                     COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia


JOSE CABA
                                           MEMORANDUM OPINION * BY
v.          Record No. 1771-96-2            JUDGE LARRY G. ELDER
                                             SEPTEMBER 16, 1997
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                        Donald W. Lemons, Judge

            Joseph W. Kaestner (Suzanne L. Nyfeler;
            Kaestner, Pitney & Jones, P.C., on briefs),
            for appellant.
            John K. Byrum, Jr., Assistant Attorney
            General (James S. Gilmore, III, Attorney
            General, on brief), for appellee.



     Jose Caba (appellant) appeals his conviction of possessing

cocaine with intent to distribute in violation of Code

§ 18.2-248.    He contends that the trial court erred when it

denied his motion to suppress 56.7 grams of cocaine obtained

during a search of his person.     He argues that the trial court

erred (1) when it found that he understood the questions posed by

Agent Koushel during the encounter that led to the search and (2)

when it concluded that he voluntarily consented to the search.

For the reasons that follow, we affirm.

                                   A.

     "All searches without a valid warrant are unreasonable

unless shown to be within one of the well-delineated exceptions
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to the rule that a search must rest upon a valid warrant."

Iglesias v. Commonwealth, 7 Va. App. 93, 107, 372 S.E.2d 170, 178

(1988) (citation omitted).   One such exception is a search

conducted pursuant to a valid consent.    See Elliotte v.

Commonwealth, 7 Va. App. 234, 238, 372 S.E.2d 416, 418-19 (1988)

(citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct.

2041, 2043-44, 36 L.Ed.2d 854 (1973)).   The Commonwealth concedes

that Agent Koushel searched appellant without a warrant and that

he did not reasonably suspect appellant of criminal activity when

he approached him.
     The Fourth Amendment requires "that a consent [to a search]

not be coerced, by explicit or implicit means . . . ."

Schneckloth, 412 U.S. at 228, 93 S. Ct. at 2048.    An accused's

consent to a search must be more than "mere acquiescence" to a

police officer's "claim of lawful authority."    Bumper v. North

Carolina, 391 U.S. 543, 548-49, 88 S. Ct. 1788, 1792, 20 L.Ed.2d

797 (1968); see also Deer v. Commonwealth, 17 Va. App. 730, 735,

441 S.E.2d 33, 36 (1994).    "'Consent' that is the product of

official intimidation or harassment is not consent at all."
Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382, 2388, 115

L.Ed.2d 389 (1991).

     When the Commonwealth seeks to justify a warrantless search

on the basis of consent, it bears the burden of proving by a

preponderance of the evidence that the consent was voluntary.

See Camden v. Commonwealth, 17 Va. App. 725, 727, 441 S.E.2d 38,




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39 (1994); see also Bumper, 391 U.S. at 548, 88 S. Ct. at 1792.

In order to determine whether consent to a particular search was

"voluntary," the test is whether the search is "the product of an

essentially free and unconstrained choice" or whether the

consenter's "will has been overborne and his capacity for

self-determination critically impaired."    Schneckloth, 412 U.S.

at 225-26, 229, 93 S. Ct. at 2047, 2049; see Lowe v.

Commonwealth, 218 Va. 670, 678, 239 S.E.2d 112, 117 (1977).
          [T]he question whether a consent to a search
          was in fact "voluntary" or was the product of
          duress or coercion, express or implied, is a
          question of fact to be determined from the
          totality of all the circumstances.

Schneckloth, 412 U.S. at 227, 93 S. Ct. at 2047-48; see Lowe, 218

Va. at 678, 239 S.E.2d at 117.

     When considering the circumstances of a particular case, a

court must consider both the details of the police conduct and

the characteristics of the accused.    See Schneckloth, 412 U.S. at

226, 229, 93 S. Ct. at 2047, 2049.    Among the characteristics of

the accused that are factors in the court's decision are his or

her age, education, intelligence, and knowledge and notice of his

constitutional right to refuse consent.    See id. at 226, 227, 93

S. Ct. at 2047, 2048 (stating that "knowledge of the right to

refuse consent is one factor to be taken into account").    An

accused's ability to understand the police officer's request for

consent to be searched is also a factor, and the Commonwealth's

burden of proving that consent to a search was voluntarily given



                                 3
is heavier when it appears to the trial court that the accused

did not understand the language in which the officer made his

request for consent.   See United States v. Wai Lau, 215 F.Supp.

684, 686 (S.D.N.Y. 1963), judgment aff'd, 329 F.2d 310 (2d Cir.

1964) (citing Kovach v. United States, 53 F.2d 639, 639 (6th Cir.

1931)).

     Appellant contends that the Commonwealth was required to

prove (1) that he knew of his Fourth Amendment right to refuse to

consent at the time of Agent Koushel's search and (2) that he was

sufficiently proficient in the English language to understand

that Agent Koushel was not ordering him to submit to a search.
Appellant argues that the Fourth Amendment imposes such a

requirement upon the Commonwealth when the accused alleges that

he or she lacked the language skills to understand the police

officer who conducted the warrantless search.   We disagree.

     Since Schneckloth, the determination of whether consent to a

search was voluntary has been based upon an analysis of the

totality of the circumstances.   See 412 U.S. at 227, 93 S. Ct. at

2047-48.   Although many factors are considered, no particular

factor, such as the accused's knowledge of his constitutional

rights at the time of the search, is dispositive.   See id.    In

fact, recent Fourth Amendment jurisprudence has consistently

eschewed bright line rules in this area.   See Ohio v. Robinette,

    U.S.     ,    , 117 S. Ct. 417, 419, 136 L.Ed.2d 347 (1996)

(rejecting a bright-line rule requiring a police officer to



                                 4
inform a suspect that he is "free to go" before requesting his

consent to be searched); Bostick, 501 U.S. at 438-39, 111 S. Ct.

at 2388 (rejecting a per se rule that random bus searches are

unconstitutional); Schneckloth, 412 U.S. at 227, 93 S. Ct. at

2047-48 (rejecting a rule requiring the prosecution to establish

knowledge of the right to refuse consent as the "sine qua non of

effective consent").   Thus, we hold that the Fourth Amendment

does not require the Commonwealth to establish any per se

elements in order to meet its burden of proving that a consent

search was voluntary just because an accused has alleged that he

or she lacked the ability to comprehend spoken English at the

time of the search.
                                B.

     Turning to appellant's assignments of error, we hold that

the trial court's factual finding that appellant "understood the

questions asked" by Agent Koushel was not clearly erroneous.     In

addition, based upon our review of the totality of the

circumstances, we hold that appellant's consent to the search by

Agent Koushel was voluntary.

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

suppress, the burden is on the appellant to show that the trial

court's decision constituted reversible error.   See Stanley v.

Commonwealth, 16 Va. App. 873, 874, 433 S.E.2d 512, 513 (1993).

We view the evidence in the light most favorable to the

prevailing party, granting to it all reasonable inferences fairly



                                 5
deducible therefrom.      See Commonwealth v. Grimstead, 12 Va. App.

1066, 1067, 407 S.E.2d 47, 48 (1991).     We review the trial

court's findings of historical fact only for "clear error," but

we review the trial court's application of defined legal

standards to the particular facts of a case, such as

determinations of reasonable suspicion and probable cause,

de novo.      See Shears v. Commonwealth, 23 Va. App. 394, 398, 477

S.E.2d 309, 311 (1996); see also Ornelas v. United States,

U.S.      ,      , 116 S. Ct. 1657, 1662, 134 L.Ed.2d 911 (1996).

Determining whether an accused's consent to a warrantless search

was "voluntary" is based on the application of judicially

declared standards.      See Thompson v. Louisiana, 469 U.S. 17, 23,

105 S. Ct. 409, 412, 83 L.Ed.2d 246 (1984).     Thus, we review the

trial court's determination that appellant voluntarily consented

to Agent Koushel's search de novo.

       First, the trial court's finding of historical fact that

appellant understood the substance of Agent Koushel's questions

was not clearly erroneous.     Agent Koushel's testimony describing

his interaction with appellant indicates that appellant answered

the agent's questions responsively and with little difficulty.

Agent Koushel also testified that he does not speak Spanish and

that, during prior interdictions, he had encountered

Spanish-speaking people who required the aid of an interpreter to

communicate with him.     He testified that, unlike other

Spanish-speaking people, appellant appeared to understand all of



                                    6
his questions.   Agent Koushel's testimony provides ample support

for the trial court's finding that appellant understood what the

agent was asking him.

     We also conclude that appellant's consent to be searched by

Agent Koushel was voluntarily given.   The record does not

indicate that Agent Koushel engaged in any conduct that coerced

appellant to consent to the agent's request to search him.

First, Agent Koushel approached appellant and started conversing

with him in a manner that would not make a reasonable person feel

that he was not free to go about his business.   See Bostick, 501

U.S. at 434, 111 S. Ct. at 2386 (citing California v. Hodari D.,

499 U.S. 621, 628, 111 S. Ct. 1547, 1552, 113 L.Ed.2d 690

(1991)).   Agent Koushel approached appellant in the bus terminal

and, in a "friendly, conversational" tone of voice, asked if

appellant "would mind" speaking to him and if the agent could

take a "quick look" at appellant's bus ticket.

     In addition, the evidence does not indicate that Agent

Koushel obtained appellant's consent to be searched through

intimidation, harassment, a claim of lawful authority, or other

acts that impaired appellant's capacity for self-determination.

After returning the bus ticket to appellant, Agent Koushel asked

appellant if he "could check him and his bag for contraband."

Appellant replied, "yes."   After appellant agreed to move to a

nearby office, Agent Koushel renewed his request to "check"

appellant, and appellant responded by facing Agent Koushel and



                                 7
opening his coat.   Agent Koushel testified that he never

displayed his weapon or touched appellant before the two moved to

the office and that he spoke in a low, conversational tone of

voice.   Moreover, the record establishes that Agent Koushel

phrased his request to search appellant in a manner that required

an affirmative response from appellant and that the agent at no

time claimed that he was legally authorized to search appellant.

     Because Agent Koushel's warrantless search was performed

pursuant to appellant's voluntary consent, the trial court did

not err when it denied appellant's motion to suppress.
     For the foregoing reasons, we affirm the conviction of

possession of cocaine with intent to distribute.

                                                            Affirmed.




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