                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Humphreys and Powell
Argued at Richmond, Virginia


RUSSELL MORGAN GREEN, III
                                                               MEMORANDUM OPINION * BY
v.      Record No. 2036-07-2                                  JUDGE ROBERT J. HUMPHREYS
                                                                  DECEMBER 16, 2008
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF POWHATAN COUNTY
                                 Thomas V. Warren, Judge

                  Randy B. Rowlett (Gordon, Dodson, Gordon & Rowlett, on brief),
                  for appellant.

                  Josephine F. Whalen, Assistant Attorney General II (Robert F.
                  McDonnell, Attorney General, on brief), for appellee.


        Russell Morgan Green, III (“Green”) appeals his convictions for felony possession of

cocaine, in violation of Code § 18.2-250 and misdemeanor possession of marijuana, his second

offense, in violation of Code § 18.2-250.1. On appeal, Green contends that the evidence seized

from his person and vehicle was inadmissible at trial because his consent was the product of a

“meritless claim of lawful authority,” in violation of the Fourth Amendment. We disagree and

affirm the decision of the trial court. 1




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
           We find that the trial court was correct, but for the wrong reason, and in such
circumstances, we will affirm the trial court’s decision. See Driscoll v. Commonwealth, 14
Va. App. 449, 417 S.E.2d 312 (1992). “Rule 5A:18 does not require an appellee to raise an issue
at trial before it may be considered on appeal where the issue is not offered to support reversal of
a trial court ruling.” Id. at 451, 417 S.E.2d at 312 (emphasis in original).
       “A claim under the Fourth Amendment ‘presents a mixed question of fact and law that an

appellate court reviews de novo.’” Middlebrooks v. Commonwealth, 52 Va. App. 469, 475, 664

S.E.2d 499, 502 (2008) (quoting Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d

463, 464 (2003)). However, “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.” McGee v.

Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas

v. United States, 517 U.S. 690, 699 (1996)). The burden is on the defendant to show that the

denial of his suppression motion, when the evidence is considered in the light most favorable to

the Commonwealth, was reversible error. McCain v. Commonwealth, 261 Va. 483, 489-90, 545

S.E.2d 541, 545 (2001) (citing Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731

(1980)).

       “The Fourth Amendment guarantees ‘the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.’” Whren v. United

States, 517 U.S. 806, 809 (1996). Even a “[t]emporary detention of individuals during the stop

of an automobile by the police,” implicates the Fourth Amendment. Id. at 810. However, “the

Fourth Amendment right . . . may be waived, orally or in writing, by voluntary consent to a

warrantless search of a person, property or premises.” Deer v. Commonwealth, 17 Va. App. 730,

734, 441 S.E.2d 33, 36 (1994) (citing Bumper v. North Carolina, 391 U.S. 543, 548 (1968)).

“The question of whether a particular ‘consent to a search was in fact voluntary or was the

product of duress or coercion, express or implied, is a question of fact to be determined from the

totality of all the circumstances.’” Id. at 735, 441 S.E.2d at 36 (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 227 (1973)).




                                               -2-
       Green contends that his “consent” was not voluntarily given, because it was the product

of coercion in the form of a “meritless claim of lawful authority.” Specifically, Green argues

that when he refused to consent to the search of his vehicle, Deputy Whittaker “lacked any

lawful basis for further detaining [Green].” Thus, Deputy Whittaker was prohibited from

detaining Green until a drug dog unit arrived on scene. The trial court disagreed and concluded

that Deputy Whittaker had reasonable suspicion to believe Green was engaged in criminal

activity, based on the anonymous tip and the fact that Green was a known drug user.

Consequently, the trial court found that Deputy Whittaker’s detention of Green for the purposes

of obtaining a drug dog was lawful and that Green’s consent was not coerced.

       However, in Florida v. J.L., 529 U.S. 266 (2000), the Supreme Court held that an

anonymous tip must be “suitably corroborated” and “exhibit[] ‘sufficient indicia of reliability to

provide reasonable suspicion to make [an] investigatory stop.’” Id. at 270 (quoting Alabama v.

White, 496 U.S. 325, 327 (1990)). In this case, Deputy Whittaker observed nothing to

corroborate the anonymous tip, other than his knowledge that Green was a drug addict.

Therefore, Deputy Whittaker did not have reasonable suspicion to believe Green was carrying

drugs and could not detain Green on that basis alone. However, because Deputy Whittaker had a

valid, independent basis for detaining Green, his lack of reasonable suspicion, as it pertains to the

anonymous tip, does not end our analysis.

       In Illinois v. Caballes, 543 U.S. 405, 407 (2005), the Supreme Court discussed the issue

of whether the Fourth Amendment permits the use of a drug dog during a routine traffic stop.

“Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search

subject to the Fourth Amendment.” Id. at 408 (quoting United States v. Jacobsen, 466 U.S. 109,

123 (1984)). Thus, “the use of a well-trained narcotics-detection dog . . . during a lawful traffic

stop, generally does not implicate legitimate privacy interests.” Id. at 409. However, the

                                                -3-
Supreme Court warned that the lawful seizure of a driver for the purposes of issuing a ticket

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

mission.” Id. at 407.

       This Court addressed that very situation in Deer. In Deer, a Virginia State Trooper

stopped the defendant for speeding. 17 Va. App. at 732, 441 S.E.2d at 34. After issuing the

defendant a citation for speeding, the trooper asked if he could search the defendant’s vehicle.

Id. Initially the defendant refused, but after the trooper told him that he would be detained for up

to an hour while a K-9 unit was called, the defendant agreed to the search. Id. at 732, 441 S.E.2d

at 35. The trooper proceeded to search the vehicle. When the trooper found a brown paper bag

on the floor, the defendant withdrew his consent. Id. Again the trooper stated that the defendant

would be detained until a K-9 unit arrived. Id. At that moment, the defendant grabbed the

brown paper bag and fled. Id. Eventually the trooper captured the defendant and recovered the

bag, which contained a sizeable amount of cocaine. Id.

       This Court held that the trooper’s search was unlawful because “the detention of [the

defendant] and his vehicle beyond the time necessary to issue a traffic citation was not permitted

under the Fourth Amendment.” Id. at 736, 441 S.E.2d at 37 (emphasis added). Green argues,

“the facts of the instant case are entirely analogous to those of Deer.” We disagree.

       We find the facts of this case to be markedly distinct from those of Deer. In Deer, the

trooper had already issued the defendant a citation when he asked for permission to search his

vehicle. Id. at 732, 441 S.E.2d at 35. This Court found that once the trooper issued the citation,

he was without any authority to further detain the defendant. Id. at 736, 441 S.E.2d at 37.

Therefore, when the trooper told the defendant that he “would detain the vehicle and call for a

K-9 drug unit,” he employed “coercion under the color of lawful authority” to obtain the

defendant’s consent. Id. However, in this case, Deputy Whittaker had not issued Green a

                                                -4-
citation at the time of his consent. In fact, Deputy Whittaker had not yet received “the return” on

Green’s license plate number. In stark contrast to Deer, the investigation of Green’s traffic

offenses was still ongoing at the time Deputy Whittaker asked for his consent to search the

vehicle.

       In light of Caballes and Deer, Deputy Whittaker would have had the authority to run a

drug dog around Green’s car, so long as the traffic stop was valid and not prolonged “beyond the

time necessary to issue a citation.” Id. (emphasis added). At trial, Deputy Whittaker testified

that he “was looking for reasons to stop [Green].” However, despite its pretextual nature,

Deputy Whittaker’s stop of Green was nonetheless valid. Green’s trial counsel conceded as

much. Regardless, the constitutional reasonableness of a traffic stop does not depend on the

actual motivations of the officers, but whether they have “probable cause to believe that a traffic

violation has occurred.” Whren, 517 U.S. at 811. Clearly Deputy Whittaker had probable cause

to believe that Green committed a traffic violation, since he witnessed at least three such

violations. Green’s license plate was partially obstructed and improperly displayed, in violation

of Code § 46.2-716(B), he used an improper signal to change lanes, in violation of Code

§ 46.2-860, and when executing a turn, he cut across the oncoming lane of traffic, in violation of

both Code §§ 46.2-802 and 46.2-846(A)(2). Therefore, Deputy Whittaker’s stop of Green was

valid, regardless of his underlying motivations.

       Having found Deputy Whittaker’s stop of Green to be valid, we must now determine

whether the duration of that stop was “beyond the time necessary to issue a traffic citation,” so as

to implicate the Fourth Amendment. Deer, 17 Va. App. at 736, 441 S.E.2d at 37 (emphasis

added). We hold that it was not. Deputy Whittaker had only detained Green for a few moments

when he spontaneously and voluntarily produced incriminating evidence. The mere fact that

Green’s actions were the product of Deputy Whittaker’s statement that, “I need to detain you for

                                               -5-
a minute so I can get a drug dog here,” does not render them coerced. Because Green produced

the incriminating evidence immediately after Deputy Whitaker’s statement, we need not

determine whether any delay necessary to secure a drug dog would have prolonged Green’s

detention beyond the time necessary to issue a citation.

       In conclusion, Green’s consent was not the product of coercion, in violation of the Fourth

Amendment, because he was validly stopped for a traffic offense and his detention was not

unreasonably prolonged. Thus, the trial court did not err in denying Green’s motion to suppress

and we affirm his convictions.

                                                                                       Affirmed.




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