COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Fitzpatrick and Annunziata 

Argued at Richmond, Virginia 

JOSE CABA 

 MEMORANDUM OPINION* BY 

v. Record No. 1771-96-2 JUDGE LARRY G. ELDER 

 SEPTEMBER 16, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Donald W. Lemons, Judge 

 Joseph W. Kaestner (Suzanne L. Nyfeler; 

Kaestner, Pitney & Jones, P.C., on briefs), 

for appellant. 

 John K. Byrum, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Jose Caba (appellant) appeals his conviction of possessing 

cocaine with intent to distribute in violation of Code 

§ 18.2-248. He contends that the trial court erred when it 

denied his motion to suppress 56.7 grams of cocaine obtained 

during a search of his person. He argues that the trial court 

erred (1) when it found that he understood the questions posed by 

Agent Koushel during the encounter that led to the search and (2) 

when it concluded that he voluntarily consented to the search. 

For the reasons that follow, we affirm. 

 A. 

 "All searches without a valid warrant are unreasonable 

unless shown to be within one of the well-delineated exceptions 

 

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

designated for publication. 
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to the rule that a search must rest upon a valid warrant." 

Iglesias v. Commonwealth, 7 Va. App. 93, 107, 372 S.E.2d 170, 178 

(1988) (citation omitted). One such exception is a search 

conducted pursuant to a valid consent. See Elliotte v. 

Commonwealth, 7 Va. App. 234, 238, 372 S.E.2d 416, 418-19 (1988) 

(citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 

2041, 2043-44, 36 L.Ed.2d 854 (1973)). The Commonwealth concedes 

that Agent Koushel searched appellant without a warrant and that 

he did not reasonably suspect appellant of criminal activity when 

he approached him. 

 The Fourth Amendment requires "that a consent [to a search] 

not be coerced, by explicit or implicit means . . . ." 

Schneckloth, 412 U.S. at 228, 93 S. Ct. at 2048. An accused's 

consent to a search must be more than "mere acquiescence" to a 

police officer's "claim of lawful authority." Bumper v. North 

Carolina, 391 U.S. 543, 548-49, 88 S. Ct. 1788, 1792, 20 L.Ed.2d 

797 (1968); see also Deer v. Commonwealth, 17 Va. App. 730, 735, 

441 S.E.2d 33, 36 (1994). "'Consent' that is the product of 

official intimidation or harassment is not consent at all." 

Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382, 2388, 115 

L.Ed.2d 389 (1991). 

 When the Commonwealth seeks to justify a warrantless search 

on the basis of consent, it bears the burden of proving by a 

preponderance of the evidence that the consent was voluntary. 

See Camden v. Commonwealth, 17 Va. App. 725, 727, 441 S.E.2d 38, 
 3 

39 (1994); see also Bumper, 391 U.S. at 548, 88 S. Ct. at 1792. 

In order to determine whether consent to a particular search was 

"voluntary," the test is whether the search is "the product of an 

essentially free and unconstrained choice" or whether the 

consenter's "will has been overborne and his capacity for 

self-determination critically impaired." Schneckloth, 412 U.S. 

at 225-26, 229, 93 S. Ct. at 2047, 2049; see Lowe v. 

Commonwealth, 218 Va. 670, 678, 239 S.E.2d 112, 117 (1977). 

 [T]he question whether a consent to a search 

was in fact "voluntary" or was the product of 

duress or coercion, express or implied, is a 

question of fact to be determined from the 

totality of all the circumstances. 

Schneckloth, 412 U.S. at 227, 93 S. Ct. at 2047-48; see Lowe, 218 

Va. at 678, 239 S.E.2d at 117. 

 When considering the circumstances of a particular case, a 

court must consider both the details of the police conduct and 

the characteristics of the accused. See Schneckloth, 412 U.S. at 

226, 229, 93 S. Ct. at 2047, 2049. Among the characteristics of 

the accused that are factors in the court's decision are his or 

her age, education, intelligence, and knowledge and notice of his 

constitutional right to refuse consent. See id. at 226, 227, 93 

S. Ct. at 2047, 2048 (stating that "knowledge of the right to 

refuse consent is one factor to be taken into account"). An 

accused's ability to understand the police officer's request for 

consent to be searched is also a factor, and the Commonwealth's 

burden of proving that consent to a search was voluntarily given 
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is heavier when it appears to the trial court that the accused 

did not understand the language in which the officer made his 

request for consent. See United States v. Wai Lau, 215 F.Supp. 

684, 686 (S.D.N.Y. 1963), judgment aff'd, 329 F.2d 310 (2d Cir. 

1964) (citing Kovach v. United States, 53 F.2d 639, 639 (6th Cir. 

1931)). 

 Appellant contends that the Commonwealth was required to 

prove (1) that he knew of his Fourth Amendment right to refuse to 

consent at the time of Agent Koushel's search and (2) that he was 

sufficiently proficient in the English language to understand 

that Agent Koushel was not ordering him to submit to a search. 

Appellant argues that the Fourth Amendment imposes such a 

requirement upon the Commonwealth when the accused alleges that 

he or she lacked the language skills to understand the police 

officer who conducted the warrantless search. We disagree. 

 Since Schneckloth, the determination of whether consent to a 

search was voluntary has been based upon an analysis of the 

totality of the circumstances. See 412 U.S. at 227, 93 S. Ct. at 

2047-48. Although many factors are considered, no particular 

factor, such as the accused's knowledge of his constitutional 

rights at the time of the search, is dispositive. See id. In 

fact, recent Fourth Amendment jurisprudence has consistently 

eschewed bright line rules in this area. See Ohio v. Robinette, 

 U.S. , , 117 S. Ct. 417, 419, 136 L.Ed.2d 347 (1996) 

(rejecting a bright-line rule requiring a police officer to 
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inform a suspect that he is "free to go" before requesting his 

consent to be searched); Bostick, 501 U.S. at 438-39, 111 S. Ct. 

at 2388 (rejecting a per se rule that random bus searches are 

unconstitutional); Schneckloth, 412 U.S. at 227, 93 S. Ct. at 

2047-48 (rejecting a rule requiring the prosecution to establish 

knowledge of the right to refuse consent as the "sine qua non of 

effective consent"). Thus, we hold that the Fourth Amendment 

does not require the Commonwealth to establish any per se

elements in order to meet its burden of proving that a consent 

search was voluntary just because an accused has alleged that he 

or she lacked the ability to comprehend spoken English at the 

time of the search. 

 B. 

 Turning to appellant's assignments of error, we hold that 

the trial court's factual finding that appellant "understood the 

questions asked" by Agent Koushel was not clearly erroneous. In 

addition, based upon our review of the totality of the 

circumstances, we hold that appellant's consent to the search by 

Agent Koushel was voluntary. 

 On appeal from a trial court's denial of a motion to 

suppress, the burden is on the appellant to show that the trial 

court's decision constituted reversible error. See Stanley v. 

Commonwealth, 16 Va. App. 873, 874, 433 S.E.2d 512, 513 (1993). 

We view the evidence in the light most favorable to the 

prevailing party, granting to it all reasonable inferences fairly 
 6 

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

1066, 1067, 407 S.E.2d 47, 48 (1991). We review the trial 

court's findings of historical fact only for "clear error," but 

we review the trial court's application of defined legal 

standards to the particular facts of a case, such as 

determinations of reasonable suspicion and probable cause, 

de novo. See Shears v. Commonwealth, 23 Va. App. 394, 398, 477 

S.E.2d 309, 311 (1996); see also Ornelas v. United States, 

U.S. , , 116 S. Ct. 1657, 1662, 134 L.Ed.2d 911 (1996). 

Determining whether an accused's consent to a warrantless search 

was "voluntary" is based on the application of judicially 

declared standards. See Thompson v. Louisiana, 469 U.S. 17, 23, 

105 S. Ct. 409, 412, 83 L.Ed.2d 246 (1984). Thus, we review the 

trial court's determination that appellant voluntarily consented 

to Agent Koushel's search de novo. 

 First, the trial court's finding of historical fact that 

appellant understood the substance of Agent Koushel's questions 

was not clearly erroneous. Agent Koushel's testimony describing 

his interaction with appellant indicates that appellant answered 

the agent's questions responsively and with little difficulty. 

Agent Koushel also testified that he does not speak Spanish and 

that, during prior interdictions, he had encountered 

Spanish-speaking people who required the aid of an interpreter to 

communicate with him. He testified that, unlike other 

Spanish-speaking people, appellant appeared to understand all of 
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his questions. Agent Koushel's testimony provides ample support 

for the trial court's finding that appellant understood what the 

agent was asking him. 

 We also conclude that appellant's consent to be searched by 

Agent Koushel was voluntarily given. The record does not 

indicate that Agent Koushel engaged in any conduct that coerced 

appellant to consent to the agent's request to search him. 

First, Agent Koushel approached appellant and started conversing 

with him in a manner that would not make a reasonable person feel 

that he was not free to go about his business. See Bostick, 501 

U.S. at 434, 111 S. Ct. at 2386 (citing California v. Hodari D., 

499 U.S. 621, 628, 111 S. Ct. 1547, 1552, 113 L.Ed.2d 690 

(1991)). Agent Koushel approached appellant in the bus terminal 

and, in a "friendly, conversational" tone of voice, asked if 

appellant "would mind" speaking to him and if the agent could 

take a "quick look" at appellant's bus ticket. 

 In addition, the evidence does not indicate that Agent 

Koushel obtained appellant's consent to be searched through 

intimidation, harassment, a claim of lawful authority, or other 

acts that impaired appellant's capacity for self-determination. 

After returning the bus ticket to appellant, Agent Koushel asked 

appellant if he "could check him and his bag for contraband." 

Appellant replied, "yes." After appellant agreed to move to a 

nearby office, Agent Koushel renewed his request to "check" 

appellant, and appellant responded by facing Agent Koushel and 
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opening his coat. Agent Koushel testified that he never 

displayed his weapon or touched appellant before the two moved to 

the office and that he spoke in a low, conversational tone of 

voice. Moreover, the record establishes that Agent Koushel 

phrased his request to search appellant in a manner that required 

an affirmative response from appellant and that the agent at no 

time claimed that he was legally authorized to search appellant. 

 Because Agent Koushel's warrantless search was performed 

pursuant to appellant's voluntary consent, the trial court did 

not err when it denied appellant's motion to suppress. 

 For the foregoing reasons, we affirm the conviction of 

possession of cocaine with intent to distribute. 

Affirmed.