VA: Use of drug dog at safety checkpoint was valid under Caballes

Dog sniff of a vehicle at a safety checkpoint was valid where the vehicle was already validly stopped and was not extended. Wright v. State, 2008 Va. App. LEXIS 347 (July 8, 2008):

However, Wright also contends that the subsequent search of her vehicle, resulting from the trained narcotics-detection dog’s alert, violated her Fourth Amendment rights. Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005), governs our inquiry. In Caballes, an officer lawfully stopped a vehicle for speeding. Id. at 406. While the vehicle was pulled over and the officer was writing a ticket, a second officer arrived at the scene and walked around the vehicle with his trained narcotics-detection dog. Id. The dog alerted on the vehicle, wherein the officers’ subsequent search revealed marijuana. Id. The Court held the Fourth Amendment does not require “reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop … [o]fficial conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Id. at 407-08 (quoting United States v. Jacobsen, 466 U.S. 109, 123, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984)). Regarding the appellant’s claim that the dog sniff amounted to an unconstitutional search of his car, the Court found “any interest in possessing contraband cannot be deemed ‘legitimate,’ and thus, governmental conduct that only reveals the possession of contraband ‘compromises no legitimate privacy interest.'” Id. at 408 (quoting Jacobsen, 466 U.S. at 123). Therefore, the Court ruled, “the use of a well-trained narcotics-detection dog–one that ‘does not expose noncontraband items that otherwise would have remained hidden from public view,’ during a lawful traffic stop, generally does not implicate legitimate privacy interests.” Id. at 409 (quoting United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983)); see also City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000) (“The fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search.” (citing Place, 462 U.S. at 707)); Brown v. Commonwealth, 15 Va. App. 1, 6, 421 S.E.2d 877, 880-81, 9 Va. Law Rep. 167 (1992) (en banc) (“Nothing in the Fourth Amendment prohibits a law enforcement officer from using trained canines to augment the sensory faculties bestowed on the officer at birth.” (citing United States v. Lewis, 708 F.2d 1078, 1080 (6th Cir. 1983))).

Wright’s Fourth Amendment protection against unreasonable searches was not violated because the trained narcotics-detection dog’s sniff was not a search. The checkpoint was operated in a constitutionally valid manner, and all vehicles subject to the checkpoint were legally stopped. The seizure of Wright by Officer Jones was based on probable cause that she had committed a traffic infraction, and Wright’s counsel conceded during appellate argument that the seizure was lawful. In accordance with Caballes, the subsequent canine sniff of Wright’s vehicle did not prolong the time reasonably required by Officer Jones to write a summons due to the defective brake light. Additionally, we uphold the trial court’s finding that the narcotics-detection dog’s sniff and subsequent alert for drugs was sufficiently reliable to create the requisite probable cause necessary to permit a search of the vehicle and its passengers. Therefore, the narcotics-detection dog legally sniffed Wright’s vehicle and the resulting search that uncovered the crack-cocaine pipe was constitutional.

Comment: And this court seems oblivious to the fact that the use of the dog converts the checkpoint into a safety-drug checkpoint, and a drug checkpoint is not valid. Apparently if it is valid for one purpose (e.g., also a DUI or area entry checkpoint (such as an airport)), it is valid for all, as long as the motorist was not otherwise detained.