COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Elder 

Argued at Richmond, Virginia 

THOMAS COLE PEGRAM and 

 VICTOR BLAINE LYNCH 

 MEMORANDUM OPINION* BY 

v. Record Nos. 1041-95-2 JUDGE JERE M. H. WILLIS, JR. 

 1042-95-2 SEPTEMBER 24, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LOUISA COUNTY 

Jay T. Swett, Judge 

 C. David Whaley (Anthony G. Spencer; 

Morchower, Luxton & Whaley, on briefs), for 

appellants. 

 Marla Graff Decker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Thomas Cole Pegram and Victor Blaine Lynch appeal from 

convictions for possession of cocaine in violation of Code 

§ 18.2-250. They contend that the trial judge erred in refusing 

to suppress evidence seized in violation of their Fourth 

Amendment rights. Lynch additionally claims that the trial judge 

should have suppressed a statement he made after an officer 

violated his Fifth Amendment right to an attorney. We find no 

error and affirm their convictions. 

 The evidence proved that Trooper S. T. Elliott of the 

Virginia State Police observed an El Camino vehicle travelling 

westbound on Interstate 64 in Louisa County and followed it. 

 

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

designated for publication. 
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Initially, he did not notice anything unusual about the vehicle 

and its two occupants. After following the vehicle for a mile to 

a mile and a half, he began to pass the vehicle and spied a 

"large cloth object" dangling from the rearview mirror. Trooper 

Elliott asked Trooper Michael John Alessi to assist him. When 

Trooper Elliott stopped the vehicle, he and Trooper Alessi 

approached the vehicle. 

 Trooper Elliott told Lynch, the driver, that he stopped his 

vehicle because of the object hanging from the mirror and issued 

Lynch a summons. Lynch then agreed, at Trooper Elliott's 

request, to answer a few questions and denied that his vehicle 

contained anything illegal. Trooper Elliott then "asked [Lynch] 

if he minded if I took a look" in the vehicle and Lynch "stated 

no, go right ahead." Lynch and Pegram, the passenger, complied 

with the request to exit the car. Both also agreed to be 

frisked. During his frisk of Pegram, Trooper Alessi obtained and 

inspected two hard plastic containers. One of these containers 

held a white substance later determined to be cocaine. Trooper 

Elliott arrested Pegram. 

 Trooper Alessi then searched the vehicle and found a pack of 

Kool cigarettes. Lynch denied that the cigarettes were his. 

When Trooper Alessi found cocaine in the cigarette pack, Trooper 

Elliott then arrested Lynch and read his Miranda warnings. After 

Lynch asserted his right to an attorney, Trooper Alessi told 

Lynch to contact him if he wanted to help himself by revealing 
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information about the sale of drugs or by working for the police. 

 Lynch then admitted that the cigarette pack was his and that he 

purchased the cocaine in it. 

 The trial judge refused to suppress the cocaine and Lynch's 

statements. At the conclusion of the trial, the trial judge 

convicted Lynch and Pegram of possession of cocaine. 

 Pegram and Lynch challenge the constitutionality of the stop 

of their vehicle, the search, and the trial judge's refusal to 

suppress the cocaine. An officer must have probable cause or 

reasonable suspicion to detain a vehicle. Murphy v. 

Commonwealth, 9 Va. App. 139, 143, 384 S.E.2d 125, 127 (1989). 

Code § 46.2-1054 prohibits driving a vehicle "with any object 

. . . suspended from any part of the motor vehicle in such a 

manner as to obstruct the driver's clear view of the highway 

through the windshield." A police officer has the authority to 

detain a vehicle upon his belief that the vehicle is being 

operated in violation of the law. See Hoye v. Commonwealth, 18 

Va. App. 132, 134, 442 S.E.2d 404, 406 (1994). Trooper Elliott 

stopped the vehicle based upon his belief that it was being 

operated in violation of Code § 46.2-1054. 

 The officer's inability to describe the cloth does not 

invalidate the stop. The appellants do not contest that an 

object was hanging from the mirror. Because Trooper Elliott had 

probable cause to believe that the cloth object violated Code 

§ 46.2-1054, the trial judge did not err in finding that the 
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trooper had authority to stop the vehicle and to issue a summons. 

 Though Trooper Elliott admitted at trial that he "probably 

[had] some thought of . . . searching the vehicle" prior to 

pulling it over, we view the actions of a police officer in the 

field objectively. The cloth object provided a sufficient basis 

to detain the vehicle regardless of the officer's true 

motivations. Limonja v. Commonwealth, 8 Va. App. 532, 537-38, 

383 S.E.2d 476, 480 (1989)(en banc), cert. denied, 495 U.S. 905 

(1990). Therefore, we find that Trooper Elliott did not violate 

appellants' Fourth Amendment rights by detaining them and the 

vehicle. 

 The Commonwealth has the burden of proving a consensual 

search. However, Lynch consented to the search. After Trooper 

Elliott issued the summons, Lynch and Pegram were free to 

continue on their way. Lynch agreed to answer a few questions 

before leaving. He also allowed the officers to "take a look" in 

his vehicle. 

 "The scope of a person's consent is determined by whether it 

is objectively reasonable for the police to believe that the 

consent permitted them to search where they did." Grinton v. 

Commonwealth, 14 Va. App. 846, 851, 419 S.E.2d 860, 863 (1992). 

Trooper Elliott understood Lynch to have consented to a search of 

the car and at no time did Lynch limit the scope of the search or 

indicate to the officers that he wished them to discontinue their 

search. Trooper Elliott asked Lynch, prior to searching, "if he 
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had anything illegal in the car such as guns or drugs." Thus, 

after Lynch granted consent, it was certainly reasonable for the 

officers to search any areas of the car or containers that might 

have hidden guns or drugs. The "[f]ailure to object to the 

continuation of the search under these circumstances may be 

considered an indication that the search was within the scope of 

the consent." United State v. Espinosa, 782 F.2d 888, 892 (10th 

Cir. 1986). Thus, the Commonwealth proved Lynch's voluntary 

consent to search. 

 Lynch also contends that the admission of his statement 

concerning the cocaine violated his Fifth Amendment right. He 

made statements after Trooper Elliott arrested him and gave him 

Miranda warnings. Both officers testified that Lynch invoked his 

right to speak with an attorney. However, Trooper Alessi 

testified that he: 

 advised [Lynch] that I realized that he 

invoked his rights that he wanted an attorney 

and that if he wants to help himself out, we 

make no promises but if he--if he's aware of 

drug dealing in Goochland, Richmond area and 

he was willing to work or wanted to do 

something, to contact me, I think I--I 

normally will tell him to go see his attorney 

and discuss it with him and--and come back 

and contact me if he's willing to work. It's 

just something that I normally do on a pretty 

routine basis. 

In deciding whether an interrogation had occurred, the trial 

judge was required to make "a determination whether an objective 

observer would view an officer's words or actions as designed to 

elicit an incriminating response." Blain v. Commonwealth, 7 Va. 
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App. 10, 15, 371 S.E.2d 838, 841 (1988). See Rhode Island v. 

Innis, 446 U.S. 291, 301 (1980). 

 Viewed in the light most favorable to the Commonwealth, 

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 

48 (1991), the evidence established that Trooper Alessi suggested 

to Lynch that he should speak with an attorney regarding the 

possibility of providing the police with information in return 

for a lighter penalty. Considering Trooper Alessi's advice and 

Lynch's situation, we do not find that the statements were 

designed to provoke Lynch into making an incriminating response. 

 Lynch volunteered his confession without pressure from the 

police. See Blain, 7 Va. App. at 15, 371 S.E.2d at 841. 

Accordingly, we find that the trial judge properly admitted 

Lynch's statement as evidence of his guilt. 

 For these reasons, we affirm the convictions. 

 Affirmed. 
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Benton, J., dissenting. 

 Based on the evidence in this record, I would hold that the 

Commonwealth did not meet its burden of proving that the troopers 

had probable cause to believe a violation was occurring when they 

stopped the vehicle. Therefore, I would hold that the trial 

judge erred in failing to suppress the evidence. In addition, I 

would hold that the officers obtained statements from Victor 

Lynch in violation of his Fifth Amendment right to counsel. 

 I. 

 The evidence at the suppression hearing proved that Trooper 

S. T. Elliott stopped Lynch, the driver of a blue El Camino, and 

Thomas Pegram, Lynch's passenger, on Interstate 64 in Louisa 

County. Trooper Elliott testified that he followed the El Camino 

for approximately one to one and one-half miles before deciding 

to make the stop. He initially noticed nothing unusual about the 

vehicle or its occupants and admitted that Lynch was driving 

within the posted speed limit. Trooper Elliott testified that 

when he began to pass the vehicle, he noticed "an object that was 

dangling from the rear-view mirror." He called for assistance 

from Trooper Alessi and signaled Lynch to stop his vehicle. 

Trooper Elliott advised Lynch that he stopped the vehicle because 

the hanging object violated Virginia law. See Code § 46.2-1054. 

 During the hearing, defense counsel questioned Trooper 

Elliott regarding the object that was the basis for the stop. 

The trooper could not articulate any details about the object 
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that prompted the detention. He testified as follows: 

 Q. Now, your purpose for pulling them over was what? 

 A. An object that was dangling from the 

 rear-view mirror. 

 Q. Okay. And do you remember what that 

object was? 

 A. No, sir, only that it was a cloth object, large 

cloth object. 

* * * * * * * 

 Q. Now, the purpose for the stop was that there was a 

dangling object from the mirror. 

 A. Yes, sir. 

* * * * * * * 

 Q. And you have no recollection other than it was a 

cloth that was dangling--something that was cloth 

that was dangling from the mirror, is that 

correct? 

 A. Yes, sir. 

 Q. You don't remember anything else about it? 

 A. No, sir. 

 Q. You don't remember the size, color, nothing, do 

you? 

 A. No, sir. 

 Q. And you never entered the vehicle to determine 

whether that piece of cloth obstructed the vision 

of the driver, did you? 

 A. No, sir. 

 On cross-examination, Trooper Elliott responded 

affirmatively when asked if he testified that the object "was 

hanging about six or eight inches down." His testimony also 
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proved that he was traveling approximately 65 miles per hour in a 

lane adjacent to Lynch when he decided that the object was 

unlawful. The general district court judge who tried the traffic 

case found no violation of Code § 46.2-1054 and dismissed the 

charge. 

 II. 

 "If the stop of [a] vehicle is without a warrant, the 

Commonwealth has the burden to prove the stop was legal." Murphy 

v. Commonwealth, 9 Va. App. 139, 143, 384 S.E.2d 125, 127 (1989). 

 An arrest or issuance of a summons for violating a law is lawful 

only when based upon probable cause to believe that the driver 

was violating the law. See Yeatts v. Minton, 211 Va. 402, 405, 

177 S.E.2d 646, 648 (1970). At trial the Commonwealth conceded 

that the officer needed probable cause to stop the vehicle and 

issue the summons. 

 Trooper Elliott testified that he stopped Lynch's vehicle 

and issued a summons for a violation of Code § 46.2-1054. In 

pertinent part, that statute reads as follows: 

 It shall be unlawful for any person to drive 

a motor vehicle on a highway in the 

Commonwealth with any object or objects, 

other than a rear view mirror, sun visor, or 

other equipment of the motor vehicle approved 

by the Superintendent, suspended from any 

part of the motor vehicle in such a manner as 

to obstruct the driver's clear view of the 

highway through the windshield, the front 

side windows, or the rear window, or to alter 

a passenger-carrying vehicle in such a manner 

as to obstruct the driver's view through the 

windshield. 

Code § 46.2-1054 (emphasis added). 
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 The mere existence of an item dangling from the rearview 

mirror does not constitute a violation of Code § 46.2-1054. 

Thus, the presence of the item did not provide, ipse dixit, 

"prima facie evidence that [Lynch] was violating the law." Upton 

v. Commonwealth, 211 Va. 445, 447, 177 S.E.2d 528, 530 (1970). 

The trooper did not testify as to any facts that would support 

the conclusion that he had probable cause to stop the vehicle. 

 The evidence proved that the trooper had no reason to stop 

the vehicle before he saw the item. He had observed Lynch 

operating the vehicle and saw no indication that Lynch's vision 

might have been impaired. Lynch was not speeding and was not 

driving in an erratic manner. 

 Furthermore, Trooper Elliott could not describe the object 

that he said he observed hanging from the mirror. He could not 

provide details about its size, color, shape, or dimensions. 

Because the trooper failed to give content to his subjective 

conclusion that the item was "large," the trial judge had no 

basis upon which to uphold the stop. Moreover, the trooper was 

unable to state that after he stopped the vehicle he verified 

that the item was positioned so as to obstruct the driver's clear 

view of the highway. Trooper Elliott's observation, made as he 

passed the vehicle while traveling in excess of 65 miles an hour 

gave rise, at most, to a hunch that the object he saw would 

obstruct the driver's view. 

 As this Court recently stated, "[t]he only difference 
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between facts needed to establish probable cause and those needed 

to prove guilt beyond a reasonable doubt is in the degree or 

quantum of proof, not in the facts or elements of the offense." 

Ford v. City of Newport News, ___ Va. App. ___, ___, ___ S.E.2d 

___, ___ (1996) (citations omitted). "In assessing an officer's 

probable cause for making a warrantless arrest, no less strict 

standards may be applied than are applicable to a magistrate's 

determination that an arrest warrant should issue." De Priest v. 

Commonwealth, 4 Va. App. 577, 584, 359 S.E.2d 540, 543 (1987) 

(quoting Washington v. Commonwealth, 219 Va. 857, 862, 252 S.E.2d 

326, 329 (1979)), cert. denied, 488 U.S. 985 (1988). Based upon 

the evidence in the record, the trial judge could not have 

reasonably concluded that Trooper Elliott's observations provided 

him with probable cause to believe Lynch was driving the vehicle 

in violation of Code § 46.2-1054. Thus, I would hold that 

because Trooper Elliott violated Lynch's Fourth Amendment rights 

when he stopped the vehicle, the trial judge erred in refusing to 

suppress the evidence. 

 III. 

 The evidence also establishes that the stop was a pretext 

for conducting a search for contraband. See United States v. 

Smith, 799 F.2d 704, 710 (11th Cir. 1986). The evidence proved 

that Trooper Elliott had a custom of randomly seeking the 

opportunity to search vehicles that he stopped for drugs, 

weapons, or other items. On the day Trooper Elliott stopped 
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Lynch, Trooper Elliott and Trooper Alessi were working as a team. 

 Acting together, Trooper Elliott and Trooper Alessi had just 

stopped another vehicle for a traffic violation before they 

stopped Lynch. Trooper Alessi said "it's possible" that they 

searched that vehicle prior to stopping Lynch. Trooper Alessi 

had a drug detection dog in his vehicle. 

 Trooper Elliott admitted that he requested assistance from 

Trooper Alessi because he had "some thought of maybe searching 

the vehicle." Other than the desire to search Lynch's vehicle, 

the evidence fails to explain why Trooper Elliott sought Trooper 

Alessi's assistance in giving a summons for a minor infraction at 

4:30 p.m. on a June afternoon. The attempt to justify the stop 

by pointing to the alleged traffic violation is belied by the 

presence of the other trooper and "was merely a pretext to 

legitimate the impermissible stop." United States v. Miller, 821 

F.2d 546, 549 (11th Cir. 1987). In the absence of any probable 

cause to conduct the stop, the only motivation to make the stop 

was the quest to search. 

 IV. 

 I also disagree with the Commonwealth's argument that, in 

any event, the evidence proved a valid consent to search. "When 

trying to establish that there was a voluntary consent after an 

illegal stop, the [Commonwealth] has a much heavier burden to 

carry than when the consent is given after a permissible stop." 

United States v. Ballard, 573 F.2d 913, 916 (5th Cir. 1978). The 
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Commonwealth's evidence proved that after issuing the summons, 

Trooper Elliott informed Lynch both that he was free to leave and 

that he wanted to question him. While Trooper Elliott stood by 

the driver's door interrogating Lynch, Trooper Alessi stood 

opposite him at the passenger door. 

 Trooper Elliott did not ask Lynch for "permission" to search 

the car and did not ask for Lynch's "consent." Although the 

officers had consent forms approved by their department, they did 

not use them. Rather, Trooper Elliott testified that he "asked 

[Lynch] if he minded if [Trooper Elliott] took a look." The 

officers also did not inform Lynch that he was not required to 

allow a search. See Walls v. Commonwealth, 2 Va. App. 639, 654, 

347 S.E.2d 175, 183-84 (1986). 

 The evidence further proved that Trooper Alessi asked Pegram 

to exit the vehicle and "asked him if he would mind if [Trooper 

Alessi] did a pat down of him." He testified that Pegram 

"acknowledged that I could." "After feeling . . . objects [in 

Pegram's pocket, Trooper Alessi] asked what it was." He 

testified that Pegram "never really responded" even after he 

asked Pegram the question several times. After Pegram failed to 

respond, Trooper Alessi "asked him if he'd mind showing me the 

objects in his pocket." When Pegram removed the objects, Trooper 

Alessi opened two small closed containers and discovered cocaine. 

 In each instance the troopers relied upon their statements 

"would mind" to indicate that they requested consent. However, 
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the word "mind" has many shades of meaning, including to "give 

heed to attentively in order to obey." Webster's Third New 

International Dictionary, p. 1436-37 (1981). That word does not 

unambiguously convey the same meaning as the word "consent." 

When consent is based on an implication, as it was here, the 

Commonwealth has a heavy burden of proof. United States v. 

Impink, 728 F.2d 1228, 1232 (9th Cir. 1984); Elliotte v. 

Commonwealth, 7 Va. App. 234, 238, 372 S.E.2d 416, 419 (1988). 

The words used, the failure to inform the men that they could 

refuse the search, and the failure to use the approved "consent 

form," negate the suggestion of voluntary consent. 

 V. 

 In discharging its burden, the Commonwealth also must 

establish that the claimed voluntary act, the alleged consent, 

was "sufficiently an act of free will to purge the primary taint" 

of the illegal seizure. Wong Sun v. United States, 371 U.S. 471, 

486 (1963). The search that resulted in the discovery of the 

evidence occurred promptly after Trooper Elliott had unlawfully 

detained Lynch and issued him a traffic summons. When "'[t]he 

evidence obtained pursuant to [a] . . . voluntary consent to 

search [is obtained] . . . by exploitation of [the initial] 

illegality rather than by means sufficiently distinguishable to 

be purged of the primary taint,'" the evidence must be 

suppressed. Hall v. Commonwealth, 22 Va. App. 226, 229, 468 

S.E.2d 693, 695 (1996)(citation omitted). The search of the 
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vehicle was contemplated before the stop, when Trooper Elliott 

called Trooper Alessi, and occurred only after the troopers had 

unlawfully detained Lynch and issued the summons. Furthermore, 

Trooper Elliott testified that he only questioned Lynch because 

he "intended [to ask] . . . for a consent to search the vehicle." 

 Thus, the cocaine discovered during this search was obtained as 

a result of illegal means and was not sufficiently attenuated 

from the illegal seizure to "purge the taint" of the seizure. 

Walls, 2 Va. App. at 654-55, 347 S.E.2d at 184. 

 The record in this case fails to establish, and indeed could 

not establish, that the consent was free from the taint of the 

illegal seizure. The temporal proximity of the illegal seizure 

and the presumed "consent," the lack of intervening 

circumstances, and the purpose and flagrancy of the troopers all 

lead to the conclusion that the causal connection between the 

illegal seizure and the "consent" remained unbroken. See

Commonwealth v. Ealy, 12 Va. App. 744, 755, 407 S.E.2d 681, 688 

(1991). No evidence indicates that these persons, who were 

stopped and given a traffic summons, and who were flanked by the 

officers, were told or knew that they had a right to refuse the 

search of the vehicle. 

 VI. 

 The evidence also proved that after Lynch was arrested, 

Trooper Elliott read Lynch Miranda warnings. "[W]hen [Trooper 

Elliott] asked if [Lynch] understood them, he stated, yes, sir, 
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and when [Trooper Elliott] asked if he would like to waive them 

and talk to us, he stated, I don't guess so." Trooper Elliott 

also testified that Trooper Alessi then "advised . . . Lynch that 

he knew that he had invoked his rights to an attorney . . . but 

that [Trooper Alessi] wanted to advise him [that] . . . if he 

wanted to try and help hi[m]self by maybe telling us about anyone 

who sold drugs in Goochland or even Richmond . . . , we would be 

willing to try and work with him." During his own testimony, 

Trooper Alessi acknowledged that after Lynch requested an 

attorney, he advised Lynch to contact him if he wanted to "help 

himself out" by providing information of drug dealing. After 

Alessi's "advice," Lynch admitted possessing the cocaine and 

informed the officers where he had purchased it. 

 "[W]hen an accused who is in custody makes a request for 

assistance of counsel, 'the interrogation must cease until an 

attorney is present.'" Hines v. Commonwealth, 19 Va. App. 218, 

220, 450 S.E.2d 403, 404 (1994)(emphasis omitted)(quoting Miranda 

v. Arizona, 384 U.S. 436, 474 (1966)). Any further interrogation 

initiated by the police is prohibited. Edwards v. Arizona, 451 

U.S. 477, 484-85 (1981). Interrogation includes express 

questioning and its "functional equivalent." Rhode Island v. 

Innis, 446 U.S. 291, 300-01 (1980). Clearly, interrogation is 

not limited to questions and may include other communications. 

The functional equivalent of questioning includes "any words or 

actions on the part of the police . . . that the police should 
- 17 - 

know are reasonably likely to elicit an incriminating response 

from the suspect." Id. at 301. A prohibited interrogation has 

occurred if "an objective observer would view an officer's words 

or actions as designed to elicit an incriminating response." 

Blain v. Commonwealth, 7 Va. App. 10, 15, 371 S.E.2d 838, 841 

(1988). 

 Considering that the officers had just arrested Lynch for 

cocaine possession and unsuccessfully had sought to question him, 

an objective observer would view Trooper Alessi's "advice" to 

cooperate with the police as a means of eliciting an 

incriminating response from Lynch. See United States v. Montana, 

958 F.2d 516, 518-19 (2d Cir. 1992); United States v. Johnson, 

812 F.2d 1329, 1331 (11th Cir. 1986). Once Lynch had denied 

owning the drugs and invoked his right to an attorney, the effect 

of advising him of an opportunity to cooperate was to convey 

disbelief in his response and to invite waiver of his request for 

an attorney. Obviously, either Trooper Alessi or a prosecutor 

could have spoken with Lynch's attorney to seek Lynch's 

cooperation. By offering to be lenient if Lynch provided 

information regarding drug dealing in Goochland and Richmond, 

Trooper Alessi obviously sought a response. The trooper's offer 

to be helpful to Lynch if Lynch was cooperative was an 

undisguised attempt to initiate discussion and further 

conversation. By seeking to provoke Lynch into further 

communication and discussion immediately after Lynch invoked his 
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right to an attorney, Trooper Alessi engaged in the "functional 

equivalent" of interrogation. Therefore, Lynch's statements 

concerning his possession and purchase of the cocaine should have 

been suppressed. See Hines, 19 Va. App. at 221-22, 450 S.E.2d at 

404-405. 

 For these reasons, I would hold that the trial judge erred 

in refusing to suppress the cocaine and Lynch's statements.