Commonwealth v. Rivera, Record No. 1376-17-1

CitationRecord No. 1376-17-1
Case DateJanuary 30, 2018
CourtCourt of Appeals of Virginia


Record No. 1376-17-1


JANUARY 30, 2018


Present: Judges Humphreys, Decker and O'Brien
Argued by teleconference


Bruce H. Kushner, Judge Designate

Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellant.

Floyd J. Oliver, Assistant Public Defender, for appellee.

Linwood Lester Rivera (the defendant) was indicted for possession of a firearm by a convicted felon in violation of Code § 18.2-308.2. The defendant filed a pre-trial motion to suppress evidence, which he alleged was obtained during an unlawful search. The circuit court granted the motion and suppressed the evidence. Pursuant to Code §§ 19.2-398 and -400, the Commonwealth appeals that pre-trial ruling. We hold that the record, viewed under the appropriate legal standard, supports the conclusion that the traffic stop was extended in contravention of the Fourth Amendment to the United States Constitution. Consequently, we affirm the circuit court's suppression of the evidence obtained as a result of that seizure, and we remand the case for further proceedings consistent with this opinion.

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On March 4, 2017, Officer R.J. Sawatzke, Jr., with the City of Chesapeake Police Department, was on patrol when he saw a van that did not have "any functioning tag lights," the lights that illuminate the license plates. The officer attempted to initiate a traffic stop, but the van continued to travel on about a quarter of a mile, crossing from Chesapeake into the City of Portsmouth, where it pulled into a gas station and stopped. Officer Sawatzke approached the van and explained to the defendant, who was the driver, the reason for the stop. The officer asked him for his driver's license. The defendant said that he "didn't have it on him" and admitted that he owed "several fines."

Officer Sawatzke returned to his police car and entered the information into his computer in order to check the defendant's driving status. The officer learned that the defendant's license was suspended and he had two previous convictions for driving on a suspended license. There were no outstanding warrants for the defendant's arrest. Based on this information, Sawatzke remained in his police car and began writing a summons for driving on a suspended license. As he wrote the summons, Portsmouth police officers, including a "K-9 unit," arrived on the scene. At this time, Sawatzke also learned that the Portsmouth officers had additional information about the defendant's criminal history.

While continuing to process the summons, Officer Sawatzke decided to ask the K-9 officer to circle the van with his dog. Once the summons was completed, Sawatzke "walked back to the K-9 officer and requested the open-air sniff." He then proceeded to the other Portsmouth officers,

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asked about the defendant's criminal history, and learned that he had a history of violent crime.2 According to Sawatzke, once he learned of the defendant's criminal history, it highlighted his concern that the defendant had not immediately stopped his vehicle when directed to do so. However, the officer was not able to articulate any more specific concern or suspicion of criminal activity. He also admitted that the location where he initially activated his emergency lights was dark and the gas station where the defendant stopped was well lit.

Officer Sawatzke and the Portsmouth K-9 officer went over to the defendant's van. The defendant got out of the vehicle without being told to do so. Consistent with police department policy, the K-9 officer explained what he was going to do with the dog. The defendant "became agitated" and asked why they "were doing all this." Sawatzke patted him down for weapons. Another police officer asked the defendant about "his intoxication level." Officer Sawatzke then attempted to explain the summons to the defendant. During this conversation, the dog conducted the open-air sniff around the van. The dog "alerted to" the van, and at that point the defendant was independently "detained" for a different suspected crime.3 The police searched the van and found a .38 caliber revolver.

In the defendant's motion to suppress the evidence found in the van, he argued that the detention to conduct the dog sniff violated his rights under the Fourth Amendment by extending the duration of the traffic stop in contravention of the decision of the Supreme Court of the United States in Rodriguez v. United States, 135 S. Ct. 1609 (2015). The prosecutor noted that Rodriguez provides that "the authority for [the] seizure ends when tasks tied to the traffic

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infraction are or reasonably should have been completed" and argued that Officer Sawatzke addressed the traffic stop the entire time. The circuit court granted the motion to suppress.


The Commonwealth challenges the circuit court's ruling granting the defendant's motion to suppress the evidence. It argues that the court erred by granting the motion based on a lack of evidence concerning the training and reliability of the police dog because that was not an issue litigated by the parties. Alternatively, the Commonwealth argues that the police use of the K-9 did not extend the detention beyond the permissible purposes of the traffic stop.

A. Basis for Circuit Court Order

The Commonwealth argues that the court based its ruling on an issue that was not properly before it. The Attorney General suggests that the circuit court did not rule on the Rodriguez issue that was raised in the defendant's motion and argued by the parties. We disagree.

In the motion to suppress, the defendant argued that the dog sniff was part of a separate investigation from the traffic stop and was conducted in a manner that extended the stop without a reasonable, articulable suspicion of an independent crime. He relied on the video to support his argument that the extended stop and K-9 open-air sniff violated the mandates of Rodriguez. The defendant suggested that once Officer Sawatzke finished writing the summons, he was required to proceed directly to the defendant and issue it. Instead, Sawatzke approached the Portsmouth officers and asked for the K-9. Defense counsel also suggested that any safety concerns based on the defendant's criminal history were not related to the traffic stop.

The prosecutor countered that the circuit court was required to conduct a "reasonableness analysis of the traffic stop" to determine whether the request for the K-9 and the execution of the open-air sniff fell outside the tasks associated with the traffic stop. The prosecutor suggested

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that during the entire time, Officer Sawatzke was engaged in activities associated with the traffic stop and processing the summons for the offense. He pointed out that a police dog was already present as the summons was being processed and Sawatzke took less than a minute to speak with the other officers about the additional criminal information and the request for the dog sniff. Relying in part on the video from the officer's body camera, the prosecutor recounted the events that followed, including the various brief discussions with the defendant as the K-9 circled the van. The prosecutor suggested based on the video that there was no point in time during which Officer Sawatzke was not "addressing the traffic stop." He argued that the stop was not extended by the officer's questions or actions and thus did not violate Rodriguez. The prosecutor asserted that Matthews v. Commonwealth, 65 Va. App. 334, 778 S.E.2d 122 (2015), was not controlling because in that case, the police officer asked questions unrelated to the purpose of the stop.

It is safe to say that based on this record, the Rodriguez challenge was squarely before the circuit court. At that point, after hearing argument, the court took a recess to review the Rodriguez opinion. Upon reconvening, it noted that the Supreme Court held in Rodriguez that the driver's Fourth Amendment rights were violated when the traffic stop was extended in order for law enforcement to conduct a "dog search." The court also discussed K-9 alerts in general, stating in part, "[T]he fact that the dog[] alerted could be used as a way to justify a search when there was, in fact, no alert, and I don't want to suggest that that occurred [here], but the issue certainly arises that it could be used as a ploy by overzealous law enforcement officers." The court further observed that "the Supreme Court has ruled on this exact issue," but the court opined that it "[did not] think that's the case at all [here]." Ultimately, the court ruled, "I find [the defendant's] motion is well-founded, and I am going to sustain his motion . . . to suppress."

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The Commonwealth filed a motion to reconsider the ruling. In its motion, the Commonwealth noted that the motion to suppress the evidence was based entirely on application of Rodriguez and the contention that the traffic stop was unreasonably extended to allow for a K-9 open-air sniff of the van. The prosecutor referenced the related testimony of Officer Sawatzke and the Portsmouth K-9 officer. He specifically suggested that "the Commonwealth understood the [c]ourt to [have found] that the officers [did] not act[] improperly in this investigation" and did "not unreasonably extend[] the encounter to perform a K9 sniff" in contravention of Rodriguez. According to the prosecutor, the circuit court's comments on the record made clear that it "rul[ed] that the search was illegal because, based on the K9 alert, officers would presumably be looking for narcotics[] but no narcotics were located." Ultimately, the prosecutor asked for the opportunity to provide evidence regarding the training, experience, and reliability of the narcotics detection dog because "the [c]ourt ha[d] raised...

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