                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Willis
Argued by Teleconference


COMMONWEALTH OF VIRGINIA
                                         MEMORANDUM OPINION * BY
v.        Record No. 2929-96-3          JUDGE SAM W. COLEMAN III
                                              APRIL 1, 1997
CHARLIE M. ALLEN


              FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
                      George E. Honts, III, Judge
          Marla Graff Decker, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on briefs), for appellant.

          Thomas W. Roe, Jr. (Spigle & Roe, P.C., on
          brief), for appellee.



     The defendant was indicted for possession of a firearm while

in possession of a controlled substance, possession of marijuana

with intent to distribute, and possession of cocaine.      Defendant

filed a motion to suppress the evidence which had been recovered

in the traffic stop on the ground that the stop was merely a

pretext to enable the law enforcement officers to search the

defendant's vehicle for contraband.    The trial court granted the

suppression motion, ruling that the stop became an illegal

seizure when the deputy asked for permission to search the

vehicle after having told the defendant he was free to leave and

when he had no reason to suspect that the vehicle contained

contraband.    Thus, the trial court ruled that the consent to

     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
search was not voluntary and that the drugs were seized as the

result of an illegal search.

     The Commonwealth appeals that ruling pursuant to Code

§ 19.2-398(2).   The dispositive issue on appeal is whether, after

legally stopping the defendant for a traffic infraction, the

deputy illegally detained the defendant when he asked for consent

to search the vehicle after telling the defendant he was free to

leave.   We hold that the deputy's request for consent to search

the vehicle did not constitute an illegal detention of the

defendant.   Accordingly, we reverse the trial court's ruling.
     On July 3, 1996, Botetourt County Deputy Sheriff B. J.

Ulrich was parked in the median strip on Interstate 81 observing

northbound traffic "looking for traffic violations."   K. K.

Parker, an undercover narcotics deputy, was riding with Ulrich at

the time.    The deputy observed a white van with large objects,

later determined to be a fan and an air freshener, hanging from

the rearview mirror.    The deputy followed the van and at one

point observed it weave within its lane and run off the left

shoulder of the road.   Based upon the operation of the vehicle

and the objects hanging from the mirror, the deputy activated his

lights and siren and stopped the van.   The deputy noted that the

van bore Louisiana license plates.

     The defendant, who was operating the van, exited it and

identified himself at the deputy's request.   He told the deputy

he was traveling from Louisiana to Washington, D.C.    The deputy




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asked the defendant to remove the objects hanging from the

rearview mirror and ran a license check on the defendant's

license.    After completing the license check without issuing a

ticket, the deputy told the defendant he was free to leave.

     Before the defendant returned to his vehicle, the deputy

"asked him if he was hauling any illegal narcotics, or weapons,

or large amounts of U.S. currency.      He stated no."   The deputy

then asked the defendant for permission to search the vehicle, to

which request the defendant consented.     The defendant unlocked

the passenger door of the van, and the deputy searched the van's

interior.   As a result of the search, the deputy recovered a

handgun, a small plastic "baggie" containing cocaine, a set of

hand scales, and a cooler containing three bags of marijuana

intermingled with "dryer sheets."    During the entire encounter,

the undercover detective was standing outside the police vehicle,

but he did not approach the defendant.     Neither officer had a

weapon drawn or used raised voices.
     At the hearing on the defendant's motion to suppress, the

circuit court judge indicated that "the [initial] stop was good,"

but took the case under advisement to consider the effect of the

deputy having told the defendant he was free to leave and then

asking for consent to search his vehicle.     In a letter opinion,

the judge granted the motion to suppress, holding that:
          When the deputy requested permission to
          search the vehicle [after telling the
          defendant he was free to leave], he did so
          with no expressed or implied probable cause
          or articulable suspicion. His request,



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           coupled with the fact the defendant was
           outside the vehicle, constitutes a new and
           definable detention of the defendant. No
           reasonable person would then assume he or she
           was free to leave. . . . There being no
           articulable suspicion, the detention was
           unlawful and the subsequent search was
           unlawful.


     Because the deputy observed erratic driving and objects

hanging from the rearview mirror in violation of Code

§ 46.2-1054, the initial stop was valid.   See Whren v. United

States, 116 S. Ct. 1769, 1774 (1996) (holding that a pretextual

stop is not invalid as long as it is justifiable on the basis of

probable cause to believe a traffic violation has occurred);
Delaware v. Prouse, 440 U.S. 648, 663 (1979) (holding that an

officer may stop a vehicle if the vehicle or occupant is subject

to seizure for violation of the law); Commonwealth v. Thomas, 23

Va. App. 598, 610-11, 478 S.E.2d 715, 721 (1996) (same); Hoye v.

Commonwealth, 18 Va. App. 132, 134, 442 S.E.2d 404, 406 (1994)

(same).   Thus, the initial stop of the defendant did not violate

the Fourth Amendment.

     The trial judge held that the initial legal detention ended

when the officer told the defendant he was free to leave, but a

second seizure, which was unsupported by articulable suspicion,

began when the officer asked the defendant if he was transporting

contraband.   After the defendant was told he was free to leave,

the officer did not restrain the defendant by physical force or

show of authority.   No evidence supports the trial court's ruling

that the defendant was seized or detained after being told he was


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free to leave.    Accordingly, we hold that the evidence was seized

as the result of a voluntary consent by the defendant to search

his vehicle and not as the result of an illegal detention.      The

trial court erred by suppressing the evidence.

     An accused is seized when the police restrain his movement

"by the use of physical force or show of authority."    Ford v.

City of Newport News, 23 Va. App. 137, 142, 474 S.E.2d 848, 850

(1996) (citing California v. Hodari D., 499 U.S. 621 (1991)).

"As long as the person to whom questions are put remains free to

disregard the questions and walk away, there has been no

intrusion upon that person's liberty or privacy as would under

the Constitution require some particularized and objective

justification."    United States v. Mendenhall, 446 U.S. 544,

553-54 (1980); see also Greene v. Commonwealth, 17 Va. App. 606,

610-11, 440 S.E.2d 138, 140-41 (1994); Payne v. Commonwealth, 14

Va. App. 86, 89, 414 S.E.2d 869, 869-70 (1994); Bosworth v.

Commonwealth, 7 Va. App. 567, 570, 375 S.E.2d 756, 758 (1989).

Circumstances to be considered when determining whether a

reasonable person would have felt free to leave include "the

threatening presence of several officers, the display of a weapon

by an officer, some physical touching of the person of the

citizen, or the use of language, or tone of voice indicating that

compliance with the officer's request might be compelled."

Mendenhall, 446 U.S. at 554.

     Here, the initial stop of the van was a detention of the



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defendant.   However, once the deputy told the defendant he was

free to leave, the detention ended.    Thereafter, the deputy made

no show of authority or force and used no coercion that would

lead a reasonable person to believe that he was not free to

leave.   Instead, the deputy asked the defendant whether he was

transporting contraband.   After being told no, the deputy then

asked the defendant for permission to search the van.   The fact

that the defendant was still outside the van at the time the

deputy asked the questions does not make the encounter a

detention; neither does the fact that another officer was on the

scene.   The officer was not physically restraining or exercising

any control over the defendant and had not by his words, actions,

or by other show of authority indicated that the defendant was

not free to leave.   The defendant was not seized for a second

time until he was arrested for the possession of a firearm

offense.
     Accordingly, we reverse the decision of the trial court and

remand the case for further proceedings.

                                             Reversed and remanded.




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