COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Elder 

Argued at Salem, Virginia 

ROBERT LAYTON STOCKDALE 

 MEMORANDUM OPINION* BY 

v. Record No. 1732-95-3 JUDGE SAM W. COLEMAN III 

 OCTOBER 15, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Richard S. Miller, Judge 

 Vanessa E. Hicks, Assistant Public Defender 

(Office of the Public Defender, on brief), 

for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Robert Layton Stockdale was convicted in a bench trial for 

possession of cocaine in violation of Code § 18.2-50. Stockdale 

contends that the trial court erred by denying his motion to 

suppress statements he made to the police on the ground that he 

was subjected to a custodial interrogation without being advised 

of his Miranda rights and by finding that the evidence was 

sufficient to prove that he constructively possessed cocaine. We 

find no error and affirm the defendant's conviction. 

I. CUSTODIAL INTERROGATION 

 The police cannot lawfully conduct a custodial interrogation 

until they advise a suspect of his rights under Miranda v. 

Arizona, 384 U.S. 436 (1966). Cherry v. Commonwealth, 14 Va. 

 

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

designated for publication. 
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App. 135, 140, 415 S.E.2d 242, 244 (1992). In Miranda, "[t]he 

[Supreme] Court defined 'custodial interrogation' as 'questioning 

initiated by law enforcement officers after a person has been 

taken into custody or otherwise deprived of his freedom of action 

in any significant way.'" Stroud v. Commonwealth, 6 Va. App. 

633, 637, 370 S.E.2d 721, 723 (1988) (quoting Miranda, 384 U.S. 

at 444). 

 [A] suspect is "in custody" when the 

objective circumstances would lead a 

reasonable person to believe he was under 

arrest, thereby subjecting him or her to 

pressure impairing the free exercise of the 

privilege against self-incrimination. The 

circumstances may include factors such as the 

familiarity or neutrality of the 

surroundings, the number of officers present, 

the degree of physical restraint, the 

duration and character of the interrogation, 

the presence of probable cause to arrest, and 

whether the suspect has become the focus of 

the investigation. 

Cherry, 14 Va. App. at 140, 415 S.E.2d at 245. The usual traffic 

stop or a brief Terry-type investigative detention does not 

involve the degree of restraint that raises concern about 

intimidation or abuse which Miranda was designed to protect. 

Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984). 

 Here, Officers M. S. Murphy and J. L. Hise were on patrol at 

approximately 1:20 a.m. when they observed a truck parked in an 

area known as a "high drug, high crime, open-air drug market." 

The officers decided to investigate and to inquire about the 

identity and activity of the truck's occupants. The officers 

pulled their patrol car behind the truck, but did not activate 
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the patrol car's lights or siren. 

 After talking with the defendant, who was sitting in the 

passenger's seat, and determining that he owned the truck, 

Officer Murphy requested the defendant's consent to search the 

truck for illegal drugs and firearms. According to Officer 

Murphy, he advised the defendant that he was free to leave. 

Nevertheless, the defendant consented to the search and exited 

the vehicle. Officer Murphy conducted a pat-down search of the 

defendant and asked the defendant to stand at the rear of the 

truck. The defendant was not handcuffed or restrained in any 

manner. 

 Officer Hise searched the truck and found a "homemade 

smoking device made from a Rexal Ibuprofen bottle" in a pouch 

located on the part of the driver's seat below the driver's legs. 

 Officer Murphy showed the pipe to the defendant and asked him 

"whose pipe it was." According to Murphy, the defendant replied 

that he "and his wife had had problems some months back with 

crack." The defendant further stated that "the pipe belonged to 

him, but . . . it had been months since it had been used." 

Officer Murphy observed what appeared to be "burnt residue" 

inside the pipe, but he had no means available to field test the 

residue. The officer seized the pipe based upon his belief that 

it contained cocaine residue but he did not arrest the defendant. 

 When the lab analysis proved positive for cocaine, the defendant 

was arrested and charged. 
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 The defendant contends that he was subjected to a custodial 

interrogation when the officers found the pipe in the truck and 

Officer Murphy asked him who owned the pipe. Thus, he asserts 

that his inculpatory response should have been suppressed because 

he was not given the Miranda warnings. We disagree. 

 If an officer has a reasonable, articulable 

basis to suspect that an individual has 

committed or is about to commit a crime, the 

officer is justified in briefly detaining the 

suspect and asking him a limited number of 

questions without giving Miranda warnings in 

order to quell or confirm the officer's 

suspicion of criminal activity. 

Cherry, 14 Va. App. at 140, 415 S.E.2d at 244. Here, the 

officers were justified in briefly detaining and questioning the 

defendant after conducting a consensual search of the truck and 

finding a "homemade smoking device which [they] believed was used 

to ingest some type of illegal drug." Although other officers 

were at the scene, Officers Murphy and Hise were the only ones 

who approached the truck. Neither officer drew his weapon or 

attempted to physically restrain the defendant in any manner. 

Cf. Wass v. Commonwealth, 5 Va. App. 27, 34, 359 S.E.2d 836, 840 

(1987) (noting that twelve armed police officers arrived in 

trucks and a helicopter to execute a search warrant, surrounded 

Wass's house, and threatened to kill one of Wass's dogs if he did 

not control it). Furthermore, Murphy merely asked the defendant 

who owned the pipe. Murphy did not arrest or intend to arrest 

the defendant before the pipe could be analyzed, even though 

Murphy suspected that the pipe contained drug residue. 
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 A seizure does not occur and the Fourth Amendment is not 

implicated when the police merely approach a vehicle that is 

parked in a public area and ask the occupants for identification 

information. Carson v. Commonwealth, 12 Va. App. 497, 500, 404 

S.E.2d 919, 920, aff'd en banc, 13 Va. App. 280, 410 S.E.2d 412 

(1991), aff'd, 244 Va. 293, 421 S.E.2d 415 (1992). If no 

"seizure" occurred in such situation that would implicate the 

Fourth Amendment privacy protections, then certainly such a 

suspect would not have been restrained to the degree that he 

would have been "in custody" requiring Miranda warnings. 

Berkemer, 468 U.S. at 439-40. Where, as part of an investigatory 

detention or consensual search, an officer merely asks about the 

ownership of a device that is not itself illegal, the detention 

does not become tantamount to arrest. Under these circumstances, 

a reasonable person would not have concluded that he was in 

custody or being arrested because a pipe that might be used to 

smoke drugs was found during a consensual search. Thus, the 

trial court did not err by overruling the defendant's motion to 

suppress the statements he made to Officer Murphy. 

II. SUFFICIENCY OF THE EVIDENCE 

 "To sustain a conviction for possession of a controlled 

substance in violation of Code § 18.2-250, the evidence must 

prove beyond a reasonable doubt that the accused was aware of the 

presence and character of the controlled substance." Jones v. 

Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864 (1994). 
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Although proximity to a controlled substance is not sufficient, 

standing alone, to prove that an accused is aware of the presence 

and character of drugs, it is one factor for the fact finder to 

consider. Id.

 Here, the defendant, who was in close proximity to the 

cocaine, was also the registered owner of the truck in which the 

cocaine was found. See Glenn v. Commonwealth, 10 Va. App. 150, 

154, 390 S.E.2d 505, 507 (1990). Furthermore, the pipe was in 

the seat cover pouch under the driver's seat in which the 

defendant/owner was one of the only two occupants. But, most 

importantly, the defendant admitted to Officer Murphy that he 

owned the pipe and that he had used crack cocaine in the past. 

See May v. Commonwealth, 3 Va. App. 348, 356, 349 S.E.2d 428, 432 

(1986); see also Glenn, 10 Va. App. at 154, 390 S.E.2d at 507. 

The trial court could reasonably infer from these declarations 

"that [the defendant] knew of the existence of [the cocaine 

residue] at the place where [it] was found," and was consciously 

exercising dominion and control of it. Jones, 17 Va. App. at 

574, 439 S.E.2d at 864 (quoting Hairston v. Commonwealth, 5 Va. 

App. 183, 186, 360 S.E.2d 893, 895 (1987) (quoting People v. 

Pigrenet, 26 Ill.2d 224, 227, 186 N.E.2d 306, 308 (1962))). 

Although the drug residue in the pipe may not have been a usable 

amount of cocaine, knowing possession of only a modicum of an 

illegal substance is sufficient for a conviction. Robbs v. 

Commonwealth, 211 Va. 153, 154-55, 176 S.E.2d 429, 430 (1970). 
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 The evidence, viewed in the light most favorable to the 

Commonwealth, is sufficient to prove beyond a reasonable doubt 

that the defendant constructively possessed the cocaine found in 

the truck. 

 For the foregoing reasons, we affirm the defendant's 

conviction. 

Affirmed.