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getting out of the vehicle so the search could take place. See Bynum v. Commonwealth, 23
Va. App. 412, 418 (1996) (noting that courts have found consent from “conduct alone”); see also
Gray v. Commonwealth, 233 Va. 313, 327 (1987) (“The mere fact that a defendant is in custody
is not enough in itself to demonstrate a coerced consent to search.”). Since that finding of fact is
not “plainly wrong” or without evidentiary support, this Court is bound by it on appeal. McGee
v. Commonwealth, 25 Va. App. 193, 198 (1997) (en banc).
In conclusion, I must dissent in this case—not because I think the vast expansion of brief
detentions following Terry v. Ohio, 392 U.S. 1 (1968), is logically consistent with the Fourth
Amendment—but because I am bound by Johnson and Rodriguez, and my colleagues misapply
these cases here. Under Rodriguez, if an officer asks unrelated questions or undertakes other
unnecessary tasks during a traffic stop but incriminating evidence is found within the amount of
time “tasks tied to the traffic infractions are—or reasonably should have been—completed,” the
detention has not been unlawfully extended and evidence discovered during the authorized
period of detention need not be suppressed. 575 U.S. at 355. If, however, the officer only
obtains consent, or develops reasonable suspicion after the stop should have reasonably ended
absent the delay, after-discovered evidence would have to be suppressed. This case falls in the
first category. Jump to an indexed page (23 of 23)