COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Bray 

Argued at Norfolk, Virginia 

MICHAEL HANES, s/k/a 

 JAMES MICHAEL HAYNES 

 MEMORANDUM OPINION* BY 

v. Record No. 1262-95-1 JUDGE SAM W. COLEMAN III 

 JULY 2, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

E. Preston Grissom, Judge 

 William P. Robinson (Robinson, Banks & 

Anderson, on brief), for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 James Michael Haynes appeals his bench conviction for 

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

contends that the trial court erred by finding that probable 

cause existed to arrest him and denying his motion to suppress 

the cocaine recovered from his pocket, and by holding that he 

knowingly and intelligently waived counsel for his preliminary 

hearing. We find no error and affirm the defendant's conviction. 

I. PROBABLE CAUSE

 Officers M. D. Daniel and Becky Roberson received a police 

report identifying the make, year, color, and license plate of a 

vehicle that was believed being used from which to make drug 

sales. Later that night, the officers saw the vehicle parked on 

 

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

designated for publication. 
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a public street. Officer Daniel observed the vehicle's 

occupants' heads "moving back and forth and bobbing up and down 

inside." According to Officer Daniel, this movement caused him 

to believe that the occupants were engaged in criminal activity. 

 The officers exited their patrol car and approached the 

vehicle. 

 As Officer Daniel approached the vehicle, he observed an 

open container of Zima, an alcoholic beverage, on the console 

between the driver and the passenger. The defendant was sitting 

in the driver's seat. According to Officer Daniel, neither the 

defendant nor the passenger appeared to be old enough to possess 

alcohol. Officer Daniel asked the defendant for his name, age, 

Social Security number, and address. The defendant gave his name 

and a Social Security number, and stated that he was nineteen 

years old. The defendant also volunteered to be personally 

searched, which revealed no weapons. When Officer Daniel asked 

the defendant if the alcohol on the console belonged to him, 

neither the defendant nor the passenger "fessed up," according to 

the officer. 

 Officer Daniel returned to the patrol car to verify the 

identification information. When the defendant and the passenger 

attempted to walk away from the vehicle, Officer Daniel stated, 

"[y]ou-all need to get back in" the car. The police dispatch 

informed Officer Daniel that the Social Security number the 

defendant gave belonged to a woman in Alexandria. Officer Daniel 
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returned to the vehicle and informed the defendant that he was 

under arrest for possession of alcohol. The officers took 

control of the defendant and conducted a search of his person, 

which resulted in the recovery of "a small baggy" of cocaine from 

his pants pocket. The defendant then pulled away from the 

officers and fled into an abandoned building. 

 The Fourth Amendment is not implicated when a police officer 

merely approaches a vehicle that is parked in a public area and 

asks 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); Richards v. Commonwealth, 8 Va. App. 612, 

615, 383 S.E.2d 268, 270 (1989). Therefore, on the facts of this 

case, no fourth amendment seizure occurred until Officer Daniel 

instructed the defendant and his companion to remain in the car 

while he verified the information they gave. See Wechsler v. 

Commonwealth, 20 Va. App. 162, 169-70, 455 S.E.2d 744, 747 

(1995). 

 Officers Daniel and Roberson had received a police report 

that the particular vehicle in which the defendant was sitting 

was believed to be involved in drug dealing. Officer Daniel 

observed the defendant and the passenger engage in furtive 

movements inside the vehicle. As Officer Daniel approached the 

vehicle, he saw an open container of alcohol on the console 

between the defendant and the passenger. Daniel did not believe 
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that either individual looked old enough to possess alcohol and 

neither acknowledged that the beverage was his. In response to 

Officer Daniel's questioning, the defendant stated that he was 

nineteen years old. On these facts, the officers had reason to 

believe that the defendant and the passenger were minors and that 

they illegally possessed an alcoholic beverage. Code § 4.1-305. 

 Therefore, the officers were justified in briefly detaining the 

defendant and his companion while they verified the 

identification information. Phillips v. Commonwealth, 17 Va. 

App. 27, 30, 434 S.E.2d 918, 920 (1993) (holding that where a 

police officer possesses reasonable and articulable suspicion 

"that a person is involved in criminal activity, the officer may 

. . . detain the person briefly for the purpose of confirming or 

dispelling his suspicion"). 

 The false Social Security number the defendant gave was 

additional indicia of illegal activity, see Jones v. 

Commonwealth, 230 Va. 14, 19, 334 S.E.2d 536, 540 (1985); 

Wechsler, 20 Va. App. at 172, 455 S.E.2d at 748, and combined 

with the presence of an open container of alcohol in the vehicle, 

the defendant's youthful appearance, and his admission that he 

was nineteen, was sufficient to warrant a reasonable person in 

believing that an offense had been committed. The fact that the 

record does not show the passenger's age1

 or establish 

 

 1 The record does indicate that the passenger was also cited 

for illegal possession of alcohol. 
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conclusively that the alcohol belonged to the defendant does not 

render the arrest unlawful because a prima facie showing of 

criminal activity is not required to establish probable cause 

that an offense was being committed. Quigley v. Commonwealth, 14 

Va. App. 28, 34, 414 S.E.2d 851, 855 (1992). Accordingly, the 

cocaine found in the defendant's pants pocket was recovered 

during a search incident to a lawful arrest. Buck v. 

Commonwealth, 20 Va. App. 298, 304, 456 S.E.2d 534, 537 (1995). 

II. WAIVER OF COUNSEL

 The Commonwealth has the burden of proving by "clear, 

precise, and unequivocal evidence" that the defendant has 

voluntarily and intelligently waived the right to counsel. Van 

Sant v. Commonwealth, 224 Va. 269, 273, 295 S.E.2d 883, 885 

(1982). "In the event the accused desires to waive his right to 

counsel, and the court ascertains that such waiver is voluntarily 

and intelligently made, then the court shall provide the accused 

with a statement to be executed by the accused to document his 

waiver." Code § 19.2-160. A statement of waiver that is 

executed in accordance with Code § 19.2-160 "may establish a 

prima facie case of waiver." Van Sant, 224 Va. at 274, 295 

S.E.2d at 886. 

 Here, the defendant signed a waiver form that set forth in 

detail his rights to be represented by an attorney. The general 

district court judge signed a statement confirming that he orally 

advised the defendant of those rights and found that they were 
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knowingly, voluntarily, and intelligently waived. The only 

evidence that contradicts the waiver form is the defendant's 

trial testimony that before executing the waiver form, he "asked 

if [he] could have more time to get a lawyer" and the district 

court judge refused and stated, "we will try it today." However, 

the trial judge was able to observe the defendant's demeanor and 

evaluate his credibility, and he had discretion to accept the 

facts set forth in the waiver form over the defendant's 

conflicting testimony. See Long v. Commonwealth, 8 Va. App. 194, 

198-99, 379 S.E.2d 473, 476 (1989). Because the record contains 

no other evidence that "contradicts the factual statements in the 

waivers," the evidence is sufficient to prove that the defendant 

voluntarily and intelligently waived his sixth amendment right to 

counsel for the preliminary hearing. Edwards v. Commonwealth, 21 

Va. App. 116, 126, 462 S.E.2d 566, 571 (1995). 

Affirmed.