COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Fr ank and Senior Judge Baker Argued by te leconference

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 0328-99-4 JUDGE JOSEPH E. BAKER JUNE 29, 1999 TOMIKA DAVELIA WHITE

FROM THE CIRCUIT COUR T OF LOUDOUN COUNTY James H. Chamblin, Judge Marla Graff Decker , Assistant Attorney General (Mark L. Earley , Attorney General, Attorney General, on brief), for appellant. Lorie E. O'Donnell, Public Defender (Office of the Public Defender, on brief), for appellee.

In this appeal by the Commonwealth of Virginia (Commonwealth) from an order of the Ci rcuit Court of Loudoun County (trial court) that sustained the mo tion of Tomika Dave lia White (W hite) to suppress evidence of il legal drugs disc overed during a search by a drug enforcement agen t of White's suitcase s, the pivotal issue presented is whether th e search exceeded the consent give n to the agent by White. The trial court held that White co nsented to a search of the suitcases, but ruled th at the actual search conducted was "bey ond the scope" of the consent give n by White and ordered that the discov ered evidence be supp ressed. Pursuant to

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.the provisions of Code § 19.2-398 , the Commonwealth appeals that decision. 1 The record discloses that Dr ug Enforcement Special Agent James Wekes (Wekes ) received information th at a black female in her twenties, with red hair, going by the name of "Brooke Simms," who walked with a cane, would be arriving at Dulles International Airport on American Airl ines Flight 76 from Lo s Angeles. "Simms" was reported to be traveling with two new, locked suitcases, and she had paid for her ti ckets at the last minu te with $1,141 in cash--all factor s consistent with dr ug courier activity. After Flight 76 ar rived, Wekes saw Whit e, who is a black female, and confir med that she had debarked from that flight. White was carryi ng a crutch and pushin g a wheelchair. White retrieved her lugg age--two locked suitcases--and was being pushed in the wheelchair by a "sky cap," when Weke s approached her. Walking alongs ide White, Wekes identified himself as a DEA agent and asked whether White would mind speaking to him. He told her that she did not have to talk to him, and Wh ite twice st ated that she did not mind speaki ng to Wekes. White allowed Wekes to see her flight tickets, an d she also produced id entification at his

1 In her brief, White claimed that her encounter with the drug enforcement agent was not consensual, and that she was unlawfully seized. White did not, however, file a notice of cross-appeal. See Code § 19.2-401. At oral argument, White conceded this failure and abandoned her claim of unlawful seizure.

- 2 -request. Wekes testified that he was alone when he approached White, that he was no t in uniform, that he did not display a weapon, that he never physical ly restrained Whit e, and that he never raised his voice with her. There were two sky caps present as Wekes spoke to Whit e, and the encounter oc curred in a public area in th e airport. Wekes told White that he wa s checking flig hts to see if anyone was carrying we apons, explosives, drug s, or large sums of undeclared money. Whit e denied that she poss essed any co ntraband. She told Wekes that th e two suitcases were hers and that she had keys to the cases. White consented to Wekes' re quest to search the suitcases, and she prov ided him with her keys. None of the keys Wh ite gave to We kes opened the locks on the suitcases. Weke s asked White whet her she had any other keys, at which point she to ld him that she did not. Wekes then opened the suitcases by using a pe n to "pop" the zippers on the cases. Wekes did not damage the suitcases, and White neither protested nor complained when or after Wekes open ed the suitca ses in this

manner. White admitted that Wekes did not physic ally seize her and that she voluntarily an swered his questions. She admitted that she gave Wekes permis sion to search her luggage and that she initially told him she had keys for the locks. When she gave him the keys, she beli eved one would open the suitcases, and she and

- 3 -Wekes did not disc uss how or whether he co uld open the cases if none of the keys work ed. White conceded th at she did not protest or withdraw the consen t given when Wekes "pop ped" the zippers to open the suitcases. At the suppress ion hearing, White asserted, however, that he r consent did not extend to breaking into the luggage. "On appeal, we view the evidence in the light most favorable to the prevailing party, granting to it all reasonable inferences fairly deducibl e therefrom." Commonwealth v. Gilmore , 27 Va. App. 320, 331, 498 S.E.2d 464, 470 (1 998). While we apply a "clear error" standard to the trial court's factual fi ndings, see Ornelas v. United States , 517 U.S. 690, 699 (1996), whethe r a search or seizure is reasonable under the Fourth Amendm ent is an issue of law that we review de novo , see Taylor v. Commonwealth , 28 Va. App. 638, 641-42 , 507 S.E.2d 66 1, 663 (1998). "A consensual search is reasonable if th e search is within the scope of the consent given." Grinton v. Commonwealth , 14 Va. App. 846, 850-51, 419 S.E.2d 860, 862 (1992). "The United States Supreme Court has articulated the st andard for meas uring the scope of an individual's consent unde r the Fourth Amendment to be '"objective" reasonab leness--what would th e typical re asonable person have unde rstood by the ex change between th e officer and the suspect?'" Bolda v. Commonwealth , 15 Va. App. 315, 317, 423 S.E.2d 204, 206 (1992) (quoting Florida v. Jimeno , 500 U.S. 248,

- 4 -251 (1991)). "The scope of a search is generally defined by its expressed object." Jimeno , 500 U.S. at 251. "'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.'" Bynum v. Commonwealth , 23 Va. App. 412, 418, 477 S.E.2d 750, 753 (1996). See Cardenas v. State , 857 S.W.2d 707, 712-13 (Tex. App. 1993) (holding that police acted within the scope of the defendant's consent to search his car where the officers forcibly removed a plate welded over the covering to the car's tire well, but where the car was not structurally damaged by the removal); United States v. Milian-Rodriguez , 759 F.2d 1558, 1563-64 (11th Cir. 1985) (holding that police did not exceed the scope of consent to search defendant's office when they picked the lock on the office closet door in order to search the closet), cert. denied , 474 U.S. 845 (1985); United States v. Martinez , 949 F.2d 1117, 1120-21 (11th Cir. 1997) (holding that police did not exceed the scope of the defendant's consent to search a mini-warehouse unit when the officers forced open the trunk of an automobile parked inside the unit). "The scope of a search may be further defi ned during the course of the search by the pass ive acquiesc ence of the person whose property is being sear ched." Grinton , 14 Va. App. at 851,

- 5 -419 S.E.2d at 863. In Grinton , the defendants consented to a search of the "' contents and containers'" in their ve hicle where the police officer indi cated that he was looking for evidence of weapons or drug smuggling. See id. at 848, 419 S. E.2d at 861. The officer asked one of the defendants to open the ca r's trunk, but the defendan t stated that he did not ha ve a key to the trunk. The defendants also represented that there was no thing in the trunk. The poli ce officer retrie ved some tools fr om his patrol car and accessed the car's trunk by removing th e back seat. See id. In holding that the search was reason able, we noted that "[t]he defendants got out of the vehicle upon request and did not ask that the search be terminated at any time. Although they claimed not to have ha d a key to the trunk an d asserted that they had nothing in the trun k, they did not withdr aw consent to search the trunk." Id. at 851, 419 S. E.2d at 863. White consented to Wekes' request for pe rmission to open and search the suitcases. She gave Wekes keys th at she believed would control the locks, and she placed no limitation on the search. The expressed obje ct of the search was to investigate th e contents of the suitcases to see if White was transporting contraband. White never obje cted when Weke s opened the tw o suitcases by "popping" the zipp ers. White's fa ilure to object was sufficient to confirm a reasonab le person's belief that Wekes was not exceeding the scop e of White's co nsent by openin g the cases in this manner. See Lawrence v. Commonwealth , 17 Va. App. 140, 146, - 6 -435 S.E.2d 591, 594 (1993), aff'd , 247 Va. 339, 443 S.E.2d 160 (1994). White does not claim that ther e was physical da mage done to the luggage by Wekes' method of making a ke yless entry therein, and nothing in the reco rd shows that the ca ses were damaged. Cf. United States v. Strickland , 902 F.2d 937, 94 1 (11th Cir. 1990) (holding that ge neral consent to search defendan t's car did not extend to slashi ng open the spare tire). White does not allege that Wekes or any othe r officer physic ally coerced her, offered her any promise or inducement, or otherw ise used any means of persuasion to ob tain her consent or to pr event her from objecting if she wished to withdraw or limit her consent. Mo reover, once it was clear that White did not have a key to the luggage locks, White had ample ti me to withdraw her cons ent or object to any further entry in to the suitcases, yet failed to do either. Applying the objective reasonableness rule to this evidence, we find that the trial court erred when it found that Wekes' action was not within the scope of the consent given. Accordingly, the suppression order of the trial court is reversed and this case is remanded to that court for such further action as the Commonwealth may be advised. Reversed and remanded.

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