COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

JERMAINE THOMAS 

 MEMORANDUM OPINION* BY 

v. Record No. 0192-95-2 JUDGE MARVIN F. COLE 

 JULY 9, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Walter W. Stout, III, Judge 

 Cullen D. Seltzer, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

briefs), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Appellant, Jermaine Thomas, in a bench trial was convicted 

of possession of cocaine with the intent to distribute. On 

appeal, he contends that the trial court erred in refusing to 

suppress evidence secured as a result of an unlawful search and 

seizure. We disagree and affirm the conviction. 

 On July 23, 1994, Detective Stephanie Ruffin was on 

assignment at the Greyhound bus station in Richmond. She was 

part of an interdiction team seeking to prevent illegal narcotics 

from entering the Commonwealth. She was standing at a gate when 

a bus arrived from Washington, D.C. She observed appellant near 

the gate carrying a gray suitcase and a tan backpack. The night 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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before, Ruffin saw a person who resembled appellant board a bus 

for Washington. 

 Thomas entered the game room of the terminal and sat down 

upon the suitcase he was carrying. Detective Ruffin watched 

Thomas about thirty minutes. She then approached him, displayed 

her identification badge and picture I.D., and identified herself 

as a police officer. In a "very pleasant" tone of voice, Ruffin 

asked Thomas if she could speak with him for a moment. Appellant 

said "sure." Ruffin "asked him if he would mind following [her] 

to the baggage area where [they] could speak in private." Thomas 

accompanied Ruffin to the baggage area for privacy. The baggage 

area was separated from the passenger area of the terminal by a 

half-gate. Appellant picked up his bags and followed her to the 

baggage area. 

 Ruffin explained to Thomas that she was involved in the drug 

interdiction effort at the bus terminal. She "asked him if [she] 

could search his bags and his person." Thomas answered, "Yeah," 

and stated that he was going to a family reunion in Greensboro 

and that there were only clothes in the bag. Trooper Koushel, 

who was present in the baggage area, searched Thomas while Ruffin 

searched the gray suitcase and the backpack. In the backpack 

Ruffin found an oval package wrapped in black electrical tape. 

Believing the package contained narcotics, Ruffin cut the package 

open with a knife. Inside was a brown paper bag containing 95.11 

grams of cocaine and 66 yellow glassine envelopes. Ruffin placed 
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Thomas under arrest for possessing cocaine with the intent to 

distribute. At no time during the search of his person or bags 

did Thomas ask the officers to stop or indicate in any way that 

he no longer consented to the search. He did not object to the 

search of anything within the bags. 

 Thomas contends that his initial encounter with Detective 

Ruffin was a seizure and that he did not voluntarily consent to a 

search of the backpack. He further argues that even if he did 

consent to the search, Ruffin exceeded the scope of his consent 

and, therefore, the seized cocaine was erroneously admitted into 

evidence. The Commonwealth contends that the encounter and the 

search of Thomas and his bags were consensual and did not 

implicate the Fourth Amendment. Citing Rule 5A:18, it asserts 

that appellant did not raise in the trial court the issue of the 

scope of the consent, and he cannot raise it for the first time 

on appeal. 

 We review the evidence in the light most favorable to the 

Commonwealth and grant to it "all reasonable inferences fairly 

deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 349, 

352, 218 S.E.2d 534, 537 (1975). The appellant must show that 

the denial of his motion to suppress evidence was reversible 

error. Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437 

S.E.2d 232, 233 (1993). To constitute reversible error, we will 

disturb the decision of the trial court only if plainly wrong or 

if not supported by credible evidence. Commonwealth v. 
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Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). 

 It is axiomatic that for a person to claim the protection of 

the Fourth Amendment, he or she must first be subjected to a 

search or seizure. 

 [L]aw enforcement officers do not violate the 

Fourth Amendment by merely approaching an 

individual on the street or in another public 

place, by asking him if he is willing to 

answer some questions, by putting questions 

to him if the person is willing to listen, or 

by offering in evidence in a criminal 

prosecution his voluntary answers to such 

questions. Nor would the fact that the 

officer identifies himself as a police 

officer, without more, convert the encounter 

into a seizure requiring some level of 

objective justification. 

Florida v. Royer, 460 U.S. 491, 497 (1983) (citations omitted) 

(plurality opinion). See also Richards v. Commonwealth, 8 Va. 

App. 612, 615, 383 S.E.2d 268, 270 (1989). 

 Furthermore, if a person consents to being searched, the 

Fourth Amendment is not implicated if a reasonable person would 

understand he could refuse to cooperate and rely upon the 

protection of the Fourth Amendment. Lawrence v. Commonwealth, 17 

Va. App. 140, 144, 435 S.E.2d 591, 593 (1993), aff'd, 247 Va. 

339, 443 S.E.2d 160 (1994) (citing United States v. Wilson, 953 

F.2d 116, 121 (4th Cir. 1991)). Consensual encounters and 

searches remain consensual as long as the citizen voluntarily 

cooperates with the police. Payne v. Commonwealth, 14 Va. App. 

86, 88, 414 S.E.2d 869, 879 (1992). 

 The Commonwealth must prove that consent was freely and 
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voluntarily given. Elliotte v. Commonwealth, 7 Va. App. 234, 

238, 372 S.E.2d 416, 419 (1988). If consent is proven, then 

probable cause to search and a search warrant are not required. 

Schneckloth v. Busamonte, 412 U.S. 218, 219 (1973). Whether the 

consent to search was freely given is a question of fact to be 

determined from the totality of circumstances. Limonja v. 

Commonwealth, 8 Va. App. 532, 540, 383 S.E.2d 476, 481 (1989) (en

banc), cert. denied, 495 U.S. 905 (1990). 

 The Virginia Supreme Court has defined a seizure as follows: 

 "[A] person has been 'seized' within the 

meaning of the Fourth Amendment only if, in 

view of all of the circumstances surrounding 

the incident, a reasonable person would have 

believed that he was not free to leave. 

Examples of circumstances that might indicate 

a seizure, even where the person did not 

attempt to leave, would be 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." 

Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 648 

(1992) (quoting United States v. Mendenhall, 446 U.S. 544, 554 
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(1980)). 

 Nothing in the record supports Thomas's claim that his 

encounter with Detective Ruffin in the bus station was a seizure. 

 She identified herself as a police officer and asked permission 

to speak with him. He consented. Detective Ruffin asked Thomas 

if he would mind following her to the baggage area where they 

could speak in private. He demonstrated his consent by carrying 

his bags and voluntarily following her to the baggage area. 

Thus, we find no merit to the appellant's argument that he was 

illegally seized in violation of the Fourth Amendment. 

 As soon as Thomas entered the baggage area with Detective 

Ruffin and Trooper Koushel, he consented to the searches of his 

person and his bags. At no point during the searches did he 

withdraw his consent or in any way indicate that he wanted the 

police to cease the searches. His consent to the search of his 

person and his bags was general, unlimited in scope as to his 

person or bags, voluntary, and was never withdrawn or limited 

subsequently. The trial court held that the searches were 

consensual, and evidence in the record supports this conclusion. 

 Appellant further asserts that even if his encounter with 

Detective Ruffin was not a seizure and he validly consented to 

the search, the search conducted by Ruffin exceeded the scope of 

that consent when she cut open the oval package containing 

cocaine, which she found in the backpack. The record does not 

reveal that appellant made this argument in the trial court, and 
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it cannot now be made for the first time on appeal. Rule 5A:18. 

 In any event, the discovery of the package containing 95.11 

grams of cocaine was within the scope of the general consent to 

search the backpack given by Thomas, as was the right to open the 

package. See Grinton v. Commonwealth, 14 Va. App. 846, 851, 419 

S.E.2d 860, 863 (1992). 

 For the reasons stated, we affirm the judgment of the trial 

court. 

Affirmed.