                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia


MARVIN ALFONZA TEMPLE
                                        MEMORANDUM OPINION * BY
          Record No. 2838-95-2        JUDGE ROSEMARIE ANNUNZIATA
                                            MARCH 11, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Thomas N. Nance, Judge
          Patricia P. Nagel, Assistant Public Defender
          (David J. Johnson, Public Defender, on
          brief), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Appellant, Marvin Temple, was convicted of possession with

intent to distribute heroin.   Contending that he was illegally

seized and that his consent to search was not voluntarily given,

appellant argues that the trial court erred in denying his motion

to suppress.   We disagree and affirm his conviction.

                                 I.

     Detective R. L. Armstead of the Richmond Bureau of Police

approached appellant at a bus terminal at approximately 3:19 a.m.

 Armstead, who was not in uniform, identified himself, informed

appellant that his job was to stop the flow of drugs through the

bus station, and asked appellant whether he would cooperate.

Appellant asked, "about what," did Armstead seek his cooperation;
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Armstead repeated his purpose and again asked if appellant would

cooperate.   Appellant agreed to cooperate and told Armstead his

place of departure and intended destination.   Armstead told

appellant he was not under arrest or being detained and asked if

appellant had any drugs with him.   Appellant responded, "no," and

Armstead asked, "do you mind if I search your bag."    Appellant

responded, "don't you need probable cause, a search warrant, a

reasonable consent?"   Armstead replied, "no, because what we do

is approach people, identify ourselves and we ask for permission

to search . . . just like the gentleman behind you."   Appellant

looked to see another detective, Ruffin, searching another

individual's bags.   Appellant then stated, "okay," dropped his

bag and helped Armstead open it.    During these events, appellant

stood in an open area while Armstead's back was against a bus.

Neither Armstead nor Ruffin drew a weapon, and neither placed

their hands on the individual whose bag they searched.      There

were no other officers in the area.    Armstead testified that

appellant was free to leave.   The search revealed approximately

434 glassine envelopes containing heroin.   Appellant fled the

scene, but Armstead apprehended him and placed him under arrest.
     Armstead testified that he clearly explained to appellant

that he sought appellant's permission to search.   He testified

unequivocally that appellant did not inquire only as to consent

to search and that appellant phrased his question neither in the

disjunctive nor the conjunctive.    Accordingly, Armstead




                               - 2 -
testified, he "was replying to his answer about the three things

he wanted to know about, probable cause, search warrants and

reasonable consent."    Armstead stated further that appellant did

not look puzzled and did not question him about the meaning of

permission or consent to search.    There was no evidence that

appellant was unable to understand the conversation.    Armstead

testified that he had no doubt that appellant had consented to

the search and that appellant did not attempt to curtail

Armstead's search.
       The trial court found that appellant had not been illegally

seized and that he voluntarily consented to the search of his

bag.   The court found that Armstead did not intend to mislead

appellant by responding "no" to the question whether he needed

"probable cause, a search warrant, a reasonable consent."

                                  II.

       "[U]pon appeal from a trial court's denial of a motion to

suppress the discovered evidence, the burden is upon the

appellant to show, considering the evidence in a light most

favorable to the Commonwealth, granting to it all inferences

fairly deducible therefrom, that the denial constituted

reversible error."     Reynolds v. Commonwealth, 9 Va. App. 430,

436, 388 S.E.2d 659, 663 (1990).
          A "consensual encounter between police and an
          individual has no [F]ourth [A]mendment
          implications unless accompanied by such
          `coercion or show of force or authority by
          the officer . . . that would cause a person
          . . . reasonably to have believed that he or
          she was required to comply' and `not free to



                                 - 3 -
            leave.'"


Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744,

747 (1995) (citations omitted).   "A voluntary police-citizen

encounter becomes a seizure for Fourth Amendment purposes `only

if, in view of all of the circumstances . . . a reasonable person

would have believed that he was not free to leave.'"    Id. at 170,

455 S.E.2d at 747 (citations omitted).

     Two police officers occupied the scene in the present case.

Neither was in uniform, neither drew a weapon, and neither, at

least initially, touched the individual whom they had approached.

One of the officers approached appellant.    The officer

identified himself, explained his presence and asked whether

appellant would cooperate with him.    When appellant appeared not

to understand, the officer repeated himself.   The officer stated

no commands or directions to appellant, and the record is devoid

of evidence that the officer spoke in a raised voice or in any

other manner to suggest that appellant had no choice but to

answer his questions.   The officer positioned himself against a

bus so that appellant's freedom of movement would not be

restricted.   That appellant's freedom of movement was not

restricted is apparent from his eventual flight.   The officer

told appellant that he was neither under arrest nor being

detained.   The officer testified that if appellant had refused to

cooperate, he would have been free to leave.   The context of the

discourse between appellant and the officer demonstrates that the



                               - 4 -
officer sought and obtained appellant's consent, first to the

encounter and then to the search of appellant's bag.       The record

supports the trial court's finding that the encounter was not

accompanied by coercion or show of force or authority by the

officer such that appellant would have reasonably believed he was

not free to leave.    There was no "seizure" for Fourth Amendment

purposes until appellant was arrested.

     Appellant does not contend that he was "seized" during the

initial encounter with the officer.     He contends, however, that

his consent to search was the product of duress and coercion and,

therefore, invalid.   Specifically, he argues that the officer's

response to his question regarding the need for "probable cause,

a search warrant, a reasonable consent" was a misrepresentation

of his constitutional rights and that the officer's act of

referring appellant to the ongoing search being conducted nearby,

without explaining that the person had consented to the search,

was coercive.   Thus, he argues (1) that the continuation of the

encounter beyond his consent to the search became an unlawful

seizure; and (2) that his consent was an improper basis for the

search.   We disagree.
     The test of a valid consent search is whether, considering

the totality of the circumstances, it was freely and voluntarily

given; the Commonwealth must demonstrate that the consent was not

the product of duress or coercion.      E.g., Gregory v.
Commonwealth, 22 Va. App. 100, 109, 468 S.E.2d 117, 122 (1996).




                                - 5 -
We review the trial court's findings of historical fact for clear

error.   Ornelas v. United States, __ U.S. __, __, 116 S. Ct.

1657, 1662 (1996).   Giving due weight to the inferences drawn

from those facts by the trial court and by law enforcement

officials, we review de novo the trial court's application of

those facts to the legal standard of "voluntary consent."      Id.

     We assume, without deciding, that a police officer's

misrepresentation of a defendant's constitutional rights would

vitiate a consent to search and render a continuing encounter

with the police an unlawful "seizure."     However, viewing the

evidence in the light most favorable to the Commonwealth, we find

that the trial court's finding that no such misrepresentation
                                                      1
occurred in the present case is not plainly wrong.
     Appellant complains that the officer's response to his

question misled him with respect to his constitutional rights.

However, appellant did not ask simply whether the officer needed

his consent to search his bag.    Rather, appellant asked whether

the officer needed "probable cause, a search warrant, a

reasonable consent," a multiple question phrased neither in the

disjunctive nor in the conjunctive.      To the extent appellant now

focuses on the first word of the officer's response, "no," it

     1
      Initially, we note that appellant never argued the position
taken by the dissent that the officer's words, "do you mind if I
search your bag," could be construed as a command rather than a
question. Moreover, we disagree that the phrase "do you mind if"
could reasonably be construed as the preface to a command, rather
then a question.




                                 - 6 -
cannot be said, based on the form of the question, that the

response was either correct or incorrect.   Moreover, "no" was not

the thrust of the officer's response.   Rather, in response to

appellant's question, the officer restated the procedure he

followed: "what we do is approach people, identify ourselves and

we ask for permission to search."   The officer clearly explained

that consent or permission to search was part of the equation.

His testimony supports the trial court's findings that he did not

intend to mislead appellant and that appellant, in fact,

understood the officer's explanation.
     Appellant also argues that the officer's response misled him

by suggesting that the officer was required only to ask, rather

than to obtain, permission to search.   Appellant failed to

articulate this specific argument at the hearing on his motion to

suppress.   Instead, he limited his argument to the suggestion

that the officer's use of the word "permission" which he later

identified as a synonym for "consent" misled appellant.    The

trial court had no opportunity to address the issue in the

context of appellant's more general complaint; therefore,

appellant's argument is procedurally barred.    Rule 5A:18.

     We find no basis for applying the ends of justice exception,

because appellant's complaint is without merit.   Contrary to

appellant's contention, we do not believe the officer's statement

would lead a reasonable person to believe that an officer need

only ask for permission without obtaining it.   Furthermore, it is




                               - 7 -
clear from the dialogue between the officer and appellant that

the officer sought, and took no action until he obtained,

appellant's consent to the entire encounter, a statement, by

conduct, that no search would ensue until permission was given by

appellant.   The officer explained his purpose and asked if

appellant would cooperate; when appellant appeared not to

understand, the officer repeated himself and again asked for

appellant's cooperation.   When appellant asked an ambiguous

question concerning the basis for the officer's search, the

officer again responded that he was seeking appellant's

cooperation and permission to proceed.   In sum, not only did the

officer repeatedly explain that he was seeking permission to

search, his conduct underscored that any further action on his

part was dependent on his receiving consent. 2

     Finally, we find no merit in appellant's contention that

Armstead's act of referring appellant to the search Ruffin was

conducting was coercive.   Ruffin was simply searching a bag;

there was no show of force.

     In sum, the totality of circumstances support the trial

court's finding that appellant was not misled concerning his

constitutional rights.   Thus, we conclude his consent to the

search was given voluntarily.
     2
      Moreover, the fact that the officer did not search
appellant immediately following the first request for consent
undermines the logic of appellant's contention that he was led to
believe the officer only needed to ask for consent, not obtain
it.



                                - 8 -
The decision of the trial court is accordingly affirmed.

                                                   Affirmed.




                         - 9 -
Benton, J., dissenting.



     Because the evidence failed to prove that Marvin Temple

voluntarily consented to the search of his bags, I would reverse

the trial judge's refusal to suppress the evidence.   Accordingly,

I would reverse the conviction.

     The principles concerning voluntary consent are well

established.
          When [the Commonwealth] seeks to rely upon
          consent to justify the lawfulness of a
          search, [the Commonwealth] has the burden of
          proving that the consent was, in fact, freely
          and voluntarily given. This burden cannot be
          discharged by showing no more than
          acquiescence to a claim of lawful authority.


Bumper v. North Carolina, 391 U.S. 543, 548 (1968) (footnotes

omitted).   When police conduct causes a citizen to acquiesce to a

claim of lawful authority, any search that follows is "the result

of duress or coercion, express or implied" and cannot be said to

be based upon consent voluntarily given.   Schneckloth v.

Bustamonte, 412 U.S. 218, 248 (1973).   Furthermore, voluntary

consent has not been obtained "where the consent to a search is

induced by fraud, trickery, or misrepresentation."    Commonwealth

v. E.A. Clore Sons, Inc., 222 Va. 543, 548, 281 S.E.2d 901, 904

(1981).

     The undisputed evidence proved that the police officer

interrupted Marvin Temple as Temple walked to board a Greyhound

bus at the terminal.   The officer told Temple that he wanted to

talk to Temple because he was investigating the flow of illegal



                              - 10 -
narcotics.   He asked if Temple "would . . . mind cooperating in

this matter."   After Temple answered the officer's inquiry

concerning his travel, the officer asked Temple if he had any

narcotics on his person or bag.   When Temple said, "no," the

officer asked him if he would mind if the officer searched his

person or the contents of his bag.

     The Commonwealth relied upon the officer's statement of the

word "mind" to indicate that he requested consent.   However, the

word "mind" has many shades of meaning, including to "give heed

to attentively in order to obey."    Webster's Third New

International Dictionary, 1436-37 (1981).   That word does not

unambiguously convey the same meaning as the words "give consent"

or "give permission."   Indeed, the phrase, "Would you mind, while

I search," is not a request for consent to search or a request

for permission to search.   Used in that context, it is arguable

whether "would you mind" is an inquiry or a command.    Moreover,

Temple's response to the officer's "question" reveals that Temple

probably interpreted it as a command.   If Temple felt that he

could refuse the search, he likely would not have asked whether

the officer needed "probable cause, a search warrant, a

reasonable consent."

     The officer did not ask Temple for "permission" to search

and did not ask Temple for his "consent" to a search.      The

evidence shows that the words the officer used did not plainly

convey a request for permission to conduct a consent search.     The



                              - 11 -
officer's failure either to inform Temple that he could refuse

the search or to plainly ask for consent or permission to search

negate the suggestion that the consent was voluntary.

     After the officer informed Temple that he wanted to search

Temple's bag and his person, Temple responded, "don't you need

probable cause, a search warrant, a reasonable consent?"   Despite

the majority's assertion to the contrary, Temple's question was

not ambiguous.   Furthermore, the record clearly indicates that

the officer understood Temple's inquiry.   The officer did not

testify that he did not understand the question or that he

misinterpreted the question.   Moreover, no evidence supports a

finding that the answer, "no," was anything but incorrect.

Therefore, the trial judge's finding that the officer's response

was not a misrepresentation, and the majority's decision to

uphold that finding, have no evidentiary support in this record.
     Whatever the officer may have intended, he misstated his

authority to search Temple.    When he responded "no" to Temple's

inquiry, he claimed an authority to search that is not legally

cognizable. That response negated Temple's right to resist.
          When a law enforcement officer claims
          authority to search . . . , he announces in
          effect that the [person] has no right to
          resist the search. The situation is instinct
          with coercion - albeit colorably lawful
          coercion. Where there is coercion there
          cannot be consent.


Bumper, 391 U.S. at 550.

     The officer's response affirmatively misrepresented his



                               - 12 -
authority and negated any consent.         Consent is not voluntary when

given to a police officer who falsely claims to have lawful

authority.       See Deer v. Commonwealth, 17 Va. App. 730, 735, 441

S.E.2d 33, 36 (1994).      "A significant misrepresentation, by

commission or omission, of the constitutional choices available

to [Temple] is a strong circumstance, in the larger totality of

circumstances, militating against the voluntary quality of

[Temple's] consent."       Titow v. State, 542 A.2d 397, 399 (Md. Ct.

Spec. App. 1988).
     After minimizing the officer's unequivocal

misrepresentation, the majority further concludes that the

officer's subsequent statement to Temple "clearly explained" that

the officer sought to obtain Temple's permission to search.        The

officer's precise words belie the assertion.        After the officer

responded negatively to Temple's inquiry, the officer stated "we

approach people, identify ourselves, and ask for permission to

search . . . just like the gentleman behind you."        When Temple

turned in response to the latter comment, he saw another police

officer searching a man. The officer testified:
          Q And behind you was Detective Ruffin and
          she was searching an individual?

             A   Yes.

             Q That was readily apparent that you were
             making reference that that detective was
             searching?

             A Yeah, I was replying to his answer about
             the three things he wanted to know about,
             probable cause, search warrants and



                                  - 13 -
           reasonable consent. 3


     Temple obviously could not have known the basis upon which

Detective Ruffin was searching the other man.     Neither the

officer nor Detective Ruffin informed Temple that the man being

searched had consented to the search.     Moreover, at no time did

the officer tell Temple that he could not conduct a lawful search

of Temple's bags or his person unless Temple consented or gave

permission for the search.    The officer's negative response to

Temple's inquiry required as much.      The officer's further

"explanation" merely informed Temple that the police only needed

to "approach people, identify [them]selves, and ask for

permission to search."    In summary, the officer denied that he

needed a search warrant, probable cause, or consent to search

Temple and implied that his authority as a police officer existed

after he formally asked permission.     When the officer referred to

the person that Detective Ruffin was searching, he reinforced the

point that his authority as a police officer was all that was

needed to make a search.    He failed to tell Temple that before

making a search he had to "obtain" permission or consent from

Temple.   The officer "convey[ed] a message that compliance with

[his] requests [was] required."    Florida v. Bostick, 501 U.S.

429, 435 (1991).

     Thus, Temple's response was made "in submission to authority
     3
      This testimony clearly establishes, if there could have
been any doubt, that the officer, unlike the majority, did not
perceive Temple's question to be ambiguous.



                               - 14 -
rather than as an . . . intentional waiver of a constitutional

right."     Johnson v. United States, 333 U.S. 10, 13 (1948); see

also Bumper, 391 U.S. at 548-49.      "'Orderly submission to

law-enforcement officers who, in effect, represented to the

defendant that they had the authority to . . . search . . . ,

against his will if necessary, was not such consent as

constituted an . . . intentional and voluntary waiver by the

defendant of his fundamental rights under the Fourth Amendment to

the Constitution.'"     Bumper, 391 U.S. at 549 n.14 (citation

omitted).    Merely "responding to 'coercion under the color of

lawful authority' that had no legal basis" does not give rise to

a voluntary consent.     Deer, 17 Va. App. at 736, 441 S.E.2d at 37.

     The majority asserts that Temple's argument that the

officer's response "suggest[ed] that the officer was required

only to ask, rather than to obtain, permission to search" is

barred from consideration on appeal.       This is so, the majority

asserts, because Temple failed to make such an argument before

the trial court.    I disagree.

     The argument made by Temple's counsel covers many pages of

the transcript.    However, the following portion clearly reveals

that Temple's counsel made the judge aware that the officer's

actions and words conveyed that he did not need to obtain

consent:
                My client was asking the question, Judge,
             and the officer answered that question, and
             as a result of the answer the officer gave --
             as a result of the direct answer that the
             officer gave and on top of that, Your Honor,



                                  - 15 -
            the fact that he pointed to someone else
            being searched, he's saying no, we need your
            permission, he doesn't explain what was going
            on over there, he just pointed to another
            individual whose bag was being searched. He
            didn't explain what was -- this officer isn't
            out there explaining each and every item,
            this individual's constitutional rights, and
            when he can decline a search and when he has
            to put up with a search, things of that
            nature he simply says no, we need your
            permission and he points to someone else
            being searched. What is this individual's
            option at that point, he's just asked whether
            the officer needs consent to search, the
            officer says no, I need your permission, he
            points to someone who is being searched
            . . . .


(Emphasis added).   This argument adequately made the judge aware

that the implications of the officer's misleading answer,

combined with his pointing to another search in progress,

reasonably conveyed that Temple's consent was not required.

     The officer's negative statement in response to Temple's

question and his explanation did not induce a voluntary consent.

Indeed, the officer's example of a search in progress was bald

coercion.   "Once [Temple] was led down the garden path, persuaded

that the search . . . was [authorized], his subsequent consent

must be viewed as merely an accommodation to the authorities."
United States v. Ricciardelli, 998 F.2d 8, 14 (1st Cir. 1993).

"'One who . . . acquiesces in obedience to such a request, no

matter by what language used in such acquiescence, is but showing

a regard for the supremacy of the law.'"    Bumper, 391 U.S. at 549

n.14 (citation omitted).   When, as here, the police use a

statement "[t]hat was not an accurate description of their


                               - 16 -
constitutional prerogative" and thereby induce a person to allow

a search, the evidence fails to establish a voluntary consent.

Titow, 542 A.2d at 398.

     The trial judge's finding that the officer's incorrect

response, "no," and the officer's further conduct in pointing to

an ongoing search, taken together, were not a misrepresentation

of the law and the officer's authority was plainly wrong.

Because the officer misrepresented his authority and used that

misrepresentation, along with other conduct, to induce Temple to

acquiesce, the search was unlawful and "the fruits of the search

must be suppressed."   E.A. Clore Sons, Inc., 222 Va. at 548, 281

S.E.2d at 904.




                              - 17 -
