Sanders v. Commonwealth

• Decision Date: 26 May 2015
• Docket Number: Record No. 1386–14–1.
• Citation: 64 Va.App. 734,772 S.E.2d 15
• Parties: Andre Eugene SANDERS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

64 Va.App. 734

772 S.E.2d 15

Andre Eugene SANDERS

v.COMMONWEALTH of Virginia.

Record No. 1386–14–1.

Court of Appeals of Virginia, Norfolk.

May 26, 2015.

Charles E. Haden, Hampton, for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges HUMPHREYS, McCULLOUGH and DECKER.

Opinion

DECKER, Judge.

Andre Eugene Sanders entered conditional guilty pleas to four counts of drug possession and two counts of assault and battery of a law enforcement officer. On appeal, he contends that the warrantless use of a trained police dog to sniff for illegal drugs outside the door of his motel room on two separate occasions was an unreasonable search that violated his rights under the Fourth Amendment of the United States Constitution. We hold that the use of the drug detection dog in this case was not a search on either occasion. Consequently, we affirm the appellant's convictions.

I. BACKGROUND

In June 2012 and again in September 2012, Newport News police officers received an anonymous tip that a man staying in a particular motel room in the city had drugs in his possession. As part of their investigation on each occasion, officers took a drug detection dog to the motel and directed it to sniff for narcotics outside the room identified by the tipster. In each instance, the officers used the dog's positive alert as part of the basis for obtaining a search warrant for the room. Each search led to charges against the appellant for possession of marijuana, a second or subsequent offense, in violation of Code § 18.2–250.1, and possession of cocaine, in violation of Code § 18.2–250. Based on the appellant's actions during the second encounter, he was also charged with assault and battery of two of the officers present at the scene, in violation of Code § 18.2–57(C).

Prior to trial, the appellant filed a motion to suppress. He contended that each search of his motel room was unconstitutional because the probable cause for each warrant depended, in part, on the fact that a drug detection dog located directly outside his motel room door alerted to odors emanating from the room. He argued that the police needed a warrant prior to conducting the dog sniff. No testimony was offered at the suppression hearing. The court made its ruling after reviewing the affidavits supporting the search warrants, viewing photos of various parts of the motel, and entertaining the arguments of the parties.¹

One of the affidavits accompanying the June 7 warrant application represented that officers began their investigation based on an anonymous tip that a man staying in Room 236 of a particular motel was in possession of cocaine and a weapon. The tip further indicated that the man had a lot of money and was driving a red or burgundy Thunderbird.

Photographs of the motel showed the layout of the building. All motel room doors opened to an outside walkway that connected several different rooms located on the same floor. Room 236 was on the second floor of the motel. The walkway outside the second-floor rooms was bordered by a traditional, waist-high metal railing with thin vertical posts. The design of the railing was such that the walkway area and motel room doors and windows were fully visible from the adjacent parking lot.

Surveillance of Room 236 on June 7 confirmed that a man entered and then exited the room. While officers maintained surveillance on the room, the man drove away in a red Thunderbird. As the man returned to the area of the motel, detectives obtained probable cause to stop the vehicle and did so.²

Police identified the driver of the Thunderbird as the appellant and learned he was driving “with suspended tags” and a suspended license. As an officer prepared a summons for the appellant, another officer, Detective C.L. Brown, walked his drug detection dog, Whiskey, around the Thunderbird.

Whiskey “alert[ed]” to the odor of drugs “coming from the vehicle.” In a search of the car, police found marijuana residue. Additionally, a key to Room 236 was discovered on the appellant's person.

Detective Brown then walked Whiskey “around [several] rooms in the area of [Room 236].” Prior to “alert[ing] to room 236,” Whiskey sniffed “the bottom and side seams of the door jambs,” as well as the exhaust portion of the operating air conditioner that was ventilating the room. The room had been under constant surveillance since the appellant had departed it.

Based on this information, a third officer applied for and received a warrant that same day to search Room 236. The search yielded illegal drugs, drug paraphernalia, and cash.

Similar circumstances led to the search of a different room at the same motel about three months later, on September 12. The affidavit supporting the warrant application represented that on that date, police received information that the appellant was occupying and distributing narcotics from the room “immediately to the left of room 215.” The source also provided information that the appellant had United States currency, marijuana, cocaine, and firearms inside the room. Police confirmed that the appellant's criminal record contained “extensive history” involving the possession and distribution of illegal drugs and “previous violations” involving firearms. Police also knew that the information received that day came from “the same anonymous source” who had provided accurate information about the appellant for the June search warrant.

Prior to applying for a warrant on September 12, law enforcement confirmed that the appellant was a registered guest in Room 217, which was immediately to the left of Room 215 as the tip had indicated. Room 217, like Room 236, was a second-floor room adjacent to an external walkway that connected numerous rooms on one side and had the same type of open railing on the other side.

During the course of surveillance, the appellant was seen leaving Room 217. Detective Brown then led Whiskey to conduct “a free air sniff” outside the room, after which she sniffed “the bottom and side seams of the door jambs.” Whiskey gave “a positive alert to the presence of the odor of narcotics emanating from inside the room.” When the appellant returned to the room, detectives arrested him. The appellant waived his right to counsel and admitted that he had been smoking marijuana in the room. With this information—including the partially corroborated tip, the drug dog's alert, and the appellant's admission—police obtained a search warrant for Room 217. The search resulted in the discovery of illegal drugs.

The circuit court, after reading the warrant applications, viewing the photographs, and hearing argument, denied the motion to suppress. The court ruled that the warrantless use of the drug detection dog outside the motel rooms did not violate the appellant's reasonable expectation of privacy and, therefore, did not constitute a search. Accordingly, it concluded that the warrants were supported by probable cause and the searches inside the rooms were proper.

The appellant entered conditional guilty pleas to the six offenses. He was convicted and sentenced to serve twenty-eight years' incarceration, with twenty-two years suspended.

II. ANALYSIS

The appellant contends that the warrantless use of a trained narcotics detection dog to sniff for drugs outside the external door of his motel room on two separate occasions was an unreasonable search in light of the ruling of the Supreme Court of the United States in Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). The Commonwealth argues that a dog sniff outside a motel room is not a search for purposes of the Fourth Amendment. We hold that, under Jardines and other precedent, neither of the dog sniffs was a search. Consequently, we affirm the appellant's convictions.³

A. Overarching Legal Principles

On review of the denial of a motion to suppress, the appellant bears the burden of showing that the ruling, “ ‘when the evidence is considered most favorably to the Commonwealth, constituted reversible error.’ ” McGee v. Commonwealth, 25 Va.App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc ) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980) ).

The Fourth Amendment of the United States Constitution provides “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Since the Supreme Court's decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), “the touchstone” of Fourth Amendment analysis has been “the question whether a person has a ‘constitutionally protected reasonable expectation of privacy.’ ” Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740–41, 80 L.Ed.2d 214 (1984) (quoting Katz, 389 U.S. at 360, 88 S.Ct. at 516 (Harlan, J., concurring)), quoted with approval in Rideout v. Commonwealth, 62 Va.App. 779, 786, 753 S.E.2d 595, 599 (2014). As the Supreme Court has repeatedly made clear, however, the decision in Katz did not “ ‘snu[f] out’ ” the previously recognized protection for property; rather, Katz “established that ‘property rights are not the sole measure of Fourth Amendment violations.’ ” United States v. Jones, –––U.S. ––––, ––––, 132 S.Ct. 945, 951, 181 L.Ed.2d 911 (2012) (quoting Soldal v. Cook Cnty., 506 U.S. 56, 64, 113 S.Ct. 538, 545, 121 L.Ed.2d 450 (1992) ) (holding that attaching a GPS device to the bumper of a motor vehicle was a trespass to property and, therefore, an unconstitutional search). In fact, the Court has “embodied that preservation of past rights in [the] very definition of ‘reasonable expectation of privacy,’ ” which is “an expectation ‘that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’ ” Id. (quoting Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469,...