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
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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
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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.
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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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