COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Frank and Senior Judge Baker 

Argued by teleconference 

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 COURT 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 Circuit Court of Loudoun County (trial court) 

that sustained the motion of Tomika Davelia White (White) to 

suppress evidence of illegal drugs discovered during a search by a 

drug enforcement agent of White's suitcases, the pivotal issue 

presented is whether the search exceeded the consent given to the 

agent by White. The trial court held that White consented to a 

search of the suitcases, but ruled that the actual search 

conducted was "beyond the scope" of the consent given by White and 

ordered that the discovered evidence be suppressed. 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 Drug Enforcement Special Agent 

James Wekes (Wekes) received information that 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 Airlines Flight 76 from Los Angeles. "Simms" 

was reported to be traveling with two new, locked suitcases, and 

she had paid for her tickets at the last minute with $1,141 in 

cash--all factors consistent with drug courier activity. 

 After Flight 76 arrived, Wekes saw White, who is a black 

female, and confirmed that she had debarked from that flight. 

White was carrying a crutch and pushing a wheelchair. White 

retrieved her luggage--two locked suitcases--and was being pushed 

in the wheelchair by a "sky cap," when Wekes approached her. 

Walking alongside 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 White twice stated that 

she did not mind speaking to Wekes. White allowed Wekes to see 

her flight tickets, and she also produced identification 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. 

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request. Wekes testified that he was alone when he approached 

White, that he was not in uniform, that he did not display a 

weapon, that he never physically restrained White, and that he 

never raised his voice with her. There were two sky caps present 

as Wekes spoke to White, and the encounter occurred in a public 

area in the airport. 

 Wekes told White that he was checking flights to see if 

anyone was carrying weapons, explosives, drugs, or large sums of 

undeclared money. White denied that she possessed any contraband. 

She told Wekes that the two suitcases were hers and that she had 

keys to the cases. White consented to Wekes' request to search 

the suitcases, and she provided him with her keys. 

 None of the keys White gave to Wekes opened the locks on the 

suitcases. Wekes asked White whether she had any other keys, at 

which point she told him that she did not. Wekes then opened the 

suitcases by using a pen to "pop" the zippers on the cases. Wekes 

did not damage the suitcases, and White neither protested nor 

complained when or after Wekes opened the suitcases in this 

manner. 

 White admitted that Wekes did not physically seize her and 

that she voluntarily answered his questions. She admitted that 

she gave Wekes permission to search her luggage and that she 

initially told him she had keys for the locks. When she gave him 

the keys, she believed one would open the suitcases, and she and 

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Wekes did not discuss how or whether he could open the cases if 

none of the keys worked. White conceded that she did not protest 

or withdraw the consent given when Wekes "popped" the zippers to 

open the suitcases. At the suppression hearing, White asserted, 

however, that her 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 deducible therefrom." Commonwealth v. Gilmore, 27 Va. App. 

320, 331, 498 S.E.2d 464, 470 (1998). While we apply a "clear 

error" standard to the trial court's factual findings, see Ornelas 

v. United States, 517 U.S. 690, 699 (1996), whether a search or 

seizure is reasonable under the Fourth Amendment is an issue of 

law that we review de novo, see Taylor v. Commonwealth, 28 Va. 

App. 638, 641-42, 507 S.E.2d 661, 663 (1998). 

 "A consensual search is reasonable if the 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 standard for measuring the scope 

of an individual's consent under the Fourth Amendment to be 

'"objective" reasonableness--what would the typical reasonable 

person have understood by the exchange between the 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, 

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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 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, 

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419 S.E.2d at 863. In Grinton, the defendants consented to a 

search of the "'contents and containers'" in their vehicle where 

the police officer indicated 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 car's trunk, 

but the defendant stated that he did not have a key to the trunk. 

The defendants also represented that there was nothing in the 

trunk. The police officer retrieved some tools from his patrol 

car and accessed the car's trunk by removing the back seat. See

id. In holding that the search was reasonable, 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 had a key to the trunk and asserted that they 

had nothing in the trunk, they did not withdraw consent to search 

the trunk." Id. at 851, 419 S.E.2d at 863. 

 White consented to Wekes' request for permission to open and 

search the suitcases. She gave Wekes keys that she believed would 

control the locks, and she placed no limitation on the search. 

The expressed object of the search was to investigate the contents 

of the suitcases to see if White was transporting contraband. 

White never objected when Wekes opened the two suitcases by 

"popping" the zippers. White's failure to object was sufficient 

to confirm a reasonable person's belief that Wekes was not 

exceeding the scope of White's consent by opening the cases in 

this manner. See Lawrence v. Commonwealth, 17 Va. App. 140, 146, 

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435 S.E.2d 591, 594 (1993), aff'd, 247 Va. 339, 443 S.E.2d 160 

(1994). 

 White does not claim that there was physical damage done to 

the luggage by Wekes' method of making a keyless entry therein, 

and nothing in the record shows that the cases were damaged. Cf.

United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990) 

(holding that general consent to search defendant's car did not 

extend to slashing open the spare tire). White does not allege 

that Wekes or any other officer physically coerced her, offered 

her any promise or inducement, or otherwise used any means of 

persuasion to obtain her consent or to prevent her from objecting 

if she wished to withdraw or limit her consent. Moreover, once it 

was clear that White did not have a key to the luggage locks, 

White had ample time to withdraw her consent or object to any 

further entry into 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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