                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Chafin, Malveaux and Senior Judge Frank
UNPUBLISHED


              Argued at Norfolk, Virginia


              WILLIAM THOMAS JOHNSON, II
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1215-15-1                                    JUDGE ROBERT P. FRANK
                                                                               NOVEMBER 15, 2016
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                               John W. Brown, Judge

                               Kathleen A. Ortiz, Public Defender, for appellant.

                               Lauren C. Campbell, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     William Thomas Johnson, II (hereinafter “appellant”) was convicted of possession of

              marijuana and possession of a Schedule II controlled substance. On appeal, he asserts the trial

              court erred in denying his motion to suppress. For the reasons stated herein, we reverse the trial

              court’s denial of the suppression motion and remand the case for further proceedings if the

              Commonwealth be so advised.

                                                        BACKGROUND

                     “[W]hen a defendant challenges the denial of a motion to suppress, he has the burden to

              show that the trial court’s ruling constituted reversible error.” Adams v. Commonwealth, 48

              Va. App. 737, 745, 635 S.E.2d 20, 24 (2006).

                               In reviewing the denial of a motion to suppress evidence claiming
                               a violation of a person’s Fourth Amendment rights, we consider
                               the facts in the light most favorable to the Commonwealth, the
                               prevailing party at trial. The burden is on the defendant to show

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
               that the trial court committed reversible error. We are bound by
               the trial court’s factual findings unless those findings are plainly
               wrong or unsupported by the evidence. We will review the trial
               court’s application of the law de novo.

Malbrough v. Commonwealth, 275 Va. 163, 168-69, 655 S.E.2d 1, 3 (2008).

       On November 20, 2013, Chesapeake Police Officer Keith Ewell was patrolling an area

known for high drug activity. At approximately 10:00 p.m., he stopped a red SUV with a defective

headlight. The officer and the vehicle pulled into a convenience store parking lot. The officer

requested identification from the driver and the three passengers.1 The driver indicated they were

proceeding to purchase a vehicle on Portsmouth Boulevard, but the officer noted their present

location was not a normal route to take to Portsmouth Boulevard. Based on his training and

experience, their location in a high drug area, the time of night, and their explanation of where they

were going, the officer did not believe the driver. Based on the time, the driver’s account and the

vehicle’s location, Ewell suspected the vehicle was involved in illegal narcotics.2

       Upon retrieving the vehicle registration and identifying information from the two male

passengers, Ewell returned to his vehicle and, prior to running the information through DMV

(“Division of Motor Vehicles”), VCIN (“Virginia Criminal Information Network”), NCIC

(“National Crime Information Center”), and LInX (“Law Enforcement Information Exchange”), he

immediately called for a K9 officer at 3:46. Ewell checked the information he collected from the

driver and the two male passengers. Upon determining that the driver was licensed, Ewell was no




       1
         The young female passenger in the SUV did not provide Ewell with identification when
he collected IDs from the driver and the two males passengers, and Ewell did not ask her for her
name or address at that time.
       2
         The officer wore a video camera which recorded the incident and the time that elapsed
during the stop. At the suppression hearing the Commonwealth had Ewell testify while referring to
the video and using corresponding minute and second markers as noted on the video. Those time
markers will be referred to by the minute and second -- e.g., 3:46 means 3 minutes 46 seconds.
                                                -2-
longer interested in his driving status. Ewell found no criminal history regarding the passengers or

the driver that caused him concern.

        Officer Samuel arrived at the scene with his dog at 10:09,3 some six minutes after the initial

call. Upon Samuel’s arrival, Ewell closed his laptop computer and left his vehicle at 10:09.

Between 10:48 and 11:52, he assisted a female motorist who was lost and gave her directions to her

destination.

        At 11:52, Ewell began assisting Samuel. Prior to the K9 walk around, all passengers were

directed to exit the vehicle pursuant to the standard procedure for a drug dog sweep. Neither officer

patted down the driver and passengers for weapons.

        At 15:46, Samuel removed his dog from his vehicle and approached the SUV. The dog

circled the vehicle three times without a positive alert but Samuel noticed a change in the dog’s

behavior near the front of the passenger area where appellant had been sitting. Samuel did not

believe the dog’s behavior created probable cause to search the vehicle. The dog was then returned

to the K9 unit at 17:34.

        After determining appellant was the front seat passenger, Samuel called appellant away

from the others. At 18:01, Samuel began to question appellant about drugs. When Samuel asked

appellant if there were any illegal drugs in the SUV, appellant replied, “Not to my knowledge.” At

this point during the questioning, Ewell walked away from the other three occupants and

approached Samuel and appellant. Samuel then asked appellant if appellant had any illegal drugs

on his person. At 19:14, appellant replied in the negative. However, when Samuel asked if he

could search appellant, appellant responded at 19:24 into the stop, that he “had a little bit” and


        3
         Ewell testified regarding the timeline of events during the stop at the suppression
hearing. To the extent any conflict exists between his testimony and the time stamps on the
video footage as Defendant’s Exhibit 1, we rely upon the video time stamps. Some times are
derived from correlating events in the Ewell and Samuel footage.

                                                  -3-
reached in his pocket. Appellant handed a baggie of marijuana to Ewell at 19:29. Appellant was

arrested at 21:08. A search of his person produced an unlabeled pill bottle containing unidentified

pills. Ewell placed appellant in the back of his cruiser.

        The officers searched the SUV and found pills in an unlabeled bottle in the female

passenger’s purse. Ewell entered his cruiser and called poison control regarding the pills recovered

from appellant and the female passenger’s purse. Based on the information provided by poison

control, Ewell concluded that the pills in appellant’s possession were a Schedule II narcotic and

arrested appellant a second time. However, he was unable to ascertain preliminarily the nature of

the female passenger’s pills.

        Ewell approached the SUV again and advised the driver and the remaining two occupants

that appellant was under arrest for possession of a Schedule II narcotic. Ewell returned all of the

information he had previously collected from the driver and male passenger without performing any

further computer checks on their information. Ewell made no mention of the headlight violation.

Instead, he instructed the driver and the passengers to wait so that he could investigate the female’s

pills further. Only after questioning the female passenger about her pills and obtaining her name

and address did Ewell perform any further computer checks. When the computer check apparently

produced nothing incriminating with regard to the female, Ewell returned to the SUV and told her

he was keeping her pills and would have them tested. However, he did not mention the equipment

violation.

        Ewell returned to his cruiser and yelled to Samuel that the SUV was free to go. As reflected

in Ewell’s camcorder footage, Ewell opened his computer for the third time as the SUV drove away

in the background.4


        4
         Seven entries appeared on the DVD that was admitted into evidence as Defendant’s
Exhibit 1. Six of those entries contained footage related to the stop. Three of the six entries
contained footage from Ewell’s body camera, and three contained footage from Samuel’s body
                                               -4-
       Appellant moved to suppress the drugs recovered from him and his statements to the police

during the stop. The court denied the motion to suppress and found:

               [O]nce an officer has validly stopped the vehicle for purposes of
               determining whether to issue a summons, he’s allowed to obtain
               registration information and to request the identities of all the
               occupants of the vehicle. And he’s allowed to reasonably confirm
               information about all of the vehicle’s occupants to see whether
               there’s - - the driver’s validly licensed, whether the vehicle is all
               right, and whether there’s any warrants or anything that would
               cause him to have concern about the occupants.

               And then, again, there is no Fourth Amendment prohibition for
               having a drug dog walk around a vehicle if that’s part of an
               otherwise legitimate law enforcement stop. So it really gets down
               to under the circumstances here - - and there is no magic time that
               I’m aware of that any appellate court has said a traffic stop has to
               begin and end, and so I focus - - and I watched it a few times just
               to make sure, because I thought that’s what the defense might be
               looking at, and that is the time when Office Ewell gets back to the
               car and first calls for Officer Samuel to come out there. And then
               before, you know, we see Officer Samuel there and Officer Ewell
               speaking to him, he’s in the car, pressing keys on what looks to be
               a small computer that’s in there.

       Appellant was convicted of the two drug charges. This appeal followed.

                                           ANALYSIS

       On appeal, appellant contends the trial court erred in denying his motion to suppress

evidence seized after the drug dog’s arrival, including the drugs and appellant’s statements to the

police. Appellant asserts the delay caused by Ewell’s summoning the drug dog and his




camera. The final entry on the DVD was footage taken from Ewell’s body camera. The footage,
22 minutes and 23 seconds long, begins with images of Ewell pulling over the SUV. This
footage contains the initial discussions between Ewell and the driver, Ewell collecting the SUV
occupants’ IDs, returning to his cruiser and calling Samuel, and running computer checks. This
segment also captures appellant’s arrest for possession of marijuana. The footage concludes with
Ewell advising the SUV occupants that appellant “did have something” on him and announcing
he would be checking the SUV to see if appellant “put anything else” in the vehicle.
                                                -5-
subsequent abandonment of the traffic investigation while the dog was deployed amounted to

more than a de minimis5 delay, thereby violating appellant’s Fourth Amendment rights.6

                        A defendant’s claim that evidence was seized in violation
                of the Fourth Amendment presents a mixed question of law and
                fact that we review de novo on appeal. In making such a
                determination, we give deference to the factual findings of the
                circuit court, but we independently determine whether the manner
                in which the evidence was obtained meets the requirements of the
                Fourth Amendment. The defendant has the burden to show that,
                considering the evidence in the light most favorable to the
                Commonwealth, the trial court’s denial of his suppression motion
                was reversible error.

McCain v. Commonwealth, 275 Va. 546, 551-52, 659 S.E.2d 512, 515 (2008) (citations

omitted).

        The Supreme Court of the United States made clear in Rodriguez v. United States, 135

S. Ct. 1609 (2015), that a police officer “may conduct certain unrelated checks during an

otherwise lawful traffic stop,” but “may not do so in a way that prolongs the stop, absent the

reasonable suspicion ordinarily demanded to justify detaining an individual.” Id. at 1615.

“Authority for the seizure thus ends when tasks tied to the traffic infraction are – or reasonably

should have been – completed.” Id. at 1614. The Court went on to hold that a dog sniff that

prolonged the traffic stop was impermissible because a dog sniff is “not fairly characterized as

part of the officer’s traffic mission” because it is not related to an inquiry into the traffic

infraction at issue or officer safety. Id. at 1615-16. In Rodriguez, the Supreme Court




        5
         “De minimis” is a Latin maxim meaning “the law does not concern itself with trifles.”
Bryan A. Garner, Garner’s Dictionary of Legal Usage 263 (3d ed. 2009). Black’s Law
Dictionary defines it as “trifling; negligible so insignificant that a court may overlook it in
deciding and issue . . . .” De Minimis; Black’s Law Dictionary (10th ed. 2014).
        6
          Appellant does not challenge the legality of the stop nor any delay caused by the
officer’s initial use of the computer.
                                               -6-
specifically rejected the “de minimis” line of cases. See Matthews v. Commonwealth, 65

Va. App. 334, 344-45, 778 S.E.2d 122, 127-28 (2015) (recognizing that, based upon Rodriguez,

“a police officer ‘may conduct certain unrelated checks during an otherwise lawful traffic stop,’

but ‘may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily

demanded to justify detaining an individual’” (quoting Rodriguez, 135 S. Ct. at 1614)).

Accordingly, under Rodriguez the detention associated with the officers’ drug investigation in

this case violated the Fourth Amendment unless that detention was supported independently by a

reasonable, articulable suspicion of criminal wrongdoing. The Commonwealth does not argue

that the detention associated with the drug investigation was justified by reasonable suspicion.

Therefore, if we were to decide this case guided solely by Rodriguez, the officers’ drug

investigation leading to appellant’s confession violated appellant’s Fourth Amendment rights.

Likewise, the search of appellant following his marijuana arrest was tainted by the illegal

investigation and arrest.

       However, whether appellant’s Fourth Amendment rights were violated is not the end of

our analysis. We must also consider whether the exclusionary rule applies to the officers’

actions.

       “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that

exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the

price paid by the justice system.” Herring v. United States, 555 U.S. 135, 144 (2009). In Davis

v. United States, 564 U.S. 229 (2011), the Supreme Court extended this principle to instances

where the law changed after the time of the search, holding that evidence obtained during a

search conducted in reasonable reliance on binding precedent at the time is not subject to the

exclusionary rule. Id. at 240-41 (cited in Matthews, 65 Va. App. at 347, 778 S.E.2d at 129).




                                               -7-
       At the time of this incident, existing law established that a de minimis delay in the

completion of a traffic stop to conduct an investigation unrelated to the traffic stop did not

violate the Fourth Amendment. Matthews, 65 Va. App. at 348, 778 S.E.2d at 129. As this Court

recognized in Atkins v. Commonwealth, 57 Va. App. 2, 698 S.E.2d 249 (2010), a “de minimis”

delay to pursue matters unrelated to the original basis for the stop was lawful under Arizona v.

Johnson, 555 U.S. 323 (2009). Atkins recognized that, under Johnson the

               temporary seizure of the driver and passengers ordinarily
               continues, and remains reasonable for the duration of the stop.
               Normally, the stop ends when the police have no further need to
               control the scene, and inform the driver and passengers they are
               free to leave. An officer’s inquiries into matters unrelated to the
               justification of the traffic stop, this Court has made plain, do not
               convert the encounter into something other than a lawful seizure,
               so long as those inquiries do not measurably extend the duration of
               the stop.

Atkins, 57 Va. App. at 15, 698 S.E.2d at 256 (quoting Johnson, 555 U.S. at 333).

       While appellant acknowledges that the police were entitled to impose a de minimis delay

to conduct an investigation unrelated to the initial purpose of the stop, he asserts the trial court

erred by ruling that the delay in this case was de minimis. Citing Commonwealth v. Ramsdell,

No. 2925-06-3, 2007 Va. App. LEXIS 166 (Va. Ct. App. Apr. 20, 2007),7 appellant maintains

that his detention was unlawful because Ewell did not complete his inquiry into the status of the

driver’s license and the criminal background check of the passengers. Instead, Ewell abandoned

his record check, left his vehicle, and assisted Samuel in his drug investigation.

       In Ramsdell, two narcotics officers observed Ramsdell and another person sitting in a

parked car, followed by a third person entering the back seat briefly before exiting again. Based



       7
        We recognize that unpublished opinions have no binding effect on our decision, but
may be considered in our analysis of a similar legal issue. See Otey v. Commonwealth, 61
Va. App. 346, 351 n.3, 735 S.E.2d 255, 258 n.3 (2012) (“Although not binding precedent,
unpublished opinions can be cited and considered for their persuasive value.”).
                                               -8-
upon these observations, the officers suspected Ramsdell was engaged in drug activity. When

Ramsdell drove away, the officers stopped him for a defective brake light.

       After stopping Ramsdell, the officers took no action toward citing him for the equipment

violation. They did not perform a computer check and did not inform Ramsdell of the reason for

the stop. Instead, they immediately directed Ramsdell to exit his vehicle and asked for consent

to search the car. We affirmed the trial court’s decision granting the appellant’s motion to

suppress, concluding that “the officers abandoned the initial purpose of the stop, the traffic

infraction, and without reasonable, articulable suspicion, continued to unlawfully detain

Ramsdell in an attempt to secure consent for an otherwise invalid search.” Id. at *9.

       As the Court observed in Matthews, however, Ramsdell may be distinguished from a stop

in which the officer “spen[ds] the majority of the time during the stop reviewing the documents

. . . provided, calling into dispatch, gathering paperwork, reviewing the code section for the . . .

violation, and preparing the written warning.” Matthews, 65 Va. App. at 353, 778 S.E.2d at

131-32 (emphasis added).

       Thus, in determining whether the delay associated with the drug dog and drug

investigation was de minimis, we must analyze and decide what part of the detention was

devoted to the equipment violation citation process and what part of the detention was devoted to

the drug investigation. To do so, we must begin by deciding when the citation process began and

when it ended.

       The trial court did not make a factual finding regarding when the citation process ended,

and because no traffic citation was ever issued, the record contains no definite conclusion to the

citation process. Thus, based upon the circumstances surrounding the stop, we must decide

when the citation process should have reasonably ended.




                                                 -9-
       Rodriguez decided that “[a]uthority for the seizure . . . ends when tasks tied to the traffic

infraction are—or reasonably should have been—completed.” Rodriguez, 135 S. Ct. at 1614.

As we have recognized, however, the United States Supreme Court decided prior to Rodriguez

that a “seizure remain[ed] lawful only ‘so long as [unrelated] inquiries d[id] not measurably

extend the duration of the stop.’” Matthews, 65 Va. App. at 344, 778 S.E.2d at 127 (quoting

Johnson, 555 U.S. at 333). “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.’” Id. (emphasis added) (quoting Illinois v. Caballes, 543 U.S. 405, 407

(2005)). “[A] seizure that is lawful at its inception can violate the Fourth Amendment if its

manner of execution unreasonably infringes interests protected by the Constitution.” Caballes,

543 U.S. at 407.

       “[C]ourts assess the constitutionality of a traffic stop under the two-prong standard

articulated in Terry v. Ohio, 392 U.S. 1 (1968).” United States v. Palmer, 820 F.3d 640, 648

(4th Cir. 2016). Under the first prong, “we . . . assess whether the articulated bases for the traffic

stop were legitimate.” Id. Under the second prong, “we examine whether the actions of the

authorities during the traffic stop were ‘reasonably related in scope’ to the bases for the seizure.”

Id. at 649 (quoting United States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992)). Terry’s second

prong is pertinent to our analysis here. As recently recognized by the United States Court of

Appeals for the Fourth Circuit,

               Terry’s second prong restricts the range of permissible actions that
               a police officer may take after initiating a traffic stop. An officer is
               entitled to conduct safety-related checks that do not bear directly
               on the reasons for the stop, such as requesting a driver’s license
               and vehicle registration, or checking for criminal records and
               outstanding arrest warrants. See Rodriguez v. United States, 135
               S. Ct. 1609, 1615-16 (2015). Generally, however, an officer’s
               focus must remain on the bases for the traffic stop, in that the stop
               must be “sufficiently limited in scope and duration to satisfy the
               conditions of an investigative seizure.” See United States v.
                                                - 10 -
               Guijon-Ortiz, 660 F.3d 757, 764 (4th Cir. 2011) (internal quotation
               marks omitted).

Palmer, 820 F.3d at 649. “[W]hen following up on the initial reasons for a traffic stop, the

officer must employ ‘the least intrusive means reasonably available to verify or dispel [his]

suspicion in a short period of time.’” Id. (quoting United States v. Digiovanni, 650 F.3d 498,

507 (4th Cir. 2011)). “[A] legitimate traffic stop may ‘become unlawful if it is prolonged

beyond the time reasonably required’ to complete its initial objectives.” Id. (quoting Caballes,

543 U.S. at 407).

               A motorist stopped by the police is obliged to endure “certain
               negligibly burdensome precautions” that may not relate directly to
               the reason for the traffic stop, such as checking whether the driver
               has a criminal record or outstanding warrants. See Rodriguez, 135
               S. Ct. at 1616. Those routine checks reflect the reality that traffic
               stops are “especially fraught with danger to police officers,” and
               further the strong interest in allowing an officer to complete his
               traffic mission safely. See Michigan v. Long, 463 U.S. 1032, 1047
               (1983). Indeed, in Terry itself, the Supreme Court — describing
               “[t]he crux of th[e] case” — emphasized the “immediate interest of
               the police officer in taking steps to assure himself that the person
               with whom he is dealing is not armed with a weapon that could
               unexpectedly and fatally be used against him.” See [Terry], 392
               U.S. at 23.

Id. at 651 (citation omitted).

       As the Maryland Court of Special Appeals noted in Charity v. State, 753 A.2d 556, 572

(Md. Ct. Spec. App. 2000), “the purpose of the justifying traffic stop may not be conveniently or

cynically forgotten and not taken up again until after an intervening narcotics investigation has

been completed or has run a substantial course.” Id. at 565 (cited in Ramsdell, 2007 Va. App.

LEXIS 166, at *7). “Even where the traffic stop is not formally terminated by the issuance of a

citation or warning, ‘the legitimating raison d’etre evaporates if its pursuit is unreasonably

attenuated or allowed to lapse into a state of suspended animation.’” Ramsdell, 2007 Va. App.

LEXIS 166, at *9 (quoting Charity, 753 A.2d at 565).


                                               - 11 -
       Ewell testified at the suppression hearing that he immediately called for a drug dog

before turning to the information provided by the driver and the two male passengers. After

confirming the driver was licensed, Ewell testified that he had no further interest in his “driving

status.” Ewell then checked the information on the two male passengers. He determined that

neither the male passengers nor the driver had a criminal history that “caused [him] to be more

suspicious.”8 With respect to the female passenger, Ewell had so little concern that he did not

ask her to provide any biographical information. Ewell and Samuel removed appellant, the

driver, and the other two passengers from the SUV without frisking them for weapons. Instead,

the video depicts Ewell chatting with the four occupants while Samuel performed the sweep and

occasionally asking them to keep their hands out of their pockets.

       Accordingly, by the time Samuel arrived and performed the K9 sweep, whatever safety

concerns Ewell initially had that prompted him to run computer checks on the SUV occupants,

were no longer an issue. In fact, as borne out by Ewell’s video footage, he never performed any

further computer checks of the male occupants’ information after Samuel’s arrival. Instead, after

Samuel’s arrival, the officers’ focus centered solely on the drug investigation. They swept the

SUV with a drug dog and questioned appellant about whether he had any drugs. After eliciting a

confession from appellant, they arrested him for marijuana possession, and recovered pills from

him during a search. Ewell searched the SUV, not only in the front seat where appellant was

located, but also in the back seat area on the passenger side. When additional unidentified pills

were found in the female’s purse, Ewell detained the SUV occupants so that he could further

investigate the pills, not so that he could complete the computer checks of the males’

identification that he testified was underway at the time Samuel arrived.



       8
         Ewell also testified, however, that the computer had “not completed the checks that [he]
w[as] requesting” at the time Samuel arrived at the scene.
                                               - 12 -
       Because Ewell performed no further computer checks on the driver or the two males after

Samuel’s arrival, we must conclude that he had all the information reasonably necessary to

complete the equipment violation citation process by the time Samuel arrived.9 Ewell himself

admitted he typically decided whether to issue a citation or release a driver with only a warning

after he “checked information.” When asked “what changed” about this stop that prompted him

“to keep people there,” Ewell explained that he was “putting the pieces of the puzzle together,”

and felt it “odd that they [the SUV passengers] were where they’re at, that time of night, saying

they’re [there] to do what they’re doing.” At no time after the original traffic stop did Ewell

mention the defective headlight to the driver or the SUV occupants or pursue writing a summons.

       Based on the foregoing evidence, we conclude that, at the time Samuel arrived, Ewell had

all the information reasonably necessary to conclude the citation process for the equipment

violation. At that point in time, approximately ten minutes into the stop, the justification for the

traffic stop no longer existed.10


       9
          As the Supreme Court reiterated in Rodriguez, “[t]he reasonableness of a seizure
. . . depends on what the police in fact do.” Rodriguez, 135 S. Ct. at 1616 (citing Knowles v.
Iowa, 525 U.S. 113, 115-17 (1998)).
       10
           We recognize that the trial court, after viewing the video, found Ewell was still
reviewing the computer when Samuel arrived and further found that the officer did not
deliberately delay the investigation. An appellate court “should take care both to review findings
of historical fact only for clear error and to give due weight to inferences drawn from those facts
by resident judges and local law enforcement officers.” Reittinger v. Commonwealth, 260 Va.
232, 236, 532 S.E.2d 25, 27 (2000) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).
However, while the trial court concluded it could find no evidence on which to reject Ewell’s
testimony that “he was still in the process of running the information” at the time Samuel
arrived, it made no factual finding as to when Ewell completed checking the driver’s and the two
male passengers’ identification. Likewise, the trial court made no finding regarding the point in
the stop at which Ewell had all the information reasonably necessary to complete the traffic
citation process.
        Ewell’s only testimony on this point was general. While Ewell testified that he was “still
in the process of checking everybody’s IDs and stuff when Officer Samuel came up,” he never
specified the time when he had concluded his investigation of the traffic stop except to state
vaguely that “once the drug investigation or whatever you want to call it started and I completed
the checking of the IDs of the person, I decided to let him go on a warning.”
                                                  - 13 -
       Having concluded that the citation process should have reasonably concluded at the time

of Samuel’s arrival, we must now assess whether the time period between Samuel’s arrival and

appellant’s arrest and search constitutes a de minimis delay.

       As previously noted, Samuel arrived approximately ten minutes after the traffic stop. By

the time Samuel and Ewell had developed enough information to elicit a confession from

appellant at 19:24, culminating in his arrest at 21:08, slightly over another nine to eleven minutes

had elapsed. Thus, the time devoted to the drug investigation after the traffic stop should have

reasonably concluded nearly doubled the duration of the stop. We therefore conclude that the

time devoted to the drug investigation was not de minimis and violated appellant’s rights under

the Fourth Amendment. Unlike our decision in Matthews, we cannot conclude that, based upon

the evidence before us, the officers devoted “the majority of the time during the stop reviewing

the documents . . . provided, calling into dispatch, gathering paperwork, reviewing the code

section for the . . . violation, and preparing the written warning . . . .” Matthews, 65 Va. App. at

353, 778 S.E.2d at 131-32.

       Nothing in the cases cited by the Commonwealth, Ellis v. Commonwealth, 52 Va. App.

220, 662 S.E.2d 640 (2008), and United States v. Mason, 628 F.3d 123 (4th Cir. 2010), compels

us to reach a different conclusion. In Ellis the entire stop lasted approximately five minutes, and

“the only period of delay attributable to the drug issue was the one-minute conversation the

officer had with Ellis . . . .” Ellis, 52 Va. App. at 225, 662 S.E.2d at 642. We noted that “[a]ll

other time segments . . . solely related to the detention justifiably required for the traffic stop and

issuance of the citation.” Id. (footnote omitted). In Mason the time between the initial stop and

the issuance of the warning ticket was eleven minutes. Of that time, approximately three and

one-half minutes were devoted to questioning Mason and his passenger, and “only one to one

and one-half minutes involved questioning on matters unrelated to the traffic stop.” Mason, 628

                                                 - 14 -
F.3d at 131. Thus, while the United States Court of Appeals for the Fourth Circuit recognized

that “a traffic stop may not be extended beyond the time reasonably necessary to effectuate the

stop,” it concluded that “[t]he 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.” Id. at 132.11

       Here, over nineteen minutes elapsed from the time Ewell stopped the SUV and appellant

admitted he had illegal drugs. Only ten minutes of that detention was reasonably devoted to the

traffic citation process. Thus, in contrast to Ellis and Mason, nearly half of the approximate

nineteen-minute detention of Johnson and the other SUV occupants was devoted to the drug

investigation rather than the citation process.

       Accordingly, we conclude that the additional delay from the time Samuel arrived until the

time appellant confessed and was arrested was not de minimis for Fourth Amendment purposes,

that the continued seizure of appellant during that time period violated the Fourth Amendment,

and that any evidence collected by the police after Samuel’s arrival, including the drugs and

appellant’s statements, were subject to the exclusionary rule. Herring, 555 U.S. at 144.




       11
           The Commonwealth’s position that any delay associated with the drug investigation
was de minimis is based upon the faulty premise that the traffic stop was still in progress at the
time that the drug dog swept the vehicle. The Commonwealth wrongly assumes that Ewell had
not completed, or reasonably could not have completed the background checks and traffic
citation process by the time the K9 unit arrived.
         We acknowledge that Mason secondarily held that an “11-minute traffic stop” was not so
long as to constitute “an unconstitutional delay.” Id. However, because the traffic stop in
Mason, as well as in Ellis, clearly terminated upon the issuance of a citation, the court was not
called upon to decide when the traffic stop portion of the detention should have reasonably
concluded. While we decide here that, based upon the facts and circumstances presented, the
traffic stop should have reasonably concluded after approximately ten minutes, we do not hold
that a ten-minute traffic stop is per se unconstitutional.
                                                - 15 -
       We reverse the judgment of the trial court on the suppression motion, reverse appellant’s

convictions, and remand the case for further proceedings if the Commonwealth be so advised.

                                                                        Reversed and remanded.




                                             - 16 -
