                       COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia


KELLY FRANCIS IBANEZ
                                          MEMORANDUM OPINION * BY
v.   Record No. 1200-02-1               JUDGE WALTER S. FELTON, JR.
                                              APRIL 22, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                  John C. Morrison, Jr., Judge

          William P. Robinson, Jr. (Robinson,
          Neeley & Anderson, on brief), for appellant.

          Jennifer R. Franklin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Kelly Ibanez was convicted in a bench trial of (1) possession

of more than five pounds of marijuana with the intent to

distribute, in violation of Code § 18.2-248.1, and (2)

transportation of more than five pounds of marijuana into the

Commonwealth, in violation of Code § 18.2-248.01.     On appeal,

Ibanez contends that the trial court erred in denying her motion

to suppress evidence because law enforcement officers lacked

probable cause to detain and arrest her.   For the following

reasons, we affirm the judgment of the trial court.




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

     On June 24, 1997, Kelly Ibanez and Kim Overton flew from

Norfolk International Airport to Los Angeles where they met some

of Ibanez's relatives.   On June 25, Virginia State Police

Trooper Bennell Powers, a member of the Virginia State Police

Drug Interdiction Team, was called to Norfolk International

Airport.    The drug interdiction team received information from

Los Angeles that two black females, traveling under the names

B. Johnson and K. Overton, checked several bags, including two

large black bags that were suspected of containing controlled

substances.   Their destination was Norfolk.   After a delay for

bad weather, the women arrived in Norfolk at approximately

2:00 a.m. on June 26.

     Trooper Powers observed two black women deplane together

and followed them to the baggage claim area.   As they walked to

the baggage claim area, Virginia State Police Trooper David

Washington observed them talking, but was unable to hear their

conversation.   Overton picked up the luggage first.   At the

luggage carousel she looked over her shoulder to Ibanez, and

Ibanez nodded to her.    Overton then picked two large black

suitcase bags off the carousel.    Ibanez then picked up two

smaller bags, and the women proceeded to walk together toward

the exit.

     At that point, the state troopers approached the women.

Trooper Powers approached Ibanez and asked her if he could speak

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to her.    He showed her his badge and identified himself.

Trooper Powers asked her if she just flew in on a flight and

where the flight came from.   She stated that her flight arrived

from California.   He then asked to see her airline ticket.    The

airline ticket had the name of B. Johnson on it.   It also

indicated a departure date of June 24 and a return date of June

25.    Trooper Powers returned the ticket to Ibanez and asked her

how long she was in California.    She responded that she was in

California for a couple of days visiting relatives.

       At that time Trooper Powers told Ibanez that he was a

narcotics agent and asked for her consent to search her luggage.

She gave her consent to search all her luggage.    Another

officer, Trooper Hoggard, then proceeded to check Ibanez's

luggage.   No contraband or controlled substances were found in

her luggage.   Ibanez attempted to leave even though she was not

informed that she could leave.    Trooper Powers again stopped

her.

       At the same time Trooper Powers initially spoke to Ibanez,

other state troopers were talking to Overton approximately ten

to fifteen feet away.   A drug-sniffing dog was brought over to

the luggage and alerted on the two large suitcase bags that were

in Overton's possession.   The luggage was searched.   The first

bag contained fifty-four pounds of marijuana, and the second bag

contained fifty-two pounds, three ounces of marijuana.   Trooper

Powers informed Ibanez of the discovery and arrested her.

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     Prior to trial, Ibanez filed a motion to suppress evidence

based on her claims of illegal arrest.       The trial court denied

her motion.   Ibanez was convicted of possession of more than

five pounds of marijuana with the intent to distribute and

transporting more than five pounds of marijuana into the

Commonwealth.

                           II.    ANALYSIS

     Ibanez contends that the trial court erred in denying her

motion to suppress evidence because law enforcement officers

lacked sufficient probable cause to detain and arrest her.

                      A.   STANDARD OF REVIEW

     "In reviewing a trial court's denial of a motion to

suppress, '[t]he burden is upon [the defendant] to show that

th[e] ruling, when the evidence is considered most favorably to

the Commonwealth, constituted reversible error.'"       McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d

729, 731 (1980)).

          In considering a challenge under the Fourth
          Amendment, questions of reasonable suspicion
          and probable cause involve questions of both
          law and fact and are reviewed de novo on
          appeal. Ornelas v. United States, 517 U.S.
          690, 699 (1996); Bass v. Commonwealth, 259
          Va. 470, 475, 525 S.E.2d 921, 924 (2000).
          Similarly, the question whether a person has
          been seized in violation of the Fourth
          Amendment is reviewed de novo on appeal.
          See Schneckloth [v. Bustamonte], 412 U.S.
          [218,] 226 [(1973)]; see also United States
          v. Mendenhall, 446 U.S. 544, 551 n.5 (1980).

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             An appellate court, however, "should take
             care both to review findings of historical
             fact only for clear error and to give due
             weight to inferences drawn from those facts
             by resident judges and local law enforcement
             officers." Ornelas, 517 U.S. at 699.

Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27

(2000).

                          B.   CONSENSUAL STOP

     The initial stop of Ibanez by law enforcement officers was

a consensual encounter that did not require probable cause.      A

law enforcement officer does not violate the Fourth Amendment

"merely by approaching an individual on the street, identifying

[himself], and asking the individual questions."      Buck v.

Commonwealth, 20 Va. App. 298, 301-02, 456 S.E.2d 534, 535

(1995).     A consensual encounter need not be predicated on

suspicion of criminal activity and remains consensual so long as

the encountered citizen voluntarily cooperates with police.

Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870

(1992) (citing United States v. Wilson, 953 F.2d 116, 121 (4th

Cir. 1991)).

     Trooper Powers approached Ibanez, identified himself as a law

enforcement officer, and asked her if he could speak to her.    She

agreed to speak to him, and Trooper Powers began asking her about

her trip.    In addition, he asked her if he could search her

luggage and she consented.     At the same time Trooper Powers was

speaking with Ibanez, other officers were speaking with Overton


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approximately ten to fifteen feet away.     By agreeing to speak with

the officers when they were approached, the women consented to the

stop.

                          C.   PROBABLE CAUSE

        Prior to initiating the consensual stop, law enforcement

officers did not possess sufficient evidence to establish

probable cause to arrest Ibanez.     Law enforcement officers had

obtained information from officials in Los Angeles regarding two

black women, traveling under the names B. Johnson and

K. Overton, suspecting them of transporting controlled

substances in two large black bags.      Upon the arrival of the

flight, officers observed two black women deplane together and

followed them to the luggage claim.      As they walked to the

luggage claim area, the women conversed.        When they arrived at

the baggage claim area, Ibanez signaled with a nod for Overton

to pick up two large pieces of luggage that matched the

description provided by officials in Los Angeles.

        Though initially not sufficient to establish probable

cause, officers established probable cause to arrest Ibanez with

the additional information obtained during the consensual

encounter.    During the consensual encounter, Trooper Powers

learned when he inspected her airline ticket that Ibanez was

traveling under the name B. Johnson, corroborating information

obtained from officials in Los Angeles.     When asked how long she

was in California, Ibanez responded, "a couple of days," even

                                 - 6 -
though her ticket showed one day.   Finally, a drug dog alerted

on the two bags that Overton had removed from the baggage

carousel after receiving a nod from Ibanez.

     Based on the totality of the information obtained from

officials in Los Angeles and the consensual encounter, there was

sufficient evidence to establish probable cause to detain and

arrest Ibanez.   The trial court did not err in denying Ibanez's

motion to suppress the evidence.

     Accordingly, we affirm the judgment of the trial court.

                                                        Affirmed.




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