COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Bumgardner 

Argued at Richmond, Virginia 

MICHAEL L. HAMLIN, S/K/A 

 MICHAEL LEON HAMLIN 

 MEMORANDUM OPINION* BY 

v. Record No. 1279-99-2 JUDGE LARRY G. ELDER 

 APRIL 25, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

Oliver A. Pollard, Jr., Judge 

 Mary K. Martin, Senior Assistant Public 

Defender (Office of the Public Defender, on 

brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Mark L. Earley, Attorney General; Shelly R. 

James, Assistant Attorney General, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Michael L. Hamlin (appellant) appeals from his bench trial 

conviction for possession of cocaine. On appeal, he contends 

the trial court erroneously denied his motion to suppress 

because the scope of the arresting officer's search of his 

person exceeded the scope of his consent and violated the Fourth 

Amendment. We hold the officer's search was within the scope of 

the consent given, and we affirm appellant's conviction. 
I. 

FACTS 

 Appellant was arrested for possession of cocaine and moved 

to suppress the evidence as the product of an illegal search. 

 The evidence adduced at the suppression hearing, viewed in 

the light most favorable to the party prevailing below, was as 

follows: 

 While on patrol in his police vehicle shortly after 

8:00 p.m. on September 29, 1998, Officer Keith Schilke saw 

appellant and a woman standing in the middle of the street. He 

approached the pair and asked them "how they felt about 

narcotics in the area." He also asked them if they minded 

talking to him, and they said they did not. Schilke asked them 

for identification, and both provided it to him. He spoke first 

to the woman and asked her for consent to search her person. 

She declined and asked to leave. Schilke returned her 

identification and told her she could go, and she left. 

 Schilke then turned his attention to appellant. Schilke 

testified on direct examination that he asked appellant "if I 

could search his person, if he had any illegal weapons or 

narcotics or anything like that on his person." On 

cross-examination, Schilke testified that he asked appellant if 

he could pat him down for weapons, that the initial pat-down was 

for weapons for safety. Appellant consented. After completing 

the weapons pat-down, Schilke then asked appellant if he had 

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anything in his pockets and if Schilke could search them. 

Schilke initially testified that he asked appellant if he had 

any illegal contraband in his pockets. He later admitted that, 

although this question was part of his usual procedure, he could 

not recall whether he asked appellant specifically about 

narcotics or anything else. Appellant again consented to 

Schilke's request to search. 

 While searching appellant's pockets, Schilke removed an 

empty cigarette pack which was folded up. Schilke testified 

that the pack felt like an empty pack of cigarettes and 

contained nothing that he suspected to be a weapon. When he 

opened the pack, he found two clear "zips" containing an 

off-white residue which proved to be cocaine. 

 The trial court denied the motion to suppress, reasoning as 

follows: 

 There doesn't seem to be any 

disagreement that there were two people 

there, that the officer asked permission to 

search the female, she said no, and then she 

was permitted to leave. . . . This was in 

[appellant's] presence, so it can't be 

argued that he wasn't aware of these 

circumstances. One person refused any 

further contact and said she didn't want to 

be searched, and she was given her ID and 

left, no problem. 

 He then turns to [appellant] and the 

mention of the pat down for weapons, and he 

does that, he finishes that. Then he said, 

"Do you mind if I go in your pockets?" 

[Appellant] has to know that this was beyond 

the pat down . . . search for weapons. It's 

pretty obvious. And he says, "No problem," 

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knowing all the time that the female had 

said no and was permitted to leave. 

The trial court convicted appellant of the charged offense and 

sentenced him to a two-year suspended sentence. 

II. 

ANALYSIS 

 At a hearing on a defendant's motion to suppress, the 

Commonwealth has the burden of proving that a warrantless search 

or seizure did not violate the defendant's Fourth Amendment 

rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380 

S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va. App. 

671, 674, 454 S.E.2d 39, 41 (1995). On appeal, we view the 

evidence in the light most favorable to the prevailing party, 

granting to it all reasonable inferences fairly deducible 

therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066, 

1067, 407 S.E.2d 47, 48 (1991). "[W]e 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 v. Commonwealth, 25 Va. 

App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing 

Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 

1659, 134 L. Ed. 2d 911 (1996)). However, we review de novo the 

trial court's application of defined legal standards to the 

particular facts of the case. See Shears v. Commonwealth, 23 

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Va. App. 394, 398, 477 S.E.2d 309, 311 (1996); see also Ornelas, 

517 U.S. at 699, 116 S. Ct. at 1659. 

 "[T]he Fourth Amendment . . . protects people from 

unreasonable government intrusions." United States v. Chadwick, 

433 U.S. 1, 7, 97 S. Ct. 2476, 2481, 53 L. Ed. 2d 538 (1977). 

"A consensual search is reasonable if the search is within the 

scope of the consent given." Grinton v. Commonwealth, 14 Va. 

App. 846, 850, 419 S.E.2d 860, 862 (1992). The standard for 

measuring the scope of an individual's consent under the Fourth 

Amendment is 

"objective" reasonableness-what would the 

typical reasonable person have understood by 

the exchange between the officer and the 

suspect? . . . The scope of a search is 

generally defined by its expressed 

object. . . . A suspect may, of course, 

delimit as he chooses the scope of the 

search to which he consents. But if his 

consent would reasonably be understood to 

extend to a particular container, the Fourth 

Amendment provides no grounds for requiring 

a more explicit authorization. 

Florida v. Jimeno, 500 U.S. 248, 251-52, 111 S. Ct. 1801, 

1803-04, 114 L. Ed. 2d 297 (1991). "The scope of [the] search 

may be further defined during the course of the search by the 

passive acquiescence of the person whose property is being 

searched." Grinton, 14 Va. App. at 851, 419 S.E.2d at 863. 

"Both the presence of consent to search and any related 

limitations are factual issues for the trial court to resolve 

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after consideration of the attendant circumstances." Bynum v. 

Commonwealth, 23 Va. App. 412, 418, 477 S.E.2d 750, 753 (1996). 

 We applied these principles in Bolda v. Commonwealth, 15 

Va. App. 315, 423 S.E.2d 204 (1992). Bolda was a passenger in a 

vehicle whose operator was arrested for driving while 

intoxicated. See id. at 316, 423 S.E.2d at 205. The arresting 

officer then asked Bolda "'if he was carrying any guns, knives, 

weapons . . . or anything on his person.'" Id. Bolda said he 

was not and consented to the officer's request to search Bolda's 

person. See id. The officer did not recall making any 

additional reference to weapons when he asked to conduct the 

search but said it was possible he made such a reference. See

id. In a subsequent pat-down, the officer felt a substance 

which was "kind of hard" and "felt like plastic on the outside." 

See id. He removed the item from Bolda's pocket and discovered 

it was a rolled up baggie containing a psilcyn mushroom. See

id.

 Based on these facts, we held that "[t]he method and order 

in which [the officer] posed his questions to Bolda implied only 

a concern about weapons" such that it was unreasonable for the 

officer to conclude that Bolda had consented to a general 

search. See id. at 317, 423 S.E.2d at 206. 

Thus, Bolda's response could only reasonably 

have been related to the scope of the 

request. Significantly, [the officer] 

himself testified that it was possible he 

asked Bolda if he could search only for 

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weapons. In addition, [the officer] did not 

testify that he ever mentioned drugs or 

other contraband in his questioning of 

Bolda. 

Id. Ultimately, we held that "[t]hese circumstances prove[d] an 

implicit limitation on Bolda's consent, limiting [the officer] 

to a search only for weapons." Id. Because the only reason the 

officer articulated for examining the article was that he 

believed it might have been a weapon and because it was clear 

the item was not a weapon once he removed it from Bolda's 

pocket, we held that he lacked authority to unroll the baggie 

and examine its contents. See id. at 318, 423 S.E.2d at 206. 

 Appellant's case is distinguishable from Bolda. First, in 

appellant's case, it is undisputed that Officer Schilke 

mentioned narcotics when he first approached appellant and his 

companion, asking them "how they felt about narcotics in the 

area." Second, Bolda involved only one search, preceded by the 

questions whether he had any weapons in his possession and 

whether the officer could search his person. In appellant's 

case, by contrast, the trial court found that the officer 

conducted two searches, and the evidence, viewed in the light 

most favorable to the Commonwealth, supports this finding. 

Before the first search, the officer asked appellant if he could 

pat him down for weapons, and he completed the pat-down search 

without finding anything. Before the second search, the officer 

asked appellant if he could search his pockets and did not state 

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any specific category of items for which he was looking. It was 

within the authority of the trial court, as the finder of fact, 

to determine that a reasonable person in appellant's situation 

would conclude that the weapons search was over when the 

pat-down was completed. It also was within the court's 

authority to find that the request to "go in [appellant's] 

pockets" was a request to perform a more generalized search and 

that appellant's initial consent to such a search, coupled with 

his failure to object as the officer removed and examined the 

cigarette pack, were sufficient to render the search reasonable 

and the resulting contraband admissible. See United States v. 

Espinosa, 782 F.2d 888, 892 (10th Cir. 1986) ("Failure to object 

to the continuation of the search . . . may be considered an 

indication that the search was within the scope of the consent 

given."), quoted with approval in Lawrence v. Commonwealth, 17 

Va. App. 140, 146, 435 S.E.2d 591, 594 (1993). 

 For these reasons, we hold the trial court did not err in 

denying the motion to suppress, and we affirm appellant's 

conviction. 

Affirmed.

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