Jones v. Com.

PRESENT: All the Justices

FAIRLEY D. JONES
OPINION BY
v. Record No. 080374 JUSTICE LEROY F. MILLETTE, JR.
January 16, 2009
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

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

1
There is no issue concerning the lawfulness of the
initial seizure or whether the duration of the stop was
entirely justified by the traffic offense and the ordinary
inquiries incident to such a stop.

2
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.

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 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

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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

2
There is no issue as to the scientific basis underlying
canine olfactory ability. See Spencer v. Commonwealth, 240 Va.
78, 97, 393 S.E.2d 609, 621 (1990) (explaining that “[w]hen
scientific evidence is offered, the court must make a threshold
finding of fact with respect to the reliability of the
scientific method offered, unless it is of a kind so familiar
and accepted as to require no foundation to establish the
fundamental reliability of the system”).

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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.

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 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
(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

(2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (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

7
public view,’– during a lawful traffic stop, generally does not

implicate legitimate privacy interests.” Illinois v. Caballes,

543 U.S. 405, 409 (2005) (quoting United States v. Place, 462

U.S. 696, 707 (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) (totality of the circumstances, in determining

whether an officer has sufficient probable cause, includes “a

consideration of the officer’s knowledge, training and

experience”); Harris v. Commonwealth, 241 Va. 146, 149, 400

S.E.2d 191, 193 (1991) (in determining whether the officer has

reasonable articulable suspicion, “ ‘due weight must be given

. . . to the specific reasonable inferences which he is

entitled to draw from the facts in light of his experience’ ”

(quoting Terry v. Ohio, 392 U.S. 1, 27 (1968))); Hollis v.

Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889 (1976) (in

determining whether probable cause exists, we focus on “what

the totality of the circumstances meant to police officers

trained in analyzing the observed conduct for purposes of crime

control”).

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 While “no mathematical formula . . . can be applied in

deciding whether a search . . . is supported by probable

cause,” Tamburino v. Commonwealth, 218 Va. 821, 824, 241 S.E.2d

762, 764 (1978), the standard of reasonableness, “tested and

interpreted in a common sense and realistic fashion[,]” id.,

suggests that the factors include an awareness by the officers

of the underlying circumstances in which the information arose,

to assess the reliability of the information source. See

Manley v. Commonwealth, 211 Va. 146, 149-51, 176 S.E.2d 309,

312-13 (1970). Indeed, as we have previously explained in an

analogous situation involving whether an informant’s tip was

sufficiently reliable to establish probable cause:

[T]he [United States] Supreme Court has defined
and we have consistently applied a “two-prong
test” for determining probable cause to search
and seize; to establish probable cause based
upon an informant's tip, the prosecution must
show “underlying circumstances” sufficient to
support the informant’s conclusions and the
conclusion of the police that the informant “was
‘credible’ or his information ‘reliable’.”

Wright v. Commonwealth, 222 Va. 188, 191, 278 S.E.2d 849, 851

(1981) (citation omitted).

Thus, in formulating a standard to establish the

reliability of narcotics detection dogs, we are guided by the

principles applicable to establishing the reliability of

informants. When the factual basis for probable cause or

9
reasonable suspicion is provided by an informant, that person’s

reliability and basis of knowledge are two of the “highly

relevant” factors in the overall totality of the circumstances

analysis. Gates, 462 U.S. at 230, 233. The opportunity to

observe and the certainty expressed by the supplier of

information in reporting facts to the police bear on the

showing of reliability needed to support probable cause.

McCary v. Commonwealth, 228 Va. 219, 227-28, 321 S.E.2d 637,

641 (1984). Also, the information supplier’s history of

reliability is relevant. See, e.g., Wright, 222 Va. at 190-91,

278 S.E.2d at 851-52 (observing that “[w]hen . . . an informant

has a record of furnishing reliable reports, an officer is

justified in crediting a new report without engaging in a

statistical balancing act”); Manley, 211 Va. at 150, 176 S.E.2d

at 313 (explaining that “[t]he most commonly accepted and

approved allegation to substantiate reliability is that the

informer is a person of known and proven reliability and has

furnished information to law enforcement officers which has

been instrumental in procuring convictions”).

In the case of dog alert information, the qualification of

the handler to recognize responses by the dog, as well as the

dog’s training and experience are relevant. See Hetmeyer v.

Commonwealth, 19 Va. App. 103, 109, 448 S.E.2d 894, 898 (1994).

For trial testimony, the foundation relating to dog alert

10
testimony “ must establish the appropriate training and

reliability of the dog in the detection of specific drugs by

odor and the witness handler’s expertise in interpreting the

dog’s behavior, together with circumstances conducive to a

dependable scent identification by the animal and a credible

evaluation of its related behavior.” Id. at 109-10, 448 S.E.2d

at 898. In the field, the officers’ awareness of such factors

bears directly on the existence of probable cause to search.

We find guidance in Epperly v. Commonwealth, 224 Va. 214,

233, 294 S.E.2d 882, 893 (1982), in which this Court enunciated

the standard regarding the admission of dog-tracking evidence.

We held:

[D]og-tracking evidence is admissible in a
criminal case after a proper foundation has been
laid to show that the handler was qualified to
work with the dog and to interpret its
responses, that the dog was a sufficiently
trained and proven tracker of human scent . . .

(Emphasis added).

Although a question of first impression in Virginia,

courts in other jurisdictions have considered the admissibility

of evidence obtained as a result of an alert by a narcotics

detection dog. In a number of jurisdictions, while

certification may be a factor considered, the focus of the

inquiry is upon the training and reliability of the narcotics

detection dog. See United States v. Berry, 90 F.3d 148, 153

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(6th Cir. 1996); United States v. Lingenfelter, 997 F.2d 632,

639 (9th Cir. 1993); United States v. Meyer, 536 F.2d 963, 965-

66 (1st Cir. 1976); State v. England, 19 S.W.3d 762, 768 (Tenn.

2000); State v. Barker, 850 P.2d 885, 893-94 (Kan. 1993); see

also South Dakota v. Nguyen, 726 N.W.2d 871, 875-77 (S.D. 2007)

(discussing various jurisdictions’ approaches to establishing

the reliability of narcotics detection dogs).

We hold that a positive alert from a narcotics detection

dog establishes probable cause to conduct a search of a vehicle

and that evidence seized during the search is admissible after

a proper foundation has been laid to show that the dog was

sufficiently trained to be reliable in detecting narcotics.

The narcotics detection dog’s reliability can be established

from its training and experience, as well as a proven track

record of previous alerts to the existence of illegal

narcotics. Specific certifications and the results of field

testing are not required to establish a sufficient foundation.

However, if the dog’s qualifications are challenged, the trial

court may consider any relevant evidence in determining whether

the Commonwealth has established the dog’s reliability in

detecting narcotics.

Applying these principles, we conclude that the trial

court did not abuse its discretion in holding the narcotics

detection dog’s training and experience sufficient to establish

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the dog’s reliability for purposes of supporting a finding of

probable cause. Officer Soriano testified at length regarding

his narcotics detection dog’s qualifications. Officer Soriano

stated that his dog was specially trained before he took

custody of the dog, and that he and the dog train for eight

hours every two weeks for both narcotics and utility work.

During this training, Officer Soriano uses the scents of

marijuana, cocaine, methamphetamines, and heroin. Furthermore,

his dog has been with the police department for four and a half

years, and has received training at the Virginia Police Work

Dog Association. Officer Soriano has also made over 50

marijuana arrests with his dog alone. Additionally, Officer

Soriano testified that his dog would not give a positive alert

to substances of similar appearance and strong odor, such as

oregano, which humans might erroneously perceive to be

marijuana.

Officer Soriano did concede on cross-examination that the

Hampton police department does not perform “backwards checks”

to quantify the number of times that the dog correctly alerts

in the field. However, the trial court properly held that the

police department’s failure to conduct back checks did not

negate the dog’s reliability. 3 Considering the evidence of the

3
Also, it should be noted that “backwards checks” are not
necessarily a helpful way of determining whether a narcotics

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narcotics detection dog’s training, experience, and reliability

in the light most favorable to the Commonwealth, the trial

court’s denial of Jones’ motion to suppress was not an abuse of

discretion.

II. Sufficiency of the Evidence

Jones does not challenge his status as a convicted felon

under Code § 18.2-308.2. Rather, he contends that the

Commonwealth failed to prove that the item found in his truck

was a “firearm,” which is defined as any instrument designed,

made, and intended to expel a projectile by means of an

explosion, even though the Commonwealth does not need to prove

the instrument was “operable,” “capable” of being fired, or had

the “actual capacity to do serious harm.”

Jones argues that the evidence is insufficient as a matter

of law, and that the Commonwealth only established that the

firearm appeared, by all outward appearances, to be a firearm.

Jones argues that the firearm was admitted into evidence over

his objection. Jones asserts there was no testimony offered as

detection dog is reliable because the dogs alert to the odor of
narcotics, not the presence of narcotics. See, e.g., Robert C.
Bird, An Examination of the Training and Reliability of the
Narcotics Detection Dog, 85 Ky. L.J. 405, 409 (1997) (dogs
“have the ability to detect the smallest traces of odors”). Of
course, the scent of drugs may remain in an area after the
contraband itself is removed. In this case, Officer Soriano
testified that the dog gave a positive alert on the seam of the
driver’s door, without an opportunity to alert specifically on
the suspected marijuana located inside the car.

14
to the nature or character of the firearm, and there was no

testimony concerning the make, model, or type of the firearm

admitted into evidence. Jones argues that the Commonwealth did

not present an expert witness or a certificate of analysis from

a laboratory that the weapon was examined or fired by a weapons

technician. Finally, Jones contends there was no forensic

examination offered concerning whether the instrument was

designed, made, and intended to expel a projectile by means of

an explosion.

The Commonwealth responds that the judgment is not plainly

wrong or without evidence to support it, and that a rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. The evidence presented

included the observations of the officer who seized the

firearm, Jones’ acknowledgement when questioned about the

seized “gun” that he purchased it “on the street,” and the

trial court’s examination of the gun, ammunition magazine, and

bullets at trial.

When a defendant challenges the sufficiency of the

evidence, the Court reviews the evidence in the light most

favorable to the Commonwealth, drawing all reasonable

inferences in its favor as the prevailing party below. Perez

v. Commonwealth, 274 Va. 724, 728, 652 S.E.2d 95, 97 (2007).

The judgment of the trial court will only be reversed if it is

15
plainly wrong or without evidentiary support. Id. “The issue

upon appellate review is ‘whether, after reviewing the evidence

in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’ ” Maxwell v. Commonwealth,

275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original).

Code § 18.2-308.2 proscribes the possession of a firearm

by a convicted felon. In Armstrong v. Commonwealth, 263 Va.

573, 584, 562 S.E.2d 139, 145 (2002), this Court held that “in

order to sustain a conviction for possessing a firearm in

violation of Code § 18.2-308.2, the evidence need show only

that a person subject to the provisions of that statute

possessed an instrument which was designed, made, and intended

to expel a projectile by means of an explosion. It is not

necessary that the Commonwealth prove the instrument was

‘operable,’ ‘capable’ of being fired, or had the ‘actual

capacity to do serious harm.’ ” Id.

The firearm, ammunition magazine, and bullets that Officer

Wisniewski recovered from Jones’ vehicle were introduced as

evidence at Jones’ trial. Jones’ statement that he bought the

gun “on the street” was also introduced. Officer Wisniewski

testified that the item recovered from Jones’ trunk was a

“firearm,” and he described how he unloaded the firearm and

16
“made it safe.” The trial judge, while holding the firearm,

stated: “This is a real gun. . .[A]lso part of the evidence

are real bullets along with [an ammunition] clip. This is a

gun.”

The trial court’s judgment was not plainly wrong, as the

evidence, viewed in the light most favorable to the

Commonwealth, was sufficient to prove beyond a reasonable doubt

that the item recovered from Jones’ vehicle was designed, made,

and intended to expel a projectile by means of an explosion.

Accordingly, the judgment of the Court of Appeals is

affirmed.

Affirmed.

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