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Bolda v. Commonwealth11/10/1992
OPINION BY JUDGE JAMES W. BENTON, JR.
Michael Robert Bolda was convicted of possession of psilocyn in violation of Code §§ 18.2-250 and 54.1-3446(3). On appeal, Bolda contends the trial Judge erred in overruling his motion to suppress evidence seized in violation of the Fourth Amendment. Because the search exceeded the scope of Bolda's consent, we reverse the conviction.
At 2:55 a.m., Officer Timothy Allen Jennings stopped a pickup truck whose driver he suspected of driving under the influence of an intoxicant. Bolda was a passenger in the truck. After arresting the driver, Jennings told Bolda to exit the truck because Jennings wanted to search the truck. Jennings asked Bolda "if he was carrying any guns, knives, weapons, or anything of a nature of guns, knives, or anything on his person." Bolda answered, "No." Jennings then asked, "May I search you, may I search your person?" Jennings testified that he did not recall making any reference to weapons when he asked to search; however, he said it was possible that he asked Bolda if he could search for weapons. Bolda testified that Jennings asked, "do you mind if I search you for guns, knives, weapons?"
As Jennings was "patting him down," Jennings felt an object which he described as being "about an inch and a half to two inches long" and "kind of hard." Jennings said that "it felt like plastic on the outside," but he did not "make any effort to determine what it was prior to removing it from his pocket by a sense of touch." He removed the object from Bolda's pocket and discovered that it was a rolled up baggie. Jennings unrolled the baggie and discovered a crusty material inside of it. Laboratory analysis proved the substance to be a psilocyn mushroom.
"The Fourth Amendment . . . protects people from unreasonable government intrusions." United States v. Chadwick, 433 U.S. 1, 7, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977). "A consensual search is reasonable if the search is within
the scope of the consent given." Grinton v. Commonwealth, 14 Va. App. 846, 419 S.E.2d 860 (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?" Florida v. Jimeno, 500 U.S. 248, 111 S. Ct. 1801, 1803-04, 114 L. Ed. 2d 297 (1991). Furthermore, the Court stated that, "the scope of a search is generally defined by its expressed object." Id. at , 111 S. Ct. at 1804. The Commonwealth argues that Bolda's consent did not expressly limit Jennings to a search for weapons. We disagree.
Before patting Bolda's clothing, Jennings asked Bolda if he had any weapons or anything of that nature. When Bolda responded, "No," Jennings asked Bolda if he could search his person. It was objectively unreasonable for Jennings to conclude that Bolda's affirmative response was consent for a general search. The method and order in which Jennings posed his questions to Bolda implied only a concern about weapons. Thus, Bolda's response could only reasonably have been related to the scope of the request. Significantly, Jennings himself testified that it was possible he asked Bolda if he could search only for weapons. In addition, Jennings did not testify that he ever mentioned drugs or other contraband in his questioning of Bolda. These circumstances prove an implicit limitation on Bolda's consent, limiting Jennings to a search only for weapo
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