COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Overton 

Argued at Richmond, Virginia 

RAHEEM SHABAZZ ALLAH 

 MEMORANDUM OPINION* BY 

v. Record No. 2180-95-2 JUDGE JAMES W. BENTON, JR. 

 JANUARY 28, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Walter W. Stout, III, Judge 

 Cullen D. Seltzer, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

briefs), for appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Raheem Shabazz Allah was indicted on the charges of 

possession of cocaine with intent to distribute, see Code 

§ 18.2-248, and transportation of cocaine into the Commonwealth 

with intent to distribute. See Code § 18.2-248.01. The trial 

judge denied Allah's motion to suppress the cocaine and convicted 

Allah of both charges after Allah entered a conditional guilty 

plea preserving his right to appeal. In this appeal, Allah 

argues that he was unlawfully searched. Because the evidence did 

not prove the lawfulness of the search, we reverse the trial 

judge's decision. 

 

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

designated for publication. 
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FACTS

 The evidence proved that on March 22, 1995, Officer 

Armistead and Detective Ruffin were assigned to a narcotics 

interdiction team that was working at the Greyhound bus terminal 

in Richmond. They observed Allah arrive at the terminal in an 

automobile driven by another man. Allah and the man went to the 

ticket counter and obtained a ticket. Allah, who was not 

carrying luggage, then boarded a bus travelling to New York City. 

 A full twenty-four hours later, at 3:15 a.m. on the following 

day, Allah returned to Richmond wearing the same clothes and 

still carrying no luggage. Allah went from the bus into the 

terminal and made a telephone call. After placing a telephone 

call, Allah played video games. 

 Detective Ruffin approached Allah, displayed her badge, and 

asked if she could speak with him. Officer Armistead testified 

that he stood outside the game room. Detective Ruffin asked 

Allah if Officer Armistead could search him. Allah refused to be 

searched and asked why Detective Ruffin needed to speak with him. 

 Detective Ruffin stated that she was in the terminal to stop the 

flow of illegal narcotics, told Allah about their observations of 

him, and told Allah that his actions had made the police 

suspicious. Detective Ruffin then again asked Allah if he would 

allow Officer Armistead to search him. Allah asked why she 

wanted to search him and stated that he did not want to be 

searched. Detective Ruffin testified that the encounter was not 
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consensual. 

 Detective Ruffin advised Allah that they would detain him 

until they obtained a search warrant. Detective Ruffin took 

Allah to a customer service office where Officer Armistead 

detained him. 

 Detective Ruffin left the terminal to seek a warrant. While 

she was typing the application, she spoke to a Commonwealth's 

Attorney. Based on their conversation, Detective Ruffin 

concluded that she did not have sufficient grounds to obtain a 

warrant. Detective Ruffin talked to Officer Armistead on the 

telephone and learned that Officer Armistead had unsuccessfully 

attempted to get a drug dog and a criminal record check of Allah. 

 Officer Armistead said that he told Allah about their 

efforts to obtain a warrant, drug dog, and a criminal record 

check. He also testified that while he was detaining Allah in 

the office, he saw the man, who had brought Allah to the terminal 

the day before, enter the terminal. 

 After Detective Ruffin notified Officer Armistead that she 

was unable to get a search warrant, Officer Armistead told Allah 

to accompany him. He walked Allah outside the terminal near 

Gates 6 and 7. Officer Armistead testified that he then told 

Allah he was no longer being detained. Officer Armistead then 

asked, however, "do you mind if I continue talking." He said 

Allah "agreed by shaking his head up and down." Officer 

Armistead testified that he advised Allah of the reasons for his 
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suspicion and explained why they detained him. He said Allah 

stated, "it sounds like probable cause to me." 

 Officer Armistead then asked Allah whether he was carrying 

any illegal drugs. Officer Armistead testified that he then 

"told [Allah], I just want to ask you again, can I search your 

person for drugs, and by that I mean, just want to squeeze your 

pockets from the outside." Allah began taking items out of his 

pockets. However, Armistead stated "don't pull anything out of 

your pockets" and said that he only wanted to feel the outside of 

Allah's pockets. He testified that Allah said, "go ahead." 

 Officer Armistead felt a long oval object in Allah's upper 

breast area, and when he squeezed the object, he discovered that 

it was irregularly shaped and "crunchy." Officer Armistead then 

told Allah that he was under detention again. He said that he 

told Allah that the object "feels consistent to . . . crack 

cocaine." Officer Armistead then took Allah back to the service 

office. Officer Armistead testified that after they entered the 

office, Allah attempted to run when Armistead turned to look for 

Detective Ruffin. The officers stopped Allah and searched him. 

They removed the object from Allah's pocket, opened it, and saw 

what was later tested to be cocaine. The officers arrested Allah 

at 5:03 a.m. 

 The trial judge concluded that Allah's "acceptance of the 

search was voluntary" and overruled Allah's suppression motion. 

For the reasons that follow, we hold that Allah was unlawfully 
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detained and that the search was tainted by the illegal 

detention. 
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 THE DETENTION 

 Officer Armistead testified that "the reason [Allah] was 

detained was that he was observed coming into the [bus] terminal 

with a heavyset, light complected male, having no luggage, 

getting on the bus, going to New York and then coming back on a 

quick turnaround." Because these "circumstances describe a very 

large category of presumably innocent travelers, who would be 

subject to virtually random seizures were the Court to conclude 

that as little foundation as there was in this case could justify 

a seizure," Reid v. Georgia, 448 U.S. 438, 441 (1980), we hold 

that the officers lacked a reasonable suspicion "that criminal 

activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30 (1968). 

Therefore, the detention of Allah while the police attempted to 

find a search warrant was unlawful. See Reid, 448 U.S. at 441. 

 THE SEARCH 

 When the police search a person without a search warrant, 

"the burden is on the Commonwealth to establish an exception to 

the warrant requirement." Walls v. Commonwealth, 2 Va. App. 639, 

645, 347 S.E.2d 175, 178 (1986). "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). Even if the 

Commonwealth discharges its heavy burden to prove a voluntary 

consent, the Commonwealth then must establish that the consent 
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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 fact that the consent was voluntary . . . does 

not mean that it was sufficiently an act of free will to purge 

the primary [illegal] taint." Walls v. Commonwealth, 2 Va. App. 

639, 654, 347 S.E.2d 175, 183 (1986). 

 Because we hold that the evidence proved that the illegal 

detention tainted the alleged consent to search, we assume, 

without deciding, that the consent was voluntary. The principle 

is well established by this Court that evidence must be 

suppressed if it was "obtained pursuant to . . . [a] voluntary 

consent to search [that] was '"come at by exploitation of [the 

initial] illegality" rather than "by means sufficiently 

distinguishable to be purged of the primary taint."'" 

Commonwealth v. Ealy, 12 Va. App. 744, 757, 407 S.E.2d 681, 689 

(1991) (citations omitted). In determining whether a consent was 

"sufficiently attenuated from the [illegal detention] to purge 

its taint," this Court has "considered, in addition to the 

voluntariness of the consent, the temporal proximity and the 

presence of intervening circumstances between the [illegality] 

and the consent, [the defendant's] awareness of a right to 

withhold consent, and the purpose and flagrancy of the police 

misconduct." Id. at 755, 407 S.E.2d at 688. 

 The evidence shows that the consent was given shortly after 

the illegal detention ended. Allah was detained for a period of 
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forty-five minutes to an hour while the officers sought a search 

warrant. After Officer Armistead notified Allah that he was "no 

longer under detention," Officer Armistead continued his 

investigation by continuing to speak with Allah. He obtained 

Allah's consent to the search in that conversation. Thus, no 

intervening circumstances occurred that would break the chain of 

events. See Walls, 2 Va. App. at 654, 347 S.E.2d at 184. 

 The police misconduct in unlawfully detaining Allah was 

directly related to the ensuing conduct. See id. at 655, 347 

S.E.2d at 184. Officer Armistead testified that after he was 

denied a warrant, he wanted to extract Allah's consent. Officer 

Armistead's objective to search Allah was clearly manifested by 

his testimony that "I wanted to receive his consent and I believe 

Detective Ruffin wanted to receive his consent also." 

 Although Officer Armistead had earlier told Allah that they 

were seeking a search warrant and a drug dog, the record does not 

indicate that he told Allah that they had been unable to procure 

either. Officer Armistead sought to keep Allah at the terminal 

by talking to him and by conveying the facts that formed the 

basis for the officers' suspicions. However, Armistead testified 

that the reason why he informed Allah of the grounds for his 

suspicions was "[j]ust to advise him of that." 

 After Allah had been detained for up to one hour, Officer 

Armistead was still confronting him and describing the 

circumstances that arose Armistead's suspicions. Allah now was 
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aware, however, that his earlier refusal to allow a search 

resulted in a lengthy detention. The Commonwealth's evidence 

therefore does not negate the reasonable conclusion that Allah 

consented to the search just to free himself from police 

interference. Certainly, the evidence proved that the police 

exploited the initial illegal detention to provoke a consent. 

 Because the evidence proved that the consent was tainted by 

the illegal detention, the trial judge erred in denying Allah's 

motion to suppress. Therefore, we reverse the trial judge's 

refusal to suppress the evidence and set aside the convictions. 

 Reversed and remanded.