                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia


JERMAINE THOMAS
                                         MEMORANDUM OPINION * BY
v.         Record No. 0192-95-2           JUDGE MARVIN F. COLE
                                              JULY 9, 1996
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.

           H. Elizabeth Shaffer, Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.



     Appellant, Jermaine Thomas, in a bench trial was convicted

of possession of cocaine with the intent to distribute.     On

appeal, he contends that the trial court erred in refusing to

suppress evidence secured as a result of an unlawful search and

seizure.   We disagree and affirm the conviction.

     On July 23, 1994, Detective Stephanie Ruffin was on

assignment at the Greyhound bus station in Richmond.    She was

part of an interdiction team seeking to prevent illegal narcotics

from entering the Commonwealth.   She was standing at a gate when

a bus arrived from Washington, D.C.   She observed appellant near

the gate carrying a gray suitcase and a tan backpack.     The night

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
before, Ruffin saw a person who resembled appellant board a bus

for Washington.

     Thomas entered the game room of the terminal and sat down

upon the suitcase he was carrying.     Detective Ruffin watched

Thomas about thirty minutes.   She then approached him, displayed

her identification badge and picture I.D., and identified herself

as a police officer.   In a "very pleasant" tone of voice, Ruffin

asked Thomas if she could speak with him for a moment.    Appellant

said "sure."    Ruffin "asked him if he would mind following [her]

to the baggage area where [they] could speak in private."    Thomas

accompanied Ruffin to the baggage area for privacy.    The baggage

area was separated from the passenger area of the terminal by a

half-gate.   Appellant picked up his bags and followed her to the

baggage area.
     Ruffin explained to Thomas that she was involved in the drug

interdiction effort at the bus terminal.    She "asked him if [she]

could search his bags and his person."    Thomas answered, "Yeah,"

and stated that he was going to a family reunion in Greensboro

and that there were only clothes in the bag.    Trooper Koushel,

who was present in the baggage area, searched Thomas while Ruffin

searched the gray suitcase and the backpack.    In the backpack

Ruffin found an oval package wrapped in black electrical tape.

Believing the package contained narcotics, Ruffin cut the package

open with a knife.   Inside was a brown paper bag containing 95.11

grams of cocaine and 66 yellow glassine envelopes.    Ruffin placed




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Thomas under arrest for possessing cocaine with the intent to

distribute.   At no time during the search of his person or bags

did Thomas ask the officers to stop or indicate in any way that

he no longer consented to the search.    He did not object to the

search of anything within the bags.

     Thomas contends that his initial encounter with Detective

Ruffin was a seizure and that he did not voluntarily consent to a

search of the backpack.    He further argues that even if he did

consent to the search, Ruffin exceeded the scope of his consent

and, therefore, the seized cocaine was erroneously admitted into

evidence.    The Commonwealth contends that the encounter and the

search of Thomas and his bags were consensual and did not

implicate the Fourth Amendment.    Citing Rule 5A:18, it asserts

that appellant did not raise in the trial court the issue of the

scope of the consent, and he cannot raise it for the first time

on appeal.
     We review the evidence in the light most favorable to the

Commonwealth and grant to it "all reasonable inferences fairly

deducible therefrom."     Higginbotham v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975).    The appellant must show that

the denial of his motion to suppress evidence was reversible

error.   Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437

S.E.2d 232, 233 (1993).    To constitute reversible error, we will

disturb the decision of the trial court only if plainly wrong or

if not supported by credible evidence.     Commonwealth v.




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

     It is axiomatic that for a person to claim the protection of

the Fourth Amendment, he or she must first be subjected to a

search or seizure.
          [L]aw enforcement officers do not violate the
          Fourth Amendment by merely approaching an
          individual on the street or in another public
          place, by asking him if he is willing to
          answer some questions, by putting questions
          to him if the person is willing to listen, or
          by offering in evidence in a criminal
          prosecution his voluntary answers to such
          questions. Nor would the fact that the
          officer identifies himself as a police
          officer, without more, convert the encounter
          into a seizure requiring some level of
          objective justification.

Florida v. Royer, 460 U.S. 491, 497 (1983) (citations omitted)

(plurality opinion).   See also Richards v. Commonwealth, 8 Va.

App. 612, 615, 383 S.E.2d 268, 270 (1989).

     Furthermore, if a person consents to being searched, the

Fourth Amendment is not implicated if a reasonable person would

understand he could refuse to cooperate and rely upon the

protection of the Fourth Amendment.     Lawrence v. Commonwealth, 17

Va. App. 140, 144, 435 S.E.2d 591, 593 (1993), aff'd, 247 Va.

339, 443 S.E.2d 160 (1994) (citing United States v. Wilson, 953

F.2d 116, 121 (4th Cir. 1991)).    Consensual encounters and

searches remain consensual as long as the citizen voluntarily

cooperates with the police.   Payne v. Commonwealth, 14 Va. App.

86, 88, 414 S.E.2d 869, 879 (1992).

     The Commonwealth must prove that consent was freely and



                                  -4-
voluntarily given.   Elliotte v. Commonwealth, 7 Va. App. 234,

238, 372 S.E.2d 416, 419 (1988).   If consent is proven, then

probable cause to search and a search warrant are not required.

Schneckloth v. Busamonte, 412 U.S. 218, 219 (1973).     Whether the

consent to search was freely given is a question of fact to be

determined from the totality of circumstances.    Limonja v.

Commonwealth, 8 Va. App. 532, 540, 383 S.E.2d 476, 481 (1989) (en

banc), cert. denied, 495 U.S. 905 (1990).
     The Virginia Supreme Court has defined a seizure as follows:

          "[A] person has been 'seized' within the

          meaning of the Fourth Amendment only if, in

          view of all of the circumstances surrounding

          the incident, a reasonable person would have

          believed that he was not free to leave.

          Examples of circumstances that might indicate

          a seizure, even where the person did not

          attempt to leave, would be the threatening

          presence of several officers, the display of

          a weapon by an officer, some physical

          touching of the person of the citizen, or the

          use of language or tone of voice indicating

          that compliance with the officer's request

          might be compelled."

Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 648

(1992) (quoting United States v. Mendenhall, 446 U.S. 544, 554



                                 -5-
(1980)).

     Nothing in the record supports Thomas's claim that his

encounter with Detective Ruffin in the bus station was a seizure.

She identified herself as a police officer and asked permission

to speak with him.   He consented.    Detective Ruffin asked Thomas

if he would mind following her to the baggage area where they

could speak in private.   He demonstrated his consent by carrying

his bags and voluntarily following her to the baggage area.

Thus, we find no merit to the appellant's argument that he was

illegally seized in violation of the Fourth Amendment.
     As soon as Thomas entered the baggage area with Detective

Ruffin and Trooper Koushel, he consented to the searches of his

person and his bags.   At no point during the searches did he

withdraw his consent or in any way indicate that he wanted the

police to cease the searches.   His consent to the search of his

person and his bags was general, unlimited in scope as to his

person or bags, voluntary, and was never withdrawn or limited

subsequently.   The trial court held that the searches were

consensual, and evidence in the record supports this conclusion.

     Appellant further asserts that even if his encounter with

Detective Ruffin was not a seizure and he validly consented to

the search, the search conducted by Ruffin exceeded the scope of

that consent when she cut open the oval package containing

cocaine, which she found in the backpack.    The record does not

reveal that appellant made this argument in the trial court, and




                                -6-
it cannot now be made for the first time on appeal.   Rule 5A:18.

In any event, the discovery of the package containing 95.11

grams of cocaine was within the scope of the general consent to

search the backpack given by Thomas, as was the right to open the

package.   See Grinton v. Commonwealth, 14 Va. App. 846, 851, 419

S.E.2d 860, 863 (1992).

     For the reasons stated, we affirm the judgment of the trial

court.
                                                         Affirmed.




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