                                 COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Senior Judge Coleman
Argued at Alexandria, Virginia


BRUCE JEROME JONES
                                                                MEMORANDUM OPINION* BY
v.       Record No. 0733-06-4                                  JUDGE ROBERT J. HUMPHREYS
                                                                   SEPTEMBER 4, 2007
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                                    John E. Kloch, Judge

                   Paul E. Pepper, Deputy Public Defender, for appellant.

                   Joanne V. Frye, Assistant Attorney General (Robert F. McDonnell,
                   Attorney General; Denise C. Anderson, Assistant Attorney General,
                   on brief), for appellee.


         Bruce Jerome Jones (“Jones”) appeals his convictions for possession of cocaine with

intent to distribute, possession of a firearm after previously being convicted of a violent felony,

and possession of a firearm while in possession of cocaine, in violation of Code §§ 18.2-248,

18.2-308.2, and 18.2-308.4, respectively. Jones argues on appeal that his initial detention was

not supported by reasonable, articulable suspicion, and thus his consent to search the car was

invalid, as it was a “fruit of the poisonous tree.” For the following reasons, we affirm the trial

court.

                                              ANALYSIS

         In reviewing the denial of a motion to suppress based on the alleged violation of an

individual’s Fourth Amendment rights, we consider the facts in the light most favorable to the




         *
             Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth. Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). The

burden is on the defendant to show that the trial court committed reversible error, id., and we are

bound by the trial court’s factual findings unless those findings are “plainly wrong” or without

evidence to support them, Pyramid Development, L.L.C. v. D & J Associates, 262 Va. 750, 753,

553 S.E.2d 725, 727 (2001). However, the trial court’s application of the law is reviewed de

novo. Brown v. Commonwealth, 270 Va. 414, 419, 620 S.E.2d 760, 762 (2005).

                                        A. The Initial Stop

       In appropriate circumstances, a police officer may detain a person for the purpose of

investigating possible criminal behavior, even though there is no probable cause to make an

arrest. Terry v. Ohio, 392 U.S. 1, 22 (1968); see also Ewell v. Commonwealth, 254 Va. 214,

217, 491 S.E.2d 721, 722 (1997). However, in order to justify the brief seizure of a person by

such an investigatory stop, the police officer must “have a reasonable suspicion, based on

objective facts, that the individual is involved in criminal activity.” Whitfield v.

Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003) (citing Brown v. Texas, 443 U.S.

47, 51 (1979)). A court must consider the totality of the circumstances to determine whether a

police officer had a particularized and objective basis for suspecting that the person stopped may

be involved in criminal activity. Ewell, 254 Va. at 217, 491 S.E.2d at 722-23 (citing United

States v. Cortez, 449 U.S. 411, 417-18 (1981)).

       In this case, Jones was in possession of a car that had been reported stolen. Clearly, this

satisfies the “reasonable suspicion” standard allowing Officer Seckler to approach Jones and

briefly detain him in order to investigate whether Jones lawfully possessed the vehicle. As such,

we disagree with Jones that he was unlawfully detained, in violation of his Fourth Amendment

rights, and that the items recovered pursuant to the subsequent searches of his person and the

vehicle were “fruits of the poisonous tree.” Because we hold that Jones was subject to a lawful

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Terry stop, we must next determine whether Jones’s subsequent consent to search the vehicle

was valid.

                                      B. Consent to Search

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

voluntary, and ‘voluntariness is a question of fact to be determined from all the circumstances.’”

Ohio v. Robinette, 519 U.S. 33, 40 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218,

248-49 (1973)). This is not a bright-line rule, as “the proper inquiry necessitates a consideration

of ‘all the circumstances surrounding the encounter.’” Id. at 39 (quoting Florida v. Bostick, 501

U.S. 429, 439 (1991)).

       “The fact that the defendant has been lawfully seized at the time consent is given does not

in itself invalidate the consent,” Deer v. Commonwealth, 17 Va. App. 730, 735, 441 S.E.2d 33,

36 (1994) (citing Reynolds v. Commonwealth, 9 Va. App. 430, 439, 388 S.E.2d 659, 665

(1990)), nor do police have to warn a suspect who has been lawfully seized that he has a right to

refuse the search, Schneckloth, 412 U.S. at 227. However, the consent must be “the product of

an essentially free and unconstrained choice by its maker,” and the defendant’s will must not

have “been overborne and his capacity for self-determination [must not have been] critically

impaired.” Lowe v. Commonwealth, 218 Va. 670, 678, 239 S.E.2d 112, 117 (1977) (citing

Schneckloth, 412 U.S. at 225). A search conducted with the free and voluntary consent of the

accused is not an unreasonable search, but the burden is upon the Commonwealth to show that

consent is freely and voluntarily given. Hairston v. Commonwealth, 216 Va. 387, 388, 219

S.E.2d 668, 669 (1975) (citing Rees v. Commonwealth, 203 Va. 850, 866, 127 S.E.2d 406, 417

(1962)).

       In Lowe, the Supreme Court of Virginia affirmed a trial court’s finding of consent when

the defendant was in custody, handcuffed, sitting on the floor, and surrounded by armed officers.

                                               -3-
218 Va. at 677-78, 239 S.E.2d at 117. Because the officer’s guns were not drawn, there were no

threats or promises, and the officers read and explained a search form to the defendant, the Court

held that the trial court did not err in holding that the defendant nevertheless gave verbal consent

to search. Id. at 678, 239 S.E.2d at 117. In other words, the defendant’s consent was “‘the

product of an essentially free and unconstrained choice by its maker[,]’” and [the] defendant’s

will had not ‘been overborne and his capacity for self-determination [had not been] critically

impaired.’” Id. (quoting Schneckloth, 412 U.S. at 225).

       In this case, although Jones was seized for purposes of the Fourth Amendment, he was

not restrained in any manner. In fact, he was allowed to remain on the sidewalk with another

officer while Seckler confirmed the status of the vehicle. At no time during the encounter did

either officer ever make any threats toward Jones, nor did either officer draw his weapon until

after Jones fled the scene. In fact, Seckler’s weapon was never visible during the initial stages of

the stop. Moreover, although Seckler did not read Jones a consent form, he gave Jones the

option of denying the request to search. Specifically, he stated, “Can I search it, yes or no.”

When compared against the facts presented in Lowe, we cannot say that Jones’s will was ever

overborne, nor was his capacity for self-determination critically impaired. Accordingly, we hold

that the trial court did not err in finding that Jones’s consent to search the vehicle was valid and,

thus, that the search did not violate Jones’s Fourth Amendment rights.

                                           CONCLUSION

       We hold that Seckler had reasonable suspicion to detain Jones for a Terry stop. We also

hold that during the stop, Jones voluntarily consented to a search of his vehicle. Accordingly, we

hold that neither the seizure nor the search were in violation of Jones’s Fourth Amendment

rights. Thus, we affirm the trial court.

                                                                                      Affirmed.

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