Ellis v. Com., Record No. 1410-07-1.

• Docket Nº: Record No. 1410-07-1.
• Citation: 662 S.E.2d 640, 52 Va. App. 220
• Case Date: July 01, 2008
• Court: Court of Appeals of Virginia

662 S.E.2d 640 52 Va. App. 220 Gloria Jean ELLIS
v.
COMMONWEALTH of Virginia. Record No. 1410-07-1. Court of Appeals of Virginia, Chesapeake. July 1, 2008.

[662 S.E.2d 641]

Aleasa D. Leonard, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

J. Robert Bryden, III, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: KELSEY, HALEY and BEALES, JJ.

KELSEY, Judge.

52 Va. App. 222

In the trial court, Gloria Jean Ellis entered a conditional guilty plea to a charge of possession of cocaine. On appeal, Ellis argues the trial court erroneously failed to suppress the evidence of cocaine found on her person during a traffic stop. We disagree with Ellis and affirm her conviction.

I.

We address legal issues arising from a suppression motion "only after the relevant historical facts have been established." Raab v. Commonwealth, 50 Va.App. 577, 579, 652 S.E.2d 144, 146 (2007) (en banc) (citation omitted). On

52 Va. App. 223

appeal, the facts developed in the trial court must be reviewed "in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences." Glenn v. Commonwealth, 49 Va.App. 413, 416, 642 S.E.2d 282, 283 (2007) (en banc) (citation omitted), aff'd, 275 Va. 123, 654 S.E.2d 910 (2008).

Viewed from that perspective, the evidence showed that a police officer observed a pickup truck with an inoperative brake light. He stopped the vehicle at 6:19 p.m. The officer got out of his vehicle and walked up to Ellis, the driver, to ask for her license and to inform her of the inoperative brake light. Intending to issue Ellis a summons, the officer returned to his vehicle and conducted the routine process of identifying Ellis on the computer databases maintained by the Virginia Division of Motor Vehicles (DMV) and the National Crime Information Center (NCIC). From the initial stop to the point when the officer returned to his vehicle took about a minute and a half.

While he waited for the computer results, the officer recalled that Ellis and her passenger had a "previous narcotics history." Specifically, the officer remembered seeing Ellis at a house searched for narcotics pursuant to a warrant a week earlier. After about another minute and a half, the officer then walked back to Ellis's vehicle and asked her if she would consent to a search of her vehicle. She said no. The officer asked, "Do I have to get a drug dog?" She answered, "go ahead and get the drug dog." This conversation took about a minute.

On his way back to his vehicle, the officer called for a canine narcotics unit to assist him. He then got back into his vehicle to complete the process of filling out the necessary paperwork to issue the summons for the equipment violation. The officer had just finished the first line of the summons when his partner alerted him to "a bunch of movement in the car." The officer left his vehicle and again spoke with Ellis, advising her and her companion to "calm down" and stop the commotion. During this conversation, the

662 S.E.2d 642

canine narcotics unit arrived.

52 Va. App. 224

About five minutes elapsed between the officer's call for a canine narcotics unit and its arrival on the scene. During this five-minute period, the officer testified he was preparing the paperwork necessary to issue the summons and had not turned his attention to investigating "suspected narcotics activity."

After two minutes on the scene, the "drug dog" — a dog specially trained to detect the smell of illegal narcotics — alerted multiple times to the presence of drugs in Ellis's vehicle. The officers asked Ellis if she would consent to a search of her person. She agreed so long as a female officer conducted the search. A female officer already on the scene searched Ellis and discovered cocaine.

Before trial, Ellis moved to suppress the cocaine evidence claiming that her consent to search was tainted by an unreasonably long detention. The trial court denied the motion, ruling that the officer was "attempting to complete the defendant's citation during the length of the encounter" and the detention "was not unreasonably long, so as to violate the defendant's Fourth Amendment rights." In response, Ellis entered a conditional guilty plea and appealed the denial of the suppression ruling.

II.

On appeal, Ellis does not argue that her consent was involuntary or in any way coerced. Nor does she contest the officer's authority to detain her for purposes of issuing an equipment summons. Ellis also accepts that, when a traffic stop is "lawful at its inception and otherwise executed in a reasonable manner," a dog sniff conducted during the stop does not infringe on a constitutionally protected privacy interest. Illinois v. Caballes, 543 U.S. 405, 408, 125 S.Ct. 834, 837, 160 L.Ed.2d 842 (2005). The suppression motion should have nonetheless been granted, Ellis argues, because the officer "abandoned his original purpose for the traffic stop and began

52 Va. App. 225

a narcotics investigation without reasonable suspicion," resulting in an unlawfully delayed detention. Appellant's Br. at 2.¹

As Ellis concedes on appeal, however, the only period of delay attributable to the drug issue was the one-minute conversation the officer had with Ellis after he remembered seeing her about a week earlier at a home searched for narcotics. All other time segments — the initial conversation immediately after the stop, the time the officer sat in his...