COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Bray 

Argued at Norfolk, Virginia 

LEROY LEO EDMONDS, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 1853-95-1 JUDGE SAM W. COLEMAN III 

 JULY 16, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Verbena M. Askew, Judge 

 Ruthie Litvin (Kevin M. Diamonstein; 

Diamonstein, Becker & Staley, on brief), for 

appellant. 

 Marla Graff Decker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Leroy Leo Edmonds, Jr. appeals his bench conviction for 

possession of heroin with intent to distribute in violation of 

Code § 18.2-248. Edmonds contends that the trial court erred by 

denying his motion to suppress the heroin because the police 

illegally took it from his pocket. He asserts that the police 

seized the heroin after obtaining his consent to be searched, 

which consent was coerced and was not freely and voluntarily 

given. We hold that the heroin was lawfully seized, and we 

affirm the defendant's conviction. 

 Officer W. S. Warren observed the driver of a vehicle make a 

turn without signalling. He stopped the vehicle in order to 

issue the driver a traffic summons. Officer Warren spoke to the 

 

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

designated for publication. 
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driver, who consented to being searched and to having the vehicle 

searched. After talking with the driver, Officer Warren asked 

the passengers to exit the car one at a time. The defendant was 

sitting in the front passenger seat and another individual was 

sitting in the backseat. Officer Warren testified that he 

stopped the car solely because of the illegal turn and that he 

had no information that the occupants were engaged in any 

criminal activity. The record contains no explanation as to why 

Officer Warren requested to search the driver or the vehicle in 

what appears to have been a routine traffic infraction. 

 In response to Officer Warren's request, the defendant 

exited the vehicle and produced identification. Officer Warren 

asked the defendant "if he had weapons, knives or drugs on his 

person," to which the defendant responded that he did not. When 

Officer Warren asked the defendant whether he would consent to a 

pat down search, the defendant refused. According to Warren, the 

defendant "was acting somewhat nervous." Officer Warren then 

requested that the other passenger exit the vehicle. The other 

passenger did so and consented to a pat down search. 

 After searching and talking with the other passenger, 

Officer Warren again asked the defendant again "if he had any 

weapons or anything on his person." Officer Warren then said to 

the defendant: 

 Sir, if I have reasonable suspicion you might 

be carrying a weapon on your person, I have 

the obligation to pat you down, and in the 

course of the pat down if I feel something I 

felt could be contraband I have cause to 
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arrest you. 

Immediately after this statement, the defendant responded that he 

had "two packs of something in [his] pocket," and he began to 

reach into his pocket. Officer Warren stopped the defendant, 

reached into the defendant's pocket, and retrieved twelve packs 

of heroin. 

 "On appeal, the burden is on appellant to show, considering 

the evidence in the light most favorable to the Commonwealth, 

that the denial of the motion to suppress constituted reversible 

error." Stanley v. Commonwealth, 16 Va. App. 873, 874, 433 

S.E.2d 512, 513 (1993). In making our review of whether a 

warrantless search is legal under the Fourth Amendment, we give 

deference to the trial court's findings of historical facts and 

the inferences that reasonably may have been drawn therefrom. 

But, in determining whether the Commonwealth proved legal consent 

to search, our review of whether the search was in accordance 

with the defined legal standards and criteria, as applied to the 

facts, is de novo. Ornelas v. United States, ___ U.S. ___ 

(1996). 

 Here, Officer Warren lawfully stopped the vehicle and its 

occupants after witnessing the driver make a turn without giving 

the required signal. When the driver consented to Officer Warren 

searching the vehicle, the driver expanded the scope of the 

lawful search beyond what would have been justified by a routine 

traffic stop. Bethea v. Commonwealth, 245 Va. 416, 419, 429 
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S.E.2d 211, 213 (1993); see also Limonja v. Commonwealth, 7 Va. 

App. 416, 424, 375 S.E.2d 12, 16-17 (1988) (stating that after 

receiving consent to search the vehicle, the officers "had [the 

occupants] exit the car and stand to the rear"), aff'd en banc, 8 

Va. App. 532, 383 S.E.2d 476 (1989), cert. denied, 495 U.S. 905, 

110 S. Ct. 1925, 109 L.Ed.2d 288 (1990). Although Officer Warren 

had no reason to suspect that the defendant had engaged in 

criminal activity or possessed weapons and was dangerous, the 

driver's permission to search the vehicle "reasonably warrant[ed] 

th[e] intrusion" of asking the passengers to exit the vehicle. 

Id. 

 The defendant contends that after exiting the vehicle he did 

not freely and voluntarily consent to be searched but rather was 

coerced into doing so. He asserts that when he admitted to 

possessing heroin he did so only because Officer Warren pressured 

the admission by continuing to seek his consent for a pat down 

search, after he had refused, and by explaining that he could 

frisk the defendant for weapons if he had reason to believe that 

the defendant might be carrying a weapon. He argues that on 

these facts the Commonwealth has failed in its burden of 

establishing the voluntariness of a consent to search "[w]hen 

[it] seeks to rely upon consent to justify the lawfulness of a 

search." Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 

2041, 2045, 36 L.Ed.2d 854 (1973) (quoting Bumper v. North 

Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792, 20 L.Ed.2d 797 
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(1968)) (emphasis added). 

 On the other hand, the Commonwealth contends that this case 

does not involve a consensual frisk or pat down and that we 

should not reach that issue. Rather, the Commonwealth argues 

that Officer Warren had probable cause to search the defendant 

when the defendant admitted that he possessed two packets of 

heroin and began to reach into his pocket. Thus, the relevant 

inquiry is whether, on this record, Officer Warren had probable 

cause to search the defendant. The Commonwealth asserts that the 

trial court did not have to determine whether the defendant 

freely and voluntarily consented to a search in deciding the 

motion to suppress. See Commonwealth v. Kilgore, 15 Va. App. 

684, 695, 426 S.E.2d 837, 843 (1993) ("When a trial court makes 

the correct decision, it will be upheld even though the wrong 

reason for the decision was stated at the time the opinion was 

rendered"). We agree that no search or seizure occurred until 

after the defendant admitted that he had heroin and reached for 

his pocket, at which time the officer had probable cause to 

search him or seize the heroin. 

 Officer Warren did not violate the Fourth Amendment by 

questioning the defendant or by asking him for permission to 

conduct a search, or by continuing to seek consent for a search 

after the defendant initially refused such consent. See United 

States v. Morrow, 731 F.2d 233, 236 (4th Cir.), cert. denied, 467 

U.S. 1230, 104 S. Ct. 2689, 81 L.Ed.2d 883 (1984); State v. 
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Green, 575 A.2d 1308, 1315 (N.H. 1990); 3 Wayne R. LaFave, Search 

and Seizure § 8.2(f), at 673 (3d ed. 1996). Furthermore, in 

attempting to persuade the defendant to consent to a search, it 

was not improper for Officer Warren to explain his authority and 

obligations under the law, so long as the explanation did not 

misrepresent the law or otherwise mislead the defendant. See

Deer v. Commonwealth, 17 Va. App. 730, 735, 441 S.E.2d 33, 36 

(1994); Bosworth v. Commonwealth, 7 Va. App. 567, 571, 375 S.E.2d 

756, 758 (1989). 

 Officer Warren testified that he told the defendant, in a 

normal tone of voice, that 

 if I have reasonable suspicion you might be 

carrying a weapon on your person, I have the 

obligation to pat you down, and in the course 

of the pat down if I feel something I felt 

could be contraband I have cause to arrest 

you. 

This was not a misstatement of the law; if a police officer 

"'perceive[s]' a suspicious object" in the course of conducting a 

lawful Terry frisk, he has probable cause to "seize it 

immediately" and arrest the individual. Ruffin v. Commonwealth, 

13 Va. App. 206, 209, 409 S.E.2d 177, 179 (1991). After Officer 

Warren gave a correct explanation of the law, the defendant 

stated, "I've got two packs of something in my pocket," and began 

to reach into his pocket. Warren testified that he understood 

the defendant to have said that he had heroin in his pocket. 

 In determining whether probable cause existed to conduct a 

warrantless search, "the test of constitutional validity is 
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whether at the moment of arrest the arresting officer had 

knowledge of sufficient facts and circumstances to warrant a 

reasonable man in believing that an offense has been committed." 

DePriest v. Commonwealth, 4 Va. App. 577, 583-84, 359 S.E.2d 

540, 543 (1987) (quoting Bryson v. Commonwealth, 211 Va. 85, 86-

87, 175 S.E.2d 248, 250 (1970)). The defendant's admission that 

he had "two packs of something in [his] pocket" and began to 

reach for it provided Officer Warren with probable cause to 

search the defendant's pocket and retrieve the heroin. See Allen 

v. Commonwealth, 3 Va. App. 657, 662, 353 S.E.2d 162, 165 (1987) 

(holding that "[a]t the moment of the detention appellant['s] 

. . . statement that he was carrying a concealed weapon furnished 

sufficient probable cause to justify the search of his person"). 

 Accordingly, the trial court properly denied the motion to 

suppress the heroin, and we affirm the defendant's conviction. 

Affirmed.