VA: Telling motorist drug dog is coming is a detention; no reasonable person would feel free to leave

Stop “became non-consensual when Sergeant Dimitry told Middlebrooks that a drug dog was coming to run his vehicle.” Middlebrooks v. Commonwealth, 2008 Va. App. LEXIS 376 (August 5, 2008):

We need not resolve whether Officer D’Orio seized Middlebrooks when he asked Middlebrooks to step out of his vehicle because no evidence was obtained from Middlebrooks at that time. However, it is clear that once Sergeant Dimitry told Middlebrooks, “I just want to let you know I’m going to call the drug dog out. I’m going to have him run your car,” no reasonable person would have felt free to leave.

The facts of this case are similar to Deer v. Commonwealth, 17 Va. App. 730, 441 S.E.2d 33 (1994). In Deer, appellant was pulled over by a police officer and given a citation for speeding. Id. at 732, 441 S.E.2d at 34-35. Appellant’s nervous behavior made the officer suspicious, and he asked permission to search appellant’s vehicle. Id. After appellant declined consent to search, “[the officer] said he would detain the vehicle and call for a K-9 drug unit … [and] that [appellant] might have to wait for up to an hour for the unit to arrive.” Id. Once the officer stated his intention to call in a drug dog, appellant consented to the search. Id.

We held that although the initial seizure was properly based on probable cause that appellant had committed a traffic offense, “the continued detention of [appellant] and the vehicle [after the officer issued the citation for speeding] required additional justification to satisfy the requirements of the Fourth Amendment.” Id. at 736, 441 S.E.2d at 37. “[The officer] effected a seizure by stating that he would detain the vehicle for up to an hour to await the arrival of a K-9 unit. If that seizure was not based upon an articulable suspicion that [appellant] was involved in criminal activity, [appellant]’s further detention was illegal.” Id. (emphasis added). We concluded the officer failed to have a reasonable, articulable suspicion that appellant was engaged in criminal activity and, therefore, the seizure violated the Fourth Amendment. Id.