                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and Powell
Argued at Chesapeake, Virginia

CODIE DOMINIQUE GRAVES
                                                                MEMORANDUM OPINION * BY
v.     Record No. 1754-09-1                                      JUDGE D. ARTHUR KELSEY
                                                                       JULY 13, 2010
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                Norman A. Thomas, Judge

                     B. Thomas Reed for appellant.

                     Rosemary V. Bourne, Assistant Attorney General (Kenneth T.
                     Cuccinelli, II, Attorney General, on brief), for appellee.


       The trial court found Codie Dominique Graves guilty of possessing cocaine with an

intent to distribute, second offense, Code § 18.2-248(C), assault and battery on a police officer,

Code § 18.2-57(C), and escape from custody, Code § 18.2-478. On appeal, Graves argues the

trial court erred by denying his pretrial motion to suppress and finding the evidence sufficient to

prove he intended to distribute cocaine. We disagree and affirm.

       We first address Graves’s suppression argument. In this case, an officer made a lawful

traffic stop of a vehicle driven by Graves. During the stop, the officer asked Graves if he had

anything illegal in the vehicle. When Graves said no, the officer asked him if he would consent

to a search of his person and his vehicle. Graves responded: “That’s fine” or “go ahead.”

Graves stepped out of the vehicle. During the search, four plastic bags containing crack cocaine

fell from Graves’s pants. After the officer placed him in handcuffs, Graves struck the officer in

the face and ran away. Graves was quickly apprehended and arrested.



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       On appeal, Graves does not challenge the legality of the initial traffic stop. Instead,

Graves contends the officer unlawfully “ordered” him to exit the vehicle and asked for consent to

search without a reasonable suspicion of criminality. Appellant’s Br. at 8. 1 For several reasons,

we disagree.

       To begin with, the evidence suggests that Graves stepped out of the vehicle on his own

accord after agreeing to the search — not that the officer first ordered Graves to exit the vehicle

and then asked for consent to search. But it does not matter either way. Even if the officer had

required Graves to step out of the vehicle prior to the search, such compulsion does not offend

the Fourth Amendment. See Arizona v. Johnson, 129 S. Ct. 781, 786 (2009) (“once a motor

vehicle has been lawfully detained for a traffic violation, the police officers may order the driver

to get out of the vehicle” (quoting Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977)).

       In addition, the officer needed no reasonable suspicion of criminality to search either

Graves or his vehicle. Under the Fourth Amendment, “a search authorized by consent is wholly

valid.” Kyer v. Commonwealth, 45 Va. App. 473, 483, 612 S.E.2d 213, 218 (2005) (en banc)

(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)). Graves consented to the search

during the traffic stop, see, e.g., Jones v. Commonwealth, 279 Va. 665, 674, 691 S.E.2d 801, 806

(2010), 2 not after it had been completed, see, e.g., Harris v. Commonwealth, 266 Va. 28, 33, 581

S.E.2d 206, 210 (2003); cf. Ohio v. Robinette, 519 U.S. 33, 35-36 (1996).


       1
         Graves’s brief on appeal suggests his suppression argument also seeks to exclude any
evidence of his assault on the police officer and his escape from the officer’s custody. See
Appellant’s Br. at 5. Yet even in cases where, unlike here, the exclusionary rule applies, it never
requires suppression of evidence of criminal conduct occurring during an allegedly unlawful
seizure and search. See Testa v. Commonwealth, 55 Va. App. 275, 283, 685 S.E.2d 213, 216-17
(2009); Brown v. City of Danville, 44 Va. App. 586, 600, 606 S.E.2d 523, 530 (2004); accord
United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997).
       2
         See, e.g., United States v. Nassar, 546 F.3d 569, 570 (8th Cir. 2008) (finding “consent
to search” was given while the “sergeant was still processing the warning”); United States v.
Herbin, 343 F.3d 807, 810-11 (6th Cir. 2003) (holding “the seizure was the product of a lawful
                                                -2-
       Underlying Graves’s argument appears to be the common, but erroneous, assumption that

officers cannot ask questions unrelated to the traffic stop — including asking for consent to

search. As the United States Supreme Court has recently explained, during a lawful roadside

stop, the

               temporary seizure of driver and passengers ordinarily continues,
               and remains reasonable, for the duration of the stop. Normally, the
               stop ends when the police have no further need to control the
               scene, and inform the driver and passengers they are free to leave.
               An officer’s inquiries into matters unrelated to the justification for
               the traffic stop, this Court has made plain, do not convert the
               encounter into something other than a lawful seizure, so long as
               those inquiries do not measurably extend the duration of the stop.

Johnson, 129 S. Ct. at 788; see also Ellis v. Commonwealth, 52 Va. App. 220, 227, 662 S.E.2d

640, 643 (2008) (holding “where a seizure of a person is based on probable cause to believe that

a traffic violation was committed, an officer does not violate the Fourth Amendment by asking a

few questions about matters unrelated to the traffic violation, even if this conversation briefly

extends the length of the detention” (citation omitted)).

       We also reject Graves’s argument that the evidence was insufficient to prove an intent to

distribute cocaine. An officer trained in narcotics interdiction testified the four individually

packaged rocks of crack cocaine Graves possessed were of a size and configuration not typically

found on users. Users who possess the same quantity of crack cocaine, the officer explained,

usually buy a single “eightball” because it gives them more drugs for less money. In addition,

the officer pointed out that Graves did not have any user paraphernalia on him suggesting

personal use. See Scott v. Commonwealth, 55 Va. App. 166, 173, 684 S.E.2d 833, 837 (2009)




traffic stop” during which the driver gave “voluntary consent to a search”); United States v.
Purcell, 236 F.3d 1274, 1279-81 (11th Cir. 2001) (holding an officer “may request consent to
search the vehicle” during “a routine traffic stop” and questioning “on a subject unrelated to the
purpose of the stop” is permissible).
                                                -3-
(en banc) (noting the absence of user paraphernalia is “regularly recognized” as a factor

indicating an intent to distribute).

        Equally important, Graves took the stand and testified he had never used crack cocaine.

A defendant’s statement that “he did not use drugs” necessarily undermines his “argument that

personal use is the only reasonable hypothesis of possession.” Harper v. Commonwealth, 49

Va. App. 517, 522, 642 S.E.2d 779, 781 (2007); Scott, 55 Va. App. at 174, 684 S.E.2d at 838

(applying the same logic to a defendant’s “silence regarding the use” of the drug he was charged

with possessing with an intent to distribute). If Graves did not intend to use the cocaine, he must

have intended to pass it on to someone who would.

        Because the trial court did not err by denying the motion to suppress or finding the

evidence sufficient to prove an intent to distribute, we affirm Graves’s convictions.


                                                                                    Affirmed.




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