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Montague v. Commonwealth

Court of Appeals of Virginia

December 31, 1996

ARTHUR LEE MONTAGUE
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY. George F. Tidey, Judge.

Robert P. Geary for appellant.

John K. Byrum, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: Chief Judge Moon, Judges Benton and Elder.

MEMORANDUM OPINION [*]

NORMAN K. MOON, CHIEF JUDGE.

Arthur Lee Montague was convicted of possession of heroin and appeals the trial judge's denial of his motion to suppress. Because the evidence supports the trial judge's finding that the evidence was lawfully obtained, we affirm the conviction.

I.

The evidence proved that on September 16, 1994, Officer Cindy Patterson was engaged in a drug interdiction operation in a location where drug transactions were known to occur. From a distance of fifty yards, Officer Patterson observed Montague approach Troy Hargrove and speak to him. Montague and Hargrove reached into their own pockets and exchanged something. Officer Patterson concluded that a drug transaction had occurred and radioed for another officer to confront them. Two uniformed officers on bicycles responded to Officer Patterson's call. Montague testified that the officers confronted him and Hargrove and told them to take everything out of their pockets. They put their possessions on a car. Montague also testified that the officers never asked permission to search them. The officers also frisked them. The officers then told them they could put everything back in their pockets. As Hargrove picked up his matchbook, heroin fell out. The officers then arrested Hargrove.

Officer Joseph Coker, who also responded to Officer Patterson's call, testified that as he approached he heard one of the other officers state that he had found something. Officer Coker testified that he then went to Montague and informed him that they were looking for drugs or guns. Officer Coker further testified that when he asked Montague whether he had drugs or guns, Montague responded that he did not and added that he had already been searched by the officers on bicycles.

When one of the officers verified that he had already checked Montague, Officer Coker asked the officer if he could check Montague again. Officer Coker testified that he asked Montague if he would mind being searched again. Coker testified that Montague said " no" and thrust his arms up into the air. Montague, however, testified that Officer Coker did not ask for permission to search him.

Officer Coker frisked Montague and saw a matchbox with pieces of plastic and aluminum foil in the watch pocket of Montague's pants. Officer Coker testified that he knew, based on his training and experience, that heroin was packaged in squares of foil and often carried in a person's watch pocket. He seized the matchbox and arrested Montague. The laboratory reported that the box contained heroin.

II.

Montague contends that the Commonwealth failed to prove that he validly consented to the search performed by Officer Coker and that the seizure and search were illegal. We disagree.

" On review, we consider the [evidence] in the light most favorable to the [Commonwealth], granting to it all reasonable inferences fairly deducible therefrom." Commonwealth v. Ealy, 12 Va.App. 744, 747, 407 S.E.2d 681, 683 (1991). So viewed, Officer Coker testified that he approached Montague and said, " Okay, do you mind if I search again?" In response, Montague said, " No, " and threw his ...


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