Hypes v. Commonwealth
| Decision Date | 06 September 2022 |
| Docket Number | 1227-21-3 |
| Parties | TRAVIS WAYNE HYPES, II v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF PULASKI COUNTY Bradley W. Finch, Judge.
Kimberly D. Sharp (Office of the Public Defender, on briefs) for appellant.
Leanna C. Minix, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.
Present: Judges AtLee, Friedman and Raphael Argued at Lexington, Virginia
STUART A. RAPHAEL JUDGE.
Travis Wayne Hypes, II, appeals his convictions for possessing a firearm as a previously convicted felon and for possessing a Schedule I or II controlled substance (methamphetamine). Hypes challenges the sufficiency of the evidence. He also claims that the firearm and methamphetamine found in the farm vehicle he was driving were the fruits of an illegal search. He argues that the officer who stopped him for a traffic violation prolonged the stop to call in the drug-sniffing dog that alerted to the narcotics in the vehicle. But we find no error in the trial court's conclusion that the officer did not prolong the stop. And we find that the evidence sufficed to support the convictions. So we affirm the judgment below.
On June 9, 2019, at about 12:15 a.m., Pulaski County Sheriff's Deputy Ethan Hodge was driving along a public highway in his marked vehicle when he saw a truck with farm-use tags make two lane changes, without signaling, to pass another vehicle. Hypes was driving the truck. Hodge activated his emergency lights, but Hypes did not stop. Instead, Hypes slowed down turned right, and continued about another quarter mile before stopping at a dead end. Hodge estimated that the truck had traveled a half mile before stopping.
Hodge radioed his office when he began the pursuit. That was at 12:20 a.m., according to the computer-aided dispatch (CAD) report. He did not contact his office when Hypes came to a stop, but Hodge estimated that that was "a couple minutes" later, around 12:22 or 12:23 a.m.
Hodge approached the vehicle and spoke with Hypes. An adult female sat in the passenger seat. At Hodge's request, Hypes presented his Virginia driver's license. When asked why he had taken so long to stop, Hypes said his windshield was fogged up and that he was turning off the roadway to clear it up. Hypes also said that he was driving to Walmart to purchase chicken feed. Hypes could not produce the vehicle's registration.
Hodge returned to his police vehicle to check Hypes's identification and to run a check on the truck's vehicle identification number (VIN). The dispatch center reported that Hypes's license had been suspended but that Hypes had not been notified of the suspension. It took longer to receive a response about the VIN. While he waited, Hodge told Hypes that his license had been suspended. Hodge asked if there were any illegal items in the truck, such as "narcotics" or "firearms," and he requested permission to search the vehicle. Hypes did not consent. He said that he was calling his lawyer and picked up his phone.
Hodge then returned to his vehicle to wait for the VIN information. While waiting, Hodge called for police backup and a K-9 unit. Hodge testified that he called for the K-9 unit "[b]ased on [Hypes's] defensiveness and basically just my right to do so."
Hodge received the VIN information around 12:28 a.m., at which point he started to prepare the summons for the improper-lane-change citation and the notice of suspension of Hypes's license. See Code § 46.2-416. Hodge's attention at first was divided between preparing the paperwork and watching Hypes and his passenger. But then Sergeant Owens arrived at 12:30 a.m., allowing Hodge to focus his full attention on the paperwork.
There was some dispute about when the K-9 unit arrived. The K-9 unit consisted of then-Corporal Chris Giampocaro and his drug-sniffing dog, Zeus. The CAD report showed that Giampocaro was dispatched to the scene at the same time he arrived, 12:41 a.m. But Giampocaro testified that he was one-and-a-half to two miles away when he received the call, so the CAD report was not accurate. Because Hodge was still preparing the summons and suspension notice, he did not realize that Giampocaro had arrived until he walked up to Hodge's vehicle.
According to the CAD report, the difference in time from when Hodge received the VIN information and Giampocaro's arrival was about twelve-and-a-half minutes. Hodge said that that was about how long it would usually take him to prepare the summons and the notice of suspension. He added there were "some extensive circumstances" here that made it take longer. For instance, he did not have a paper copy of the truck's registration; he had to refer to his computer instead, which "takes a little bit longer." On cross-examination, Hodge said that he needed the VIN for the summons and to check whether the truck was stolen, but he later admitted that he "did not need the VIN" and had not written it on the summons.
When Giampocaro arrived and spoke to Hodge, a conversation that lasted fifteen to thirty seconds, Hodge asked him to deploy Zeus, and Giampocaro agreed. At that point, Hodge was still preparing the summons and notice of suspension, so he did not track how long the dog sniff took. Hodge testified that he did not purposefully delay in writing the summons or the notice of suspension.
Giampocaro testified that Zeus took two passes around the vehicle and responded with a "positive alert." Giampocaro estimated that the time between his arrival and Zeus's alerts was a "[l]ittle over five minutes." In the meantime, Hodge completed the summons and the suspension notice. He testified that it took him "[a]t least thirteen" minutes to do so.
After Hodge presented the paperwork to Hypes and asked him to sign it, Giampocaro told Hodge that Zeus had alerted on the vehicle, prompting the officers to search the truck. Under the front passenger seat, they found a Ruger 9mm handgun and a glass pipe for smoking methamphetamine. In the backseat, they found a bag containing drug paraphernalia. The bag held a metal container monogrammed with Hypes's initials-"TWH II." Inside that container were measuring scales and a black bowl used for weighing substances. The black bowl contained a residue that a laboratory analysis identified as methamphetamine.
When Hodge asked who owned the gun, Hypes answered that it was not his passenger's. Hypes said he "had been recently jumped and was carrying the firearm for protection." When asked about the monogrammed metal container, Hypes responded that "he had cleaned out his residence and . . . was throwing those items away."
Hypes testified in support of the motion to suppress.[1] He claimed that after he provided his driver's license, Hodge went back to his vehicle. Hypes did not know how long Hodge stayed there. Hypes said that, when he returned, Hodge said he was giving him a summons for an illegal lane change and a written notification of license suspension. Hypes said that Hodge was about to hand him the summons, but Hodge pulled the papers back when Sergeant Owens arrived. Hypes didn't remember how long it took for the K-9 unit to arrive, but it was "a pretty good bit"-longer than five minutes. Hypes said he knew it was longer than five minutes because he called his mother and that call took thirty-five minutes.
The trial court denied the suppression motion, finding that Hodge had not prolonged the stop to enable the dog sniff. In explaining its ruling, the court noted that:
After the trial court overruled Hypes's motion to strike the Commonwealth's case-in-chief evidence, the defense called Hypes's mother. She testified that she had a concealed-carry permit and that the gun was hers. She said that she had ridden as a passenger in the truck and that she always put the gun under the seat.
Hypes returned to the witness stand. He testified that the truck was his employer's, he didn't know the gun was in the truck, and the gun was not his. Hypes claimed that the officers had misunderstood him. He meant that his mother and a previous co-worker were the ones who had been jumped and that they had the firearm for self-defense. Hypes also denied knowing that there was an "item in the backseat with narcotics on it." He claimed that he was getting rid of things in the bag that belonged to his former roommates. He denied telling the officers that the items were his. But when asked if he knew that anything in the bag was illegal, he said that he knew what the "scales and stuff" were "for, yes, but I did not know that it had residue on it, that's why I wanted to get it out of my house, because the house is in my name and I didn't wanna be in trouble if something were to happen later on."
The trial court denied the renewed motion to strike and found Hypes guilty of possessing methamphetamine and...
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