                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Decker, AtLee and Malveaux
UNPUBLISHED


              Argued at Richmond, Virginia


              SHAYQUAN QUANTAE MARSHALL
                                                                           MEMORANDUM OPINION* BY
              v.     Record No. 2053-15-2                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                               DECEMBER 6, 2016
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                             Beverly W. Snukals, Judge

                               David B. Hargett (Hargett Law, PLC, on brief), for appellant.

                               Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     The Circuit Court of the City of Richmond (“trial court”) convicted appellant Shayquan

              Quantae Marshall for possession of cocaine with the intent to distribute, third or subsequent

              offense. On appeal, he contends the trial court erred in denying his motion to suppress because

              the officer unlawfully deviated from the stop in calling and assisting a K9 unit. For the

              following reasons, we find no error in the result and affirm.

                                                        I. BACKGROUND

                     “On appellate review, we are bound by the familiar principle that ‘we must consider the

              evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to

              the Commonwealth, the prevailing party below.’” Collins v. Commonwealth, 65 Va. App. 37,

              40, 773 S.E.2d 618, 620 (2015) (quoting Robinson v. Commonwealth, 273 Va. 26, 30, 639

              S.E.2d 217, 219 (2007)), aff’d, ___ Va. ___, 790 S.E.2d 611 (2016). So viewed, the evidence


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
reflects that on July 22, 2014 at approximately 11:30 a.m., Detective Milton was patrolling an

area “known for having a lot of street-level narcotics.” A vehicle, driven by Marshall, cut in

front of him. Milton pulled Marshall’s vehicle over for that traffic violation and for a dangling

object hanging from his rearview mirror. Detective Melton, who recognized Marshall from prior

drug arrests, happened to be nearby and witnessed the stop. Immediately after Milton stepped

away from Marshall’s vehicle to return to the patrol car, Melton, who was still in his patrol car,

advised Milton of Marshall’s criminal history. He mentioned that Marshall likely had narcotics

on his person, and recommended that Milton call a K9 unit. Milton radioed for a K9 unit as he

returned to his patrol vehicle. In the patrol car, he began checking the information he had

collected from Marshall. Consistent with the information Melton had provided, Marshall’s

“PISTOL”1 background check indicated that he was a “narcotics seller, user, probably armed, a

gang member.”

       Officer Robinson arrived at the scene with her drug-detection dog within five minutes of

Milton calling for a K9 unit. At the time Robinson was dispatched at 11:37 a.m.,2 she was a mile

away. She left the station at approximately 11:39 a.m. When she arrived, Milton had not yet

finished investigating the traffic infraction. She spoke with Milton for approximately3 a “couple

of minutes” in order to determine where Milton wanted her to run the dog. She removed the dog

from the vehicle and it “immediately” alerted on the driver’s side of the vehicle, where Marshall


       1
        “PISTOL” is a database that advises officers of the “nature of the contact” a suspect has
had with the Richmond Police Department, any prior arrests, and whether the suspect might be
armed.
       2
         Robinson testified she did not know what time the request was received; she only knew
the time she was dispatched to the scene. However, Robinson’s testimony regarding the time she
was dispatched is consistent with Milton’s recollection that she arrived no more than five
minutes after he requested a K9 unit.
       3
        On cross-examination, Robinson stated that she spoke with the officer at the scene for a
“couple of minutes,” “[g]ive or take a minute or two minutes.”
                                               -2-
was seated with the window open. The alert occurred at 11:44 a.m. After the alert, Marshall

admitted he had drugs on his person. Later, police found a clear plastic bag sewn into the fly of

his shorts. The bag contained multiple individually-wrapped portions of a substance later

determined to be crack cocaine.

                                            II. ANALYSIS

       For Fourth Amendment purposes, Marshall was seized throughout the duration of the

stop. “A ‘seizure that is justified solely by the interest in issuing a warning ticket to the driver

can become unlawful if it is prolonged beyond the time reasonably required to complete that

mission.’” Matthews v. Commonwealth, 65 Va. App. 334, 344, 778 S.E.2d 122, 127 (2015)

(quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). “The seizure remains lawful only ‘so

long as [unrelated] inquiries do not measurably extend the duration of the stop.’” Id. (alteration

in original) (quoting Arizona v. Johnson, 555 U.S. 323, 333 (2009)). Marshall argues that

Milton deviated from the traffic stop in three instances and that those deviations unlawfully

prolonged the stop: (1) Milton’s and Melton’s conversation about Marshall’s criminal history,

(2) the delay attributed to Milton calling for a K9 unit, and (3) Milton’s conversation with

Robinson upon her arrival.

       The stop here occurred prior to the United States Supreme Court decision in Rodriguez v.

United States, 135 S. Ct. 1609, 1615 (2015) (holding that during a lawful traffic stop, a police

officer “may conduct certain unrelated checks,” but “may not do so in a way that prolongs the

stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual”).

At the time of the stop in this case, binding precedent stated that there was no Fourth

Amendment violation if any deviations or delays unrelated to the traffic stop were “de minimis.”

Matthews, 65 Va. App. at 353, 778 S.E.2d at 132; Ellis v. Commonwealth, 52 Va. App. 220,

227, 662 S.E.2d 640, 643 (2008). Evidence obtained during a search conducted in reasonable

                                                 -3-
reliance on binding precedent at the time is not subject to the exclusionary rule. Davis v. United

States, 564 U.S. 229, 241 (2011) (describing this dimension of the “good faith” exception).

Therefore, we may assume without deciding that any delay here was unlawful under Rodriguez,

but nevertheless, the evidence should not be excluded so long as the delays unrelated to the

traffic offense were “de minimis.”4

       Whether the delays were de minimis presents “a mixed question of law and fact that we

review de novo on appeal.” McCain v. Commonwealth, 275 Va. 546, 551, 659 S.E.2d 512, 515

(2008). We are “bound by the trial court’s findings of historical fact unless plainly wrong or

without evidence to support them and we give due weight to the inferences drawn from those

facts by resident judges and local law enforcement officers.” Matthews, 65 Va. App. at 341-42,

778 S.E.2d at 126 (quoting McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259,

261 (1997) (en banc)). After considering each alleged deviation individually, and then in their

totality, we find that any extension of the stop caused by Milton’s investigation of a suspected

drug offense was only a de minimis delay. Thus, the evidence was admissible under the good

faith exception to the exclusionary rule.

                              A. Milton’s conversation with Melton

       The record is silent as to the exact amount of time that Milton and Melton spoke. The

trial court noted that either “just sort of in passing [Melton] yelled out to him” or “there was

some discussion as [Milton] was travelling to the squad car.” In either scenario, the conversation

was limited in scope and duration. It also coincided with Milton’s return to his patrol vehicle,


       4
         The trial court denied the motion to suppress because it found the stop lawful under
Rodriguez. We affirm the judgment not for that reason, but because this stop occurred prior to
the Rodriguez decision and was lawful under then-existing law. Thus, the exclusionary rule does
not apply. Debroux v. Commonwealth, 32 Va. App. 364, 371, 528 S.E.2d 151, 154 (2000) (“an
appellate court may affirm the judgment of a trial court when it has reached the right result” for a
reason other than the reason adopted by the appellate court (quoting Driscoll v. Commonwealth,
14 Va. App. 449, 452, 417 S.E.2d 312, 313 (1992))).
                                               -4-
which was part of the traffic stop. Furthermore, such a conversation advances the interest of

protecting officer safety, given that Melton had prior experience with Marshall, and Marshall’s

PISTOL profile indicated he was “probably armed” and “a gang member.” Ultimately,

characterizing this conversation as akin to Milton checking Marshall’s criminal history, the trial

court ruled that the initial conversation with Melton was not a “deviation” from the traffic stop.

We agree.

                                    B. Milton calling a K9 unit

       Second, Marshall challenges the delay caused by Milton’s call for a K9 unit. Viewing

the evidence in the light most favorable to the Commonwealth, Milton had already placed the

call before he returned to his patrol vehicle to run Marshall’s information. Because he needed to

return to the patrol car as part of the investigation into the traffic offense, the most reasonable

inference, viewing the evidence as we must, is that his placing this call en route did not result in

any measurable delay.

                                 C. Milton speaking with Robinson

       Third, Marhsall contends the traffic stop was interrupted when Milton got out of his

vehicle and spoke with the K9 officer, Robinson, upon her arrival. The trial court ruled that

there was “no evidence” that the time it took Robinson to arrive and speak with Milton “delayed

Milton in any way or that that didn’t coincide with the reasonable time that Milton took to do his

traffic investigation.” We cannot say this factual finding is plainly wrong or unsupported by the

evidence. Furthermore, Robinson testified that this conversation was quite limited in scope —

confined solely to determining where Milton wanted her to run the dog. Viewing the evidence in

the light most favorable to the Commonwealth, the conversation was at most two minutes long.




                                                 -5-
                               D. The alleged deviations as a whole

       Even if each alleged deviation, by itself, was de minimis, we must consider their

collective effect on the duration of the stop. Milton stopped Marshall at approximately

11:30 a.m. The record does not specify exactly how long Milton spoke with Melton, but shortly

after the exchange, Milton called for a drug dog. Robinson was contacted by dispatch at

11:37 a.m. She left from a police station approximately one mile away at roughly 11:39 a.m.

When she arrived shortly thereafter, Milton had nearly finished checking Marshall’s information

for the traffic offense. Robinson spoke with Milton briefly “to find out what they want me to

run,” which she estimated lasted a minute or two. She then removed her dog from her vehicle.

The dog “immediately” alerted to the vehicle at 11:44 a.m. The investigation into the traffic

offense had not concluded before the dog alerted.

       In sum, over the course of an approximate fourteen-minute period between the beginning

of the stop and the dog alerting, at most two to three minutes were attributable to investigating

the suspected narcotics offense. Although no binding case law presents these precise facts,

persuasive guidance indicates that this is a de minimis intrusion. See United States v. Mason,

628 F.3d 123, 132 (4th Cir. 2010) (finding that “one to two of the 11 minutes devoted to

questioning on matters not directly related to the traffic stop constituted only a slight delay that

raises no Fourth Amendment concern”); United States v. Alexander, 448 F.3d 1014, 1017 (8th

Cir. 2006) (upholding four-minute extension of a twenty-minute stop); United States v. Martin,

411 F.3d 998, 1002 (8th Cir. 2005) (stating that a “two minute delay . . . is a de minimis intrusion

on the driver’s personal liberty that does not violate the Fourth Amendment”); United States v.

Purcell, 236 F.3d 1274, 1279 (11th Cir. 2001) (affirming a three-minute delay during

fourteen-minute stop as de minimis).




                                                 -6-
       In Matthews, this Court addressed an analogous set of facts. During the course of a

traffic stop, the officer asked Matthews questions unrelated to the traffic offense, on topics such

as his travel history, criminal background, and whether his tattoos were “prison tattoos.” The

officer also questioned Matthews about drug use and why he appeared nervous. After taking

Matthews’s information, the officer returned to his cruiser to check it and to call a K9 unit. The

officer spent only “twenty to thirty seconds” speaking with Matthews about his prison tattoos,

and only about “ten seconds” calling the drug dog. We did not tally the total time devoted to

“non-traffic citation” deviations out of the total duration of the stop, but emphasized that the

“unrelated questions ‘were given in fairly quick order’” and that “the ‘whole process [was] just a

matter of minutes.’” Matthews, 65 Va. App. at 353, 778 S.E.2d at 132. We concluded that the

deviations were unlawful under Rodriguez, but were de minimis, and therefore lawful, prior to

Rodriguez. Accordingly, the exclusionary rule did not apply. Id.

       The delays here are similar to those in Matthews, consisting of two brief conversations

and a request for a K9 unit. Viewing the evidence in the light most favorable to the

Commonwealth, these delays amounted to, at most, two to three minutes. Accordingly, because

“the ‘whole process [was] just a matter of minutes,’” id., the deviations from the total length of

the traffic stop were de minimis. Because the search was lawful under the prevailing law of the

time, the exclusionary rule does not apply, and the trial court did not err in denying Marshall’s

motion to suppress.

                                         III. CONCLUSION

       The trial court did not err in denying Marshall’s motion to suppress, because any

deviation from the traffic stop was de minimis, and thus falls within the good faith exception to

the exclusionary rule. Accordingly, we affirm Marshall’s conviction.

                                                                                           Affirmed.

                                                -7-
