COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Bray 

Argued at Norfolk, Virginia 

ANTHONY EARL MASON 

v. Record No. 2452-94-1 MEMORANDUM OPINION* BY 

 JUDGE JERE M. H. WILLIS, JR. 

COMMONWEALTH OF VIRGINIA NOVEMBER 7, 1995 

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY 

John M. Folkes, Judge 

 Michael T. Hurd (Dusewicz and Soberick, P.C., 

on brief), for appellant. 

 John K. Byrum, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General; John H. McLees, Jr., Assistant 

Attorney General, on brief), for appellee. 

 Anthony Earl Mason was convicted in a bench trial of 

possession of cocaine with intent to distribute and possession of 

a firearm while in possession of cocaine. On appeal, he contends 

(1) that the evidence obtained from a second search of the car 

should have been suppressed because the police were required to 

obtain a search warrant, and (2) that his statement to the police 

about the cocaine transactions should have been suppressed 

because their questioning violated his right to remain silent. 

We find no error and affirm the judgments of the trial court. 

 On August 20, 1993, the Gloucester County Sheriff's 

Department arrested Mason for possession of a concealed weapon. 

After searching the vehicle in which he was a passenger, the 

 

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

designated for publication. 
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police discovered a film canister containing cocaine. 

 The police were acting upon information provided to them by 

a reliable confidential informant, who had told them on three 

separate occasions that two black males in a gold car, license 

NNI-173, were staying at the Gloucester Inn Hotel and were 

selling cocaine. 

 On August 20, while the police had the Gloucester Inn Hotel 

under surveillance, a gold car with license number NNI-173 pulled 

into the lot. Two black men were in the car. The police stopped 

the car and asked the occupants to step out. The driver complied 

and told the police that his partner had a gun. Mason, the 

passenger, resisted getting out of the car. When he finally 

emerged, the police handcuffed and searched him. Upon finding no 

gun on his person, the officers searched the car and found a gun 

between the front seats. 

 While the driver and Mason were still at the scene, the 

police searched the car and found a film canister containing 

cocaine under the front passenger seat, where Mason had been 

sitting. Mason moved to suppress the cocaine, arguing that 

because it was not within the officers' plain view, a search 

warrant was necessary. 

 On three separate occasions, Officer Jones spoke with Mason. 

 First, Jones read Mason his Miranda rights at the time of his 

arrest. Mason said nothing at that time. Second, after Mason 

had been processed into jail and the felony warrants on which he 
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was arrested had been served on him, Jones asked Mason whether he 

would cooperate with the Sheriff's Department in exchange for 

assistance with his charges. Mason replied, "I don't want to 

talk." The next day as Mason was being released on bond, Jones 

again advised him of his Miranda rights and had him sign and 

initial the standard form from which Jones had read the rights. 

Jones intended to ask Mason about the gun found in the car 

because the police had new information that it was stolen. Mason 

told Jones that he had bought the gun from a man in Surry County 

for $100. Mason then went on to tell Jones about the cocaine 

sales. Mason's statement was reduced to writing and admitted 

into evidence at trial over his objection. 

 Mason first contends that the warrantless search of the car 

was not valid as a search incident to an arrest. He argues that 

because he and the driver had been arrested and denied access to 

the car, the car was no longer mobile and no exigent 

circumstances existed. We disagree. 

 The search of the car was incident to a lawful arrest. See

Pack v. Commonwealth, 6 Va. App. 434, 368 S.E.2d 921 (1988). 

Moreover, based on the information he had received from a 

credible informant and was able to verify by his own observation, 

Jones had probable cause to search the car for narcotics. See

McKoy v. Commonwealth, 212 Va. 224, 183 S.E.2d 153 (1971). The 

continuing mobility of the vehicle, notwithstanding the arrest of 

 Mason and the driver, justified its search without a warrant. 
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McCary v. Commonwealth, 228 Va. 219, 228, 321 S.E.2d 637, 641-42 

(1984). Under either theory the warrantless search was valid and 

the cocaine was admissible into evidence. 

 Relying on Harris v. Commonwealth, 241 Va. 146, 400 S.E.2d 

191 (1991), Mason argues that even if the search of the car was 

lawful, the officers were not authorized, absent a search 

warrant, to open the film canister. He argues that the mere 

presence of the canister did not give probable cause that it 

contained contraband. Mason's reliance on Harris is misplaced. 

Harris did not involve the general search of a vehicle. Rather, 

it addressed the right of police to open a film canister found 

during a frisk of Harris for weapons. The right to search an 

automobile includes the right to search closed containers found 

therein. See United States v. Ross, 456 U.S. 798 (1982). 

 Mason next contends that his statement to Jones regarding 

the cocaine transactions should have been suppressed because he 

had previously invoked his right to remain silent. He argues 

that once a suspect has refused to talk, he may not be 

requestioned. See United States v. Kinsman, 540 F.2d 1017 (9th 

Cir. 1970). We disagree with Mason's contention that he invoked 

his right to remain silent. 

 The first time Jones sought to interrogate Mason was at the 

scene of the arrest in the motel parking lot. Jones read Mason 

his Miranda rights. Mason made no reply. While Mason's silence 

expressed a disinclination to speak, it was neither an 
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affirmative assertion of his right to remain silent nor an 

assertion of his right to counsel. See Eaton v. Commonwealth, 

240 Va. 236, 251, 397 S.E.2d 385, 394 (1990), cert. denied, 112 

S. Ct. 88 (1991). Jones immediately discontinued the 

interrogation. The second inquiry posed by Jones to Mason was at 

the jail. Pursuant to departmental policy, Jones asked Mason 

whether he would be willing to assist the Sheriff's Department in 

other investigations in exchange for some concession by the 

Commonwealth's Attorney as to the charges pending against him. 

Mason's reply, "I don't want to talk," was not an assertion of 

his right to remain silent, but was a refusal to give assistance. 

 The statement that was admitted into evidence was given by Mason 

on a third encounter with Jones, at the jail just prior to 

Mason's release on bail. Jones had acquired additional 

information concerning the gun found in Mason's possession and he 

sought to question Mason about the gun. After Jones had again 

advised Mason of his Miranda rights, Mason voluntarily gave a 

statement describing his acquisition of the gun and then, without 

further prompting, went on to give the statement at issue 

concerning his involvement in the subject drug charges. 

 Admissibility of a statement given by an accused upon 

reinterrogation following an earlier refusal to talk, is governed 

by five factors. 

 First, whether defendant "was carefully advised" before 

the initial interrogation "that he was under no 

obligation to answer any questions and could remain 

silent if he wished." 
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 Second, whether there was an immediate cessation of the 

initial interrogation, and no attempt to persuade 

defendant to reconsider his position. 

 Third, whether the police resumed questioning "only 

after the passage of a significant period of time." 

 Fourth, whether Miranda warnings preceded the second 

question. 

 Fifth, whether the second interrogation was limited to 

a crime that had not been the subject of the earlier 

interrogation. 

Weeks v. Commonwealth, 248 Va. 460, 471, 450 S.E.2d 379, 386 

(1994) (citations omitted). See also Michigan v. Mosley, 423 

U.S. 96, 104-06 (1975). The interrogation that produced the 

statement plainly satisfied the foregoing criteria. At the 

initial interrogation attempt, Mason was properly and fully 

advised of his Miranda rights. Upon his silence, the effort at 

interrogation was ended immediately. A significant passage of 

time preceded any further effort at interrogation. At the 

renewed interrogation, Mason was again given full and proper 

advice of his Miranda rights. The second interrogation addressed 

a different subject, Mason's acquisition of the handgun. Mason 

went forward, spontaneously and of his own free will, to give the 

subject statement concerning his involvement in the drug charges. 

 The judgments of the trial court are affirmed. 

 Affirmed.