                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bumgardner and Agee
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                            MEMORANDUM OPINION * BY
v.   Record No. 0645-01-2                JUDGE JERE M. H. WILLIS, JR.
                                                 JULY 24, 2001
DWAYNE MARK LEWIS


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert W. Duling, Judge

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellant.

          William P. Irwin, V (Bowen, Bryant,
          Champlin & Carr, on brief), for appellee.


     Dwayne Mark Lewis stands indicted for possession of cocaine

with the intent to distribute, a violation of Code § 18.2-248.

The Commonwealth contends that the trial court erroneously

suppressed the cocaine found during a search of his person.     We

reverse the trial court's suppression order and remand the case

for further proceedings consistent with this opinion.

                            I.   BACKGROUND

     On September 19, 2000, City of Richmond Police Officer

Timothy D. Wyatt assisted Sergeant McNamara in stopping a

vehicle for defective equipment.     Lewis was a passenger in that


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
vehicle.   Officer Wyatt testified that he approached the

passenger side of the vehicle and noticed Lewis' "hands were

shaking," leading him to believe that Lewis was nervous.      Before

Officer Wyatt said a word, Lewis told him, "I am just trying to

get a ride."   Officer Wyatt replied, "Relax.   Don't worry about

it."   Nevertheless, Lewis continued to try to explain to the

officer that he had done nothing wrong.

       Officer Wyatt testified that based upon Lewis' nervousness,

he "had him exit the vehicle."    Officer Wyatt asked Lewis "if he

had any weapons or narcotics on him."    Lewis replied, "no."

Officer Wyatt then asked Lewis "if he had a problem if [the

officer] checked him."   Lewis said, "Naw.   Go ahead," and "put

his hands up in the air."   Officer Wyatt turned Lewis around so

that he had his back to the officer, put Lewis' hands on the

roof of the vehicle, and began to "search him."    During the

search, Officer Wyatt found cocaine.

       In moving to suppress the cocaine, Lewis argued that he was

seized when Officer Wyatt "asked" him to exit the vehicle.      He

further argued that his statement, "Naw.     Go ahead," was

equivocal and, therefore, not freely and voluntarily given.     The

Commonwealth argued that the encounter was consensual, that

Lewis voluntarily exited the vehicle, and that by his words and

actions Lewis consented to the search of his person.




                                 - 2 -
     The trial court held:

          Under the circumstances of this case, it is
          difficult . . . to conclude that a
          reasonable person, who found themselves in
          the position of Mr. Lewis, would have
          concluded, when directed to exit the
          vehicle, that he had an option to sit in the
          vehicle and, once having exited the vehicle,
          to conclude that he had the option to leave.

Therefore, the trial court concluded Lewis was unlawfully seized

when he was directed to exit the vehicle.      It granted Lewis'

motion to suppress without addressing whether he had consented

to the search.

                             II.    ANALYSIS

     In a pretrial appeal of a ruling on a motion to suppress,

we view the evidence in the light most favorable to the party

prevailing below, in this case Lewis, granting to him all

reasonable inferences fairly deducible therefrom.      See

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d

47, 48 (1991).   "'Ultimate questions of reasonable suspicion and

probable cause to make a warrantless search' involve questions

of both law and fact and are reviewed de novo on appeal."      McGee

v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261

(1997) (en banc) (quoting Ornelas v. United States, 517 U.S.

690, 691 (1996)).   However, "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


                                   - 3 -
law enforcement officers."      Id. at 198, 487 S.E.2d at 261

(citing Ornelas, 517 U.S. at 699).

     The trial court erred in holding that Lewis was unlawfully

seized when he was asked to exit the vehicle.     Officer Wyatt was

permitted to detain Lewis briefly, as a passenger in the

vehicle, pending the completion of the traffic stop.        See Harris

v. Commonwealth, 27 Va. App. 554, 561-63, 500 S.E.2d 257, 260-61

(1998) (holding that law enforcement officers are permitted,

following a lawful traffic stop, to detain the occupants of the

vehicle, pending the completion of the traffic stop); see also

Hatcher v. Commonwealth, 14 Va. App. 487, 491-92, 419 S.E.2d

256, 258-59 (1992) (holding that in effecting a traffic stop, an

officer, to ensure his safety and to maintain control of a

potentially hazardous situation, may detain briefly not only the

driver but the passengers as well).

     In Maryland v. Wilson, 519 U.S. 408, 415 (1997), the United

States Supreme Court held that "an officer making a traffic stop

may order passengers to get out of the car pending completion of

the stop."     Id.   The Court reasoned:

             [D]anger to an officer from a traffic stop
             is likely to be greater when there are
             passengers in addition to the driver in the
             stopped car. While there is not the same
             basis for ordering the passengers out of the
             car as there is for ordering the driver out,
             the additional intrusion on the passenger is
             minimal.




                                  - 4 -
Id. at 414-15.   In Wilson, the Court extended its holding in

Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam), that "a

police officer may as a matter of course order the driver of a

lawfully stopped car to exit his vehicle," to passengers of the

vehicle.   Wilson, 519 U.S. at 410.    The Court in Wilson found

that the "same weighty interest in officer safety is present

regardless of whether the occupant of the stopped car is a

driver or passenger."   Id. at 413.

     Mimms and its progeny, including Wilson, authorized Officer

Wyatt to order Lewis out of the vehicle.

     Once he exited the vehicle, Lewis voluntarily consented to

the search of his person.

                [I]n Bumper v. North Carolina, 391 U.S.
           543 (1968), the United States Supreme Court
           held that the Fourth Amendment right to be
           free from unreasonable seizures may be
           waived, orally or in writing, by voluntary
           consent to a warrantless search of a person,
           property or premises. Implicit in the
           waiver of the warrant requirement is the
           waiver of the requirement of probable cause.

                The test of a valid consent search is
           whether it was "freely and voluntarily
           given." . . . 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."

Deer v. Commonwealth, 17 Va. App. 730, 734-35, 441 S.E.2d 33, 36

(1994) (citations omitted).




                               - 5 -
     Officer Wyatt testified that he asked Lewis whether he had

any weapons or narcotics on his person.   Immediately after Lewis

said that he did not, Officer Wyatt asked Lewis if he had a

problem if he "checked him."   Lewis told Officer Wyatt, "Naw.

Go ahead," and lifted his hands into the air without prompting

by the officer.   This consent was freely given and was

unequivocal.   Officer Wyatt did not touch Lewis until given

permission.    Officer Wyatt did not draw his weapon.   Lewis asked

no question and expressed no concern about Officer Wyatt's

request to search him.   He merely agreed.   Therefore, we hold

that Lewis voluntarily consented to the search of his person.

     Accordingly, the judgment of the trial court is reversed,

and this case is remanded for further proceedings consistent

with this opinion.

                                          Reversed and remanded.




                                - 6 -
