COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Bray 

Argued at Richmond, Virginia 

WAYNE THOMAS IMEL 

 MEMORANDUM OPINION* BY 

v. Record No. 1740-00-2 JUDGE LARRY G. ELDER 

 MAY 15, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Herbert C. Gill, Jr., Judge 

 Matthew P. Geary (Barbara J. Gaden, L.L.C., 

on briefs), for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Wayne Thomas Imel (appellant) appeals from his bench trial 

convictions for two counts of robbery, two counts of use of a 

firearm in the commission of robbery, and one count each of 

entering a bank with a weapon and possessing cocaine. On 

appeal, he contends the trial court erroneously (1) denied his 

motion to suppress the cocaine, which was seized when he was 

detained at a shopping mall and subjected to a pat-down search 

for weapons; (2) denied his motion to suppress his statement to 

police in which he admitted the bank robbery; and (3) concluded 

the evidence was sufficient to sustain his convictions in light 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
of the erroneous rulings on the motions to suppress. We hold 

the weapons frisk of appellant in the shopping mall incident was 

not supported by reasonable, articulable suspicion to believe 

that appellant was armed and dangerous. Thus, the denial of the 

motion to suppress the cocaine was erroneous, and we reverse the 

conviction for possessing cocaine and remand for further 

proceedings if the Commonwealth be so advised. However, the 

evidence, viewed in the light most favorable to the 

Commonwealth, supported the trial court's finding that appellant 

knowingly and intelligently waived his right to counsel. Thus, 

the trial court's denial of the motion to suppress the robbery 

confession was not erroneous, and we affirm the robbery and 

related firearm convictions. 

I. 

 At a hearing on a defendant's motion to suppress, the 

Commonwealth has the burden of proving that the challenged 

behavior did not violate the defendant's constitutional rights. 

See Mills v. Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718, 

722-23 (1992). "In determining whether the Commonwealth has met 

its burden, the trial court, acting as fact finder, must 

evaluate the credibility of the witnesses . . . and resolve the 

conflicts in their testimony . . . ." Witt v. Commonwealth, 215 

Va. 670, 674, 212 S.E.2d 293, 297 (1975). On appeal, we view 

the evidence in the light most favorable to the prevailing 

party, here the Commonwealth. Mills, 14 Va. App. at 468, 418 

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S.E.2d at 723. "[W]e are bound by the trial court's findings of 

historical fact unless 'plainly wrong' or without evidence to 

support them[,] and we give due weight to the inferences drawn 

from those facts by resident judges and local law enforcement 

officers." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 

S.E.2d 259, 261 (1997) (en banc). However, we review de novo

the trial court's application of defined legal standards, such 

as whether the police had reasonable suspicion or probable cause 

for a search or seizure or whether a confession was voluntary, 

to the particular facts of the case. See Ornelas v. United 

States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 

911 (1996); Mills, 14 Va. App. at 468, 418 S.E.2d at 723. 

A. 

MOTION TO SUPPRESS COCAINE 

 "Fourth Amendment jurisprudence recognizes three categories 

of police-citizen confrontations: (1) consensual encounters, 

(2) brief, minimally intrusive investigatory detentions, based 

upon specific, articulable facts, commonly referred to as Terry

stops, see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 

L. Ed. 2d 889 (1968), and (3) highly intrusive arrests and 

searches founded on probable cause." Wechsler v. Commonwealth, 

20 Va. App. 162, 169, 455 S.E.2d 744, 747 (1995). An officer 

who develops reasonable suspicion that criminal activity is 

occurring may stop a person "in order to identify him, to 

question him briefly, or to detain him briefly, while attempting 

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to obtain additional information" in order to confirm or dispel 

his suspicions. Hayes v. Florida, 470 U.S. 811, 816, 105 S. Ct. 

1643, 1647, 84 L. Ed. 2d 705 (1985). 

 The right to conduct a full search of a person is automatic 

only in the case of a custodial arrest. See Rhodes v. 

Commonwealth, 29 Va. App. 641, 644-46, 513 S.E.2d 904, 905-06 

(1999) (en banc). An officer may not conduct a full search of a 

suspect simply because he is effecting a Terry stop, but he may 

conduct a pat-down search for weapons during a Terry stop if 

reasonable suspicion of criminal activity supports the stop and, 

additionally, the officer has reasonable, articulable suspicion 

that the person is armed and dangerous. See Adams v. Williams, 

407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 

(1972); 4 Wayne R. LaFave, Search and Seizure § 9.5(a), at 

246-47 (3d ed. 1996). Our review of the existence of reasonable 

suspicion involves application of an objective rather than 

subjective standard. See, e.g., Whren v. United States, 517 

U.S. 806, 812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 

(1996). The exclusionary rule provides that items discovered in 

violation of these principles may not be admitted into evidence. 

Warlick v. Commonwealth, 215 Va. 263, 265, 208 S.E.2d 746, 

747-48 (1974). 

 Here, the evidence, viewed in the light most favorable to 

the Commonwealth, was sufficient to support the trial court's 

implicit finding that the officers had reasonable suspicion to 

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believe appellant was personally involved in criminal activity. 

Detective Norris, who had worked as a "loss merchant" for four 

years, thought, based on his experience and his observations of 

appellant, that appellant was behaving strangely and might 

"steal something while in the store." Thereafter, Norris saw a 

sales clerk take appellant's shopping bag and heard appellant 

call someone on his cell phone to report that he "needed some 

help in here." Norris believed appellant was talking to someone 

who was elsewhere in the mall, and within two minutes, Norris 

saw another male enter the store with a large shopping bag and 

make eye contact with appellant. That other male then went to 

the men's department, concealed a belt in his shopping bag, and 

rejoined appellant. When a uniformed police officer walked 

through the store, appellant and his companion worked their way 

to the store's side door and exited into the parking lot. 

 These facts, viewed together by a police officer 

experienced in loss prevention, provided reasonable suspicion 

that appellant and his companion were involved in a shoplifting 

scheme and justified Detective Norris' request to Detective 

Bailey to "place [appellant] under investigative detention" 

while Detective Norris arrested appellant's companion and 

examined the contents of the bag the sales clerk had taken from 

appellant. 

 The objective facts did not, however, provide Detective 

Bailey with reasonable, articulable suspicion to believe that 

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appellant was armed and dangerous. Detective Bailey's only 

justification for the pat-down was that appellant was "very 

jittery and nervous" and that Bailey believed appellant's 

reaction "was not normal for someone . . . in that kind of 

situation." 

 We previously have held that a person's extreme nervousness 

during a routine traffic stop for a speeding violation, standing 

alone, is insufficient to provide the reasonable suspicion 

necessary for a pat-down search. Moore v. Commonwealth, 12 Va. 

App. 404, 406-07, 404 S.E.2d 77, 78 (1991). In Moore, the stop 

took place during daylight hours while Moore was alone in his 

car. Id. at 406, 404 S.E.2d at 78. Moore made no attempt to 

evade the police and no unusual gestures to suggest that he 

might have a weapon on his person or inside the car. Id. The 

officer conducting the stop "admitted that it is common for a 

person to be nervous when stopped by the police." Id. Although 

the officer conducting the stop knew other officers had Moore 

under surveillance, he did not know the reason for the 

surveillance and was aware of no other basis for believing Moore 

might be armed and dangerous. Id. Under these facts, we held 

the officer improperly "based the pat-down on his subjective 

evaluation of Moore's nervousness" and that he lacked 

reasonable, articulable suspicion to believe Moore was armed and 

dangerous. Id. at 406-07, 404 S.E.2d at 78. 

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 We see no reason to distinguish appellant's case from 

Moore. Although the offense appellant was suspected of 

committing, shoplifting, was more serious than speeding, 

shoplifting is not the sort of crime with which weapons 

possession is routinely associated. Compare Logan v. 

Commonwealth, 19 Va. App. 437, 445, 452 S.E.2d 364, 369 (1994) 

(en banc) (observing that "[t]he relationship between the 

distribution of controlled substances . . . and the possession 

and use of dangerous weapons is now well recognized"). We hold 

that Detective Bailey's testimony that it was unusual for 

someone stopped by police for shoplifting to be nervous was 

objectively unreasonable as a matter of law and, in any event, 

that such testimony was insufficient, standing alone, to 

establish an objectively reasonable suspicion of weapons 

possession. Here, as in Moore, appellant made no unusual 

gestures indicating he might be armed, and Detective Bailey 

described no unusual bulges in appellant's clothing. Compare, 

e.g., James v. Commonwealth, 22 Va. App. 740, 745-46, 473 S.E.2d 

90, 92 (1996) (upholding frisk of passenger who was in vehicle 

with person wanted on a felony warrant and who appeared nervous, 

failed to comply with officer's request to keep his hands on 

dashboard, and kept asking to exit the vehicle). 

 For these reasons, we reverse appellant's conviction for 

possession of cocaine and remand for further proceedings if the 

Commonwealth be so advised. 

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B. 

MOTION TO SUPPRESS ROBBERY CONFESSION 

 A suspect must knowingly and intelligently waive his rights 

against self-incrimination and to the assistance of legal 

counsel in order for a confession made during a custodial 

interrogation to be found voluntary and, therefore, admissible 

in evidence against him. See Morris v. Commonwealth, 17 Va. 

App. 575, 579, 439 S.E.2d 867, 870 (1994). Assessing the 

voluntariness of a confession requires an examination of the 

totality of the circumstances to determine whether the statement 

is the "product of an essentially free and unconstrained choice 

by its maker," or whether the maker's will "has been overborne 

and his capacity for self-determination critically impaired." 

Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 

2046, 36 L. Ed. 2d 854 (1973). In assessing the totality of the 

circumstances, the court must consider both "the details of the 

interrogation" and "the characteristics of the accused." 

Kauffmann v. Commonwealth, 8 Va. App. 400, 405, 382 S.E.2d 279, 

281 (1989). 

 A defendant who has "expressed his desire to deal with the 

police only through counsel[] is not subject to further 

interrogation by the authorities until counsel has been made 

available to him, unless the accused himself initiates further 

communication, exchanges, or conversations with the police." 

Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885, 

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68 L. Ed. 2d 378 (1981); see Michigan v. Jackson, 475 U.S. 625, 

636, 106 S. Ct. 1404, 1411, 89 L. Ed. 2d 631 (1986). Where a 

defendant has invoked his right to counsel but subsequently 

initiates further contact with the police, "the trial court may 

admit the statement if it determines that the defendant 

thereafter 'knowingly and intelligently waived the right he had 

invoked.'" Quinn v. Commonwealth, 25 Va. App. 702, 712, 492 

S.E.2d 470, 475 (1997) (quoting Smith v. Illinois, 469 U.S. 91, 

96, 105 S. Ct. 490, 493, 83 L. Ed. 2d 488 (1984)). 

 Here, we assume without deciding that appellant invoked his 

right to counsel when he said to the officers that he told his 

mother he wished to talk to the officers but only with his 

lawyer present. Nevertheless, the evidence, viewed in the light 

most favorable to the Commonwealth, supports the trial court's 

conclusion that appellant thereafter voluntarily waived his 

right to counsel before confessing his participation in the 

robbery. 

 So viewed, the evidence establishes that the detectives 

came to talk to appellant only after receiving word that he 

wanted to speak to them. When appellant said he had told his 

mother to have his attorney present, the detectives treated this 

as an assertion of the right to counsel and prepared to leave. 

Detective Leonard told appellant he could call them the next day 

after making the necessary arrangements with his lawyer. When 

appellant said, "I want to talk to you," Detective Smith 

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re-advised appellant of his Miranda rights, and appellant signed 

a Miranda waiver form. 

 Appellant did not again request an attorney and did not 

seek to terminate the interview. At the beginning of the 

portion of the interview that was audiotaped and transcribed, 

appellant agreed that he had been advised of his Miranda rights 

and confirmed that he understood them. Appellant's only 

reference to counsel during the taped portion of the interview 

was at the end, when he said, "I wanted to talk to a lawyer." 

(Emphasis added). When Detective Smith responded, "That's not 

what your mom said" and "[t]hat's not what you agreed to here," 

appellant did not dispute these statements. Instead, he said 

merely that he was "so stupid" for "running [his] . . . mouth." 

 Appellant argues that his waiver was not voluntary because 

he was suffering from severe heroin withdrawal, which included 

confusion, nausea, shaking and sweating. As a result of his 

weakened physical condition, he contends he was more easily 

coerced into confessing. What appellant fails to acknowledge, 

however, is that the evidence regarding his condition was 

conflicting and that the trial court, as the finder of fact, was 

free to reject his testimony of impairment and to accept the 

testimony of Officers Leonard and Smith and appellant's own 

statements on the audiotaped portion of his confession. 

Although Leonard acknowledged that appellant may have reported 

being a heroin user and said something about "having a hard time 

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in there," Leonard testified that he believed the comment 

related to appellant's desire to smoke cigarettes, which he was 

unable to do because of the jail's no-smoking policy. Both 

detectives testified that appellant's physical appearance during 

the interview was normal and that they observed no symptoms of 

heroin withdrawal. Although appellant may have been tired, 

"nervous and confused about what he should do, . . . he seemed 

to understand and comprehend what [he and the officers] were 

talking about." Finally, the trial court expressly found that 

"[t]he best evidence of [appellant's] condition is the statement 

itself." 

 Other evidence further supported the trial court's 

conclusion that appellant's waiver of his right to counsel and 

his confession were voluntary. Although appellant was unable to 

smoke, the detectives provided him with soda and a candy bar. 

Further, appellant was no stranger to the criminal justice 

system and knew how to exercise his rights. He had been 

arrested on January 26, 1999, less than ten days earlier, on the 

shopping mall cocaine possession charge for which he was tried 

at the same time as the robbery offenses. Further, when 

appellant was initially arrested for the subject robbery 

offenses on the evening of February 3, 1999, the police informed 

him of his Miranda rights and, after signing a form 

acknowledging his understanding of those rights, he chose to 

exercise them by remaining silent. It was uncontested that 

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appellant remembered signing that form and understood its 

contents. Although he claimed not to have read or comprehended 

the contents of an identical form he signed less than 

twenty-four hours later, immediately before giving the 

challenged confession, the trial court found appellant "was 

aware of his rights and made a voluntary waiver of those rights 

by telling the detectives he would talk." Thus, our independent 

evaluation of the totality of the circumstances supports the 

trial court's conclusion that appellant's waiver of his right to 

counsel and his subsequent confession were voluntary. The 

finding of voluntariness implicitly encompassed a finding that 

the waiver was knowing and intelligent. See, e.g., Kauffmann, 8 

Va. App. at 404-06, 382 S.E.2d at 281-82 (holding confession 

voluntary despite Fifth Amendment challenge without specifically 

discussing whether it was "knowing" and "intelligent"). 

 In reaching this conclusion, the trial court was free to 

reject the testimony of Dr. George Bright regarding the effect 

of heroin withdrawal on appellant's ability to make a voluntary 

confession. See Witt, 215 Va. at 674, 212 S.E.2d at 297; see 

also Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 

668-69 (1997) (en banc). Bright's expert opinion regarding the 

effect of heroin withdrawal on appellant was based on 

appellant's own testimony of the amount of heroin he was using 

prior to his arrest and when he last used it. Appellant's 

testimony conflicted with the testimony of the detectives that 

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appellant appeared no more than nervous and tired and exhibited 

no physical signs of heroin withdrawal. Bright had not seen 

appellant for more than two and one half months prior to his 

arrest on the robbery charges and, therefore, had no independent 

knowledge of appellant's condition at the time of his arrest and 

interrogation. See Street, 25 Va. App. at 389, 488 S.E.2d at 

669 (affirming trial court's rejection of expert testimony 

because it was based on information relayed by party and 

"[e]xperts do not determine the credibility of a witness"). 

 Thus, we conclude, under the totality of the circumstances, 

that the trial court's denial of appellant's motion to suppress 

his confession was not erroneous. Because appellant's only 

challenge to the sufficiency of the evidence to support the 

robbery and related firearm convictions pertained to the court's 

ruling on the suppression motion, which we have upheld as 

proper, we affirm these convictions. 

II. 

 For these reasons, we hold the denial of the motion to 

suppress the cocaine was erroneous, and we reverse the 

conviction for possessing cocaine and remand for further 

proceedings if the Commonwealth be so advised. We hold the 

trial court's denial of the motion to suppress the robbery 

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confession was not erroneous, and we affirm the robbery and 

related firearm convictions. 

 Affirmed in part,

and reversed

and remanded in part.

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