                       COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Frank
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                            MEMORANDUM OPINION * BY
v.   Record No. 0427-02-1                 JUDGE ROSEMARIE ANNUNZIATA
                                                 JULY 12, 2002
THOMAS ALLEN STORMER


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                       Frederick B. Lowe, Judge

            Stephen R. McCullough, Assistant Attorney
            General (Jerry W. Kilgore, Attorney General,
            on brief), for appellant.

            Suzanne G. Moushegian for appellee.


     A grand jury indicted Thomas Allen Stormer for possession

of cocaine.    Stormer filed a motion to suppress evidence of

crack cocaine found during a search of his person.     The trial

court granted the motion, and the Commonwealth appealed to this

Court.   For the reasons that follow, we reverse the decision of

the trial court and remand for further proceedings.

                             Background

     On appeal of a motion to suppress, we view the evidence in

the light most favorable to the party prevailing below, in this

case, Stormer.    Commonwealth v. Grimstead, 12 Va. App. 1066,

1067, 407 S.E.2d 47, 48 (1991).    On November 24, 2000, Detective

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Fox and his partner conducted surveillance of a trailer at

Trailer City in the City of Virginia Beach, in response to

numerous reports that narcotics were being sold out of that

trailer.   They noticed a parked car near the trailer with the

engine running.   A passenger was seated in the car but there was

no driver.   Detective Fox then saw Stormer walk around the

trailer, step into the car, and drive away.   Detective Fox

followed the car.

     When the car voluntarily stopped, Fox parked his vehicle 50

feet behind it.   Fox approached Stormer as he walked away from

the car and asked to speak with him.    Stormer did not respond.

Fox asked him again if he could speak with him.   As Stormer

turned toward him, Fox displayed his badge, told Stormer he was

a police officer and repeated his request to speak with him.

The defendant muttered something unintelligible and averted his

gaze from Fox.    Fox inquired if he could ask a few questions,

but Stormer gave more unintelligible responses.   Fox thought he

might be intoxicated because his speech was slurred.

     Fox said, "You don’t have a valid license, do you?"

Stormer replied that he did not and explained that his license

was suspended for driving under the influence.    Fox decided to

verify whether Stormer’s license was actually suspended, so he

asked Stormer to step to the front of the vehicle.

     Fox then asked Stormer "may I see what’s in your pockets?"

Stormer put his hands in his pockets and pulled out a variety of

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items, including a plastic bag containing crack cocaine.   When

Stormer would not give Fox the bag, Fox seized it from him and

placed him under arrest for possession of cocaine.

                            Analysis

     The trial court ruled as follows:

          [T]he approach and asking Mr. Stormer to
          answer a few questions as he got out of the
          car . . . - - I think that was fine. Then
          when we get to the driver’s license
          situation and he was told to step over to
          the front of the police car, then I think
          . . . he was detained.
               . . . if, in fact, his driver’s license
          had been suspended and if Detective Fox had
          determined that and placed him under arrest
          for that charge, he could have searched
          incident to arrest all he wanted to. The
          problem is that wasn’t done, so basically
          you’ve got a detention for one reason and
          then a situation involving what amounts to a
          search which is not really incident to
          anything at that particular point in time
          other than the fact that there was this
          situation that Detective Fox was trying to
          follow up on.
               Considering the totality of the
          circumstances, . . . it is . . . not a
          proper search and seizure. I’m going to
          grant the motion to suppress.

     The trial court did not address the Commonwealth’s

contention that Stormer voluntarily consented to the search of

his pockets.

     The Commonwealth appeals the trial court’s decision to

suppress the bag of crack cocaine found in Stormer’s pockets.

The Commonwealth contends that the trial court erred as a matter

of law in concluding that the search was improper because it was


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not incident to arrest, without considering whether Stormer

consented to the search.   We agree.

     The Fourth Amendment provides, in pertinent part, that

"[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated."   U.S. Const. amend. IV.

Subject to several well-established exceptions, warrantless

searches of any place or thing in which a person has a

reasonable expectation of privacy are unreasonable.    See Mincey

v. Arizona, 437 U.S. 385, 390 (1978); Reittinger v.

Commonwealth, 260 Va. 232, 235, 532 S.E.2d 25, 27 (2000).     On

appeal, the trial court's legal conclusion concerning when, or

whether, an illegal search occurred is reviewed de novo.      Archer

v. Commonwealth, 26 Va. App. 1, 8, 492 S.E.2d 826, 830 (1997);

McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261

(1997)(en banc); see United States v. Mendenhall, 446 U.S. 544,

552, 555 (1980).   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

law enforcement officers."   McGee, 25 Va. App. at 198, 487

S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690,

699 (1996)).

     Searches made by the police pursuant to a valid consent do

not implicate the Fourth Amendment.    See Schneckloth v.

                               - 4 -
Bustamonte, 412 U.S. 218, 222 (1973); Iglesias v. Commonwealth,

7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988) (en banc).     "The

Fourth Amendment test for a valid consent to search is that the

consent be voluntary, and '[v]oluntariness is a question of fact

to be determined from all the circumstances.'"     Ohio v.

Robinette, 419 U.S. 33, 40 (1996) (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 248-49 (1973)).    "Both the presence of

consent to search and any related limitations are factual issues

for the trial court to resolve after consideration of the

attendant circumstances."    Bynum v. Commonwealth, 23 Va. App.

412, 418, 477 S.E.2d 750, 753 (1996).

     In this case, the trial court held that the stop was

proper; it found that the encounter began consensually and

became a valid detention when the officer asked Stormer to step

to the front of the vehicle to verify his driver's license. 1     It

held, however, that the search was improper because it was not

incident to arrest, or pursuant to a Terry stop.    The trial

court did not, however, make a finding regarding whether Stormer

voluntarily consented to Officer Fox's request to search his

pockets.    See United States v. Hurst, 228 F.3d 751, 757-58 (6th

Cir. 2000) (upholding denial of motion to suppress because

defendant consented to search during a proper Terry stop);




     1
         The Commonwealth did not appeal these rulings.

                                - 5 -
United States v. Dupree, 202 F.3d 1046, 1049 (8th Cir. 2000)

(same); United States v. Leshuk, 65 F.3d 1105, 1110 (4th Cir.

1995) (affirming trial court’s refusal to suppress defendant’s

voluntary statements made during a proper Terry stop).      Indeed,

the Fourth Circuit has noted "[o]fficers may temporarily detain

an individual under Terry for purposes of questioning the

individual or attempting to obtain his consent to a search when

reasonable suspicion exists."    Leshuk, 65 F.3d at 1110.   `

     Because the trial court did not make a finding regarding

consent, we reverse the trial court’s decision and remand for

consideration of whether Stormer voluntarily consented to the

search of his pockets.



                                             Reversed and remanded.




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