Jones v. Com.

• Decision Date: 16 January 2009
• Docket Number: Record No. 080374.
• Citation: 277 Va. 171,670 S.E.2d 727
• Parties: Fairley D. JONES v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

670 S.E.2d 727

277 Va. 171

Fairley D. JONES v. COMMONWEALTH of Virginia.

Record No. 080374.

Supreme Court of Virginia.

January 16, 2009.

Crystina Kowalczyk O'Brien, Assistant Public Defender, for appellant.

Leah A. Darron, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice LEROY F. MILLETTE, JR.

In this appeal from a defendant's conviction for possession of a firearm by a convicted felon in violation of Code § 18.2-308.2, we consider whether a positive alert from a narcotics detection dog was sufficiently reliable to establish probable cause to conduct a search of a vehicle. We also consider whether the evidence was sufficient to establish that an alleged firearm was designed, made, and intended to expel a projectile by means of an explosion.

BACKGROUND

On August 23, 2006, Officer Keith Tucker, a Hampton police officer, was patrolling an area of Hampton known for narcotics and weapons violations. When Officer Tucker passed a car traveling from the opposite direction, the car "immediately started to pull over to the side of the road." Officer Tucker "ran" the vehicle's license plate number through the Division of Motor Vehicles and found that the license plate number was not registered to the vehicle. Officer Tucker notified members of a special investigations unit who were conducting "street level narcotics interdiction" in the area that he was stopping a vehicle for improper registration.

After Officer Tucker initiated the stop, he asked the driver, Fairley D. Jones, for his driver's license. After several requests, Jones gave Officer Tucker his North Carolina driver's license. Officer Tucker then told Jones to sit on the ground because Jones' failure to cooperate and nervous behavior indicated to Tucker that "some type of criminal activity was taking place."

While Officer Tucker was walking back to his patrol car to initiate a driver's license check, he summoned a canine officer to the scene. The canine officer, Officer Soriano, arrived within three to five minutes of the request.¹ Officers Wisniewski, Warren, and Hawkins of the "street team" were also present at the scene.

Upon arriving, Officer Soriano walked his narcotics detection dog around the vehicle. The dog gave a "positive alert" on the driver's side door. Officer Soriano described the dog's alert as: "He does an aggressive alert. I've tried to tone him back a bit, because sometimes he tears up the cars. So, as soon as he gave me the alert with the paw, he kind of jumped up on the door a little bit, [and] I pulled him down." Based upon the dog's alert, officers searched the passenger compartment of the vehicle and found a small amount of green leafy material that the officers believed to be marijuana embedded in the driver's side floorboard.

Officer Wisniewski then searched the trunk of the vehicle and found a loaded firearm. After retrieving the firearm, Officer Wisniewski "[m]ade the weapon safe, unloaded it, [and] collected it." After Officer Wisniewski gave Jones his Miranda warnings and confirmed that Jones was a convicted felon, he asked Jones "where he had got the gun from." Jones responded, "on the street."

Prior to trial, Jones filed a motion to suppress the firearm and statements that he made to the police after the search. Jones argued that the narcotics detection dog alert was not proven sufficiently reliable to establish probable cause to search his car. Jones conceded that the dog was trained in narcotics detection, but asserted that the Hampton police department had no "fail safe" mechanism to test the dog's success rate for alerting to narcotics versus non-narcotics. Without such a system in place, Jones argued that the Commonwealth should have introduced data to establish the dog's reliability in detecting narcotics.

The trial court denied Jones' motion to suppress both the firearm and statements that he made concerning the firearm. At the conclusion of the Commonwealth's evidence and at the conclusion of the trial, Jones renewed his suppression motion and moved to strike the Commonwealth's evidence, arguing that the Commonwealth failed to prove the alleged firearm was capable of expelling a projectile by means of an explosion. The trial court convicted Jones and sentenced him to five years imprisonment with three years suspended.

Jones appealed his conviction to the Court of Appeals, which denied Jones' petition by order. The Court of Appeals concluded that based upon the evidence of the narcotics detection dog's reliability, the trial court properly found that the dog's alert established probable cause to search the car. In addition, the Court of Appeals found that the evidence concerning the gun, while circumstantial, was sufficient for the trial court to conclude that the gun was "an instrument which was designed, made, and intended to expel a projectile by means of an explosion." Jones v. Commonwealth, Record No. 1190-07-1 (February 4, 2008). We granted Jones this appeal.

ANALYSIS

I. Motion to Suppress

Jones contends that the trial court erred by not suppressing the alleged firearm and statements as having been obtained in violation of his rights under the Fourth Amendment. Jones asserts that an alert by a narcotics detection dog, which was the method for establishing probable cause to search the vehicle, was insufficient to meet a presumption of reliability because of the lack of evidence concerning the dog's testing, training, and oversight.²

Jones concedes that at the suppression hearing, Officer Soriano testified that his narcotics detection dog had received training for narcotics detection. Nevertheless, Jones argues that the Hampton Police Department had no system that tested the reliability of the dog's alerts by collecting data on the dog's success rate for detecting narcotics versus non-narcotics.

Jones contends that the Commonwealth should have performed "backwards checks" on substances examined by a laboratory to determine whether the dog had falsely alerted on substances that were not illegal. In the absence of such a mechanism to determine the narcotics detection dog's reliability, Jones asserts that the dog had not been proven to be sufficiently reliable.

On appeal, Jones expands the scope of his argument made at the suppression hearing to include the lack of evidence of certification and field activity reports. Jones argues that the Commonwealth's evidence concerning the narcotics detection dog's specific training and certification, and the dog's track record for reliability, is insufficient to establish the probable cause necessary to justify the search of the vehicle, and therefore, the evidence obtained from the vehicle should be suppressed.

In response, the Commonwealth asserts that a positive alert from an experienced and trained narcotics detection dog is sufficient to establish probable cause. According to the Commonwealth, the evidence in this case concerning the narcotics detection dog's training and experience establishes the dog's reliability. The Commonwealth argues that it would be inappropriate to require "mini-trials" on the dog's training and performance before an officer could rely on his trained dog's alerts. The Commonwealth further asserts that it does not have the burden of producing field work records or other detailed training records in order to establish a narcotics detection dog's reliability.

In regard to reviewing a trial court's decision to deny a motion to suppress, we recently stated:

A defendant's claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that we review de novo on appeal. Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002); see Bolden v. Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704 (2002); McCain v. Commonwealth, 261 Va. 483, 489, 545 S.E.2d 541, 545 (2001); see also Ornelas v. United States, 517 U.S. 690, 691, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). In making such a determination, we give deference to the factual findings of the circuit court, but we independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment. Bolden, 263 Va. at 470, 561 S.E.2d at 704; McCain, 261 Va. at 490, 545 S.E.2d at 545; Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000). The defendant has the burden to show that, considering the evidence in the light most favorable to the Commonwealth, the trial court's denial of his suppression motion was reversible error. Bolden, 263 Va. at 470, 561 S.E.2d at 704; McCain, 261 Va. at 490, 545 S.E.2d at 545; Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980).

McCain v. Commonwealth, 275 Va. 546, 551-52, 659 S.E.2d 512, 515 (2008).

"[P]robable cause exists when `there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Grubbs, 547 U.S. 90, 95, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The Supreme Court has held that "the use of a well-trained narcotics-detection dog—one that `does not expose noncontraband items that otherwise would remain hidden from public view,'—during a lawful traffic stop, generally does not implicate legitimate privacy interests." Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (quoting United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)) (internal citation omitted).

When the validity of a search depends on information supplied by others to the officers on the scene, the officers' training and experience is relevant, and the totality of circumstances bearing upon the credibility and weight of information supplied to the officers must be assessed. See, e.g., Cost v. Commonwealth, 275 Va. 246, 251, 657 S.E.2d 505, 507 (2008) (...