COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Frank 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 0427-02-1 JUDGE ROSEMARIE ANNUNZIATA 

 JULY 12, 2002 

THOMAS ALLEN STORMER 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Frederick B. Lowe, Judge 

 Stephen R. McCullough, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellant. 

 Suzanne G. Moushegian for appellee. 

 

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

designated for publication.

 A grand jury indicted Thomas Allen Stormer for possession 

of cocaine. Stormer filed a motion to suppress evidence of 

crack cocaine found during a search of his person. The trial 

court granted the motion, and the Commonwealth appealed to this 

Court. For the reasons that follow, we reverse the decision of 

the trial court and remand for further proceedings. 

Background

On appeal of a motion to suppress, we view the evidence in 

the light most favorable to the party prevailing below, in this 

case, Stormer. Commonwealth v. Grimstead, 12 Va. App. 1066, 

1067, 407 S.E.2d 47, 48 (1991). On November 24, 2000, Detective 
Fox and his partner conducted surveillance of a trailer at 

Trailer City in the City of Virginia Beach, in response to 

numerous reports that narcotics were being sold out of that 

trailer. They noticed a parked car near the trailer with the 

engine running. A passenger was seated in the car but there was 

no driver. Detective Fox then saw Stormer walk around the 

trailer, step into the car, and drive away. Detective Fox 

followed the car. 

 When the car voluntarily stopped, Fox parked his vehicle 50 

feet behind it. Fox approached Stormer as he walked away from 

the car and asked to speak with him. Stormer did not respond. 

Fox asked him again if he could speak with him. As Stormer 

turned toward him, Fox displayed his badge, told Stormer he was 

a police officer and repeated his request to speak with him. 

The defendant muttered something unintelligible and averted his 

gaze from Fox. Fox inquired if he could ask a few questions, 

but Stormer gave more unintelligible responses. Fox thought he 

might be intoxicated because his speech was slurred. 

 Fox said, "You don’t have a valid license, do you?" 

Stormer replied that he did not and explained that his license 

was suspended for driving under the influence. Fox decided to 

verify whether Stormer’s license was actually suspended, so he 

asked Stormer to step to the front of the vehicle. 

 Fox then asked Stormer "may I see what’s in your pockets?" 

Stormer put his hands in his pockets and pulled out a variety of 

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items, including a plastic bag containing crack cocaine. When 

Stormer would not give Fox the bag, Fox seized it from him and 

placed him under arrest for possession of cocaine. 

Analysis

 The trial court ruled as follows: 

[T]he approach and asking Mr. Stormer to 

answer a few questions as he got out of the 

car . . . - - I think that was fine. Then 

when we get to the driver’s license 

situation and he was told to step over to 

the front of the police car, then I think 

. . . he was detained. 

 . . . if, in fact, his driver’s license 

had been suspended and if Detective Fox had 

determined that and placed him under arrest 

for that charge, he could have searched 

incident to arrest all he wanted to. The 

problem is that wasn’t done, so basically 

you’ve got a detention for one reason and 

then a situation involving what amounts to a 

search which is not really incident to 

anything at that particular point in time 

other than the fact that there was this 

situation that Detective Fox was trying to 

follow up on. 

Considering the totality of the 

circumstances, . . . it is . . . not a 

proper search and seizure. I’m going to 

grant the motion to suppress. 

The trial court did not address the Commonwealth’s 

contention that Stormer voluntarily consented to the search of 

his pockets. 

The Commonwealth appeals the trial court’s decision to 

suppress the bag of crack cocaine found in Stormer’s pockets. 

The Commonwealth contends that the trial court erred as a matter 

of law in concluding that the search was improper because it was 

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not incident to arrest, without considering whether Stormer 

consented to the search. We agree. 

The Fourth Amendment provides, in pertinent part, that 

"[t]he right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable searches and 

seizures, shall not be violated." U.S. Const. amend. IV. 

Subject to several well-established exceptions, warrantless 

searches of any place or thing in which a person has a 

reasonable expectation of privacy are unreasonable. See Mincey 

v. Arizona, 437 U.S. 385, 390 (1978); Reittinger v. 

Commonwealth, 260 Va. 232, 235, 532 S.E.2d 25, 27 (2000). On 

appeal, the trial court's legal conclusion concerning when, or 

whether, an illegal search occurred is reviewed de novo. Archer 

v. Commonwealth, 26 Va. App. 1, 8, 492 S.E.2d 826, 830 (1997); 

McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 

(1997)(en banc); see United States v. Mendenhall, 446 U.S. 544, 

552, 555 (1980). However, "we 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, 25 Va. App. at 198, 487 

S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690, 

699 (1996)). 

 Searches made by the police pursuant to a valid consent do 

not implicate the Fourth Amendment. See Schneckloth v. 

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Bustamonte, 412 U.S. 218, 222 (1973); Iglesias v. Commonwealth, 

7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988) (en banc). "The 

Fourth Amendment test for a valid consent to search is that the 

consent be voluntary, and '[v]oluntariness is a question of fact 

to be determined from all the circumstances.'" Ohio v.

Robinette, 419 U.S. 33, 40 (1996) (quoting Schneckloth v. 

Bustamonte, 412 U.S. 218, 248-49 (1973)). "Both the presence of 

consent to search and any related limitations are factual issues 

for the trial court to resolve after consideration of the 

attendant circumstances." Bynum v. Commonwealth, 23 Va. App. 

412, 418, 477 S.E.2d 750, 753 (1996). 

In this case, the trial court held that the stop was 

proper; it found that the encounter began consensually and 

became a valid detention when the officer asked Stormer to step 

to the front of the vehicle to verify his driver's license.1 It 

held, however, that the search was improper because it was not 

incident to arrest, or pursuant to a Terry stop. The trial 

court did not, however, make a finding regarding whether Stormer 

voluntarily consented to Officer Fox's request to search his 

pockets. See United States v. Hurst, 228 F.3d 751, 757-58 (6th 

Cir. 2000) (upholding denial of motion to suppress because 

defendant consented to search during a proper Terry stop); 

 1

 The Commonwealth did not appeal these rulings. 

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United States v. Dupree, 202 F.3d 1046, 1049 (8th Cir. 2000) 

(same); United States v. Leshuk, 65 F.3d 1105, 1110 (4th Cir. 

1995) (affirming trial court’s refusal to suppress defendant’s 

voluntary statements made during a proper Terry stop). Indeed, 

the Fourth Circuit has noted "[o]fficers may temporarily detain 

an individual under Terry for purposes of questioning the 

individual or attempting to obtain his consent to a search when 

reasonable suspicion exists." Leshuk, 65 F.3d at 1110. ` 

Because the trial court did not make a finding regarding 

consent, we reverse the trial court’s decision and remand for 

consideration of whether Stormer voluntarily consented to the 

search of his pockets. 

Reversed and remanded. 

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