PRESENT: All the Justices

DANIEL PAUL OPRISKO
                                                                     OPINION BY
v. Record No. 151450                                        JUSTICE S. BERNARD GOODWYN
                                                                    February 9, 2017
DIRECTOR OF THE DEPARTMENT
OF CORRECTIONS


             FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                               C. Peter Tench, Judge

       In this appeal, we consider whether the habeas court erred in determining that the rule

announced by the Supreme Court of the United States in Florida v. Jardines, 569 U.S. 1, 133

S. Ct. 1409 (2013)—that use of a drug-sniffing dog on a homeowner’s porch constitutes a search

within the meaning of the Fourth Amendment of the United States Constitution—does not apply

retroactively to a conviction finalized prior to Jardines. We also consider whether the habeas

court abused its discretion by denying a plenary hearing.

                                           BACKGROUND

       On July 9, 2007, a grand jury for the City of Newport News indicted Daniel Paul Oprisko

(Oprisko) for the felony of possessing, with intent to distribute, more than one-half ounce but

less than five pounds of marijuana, in violation of Code § 18.2-248.1. Oprisko moved to

suppress the fruits of the search that led to his arrest on the ground that the probable cause for the

search was provided by the warrantless use of a drug-sniffing dog in violation of the Fourth

Amendment of the United States Constitution.

       The Circuit Court of the City of Newport News held a suppression hearing at which two

detectives testified that, in the course of investigating an illegal drug complaint at Oprisko’s

address, they approached the house with their drug dog, Sam, to conduct a “knock and talk.”

Oprisko introduced photographic and testimonial evidence that “No Trespassing” signs were
posted on his property, but the detectives stated that they did not see such signs. The detectives

testified that when they were approximately 20 feet from Oprisko’s house, Sam alerted to the

presence of drugs in the house by pulling his handler toward the house, onto the porch, and

scratching the door. Subsequently, the detectives obtained a search warrant for Oprisko’s home

and seized 51 marijuana plants from the attic. Neither the search warrant nor the supporting

affidavit was introduced into evidence.

       Oprisko argued that the detectives conducted an unlawful search by exceeding the scope

of implied consent in entering onto the curtilage of his property and using Sam to conduct a

drug-detection sniff on the porch. He contended that use of a drug-sniffing dog is a search, and

that a search warrant cannot be obtained solely on the basis of an illegal search. The court

denied the motion to suppress, finding that the detectives acted within the scope of implied

consent in approaching the home with Sam to conduct a “knock and talk,” and that the “No

Trespassing” signs were too faded to negate that implied consent.

       On January 9, 2009, the circuit court found Oprisko guilty of felony possession with

intent to distribute in violation of Code § 18.2-248.1 and, on February 5, it imposed a sentence of

five years’ imprisonment with five years suspended, conditioned upon a five-year period of good

behavior, one year of supervised probation and a six-month suspension of Oprisko’s driver’s

license.

       Oprisko appealed to the Court of Appeals of Virginia, arguing that the circuit court erred

in denying his motion to suppress and in finding the evidence sufficient to convict him of

possession with intent to distribute, rather than mere possession. On September 14, 2011, the

Court of Appeals refused to consider the denial of the suppression motion, ruling that Oprisko

“failed to provide an adequate record for determination of the issue” because he had not provided



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the search warrant or supporting affidavit in the record. It found the evidence sufficient to

support a conviction for possession with intent to distribute. On appeal to this Court, Oprisko

challenged only the sufficiency of the evidence, and we refused the petition on May 25, 2012.

His conviction became final 90 days later, on August 23, 2012. 1

       Meanwhile, on January 6, 2012, the Supreme Court of the United States had granted

certiorari in Florida v. Jardines, 569 U.S. 1, __, 133 S. Ct. 1409, 1413 (2013), addressing

“whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the

home is a ‘search’ within the meaning of the Fourth Amendment.” On March 26, 2013, the

Court held that “[t]he government’s use of trained police dogs to investigate the home and its

immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.” Id. at __,

133 S. Ct. at 1417-18.

       On May 23, 2013, Oprisko filed a petition for a writ of habeas corpus in the circuit court,

alleging that Jardines is “retroactively applicable to cases on collateral review,” and that

Jardines confirmed that the search of his home was invalid. He contended that Jardines was

retroactive because it did not announce a “new” rule, but rather followed the earlier case of

United States v. Jones, 565 U.S. 400, 409(2012), in that the Supreme Court’s decision in

Jardines “hinged on the basis of a citizen’s property rights.” Oprisko also requested a “plenary

hearing” to allow him to “present testimony and exhibits in support of his habeas corpus




       1
          A conviction becomes final for retroactivity analysis “when the availability of direct
appeal to the state courts has been exhausted and the time for filing a petition for a writ of
certiorari has elapsed.” Mueller v. Murray, 252 Va. 356, 362, 478 S.E.2d 542, 546 (1996). Rule
13.1 of the Rules of the Supreme Court of the United States provides that a petition seeking
review of the decision of a state court of last resort must be filed within 90 days.


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petition.” The Director of the Department of Corrections moved to dismiss, arguing primarily

that Jardines did not apply retroactively because it announced a new constitutional rule. 2

          After a phone conference with the parties, on July 1, 2015 the habeas court dismissed

Oprisko’s petition, holding that “it need not determine whether Florida v. Jardines would alter

its suppression ruling in the instant case because Jardines introduced a new rule and is not

retroactive.” It also held that a plenary hearing was unnecessary because the claim could be

decided on the record.

          Oprisko appealed. This Court granted Oprisko an appeal on the issues of whether the

habeas court erred in ruling that Jardines did not apply retroactively and in denying his request

for a plenary hearing.

                                                ANALYSIS

                                 A. Retroactivity of Florida v. Jardines

          When a habeas court dismisses a “petition based upon a review of the pleadings without

an evidentiary hearing, we review the decision to dismiss the petition de novo.” Zemene v.

Clarke, 289 Va. 303, 307, 768 S.E.2d 684, 686 (2015) (reviewing de novo a habeas petition

alleging denial of effective assistance of counsel). Whether a rule applies retroactively is a pure

question of law. Mays v. United States, 817 F.3d 728, 732 (11th Cir. 2016) (the issue of

retroactivity under Teague v. Lane, 489 U.S. 288 (1989) is a question of law); Gonzalez-Fuentes

v. Molina, 607 F.3d 864, 893 (1st Cir. 2010) (same); State v. Febles, 115 P.3d 629, 632 (Ariz. Ct.

App. 2005) (same); Taylor v. Commonwealth, 44 Va. App. 179, 184, 604 S.E.2d 103, 105

(2004).

          In Teague v. Lane, 489 U.S. 288 (1989), the [United States] Supreme Court stated
          that, on habeas corpus review, constitutional error must be evaluated together


          2
              Given our holding on this issue, we need not address the Director’s other arguments.
                                                    4
        with the interests of comity and finality. Based on these multiple considerations,
        a Supreme Court decision articulating a “new” constitutional rule of criminal
        procedure generally will not be applied to a conviction which has become final
        before the rule is announced.

Mueller v. Murray, 252 Va. 356, 361, 478 S.E.2d 542, 546 (1996) (citing Teague, 489 U.S. at

308, 310).

        “[A] case announces a ‘new’ rule if the result was not dictated by precedent existing at

the time the defendant’s conviction became final.” Teague, 489 U.S. at 301. Thus, we must (1)

determine the date on which the defendant’s conviction became final; (2) “survey the legal

landscape” as it existed on that date “to determine whether existing constitutional precedent

compelled the conclusion which the defendant sought”; and (3) decide whether a rule, even

though “new,” falls within one of the two exceptions to the retroactivity principle. Mueller, 252

Va. at 361-62, 478 S.E.2d at 546; Caspari v. Bohlen, 510 U.S. 383, 390 (1994). Here, we need

not advance our analysis to the third step because Oprisko does not claim that either exception

applies. 3

        As discussed above, Oprisko’s conviction became final on August 23, 2012, ten months

before Jardines was announced on March 26, 2013. Therefore, we must survey the legal

landscape as it existed on August 23, 2012 to determine if then-existing constitutional precedent

compelled the conclusion that detectives’ use of a drug-sniffing dog on a homeowner’s porch

constituted a search within the meaning of the Fourth Amendment.

        “A rule is not compelled by existing precedent if those decisions merely inform or control

the analysis of the petitioner’s claim.” Mueller, 252 Va. at 362, 478 S.E.2d at 546 (citing Saffle


        3
         “The first exception applies to those rules that place certain kinds of primary, private
individual conduct beyond the power of the criminal law-making authority to proscribe,” and
“Teague’s second exception permits the retroactive application of watershed rules of criminal
procedure implicating the fundamental fairness and accuracy of the criminal proceeding.”
Gilmore v. Taylor, 508 U.S. 333, 345 (1993) (internal quotation marks and citations omitted).
                                                 5
v. Parks, 494 U.S. 484, 491 (1990)). “Rather, a rule is compelled by existing precedent only if a

contrary conclusion would have been objectively unreasonable.” Id. (emphasis in original). “To

put it differently, . . . a case announces a new rule if the result was not dictated by precedent

existing at the time the defendant’s conviction became final. And a holding is not so dictated . . .

unless it would have been apparent to all reasonable jurists.” Chaidez v. United States, 568 U.S.

__, __, 133 S. Ct. 1103, 1107 (2013) (citations and internal quotation marks omitted) (emphasis

in original).

        This “‘new rule principle . . . validates reasonable, good-faith interpretations of existing

precedents made by state courts even though they are shown to be contrary to later decisions.’”

Mueller, 252 Va. at 362, 478 S.E.2d at 546 (quoting Butler v. McKellar, 494 U.S. 407, 414

(1990)). “For purposes of ‘new’ rule analysis, the scope of the rule under examination is defined

as the narrowest principle of law actually applied to resolve the issue presented.” Id.

        Here, the narrowest principle of law needed to resolve the issue is whether use of a drug-

sniffing dog on a homeowner’s porch is a search within the meaning of the Fourth Amendment.

See Jardines, 569 U.S. at __, 133 S. Ct. at 1413. On August 23, 2012, when Oprisko’s

conviction became final, there was no controlling precedent on this specific issue, but rather only

precedent that addressed component parts thereof.

        There was precedent establishing that government use of drug-sniffing dogs should be

evaluated by reference to an individual’s reasonable, legitimate expectation of privacy as

established in Katz v. United States, 389 U.S. 347, 351 (1967). Katz held that “the Fourth

Amendment protects people, not places,” and turned on what “an individual seeks to preserve as

private,” stating that “the premise that property interests control the right of the Government to

search and seize has been discredited.” 389 U.S. at 351, 353. See also United States v.



                                                  6
Chadwick, 433 U.S. 1, 7 (1977) (same). “Official conduct that d[id] not ‘compromise any

legitimate interest in privacy’ [was] not a search subject to the Fourth Amendment.” Illinois v.

Caballes, 543 U.S. 406, 408 (2005) (quoting United States v. Jacobsen, 466 U.S. 109, 123 n.22

(1984)) (discussing seizure of a package containing drugs and search of a cabin used by a

burglar). Because “any interest in possessing contraband [could not] be deemed ‘legitimate,’ . . .

government conduct that only reveal[ed] the possession of contraband ‘compromise[d] no

legitimate privacy interest.’” Id. (emphasis in original); see also United States v. Place, 462 U.S.

696, 707 (1983) (treating a canine sniff as “sui generis” because it “discloses only the presence

or absence of narcotics, a contraband item”).

        In Place, 462 U.S. at 707, the United States Supreme Court explained that, although an

individual has a “privacy interest in the contents of personal luggage that is protected by the

Fourth Amendment,” a canine sniff of that luggage “did not constitute a ‘search’ within the

meaning of the Fourth Amendment” because a canine sniff “does not expose noncontraband

items that otherwise would remain hidden from public view” and “discloses only the presence or

absence of narcotics.” Subsequently, in Caballes, 543 U.S. at 409, the Court reaffirmed this

logic and applied it to a canine sniff conducted at a lawful traffic stop, holding that such action

“does not implicate legitimate privacy interests.” See also United States v. Reed, 141 F.3d 644,

648-49 (6th Cir. 1998) (citing Chadwick and Place to conclude that a canine sniff within a

private residence “does not constitute a ‘search’ within the meaning of the Fourth Amendment”).

Thus, there was precedent that use of a drug-sniffing dog did not convert otherwise legal activity

into a constitutional violation.

        There was also precedent addressing the doctrine of implied consent to enter upon the

curtilage of private property. “A license may be implied from the habits of the country.” McKee



                                                  7
v. Gratz, 260 U.S. 127, 136 (1922). In this country, “the knocker on the front door is treated as

an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers

and peddlers for all kinds of salable articles.” Breard v. City of Alexandria, 341 U.S. 622, 626

(1951). And “[w]hen law enforcement officers who are not armed with a warrant knock on a

door, they do no more than any private citizen might do.” Kentucky v. King, 563 U.S. 452, 469

(2011). Thus, this Court has held that

       a resident of a dwelling impliedly consents to a police officer entering the
       curtilage to contact the dwelling’s residents. This implied consent has the effect
       of deeming such an entry into the curtilage a reasonable intrusion into an area
       otherwise protected by an expectation of privacy under the Fourth Amendment.
       Implied consent can be negated by obvious indicia of restricted access, such as
       posted “no trespassing” signs, gates, or other means that deny access to uninvited
       persons.

Robinson v. Commonwealth, 273 Va. 26, 34-35, 639 S.E.2d 217, 222 (2007) (citations omitted).

       Based on this legal landscape at the time of Oprisko’s conviction, numerous federal

courts of appeal and state courts of last resort had concluded that use of a drug-sniffing dog on a

person’s private property did not violate the Fourth Amendment. 4

       In Jardines, which involved use of a drug-sniffing dog within the curtilage of a home, the

Supreme Court departed from the reasonable expectation of privacy analysis used to evaluate

canine sniffs in Caballes and Place to conduct its analysis through a property-rights lens.

Jardines, 569 U.S. at __, 133 S. Ct. at 1415, 1417 (“Since the officers’ investigation took place


       4
          See, e.g., United States v. Brock, 417 F.3d 692, 696-97 (7th Cir. 2005) (holding that a
canine sniff is not a search when police are lawfully present in the area where it takes place);
United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998) (where the canine team was lawfully
present inside a home, the canine sniff itself was not a Fourth Amendment search); see also State
v. Guillen, 223 P.3d 658, 663 (Ariz. 2010) (collecting cases and concluding that, given the
conflicting case law regarding canine sniffs of private homes, “any supposed flagrancy of [such
conduct] was de minimis”) (internal quotation marks omitted). But see United States v. Thomas,
757 F.2d 1359, 1366-67 (2d Cir. 1985) (canine sniff of doorway outside defendant’s apartment
was a search because it impermissibly intruded on his legitimate expectation that the contents of
his closed apartment would not be sensed from outside his door).
                                                 8
in a constitutionally protected area, we turn to the question of whether it was accomplished

through an unlicensed intrusion.”) It then addressed the doctrine of implied consent, holding that

it is “limited not only to a particular area but also to a specific purpose,” and that the decision to

conduct a “knock and talk” with a drug-sniffing dog was objective proof that the officers’

purpose was to conduct an unreasonable search. Id. at __, 133 S. Ct. at 1416-17.

       The Court stated:

       The State points to our decisions holding that the subjective intent of the officer is
       irrelevant. But those cases merely hold that a stop or search that is objectively
       reasonable is not vitiated by the fact that the officer’s real reason for making the
       stop or search has nothing to do with the validating reasons. Thus, the defendant
       will not be heard to complain that although he was speeding the officer’s real
       reason for the stop was racial harassment. Here, however, the question before the
       court is precisely whether the officer’s conduct was an objectively reasonable
       search. As we have described, that depends upon whether the officers had an
       implied license to enter the porch, which in turn depends upon the purpose for
       which they entered. Here, their behavior objectively reveals a purpose to conduct
       a search, which is not what anyone would think he had license to do.

Jardines, 569 U.S. at __, 133 S. Ct. at 1416-17 (emphases added; internal citations omitted).

       The Court concluded that because “the traditional property-based understanding of the

Fourth Amendment” is still valid, a reasonable expectation of privacy test, as used in Caballes

and Place, “is unnecessary to consider when the government gains evidence by physically

intruding on constitutionally protected areas.” Id. (citing Jones, 565 U.S. at 406 n.3). It appears

that the Supreme Court broke new ground in Jardines by determining that, based on a property-

rights analysis, use of a drug-sniffing dog within the curtilage revealed an improper purpose for

the intrusion onto the curtilage, which made the officer’s conduct objectively unreasonable.

       Despite this cite to Jones as authority, the result in Jardines was not dictated solely by

Jones because the cases are distinguishable in two regards: the nature of the information obtained

and the existence of an issue regarding implied consent. First, the tracker in Jones monitored the



                                                   9
defendant’s every movement, providing the government evidence of both his legal and illegal

activities. 565 U.S. at 403. Jones did not state that an intrusion onto an individual’s property to

gather only information about illegal activity was an unconstitutional search. See id. at 404-05.

Given the Supreme Court’s earlier rejection of a privacy interest in contraband or illicit

activities—including in a home, see Jacobsen, 466 U.S. at 123-24 & n.22—the constitutionality

of a physical intrusion onto private personal property or the curtilage of a home to gather

information about only illegal activities was unresolved prior to Jardines.

       Second, Jones did not address the implied consent at issue in Jardines because it did not

concern the entrance onto the curtilage of a home and there was no dispute that the tracker was

placed without consent. See generally Chaidez, 568 U.S. at __, 133 S. Ct. at 1108-10

(explaining that when a prior “conclusion allowed [the Court] to avoid another, more categorical

question” that would have controlled the case at bar, and the “non-decision left the state and

lower federal courts to deal with the issue” that is now before the Court, its decision will be a

new rule).

       The fact that several federal courts of appeal and state courts of last resort had concluded

that use of a drug-sniffing dog at a residence or within the curtilage thereof did not constitute a

Fourth Amendment search bolsters the conclusion that Jardines announced a new rule. It

suggests that Jardines was not “compelled by existing precedent” because we cannot say that all

of the courts that reached a “contrary conclusion” were “objectively unreasonable.” Mueller,

252 Va. at 362, 478 S.E.2d at 546. Similarly, it shows that the rule was not “apparent to all

reasonable jurists,” so we cannot say that it was dictated by precedent existing at the time

Oprisko’s conviction became final. Chaidez, 568 U.S. at __, 133 S. Ct. at 1107. Rather, this

appears to be a situation in which “the ‘new rule’ principle” requires the validation of



                                                 10
“reasonable, good-faith interpretations of existing precedents made by [lower] courts even

though they are shown to be contrary to later decisions.” Mueller, 252 Va. at 362, 478 S.E.2d at

546 (internal quotation marks omitted).

        Therefore, because the controlling legal landscape when Oprisko’s conviction became

final did not dictate that use of a drug-sniffing dog within the curtilage of private property was a

search within the meaning of the Fourth Amendment, and neither of the exceptions recognized in

Teague applies, the habeas court did not err in ruling that Jardines did not apply retroactively to

Oprisko’s conviction.

                                         B. Plenary Hearing

        Oprisko argues that the habeas court erred in denying his request for a plenary hearing

because the allegations regarding his illegal detainment could not be fully determined on the

record where a factual dispute existed regarding whether the search warrant was supported by

anything other than the canine sniff.

        We review a habeas court’s decision to deny an evidentiary hearing for an abuse of

discretion. Yeatts v. Murray, 249 Va. 285, 290, 455 S.E.2d 18, 20 (1995). A court abuses its

discretion if the record does not support its action or its decision was based on erroneous legal

conclusions. Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009).

        Under Code § 8.01-654, a habeas court may grant an evidentiary hearing, but subsection

(B)(4) explicitly provides that it is not necessary if “the allegations of illegality of the petitioner’s

detention can be fully determined on the basis of recorded matters.” See also Arey v. Peyton,

209 Va. 370, 372, 164 S.E.2d 691, 693 (1968) (recognizing that a court should refuse a habeas

petitioner’s request for an evidentiary hearing if “the merits of the allegations may be determined

by reference to the record of previous judicial proceedings”).



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       Oprisko’s sole claim was that his conviction violated Jardines, and he sought a hearing to

produce evidence that the warrant was supported only by the canine sniff. However, the

question before the habeas court was a pure issue of law—whether Jardines applies

retroactively. Matherly, 817 F.3d at 119. Because the habeas court correctly concluded that it

did not, evidence regarding the warrant was irrelevant. The only fact relevant to the retroactivity

determination was the date on which Oprisko’s conviction became final, which was in the

record, uncontested, and indisputably triggered application of the retroactivity doctrine explained

above. Accordingly, the habeas court did not err in determining that Oprisko’s habeas claim

could be resolved solely on the recorded matters and a plenary hearing was unnecessary.

                                           CONCLUSION

       We hold that Jardines announced a new rule of constitutional law because it was not

dictated by precedent, and therefore it does not apply retroactively to convictions such as

Oprisko’s that became final prior to March 26, 2013. Thus, the habeas court did not err in so

ruling. Further, because this was a pure question of law, the habeas court did not abuse its

discretion in denying Oprisko’s request for a plenary hearing and deciding the matter on

documents in the record. Accordingly, we will affirm the judgment of the circuit court.

                                                                                          Affirmed.




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