Whitehead v. Com.

• Decision Date: 18 September 2009
• Docket Number: Record No. 082458.
• Citation: 278 Va. 300,683 S.E.2d 299
• Parties: Travis Stacey WHITEHEAD v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

683 S.E.2d 299

278 Va. 300

Travis Stacey WHITEHEAD v. COMMONWEALTH of Virginia.

Record No. 082458.

Supreme Court of Virginia.

September 18, 2009.

David W. Cassidy, Assistant Public Defender, for appellant.

Joanne V. Frye, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice CYNTHIA D. KINSER.

In this appeal, we hold that a positive alert on a vehicle by a trained narcotics detection dog, combined with the subsequent fruitless searches of the vehicle, the driver, and two passengers, does not provide sufficient particularized probable cause to allow a search of the only remaining passenger in the vehicle. We will therefore reverse the judgment of the Court of Appeals holding that the search at issue did not violate the Fourth Amendment.

FACTS AND PROCEEDINGS

Around 3:00 P.M. on April 19, 2006, Officer Jay Quigley, who was employed by the City of Suffolk Police Department, stopped a vehicle for a traffic violation. The driver and three passengers occupied the stopped vehicle; Travis Stacey Whitehead was the "rear right passenger." Soon after the traffic stop, Officer J.B. Carr arrived on the scene with his certified narcotics detection dog, Xanto. Officer Carr and Xanto were qualified at trial, without objection, as a "drug detection unit" and Xanto was certified to detect the odors of marijuana, cocaine, heroin, and methamphetamine.

While the driver and the three passengers were still inside the vehicle, Officer Carr walked Xanto around the vehicle, starting at the rear on the passenger's side and proceeding to the driver's door where Xanto alerted by sitting and waiting for his reward. Xanto is trained to sit if he detects the odor of narcotics at his head height or above, and to lie down when the odor is at ground level. Officer Carr relayed to Officer Quigley the fact that Xanto had alerted on the vehicle. Other than advising the occupants that Officer Quigley would search the vehicle, Officer Carr and Xanto did not take any further action with respect to the vehicle or its occupants.

Upon learning from Officer Carr that Xanto had alerted on the vehicle, Officer Quigley directed the driver and the three passengers to exit the vehicle. He then searched the vehicle but found nothing. Officer Quigley next searched the vehicle's occupants, starting with the driver, then the front passenger, and finally the two individuals who were sitting in the back seat. The fourth and last person to be searched was Whitehead. Officer Quigley did not find any narcotics during his search of the first three occupants. However, when he searched Whitehead, Officer Quigley discovered what he described as "two syringes in [Whitehead's] right front pants pocket [and] in the same pocket was a paper towel [with] a beer bottle cap wrapped up in it." According to Officer Quigley, the bottle cap had "a burnt residue inside of it." Based on his training and experience, Officer Quigley believed that the residue was heroin. Subsequent forensic analysis of the bottle cap confirmed the residue was in fact heroin.

Whitehead was subsequently indicted for possession of "a Schedule I or II controlled substance, in violation of" Code § 18.2-250. As the case proceeded in the Circuit Court of the City of Suffolk, Whitehead filed a motion to suppress the evidence found on his person. At a hearing on the motion to suppress, Whitehead conceded that the alert by the narcotics detection dog on the vehicle gave the police officer probable cause to search the vehicle. However, Whitehead argued that the officer did not have probable cause to search the occupants of the vehicle "without some sort of individualized probable cause" as to each person.

With regard to Xanto's alert on the vehicle, the following information was elicited during Officer Carr's cross-examination by Whitehead's attorney:

Q. [Defense Counsel:] [Xanto has] been trained to [detect] the odor of narcotics?

A. [Officer Carr:] Yes, sir.

Q. Now, that doesn't always mean that there are narcotics strongly in the vehicle; is that correct?

A. That's correct.

Q. Sometimes there may be an old odor or something like that?

A. Yes, sir.

Q. But there is nothing found?

A. Correct.

. . . . .

Q. And when he searched the car — or the locations he alerts on, does that actually mean that that's the location of the drugs?

A. No. That's where he gets the odor from.

Q. Which means it's just where he's got the best airflow?

A. Yes, sir.

The circuit court denied Whitehead's motion to suppress, stating in its letter opinion:

I conclude, first, that the alert by the drug dog constituted probable cause to search the vehicle. When that search yielded no drugs, and the searches of the driver and two other passengers likewise yielded no drugs, I conclude that the arresting officer then had particularized probable cause to search the defendant, whether he had been arrested or not.

Whitehead subsequently entered a conditional guilty plea reserving his right to challenge on appeal the circuit court's denial of his motion to suppress. The circuit court found Whitehead guilty of the charged offense and sentenced him to five years incarceration, with three years and two months suspended.

The Court of Appeals of Virginia, in a published opinion, held that the circuit court did not err in denying the motion to suppress and thus affirmed Whitehead's conviction. Whitehead v. Commonwealth, 53 Va.App. 1, 7, 668 S.E.2d 435, 438 (2008). The Court of Appeals concluded that, "[e]ven if we assume arguendo that a trained dog's detection of the scent of drugs coming from an occupied car does not, of itself, provide sufficiently particularized probable cause to search each of the car's occupants for drugs, ... on these facts ... the search of Whitehead's person did not violate the Fourth Amendment." Id. at 5, 668 S.E.2d at 436-37. Continuing, the Court of Appeals stated:

In this case, the officers had probable cause to search the car following Xanto's alert. And, by the time the officers searched Whitehead, they had probable cause to search his person through the process of elimination. Each fruitless search—of the car and of the other occupants of the car—increased the likelihood that Whitehead possessed the odorous contraband detected by Xanto's trained nose. While it may have been more a result of luck rather than a profound understanding of the Fourth Amendment, we hold that by the time the officers searched Whitehead they possessed the necessary probable cause to justify the search.

Id. at 7, 668 S.E.2d at 438 (footnote omitted).¹

We granted Whitehead this appeal. In his sole assignment of error, Whitehead asserts the Court of Appeals erred in holding that the search of his person did not violate the Fourth Amendment.

DISCUSSION

On appeal, Whitehead does not challenge the lawfulness of the traffic stop or the fact that the police officer had probable cause to search the vehicle based on the positive alert by the narcotics detection dog. See Jones v. Commonwealth, 277 Va. 171, 180, 670 S.E.2d 727, 732 (2009) (a positive alert from a narcotics detection dog establishes probable cause to search a vehicle). Thus, the only issue in this case is whether, after the search of the vehicle and three of its four occupants revealed no contraband, the police officer then had probable cause to search Whitehead.²

The appellate standard of review applicable in this case is well settled:

In reviewing the denial of a motion to suppress evidence claiming a violation of a person's Fourth Amendment rights, we consider the facts in the light most favorable to the Commonwealth, the prevailing party at trial. The burden is on the defendant to show that the trial court committed reversible error. We are bound by the trial court's factual findings unless those findings are plainly wrong or unsupported by the evidence. We will review the trial court's application of the law de novo.

Malbrough v. Commonwealth, 275 Va. 163, 168-69, 655 S.E.2d 1, 3 (2008); accord Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002).

Relying on the rationale of the Court of Appeals, the Commonwealth argues that by the time the police officer searched Whitehead, the officer had the necessary probable cause to justify that search. Whitehead, however, asserts the positive alert by the narcotics detection dog provided probable cause to search only the vehicle and that there were no facts particularized as to him to establish probable cause that he was engaged in criminal activity. Our analysis of the issue before us is guided by the decisions of the Supreme Court of the United States in United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948), Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), and Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), and this Court's decision in El-Amin v. Commonwealth, 269 Va. 15, 607 S.E.2d 115 (2005).

In Di Re, an informant named Reed told an investigator that he was to buy "counterfeit gasoline ration coupons" from an individual named Buttitta at a particular location. 332 U.S. at 583, 68 S.Ct. 222. The investigator and a detective followed Buttitta's vehicle until it arrived at the appointed place. Id. The officers proceeded to the vehicle and found Reed, the only occupant of the rear seat, holding two gasoline ration coupons, which later proved to be counterfeit. Id. Reed stated he had obtained the coupons from Buttitta, who was sitting in the driver's seat. Id. Michael Di Re was sitting in the front seat beside Buttitta. Id. All three were taken into custody, frisked for weapons, and transported to the police station. Id. At the police station, Di Re complied with a request to empty the contents of his pockets. Id. Upon doing so, Di Re pulled out two gasoline and several fuel oil ration coupons. Id. Di Re was subsequently "booked" and another search at that time...