                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia


ARTHUR LEE MONTAGUE
                                          MEMORANDUM OPINION * BY
v.   Record No. 2387-95-2               CHIEF JUDGE NORMAN K. MOON
                                            DECEMBER 31, 1996
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                      George F. Tidey, Judge
           Robert P. Geary for appellant.

           John K. Byrum, Jr., Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.



      Arthur Lee Montague was convicted of possession of heroin

and appeals the trial judge's denial of his motion to suppress.

Because the evidence supports the trial judge's finding that the

evidence was lawfully obtained, we affirm the conviction.

                                I.

      The evidence proved that on September 16, 1994, Officer

Cindy Patterson was engaged in a drug interdiction operation in a

location where drug transactions were known to occur.     From a

distance of fifty yards, Officer Patterson observed Montague

approach Troy Hargrove and speak to him.    Montague and Hargrove

reached into their own pockets and exchanged something.    Officer

Patterson concluded that a drug transaction had occurred and

radioed for another officer to confront them.
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
        Two uniformed officers on bicycles responded to Officer

Patterson's call.    Montague testified that the officers

confronted him and Hargrove and told them to take everything out

of their pockets.    They put their possessions on a car.     Montague

also testified that the officers never asked permission to search

them.    The officers also frisked them.   The officers then told

them they could put everything back in their pockets.    As

Hargrove picked up his matchbook, heroin fell out.    The officers

then arrested Hargrove.
        Officer Joseph Coker, who also responded to Officer

Patterson's call, testified that as he approached he heard one of

the other officers state that he had found something.    Officer

Coker testified that he then went to Montague and informed him

that they were looking for drugs or guns.    Officer Coker further

testified that when he asked Montague whether he had drugs or

guns, Montague responded that he did not and added that he had

already been searched by the officers on bicycles.

        When one of the officers verified that he had already

checked Montague, Officer Coker asked the officer if he could

check Montague again.    Officer Coker testified that he asked

Montague if he would mind being searched again.    Coker testified

that Montague said "no" and thrust his arms up into the air.

Montague, however, testified that Officer Coker did not ask for

permission to search him.

        Officer Coker frisked Montague and saw a matchbox with




                                 - 2 -
pieces of plastic and aluminum foil in the watch pocket of

Montague's pants.   Officer Coker testified that he knew, based on

his training and experience, that heroin was packaged in squares

of foil and often carried in a person's watch pocket.     He seized

the matchbox and arrested Montague.     The laboratory reported that

the box contained heroin.

                                 II.

     Montague contends that the Commonwealth failed to prove that

he validly consented to the search performed by Officer Coker and

that the seizure and search were illegal.     We disagree.
     "On review, we consider the [evidence] in the light most

favorable to the [Commonwealth], granting to it all reasonable

inferences fairly deducible therefrom."      Commonwealth v. Ealy, 12

Va. App. 744, 747, 407 S.E.2d 681, 683 (1991).     So viewed,

Officer Coker testified that he approached Montague and said,

"Okay, do you mind if I search again?"     In response, Montague

said, "No," and threw his arms up.      This testimony was sufficient

to prove that Montague consented to the search by Officer Coker.

     Even though Montague did voluntarily consent to the search

by Officer Coker, the evidence would still be inadmissible if it

was "acquired as an indirect result of [an earlier] unlawful

search."    Id. at 754, 407 S.E.2d at 687 (quoting Murray v. United

States, 487 U.S. 533, 536-37 (1988)).      Montague argues that the

initial search performed by the officers on bicycles was

unlawful.   Assuming arguendo that the first search was unlawful,



                                - 3 -
an issue we need not decide today, we hold that the evidence

obtained from the subsequent search by Officer Coker was

nevertheless admissible because it was "not obtained by

exploitation of the [allegedly] unlawful search."     Ealy, 12 Va.

App. at 755, 407 S.E.2d at 688.

       "[A] . . . consent to search obtained subsequent to an

unlawful search may be an independent source if such . . .

consent is not obtained by exploitation of the unlawful search."
 Id.   "[E]vidence is not 'fruit of the poisonous tree' simply

because 'but for' an unlawful search it would not have come to

light."    Id.   (citing Segura v. United States, 468 U.S. 796, 815

(1984)).   The allegedly unlawful search of Montague provided

Officer Coker with no additional information to use in seeking or

conducting the second search.    Indeed, nothing incriminating was

found on Montague during the first search.    Thus, this case is

distinguishable from Hall v. Commonwealth, 22 Va. App. 226, 468

S.E.2d 693 (1996), where the police did find incriminating

evidence on the defendant before obtaining his consent to a

further search.

       Montague himself testified that, before Officer Coker

approached him, Montague had already been told that he could

retrieve his belongings from the hood of the car.    This testimony

established that Montague had been released from the first search

and his continued presence at the scene was his own independent

act.   The evidence supported a finding that the subsequent search



                                 - 4 -
was "the product of a free will that purge[d] the taint of an[y]

illegality."    Ealy, 12 Va. App. at 756, 407 S.E.2d at 688.   We

therefore hold that Montague validly consented to the second

search and the heroin found was not tainted by any alleged prior

illegality.    Accordingly, the trial judge did not err in

admitting the evidence.
                                               Affirmed.




                                - 5 -
Benton, J., dissenting.



     The evidence proved that the initial search of Montague was

unlawful.   Because Montague's consent to the second search was

obtained "by exploitation of [the prior] unlawful search,"

Commonwealth v. Ealy, 12 Va. App. 744, 755, 407 S.E.2d 681, 688

(1991), I would hold that the evidence was inadmissible.

     The evidence proved that from a distance of fifty yards,

Officer Patterson saw Arthur Lee Montague and Troy Hargrove meet

on the street with their bicycles.      The sunlight was still

present.    The men spoke briefly, reached into their pockets, and

exchanged something.   Although Officer Patterson could not see

what was exchanged, she called other officers to stop and search

the men because she "believed . . . [it was] a drug transaction."
     The evidence proved that two officers confronted Montague

and Hargrove and searched them.   Neither of the officers who

searched the men testified.   However, Montague testified that the

two officers approached him and Hargrove, told them to remove

everything from their pockets, and then frisked them.     He further

testified that the officers did not ask permission for the

search.

     Based upon this Court's prior holdings in Riley v.
Commonwealth, 13 Va. App. 494, 497, 412 S.E.2d 724, 726 (1992);

Smith v. Commonwealth, 12 Va. App. 1100, 1104, 407 S.E.2d 49, 52

(1991); Goodwin v. Commonwealth, 11 Va. App. 363, 367, 398 S.E.2d
690, 692 (1990); Moss v. Commonwealth, 7 Va. App. 305, 308, 373



                                - 6 -
S.E.2d 170, 172 (1988), I would hold that this initial detention

and search were illegal.   "The officer's own testimony revealed

that [s]he could not tell what was in the defendant's hand and

that the stop was based more on the officer's '"inchoate and

unparticularized suspicion or 'hunch'" . . . than on a reasonable

suspicion based on objective facts.'"    Goodwin, 11 Va. App. at

366-67, 398 S.E.2d at 692.

     This initial illegal search tainted the second search.      The

evidence proved that after the initial search was unfruitful, the

two officers told Montague and Hargrove that they could retrieve

their belongings.   When Hargrove began to do so, a package of

heroin fell out of a matchbook that he was putting in his pocket.

The officers then arrested Hargrove.     As Hargrove was being

arrested, Officer Coker arrived and confronted Montague.
     The majority asserts that Montague's continued presence at

the scene was his own independent act.   However, the evidence

proved that Officer Coker observed Montague looking around as if

he was seeking an avenue to "escape."    Officer Coker approached

Montague, just moments after Montague retrieved his belongings,

to prevent Montague from leaving.   Therefore, the Commonwealth's

own evidence reveals that Montague's continued presence at the

scene was caused by Coker's decision to intervene.

     "It is well settled that the burden is on the Commonwealth

to establish an exception to the warrant requirement."     Walls v.
Commonwealth, 2 Va. App. 639, 645, 347 S.E.2d 175, 178 (1986).




                               - 7 -
"When trying to establish that there was a voluntary consent

after an illegal stop, the [Commonwealth] has a much heavier

burden to carry than when the consent is given after a

permissible stop."     United States v. Ballard, 573 F.2d 913, 916

(5th Cir. 1978).   "Th[e] burden [to prove consent] cannot be

discharged by showing no more than acquiescence to a claim of

lawful authority."     Bumper v. North Carolina, 391 U.S. 543,

548-49 (1968) (footnote omitted).    In discharging its burden, the

Commonwealth must establish that the claimed voluntary act, the

alleged consent, was "sufficiently an act of free will to purge

the primary taint" of the illegal seizure.     Wong Sun v. United

States, 371 U.S. 471, 486 (1963).

     The record in this case fails to establish and, indeed,

could not establish that the consent was free from the taint of

the illegal seizure.    In determining whether a consent was

"sufficiently attenuated from the [illegal search] to purge its

taint," this Court has "considered, in addition to the

voluntariness of the consent, the temporal proximity and the

presence of intervening circumstances between the [illegality]

and the consent, [the defendant's] awareness of a right to

withhold consent, and the purpose and flagrancy of the police

misconduct."   Ealy, 12 Va. App. at 755, 407 S.E.2d at 688.

     Although the Commonwealth argues that Montague freely

consented, the officer's request for consent occurred just

moments after the prior unlawful search.    No intervening




                                 - 8 -
circumstances existed that would break the chain of events.      See

Walls, 2 Va. App. at 654, 347 S.E.2d at 184.   Minutes after

retrieving his belongings, and before Montague had a chance to

walk away, Officer Coker confronted him and asked permission to

search.   The evidence reveals that the searches occurred during

one continuing interaction between Montague and the police.     The

temporal proximity of the illegal search and the "consent," and

the lack of intervening circumstances, together lead to the

conclusion that the causal connection between the illegal seizure

and the alleged "consent" remained unbroken.
     Finally, the police misconduct in performing the illegal

search was directly related to Montague's consent to the second

search.   See Walls, 2 Va. App. at 655, 347 S.E.2d at 184.     The

Commonwealth's evidence does not negate the reasonable conclusion

that Montague probably consented to Officer Coker's search

because he had not been given a choice when the initial search

was performed.

     For these reasons, I would hold that the evidence failed to

prove that Montague's presence and consent to the second search

was his own voluntary, independent act.




                               - 9 -
