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. 
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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 
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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 
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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 
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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). 
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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 

occurred in the present case is not plainly wrong.1

 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 

 

 1Initially, 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. 
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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 
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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. 

 2Moreover, 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. 
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 The decision of the trial court is accordingly affirmed. 

 Affirmed.
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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 
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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 
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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 
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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 
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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 

 

 3This 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. 
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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, 
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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 
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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.