions whether he had any weapons in his possession and

whether the officer could search his person.     In appellant's

case, by contrast, the trial court found that the officer

conducted two searches, and the evidence, viewed in the light

most favorable to the Commonwealth, supports this finding.

Before the first search, the officer asked appellant if he could

pat him down for weapons, and he completed the pat-down search

without finding anything.   Before the second search, the officer

asked appellant if he could search his pockets and did not state


                                 - 7 -
any specific category of items for which he was looking.    It was

within the authority of the trial court, as the finder of fact,

to determine that a reasonable person in appellant's situation

would conclude that the weapons search was over when the

pat-down was completed.   It also was within the court's

authority to find that the request to "go in [appellant's]

pockets" was a request to perform a more generalized search and

that appellant's initial consent to such a search, coupled with

his failure to object as the officer removed and examined the

cigarette pack, were sufficient to render the search reasonable

and the resulting contraband admissible.   See United States v.

Espinosa, 782 F.2d 888, 892 (10th Cir. 1986) ("Failure to object

to the continuation of the search . . . may be considered an

indication that the search was within the scope of the consent

given."), quoted with approval in Lawrence v. Commonwealth, 17

Va. App. 140, 146, 435 S.E.2d 591, 594 (1993).

     For these reasons, we hold the trial court did not err in

denying the motion to suppress, and we affirm appellant's

conviction.

                                                           Affirmed.




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