                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia


JOSHUA DARNELL PERRY
                                          MEMORANDUM OPINION * BY
v.   Record No. 2466-00-2               JUDGE JAMES W. BENTON, JR.
                                               JULY 30, 2002
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                     Timothy J. Hauler, Judge

          Emmet D. Alexander for appellant.

          Leah A. Darron, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on
          brief), for appellee.


     Joshua Darnell Perry appeals his conviction of possession of

cocaine in violation of Code § 18.2-250.   The sole issue is

whether the trial judge erred by failing to grant Perry's motion

to suppress evidence obtained in the search of his clothing.

For the reasons that follow, we reverse the conviction.

                                I.

     On appeal from a trial judge's denial of a motion to

suppress, "we are bound by the [judge's] findings of historical

fact unless 'plainly wrong' or without evidence to support

them."   McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d

259, 261 (1997) (en banc).   We "consider de novo[, however,]

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
whether those facts implicate the Fourth Amendment and, if so,

whether the officers unlawfully infringed upon an area protected

by the Fourth Amendment."    Hughes v. Commonwealth, 31 Va. App.

447, 454, 524 S.E.2d 155, 159 (2000).

     The evidence proved that on the afternoon of June 30, 1999

Chesterfield County Police Officer Grohowski was observing an

apartment complex for evidence of narcotics transactions when he

saw a vehicle enter the complex and later leave.   Officer

Grohowski and Officer Collins followed the vehicle in an unmarked

police vehicle.   After the vehicle entered Chesterfield County, a

uniformed officer in a marked police car stopped the vehicle for a

speeding investigation.   The uniformed officer asked Perry, the

driver, for his driver's license and registration.    When the

uniformed officer returned to his car to verify Perry's documents

and to check for outstanding warrants, Officer Grohowski asked

Perry to exit the vehicle.   Officer Grohowski then told Perry he

had seen Perry in the apartment complex and asked if he had any

weapons or drugs.   Perry gave Officer Grohowski a knife he had.

     Officer Grohowski testified that the uniformed officer

determined at some point that Perry's documents were valid and

that he would not cite Perry for a traffic violation.   After the

uniformed officer had been gone "three or four minutes," he gave

Officer Grohowski Perry's license and registration.   Although

Officer Grohowski initially testified that "[b]y the time [he]

had gotten the driver's license and registration . . . , [he]

                                - 2 -
had already asked . . . Perry for consent to search his person,"

when defense counsel reminded Officer Grohowski of his testimony

at the preliminary hearing, Officer Grohowski responded, "it's

possible" he was holding Perry's license and registration when

he requested Perry's consent to search.   He testified, "I was

either holding it or [had given] it back to [Perry]," and he

further testified on cross-examination, "I don't recall."

     Officer Grohowski testified that after he learned Perry's

license and registration were valid and no warrants were

outstanding, he retained the driver's license and registration

because he had seen Perry at the apartments where drugs were

prevalent, and he continued to question Perry about whether he

had more weapons or any drugs on his person.   When asked "how

long was it after you were back in possession of those documents

before you asked Mr. Perry for permission to search him,"

Officer Grohowski testified that it was "within a minute, 30

seconds to a minute."   Officer Grohowski testified that Perry

consented to a search and that he discovered two pieces of

cocaine.

     At the conclusion of the testimony on the motion to

suppress, the trial judge denied the motion.   At the conclusion

of the evidence at trial, the judge denied Perry's motion to

strike the evidence.    He found that Officer Grohowski's

involvement with Perry was contemporaneous with the uniformed

officer's detention on the traffic matter and that Officer

                                - 3 -
Grohowski requested consent to search "contemporaneous" with the

uniformed officer returning the license and registration "to the

defendant through Officer Grohowski."     The judge convicted Perry

of possession of cocaine.

                                  II.

     Under firmly established Fourth Amendment principles, an

encounter is not consensual "if, in view of all of the

circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave."     United

States v. Mendenhall, 446 U.S. 544, 554 (1980).     When reviewing

an officer's request to search, the issue presented is whether

"a reasonable person would feel free 'to disregard the police

and go about his business.'"     Florida v. Bostick, 501 U.S. 429,

434 (1991) (citation omitted).    The Supreme Court of Virginia

recently reiterated that when a person "suffer[s] an illegal

seizure, his consent to the search of his [effects] [is] tainted

and ineffective to justify the search."     Bolden v. Commonwealth,

263 Va. 465, 473, 561 S.E.2d 701, 705 (2002).    Thus, on review,

we must determine from the totality of the circumstances whether

a reasonable person would have felt "free to leave" and "free to

decline the officers' requests or otherwise terminate the

encounter."   Bostick, 501 U.S. at 436.

     Perry initially was detained by the uniformed officer to

investigate a possible traffic infraction.    While the uniformed

officer checked Perry's license and registration, Officer

                                 - 4 -
Grohowski questioned Perry about his suspicions concerning

narcotics.   No evidence proved that when the uniformed officer

gave Perry's license and registration to Officer Grohowski any

of the three officers communicated to Perry that no traffic

citation would be issued.   Although Officer Grohowski could not

recall whether he was holding Perry's license and registration

or had given the documents to Perry before he requested consent

to search, he later specifically testified that he was holding

the documents for "30 seconds to a minute" before he requested

consent to search.   When Officer Grohowski continued questioning

Perry after learning that the uniformed officer did not intend

to issue a citation, Officer Grohowski effected a separate

detention for which he lacked reasonable articulable suspicion.

A reasonable person under these circumstances would have

believed that the officers' investigation had not ceased and

that he was not free to leave while the officers retained his

driver's license and registration.

     We recognized in Richmond v. Commonwealth, 22 Va. App. 257,

261, 468 S.E.2d 708, 708 (1996), that, "as a practical matter,

if appellant left the scene in his vehicle while [the officer]

had his driver's license, appellant would have violated Code

§ 46.2-104."   Unlike in Commonwealth v. Rice, 28 Va. App. 374,

378, 504 S.E.2d 877, 879 (1998), where "the lawful detention

. . . continued . . . [as] the officer requested permission to

search," the valid justification for detaining Perry had ended.

                               - 5 -
When the uniformed officer gave Perry's driver's license and

registration to Officer Grohowski, the circumstances were not

such as would indicate to a reasonable person "that he was free

to disregard the [officers] and simply drive away."   Reittinger

v. Commonwealth, 260 Va. 232, 237, 532 S.E.2d 25, 28 (2000).     As

in Deer v. Commonwealth, 17 Va. App. 730, 735, 441 S.E.2d 33, 36

(1994), once the valid detention ended, the officers unlawfully

detained Perry and obtained consent that was not freely and

voluntarily given.   See Bumper v. North Carolina, 391 U.S. 543,

548 (1968) (holding that consent must be "freely and voluntarily

given"); Davis v. Commonwealth, 37 Va. App. 421, 435, 559 S.E.2d

374, 380 (2002) (holding that police misconduct in unlawfully

detaining a driver was directly related to and invalidated the

consent).

     For these reasons, we hold that Perry's consent was not

voluntarily given and that the trial judge, therefore, erred in

denying the motion to suppress.   Accordingly, we reverse the

conviction and dismiss the indictment.

                                         Reversed and dismissed.




                               - 6 -
