IN THE COURT OF APPEALS OF VIRGINIA Commonwealth, ) Appellant, ) ) Record No: v. ) ) Jane Smith ) Appellee ) Brief in Opposition to Petition for Appeal Nature of the Case For the purpose of this petition, Appellee adopts the nature of the case as laid out in appellant's "Statement of Material Proceedings." Questions: (1) Did the Commonwealth properly preserve and perfect its appeal under Supreme Court Rule 5A:18 and Va. Code  19.2-398? (2) Does the Commonwealth violate 5A:18 when it argues for the first time in its appeal, without preserving it in the trial court, that probable cause existed solely from the dog's reaction to Ms. Smith even though a trained officer did not find probable cause at the scene? (3) Did the officers violate Ms. Smith' 4th Amendment rights when they searched her truck without probable cause? (4) Did the officers violate Ms. Smith' 4th Amendment rights when they brought a dog forward to investigate her body, her truck, and the body of a passenger in her truck without any reason to believe that drugs were present? (5) Did the officers violate Ms. Smith' 4th Amendment rights when they held her in violation of Richmond v. Commonwealth, 22 Va.App. 257 (1996)? Statement of Facts: Well settled principles of law cover the determination of facts which will be examined by appellate courts in a review of a trial court's Fourth Amendment decisions: "[I]t is the function of the [Trial] Court rather than the Court of Appeals to determine the facts." Murray v. United States, 487 U.S. 533, 543 (1988). Recognizing this truism, the rule which has developed in Virginian appellate courts is that "[i]n performing [Fourth Amendment] analysis, 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 (1997) (en banc); see also Murphy v. Commonwealth, 264 Va. 568 (2002)("In making such a determination, we give deference to the factual findings of the trial court"); and Ornelas v. United States, 517 U.S. 690 (1996)(clear error must exist for the appellate court to depart from the findings of the trial court). With these principles in mind it must be noted that the Appellant's reliance on the January hearing in its "Statement of Facts" is inapposite because the trial judge made specific findings of fact in the March hearing. (MarTr 5&6). Many of the appellant's assertions are beyond the scope of the trial court's findings. Therefore, the entirety of the trial court's factual findings follow: "Ms. Smith was stopped as she drove a truck southbound on I-95. According to Officer Orange, the stop was based on suspicion of driving under the influence, given that the vehicle had strayed over the line separating the outside lane from the right shoulder of the road. Officer Orange said she noticed nothing unusual about Ms. Smith. She did not smell the odor of alcohol, although the suspicion of DUI was the basis for the stop, and no insobriety tests were performed. While Ms. Smith' information was being checked through DMV, Officer Orange got out of the police vehicle and took a dog to the Smith vehicle. The dog presented an interest in an area of Ms. Smith' body which caused Officer Orange to believe that Ms. Smith might be menstruating and Officer Orange then called the dog off. The dog did not alert on the vehicle, but did alert on another passenger who was searched and found not to be holding any contraband, but who said he had been around someone earlier who had smoked marijuana; and based on those circumstances, the vehicle or the truck, was searched and contraband was found and that led to the confrontation with Ms. Smith, and she was advised that if she were holding anything, it would be better for her to give it up, and she produced contraband from her front pockets." Analysis: Procedural Rules and Laws: Virginia Supreme Court Rule 5:25: Error will not be sustained to any ruling of the trial court . . . unless the objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to obtain the ends of justice. Virginia Supreme Court Rule 5A:18: No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated together with grounds therefore at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice. Va Code  19.2-398.A. In a felony case a pretrial appeal from a circuit court may be taken by the Commonwealth from: . . . 2. An order of a circuit court prohibiting the use of certain evidence at trial on the grounds such evidence was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10 or 11 of the Constitution of Virginia prohibiting illegal searches and seizures and protecting rights against self-incrimination, provided the Commonwealth certifies that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding. "The statute [Va Code  19.2-398.A.] must be read so as to give effect to the plain meaning of all of its terms. It is in derogation of the general constitutional prohibition against appeals by the Commonwealth. It must be strictly construed against the state." Commonwealth v. Thomas, 23 Va.App. 598, 607 (1996)(going on, in the conjunctive, to explain that the jurisdiction of the statute cannot be expanded - this case originally pertained to the Virginian constitution but now applies through the federal constitution). Burden: In matters concerning the admissibility of constitutionally challenged evidence, "the burden is on appellant to show that the court's ruling constituted reversible error." Robinson v. Commonwealth, 31 Va.App. 479, 483 (2000). "Under the Fourth Amendment, the Commonwealth has the burden of proving the legitimacy of a warrantless search and seizure." Simmons v. Commonwealth, 238 Va. 200, 204 (1989) (citing Coolidge v. New Hampshire, 403 U.S. 443 (1971); & Vale v. Louisiana, 399 U.S. 30 (1970).) Standard of Review: A trial judge's decision concerning the admission of constitutionally challenged evidence will not be reversed unless it is plainly wrong. Commonwealth v. Grimstead, 12 Va.App. 1066, 1067 (1991)(concerning unconstitutional search and seizure); see also Richmond 22 Va.App. at 260. Admissibility is an issue for the court and not the jury, and the trial court must determine whether constitutionally challenged evidence shall be suppressed. "In so doing, the trial court evaluates the credibility of witnesses, resolves the conflicts in their testimony, and weighs the evidence as a whole. Its finding is entitled to the same weight on appeal as that accorded a factual finding by a jury and will not be disturbed unless it is plainly wrong." Stockton v. Commonwealth, 227 Va. 124, 140 (1984)(concerning alleged Fifth Amendment violation). In making this determination, evidence is viewed in the light most favorable to the party which prevailed below and the appellate court is bound by the factual holdings and inferences of the trial court unless the trial court is plainly wrong. Robinson at 483. Within these constraints, the appellate court makes a de novo review of the legal matters raised in the trial court. McGee at 306. Issues: Procedural Failures: (1) At no point does the Commonwealth Attorney raise an objection to the trial court's ruling suppressing the contraband. There is no objection raised after the trial court's ruling on 01 March 2004, nor is there an objection filed within the 21 days that the trial court retained jurisdiction under Virginia Supreme Court Rule 1.1. Neither under Va Code  19.2-398 nor Virginia Constitution art VI sec 1, is the Commonwealth relieved of the responsibility which all parties have to actually object in order to preserve an appeal. Nowhere in the Petition for Appeal does the Commonwealth ask the Court to make an exception for "good cause shown or to enable the Court of Appeals to attain the ends of justice." Failing any of these, the Commonwealth has not preserved an actionable appeal and the Court should deny the petition. (2) As well, the Commonwealth is required under Va Code  19.2-398.A(2) to certify "that the appeal is not taken for purpose of delay." The Commonwealth has neither done this in its "Notice of Appeal" nor in its "Petition to Appeal Suppression of Evidence." Having failed to properly certify the appeal in the manner laid out under the code, the Commonwealth has failed to properly preserve his appeal for this Court and the Court should deny its petition. The Argument Not Raised in the Trial Court: It must be noted that the trial court specifically found that the search of Ms. Smith was a product of the search of the truck. No independent reason was given for the search. No indication was given that Ms. Smith would have been searched if the unconstitutional search of the truck had not produced contraband. On the January date the Commonwealth relied upon this argument: Although the passenger had no drugs on him he admitted he had been around someone smoking marijuana earlier in the day. Maybe that marijuana had been smoked in the truck despite the fact that the dog had not alerted when it checked the truck. (JanTr 21). In its brief to the trial judge the Commonwealth argued four points: (1) "Use of Drug Dog is not itself a Search," (2) "Officer Green had probable cause to search the vehicle," (3) "The Discovery of Contraband in the truck provided Officer Orange the probable cause to search the defendant," and (4) "The Defendant's Fourth Amendment Rights were not violated by the duration of the valid traffic stop." On the March date the Commonwealth's only statement was, "I would rely on the brief presented." (MarTr 10:1). Additionally, the Commonwealth forwent the argument it attempts today in the January hearing: COMMONWEALTH: While that [license] check is being run . . . [s]he takes the dog and goes by . . . and we also have this other thing that she described that I think in retrospect was a hit also on this individual. THE COURT: She can't arrest somebody based on rationale for probable cause that is arrived at weeks after the fact. You can't retroactively justify an arrest. COMMONWEALTH: Right. The purpose of Rules 5:25 and 5A:18 is to afford the trial court an opportunity to rule intelligently on the issue presented. Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). The rule applies to all types of cases, including those with constitutional rights at issue. See Swann v. Commonwealth, 247 Va. 222, 229, 441 S.E.2d 195, 201 (1994) (consideration barred because objections not based on the constitutional grounds asserted for first time on appeal); Ashby v. Commonwealth, 33 Va.App. 540, 544-45, 535 S.E .2d 182, 185 (2000) (Rule 5A:18 barred consideration of speedy trial issues under United States and Virginia Constitutions); Jacques v. Commonwealth, 12 Va.App. 591, 593, 405 S.E.2d 630, 631 (1991) (Rule 5A:18 barred consideration of statutory argument not raised in trial court); Cottrell v. Commonwealth, 12 Va.App. 570, 574, 405 S.E.2d 438, 441 (1991) (Rule 5A:18 barred consideration of constitutional question not raised in trial court). "In addition, a specific, contemporaneous objection gives the opposing party the opportunity to meet the objection at that stage of the proceeding." Weidman at 45 (citing Hilton v. Fayen, 196 Va. 860, 866, 86 S.E.2d 40, 43 (1955).). Therefore, the Court will not consider assignments of error if the objection was not supported at trial or the reason for the objection at trial was not supported with the same argument. Swann at 229. Not having raised this argument in the various opportunities given it by the trial court, the Commonwealth cannot raise the argument at this late date and therefore the Court should not consider this argument. The Unconstitutional Search of the Truck: In its Petition for Appeal the Commonwealth does not even contest the unconstitutionality of the search of the truck. This is curious in that, prior to declaring the search unconstitutional, the trial judge stated unequivocally, "I think the case rises and falls, frankly, on whether there is probable cause to search the truck" (in response to Defendant- Appellee's assertion that there were other grounds). (MarTr 8:1-3). As well, the trial court specifically found, as a factual matter, "the vehicle or the truck, was searched and contraband was found and that led to the confrontation with Ms. Smith." (MarTr 6:18-20). By not arguing, or even raising the point, the Commonwealth forfeits any argument that the search of the truck was constitutional. It also forfeits the argument that the search of Ms. Smith, which would not have occurred without the search of the truck, is constitutional. Nevertheless, the Appellee asserts the unconstitutionality of the search of the truck - and subsequent search of Ms. Smith - on the following grounds: The results of the canine sniff do not provide the probable cause required to give the officers the carte blanche to search the passenger compartment allowed by New York v. Belton, 453 U.S. 454 (1981). In fact, the dog had given the truck a pass, not indicating in any way the presence of drugs. No probable cause had been developed as to Ms. Smith; in the officer's professional judgement the dog had not indicated drugs on her person. No probable cause had been developed in the person of the passenger; a search revealed no drugs on his person. While the requirements for a warrantless search of a person's vehicle have been whittled down, the officers must still at least have probable cause. Maryland v. Dyson, 527 U.S. 465 (1999). The police officers had direct knowledge of an indication from the dog that no drugs were present in the truck. The officers did not state that they smelled an odor from drug use or saw any suspicious items in plain view at any time during the stop. They had previously found no drugs in the scan of Ms. Smith and the actual physical search of the passenger. There were no facts in the officers' possession which could possibly have risen above mere suspicion that "maybe they were smoking [marijuana] in the vehicle" (JanTr 21: 10-11). This guesswork clearly falls far short of probable cause. The Canine Sniff: (1) As the Court is no doubt aware, the Federal Supreme Court granted certiorari in the case of Illinois v. Caballes, U.S. (No. 03-923, 05 April 2004). This case raises the issue of whether canines can be brought forward to sniff people stopped for traffic infractions without any reasonable suspicion of criminal activity. See People v. Caballes, 195 Ill.2d 582, 755 N.E.2d 479 (2001)( unjustified expansion of a traffic stop through a canine sniff is unconstitutional). (2) Regardless of how Caballes is decided, the expansion of this stop in order to perform a canine sniff on Ms. Smith was unconstitutional. All of the cases which the Commonwealth cites are cases involving luggage or vehicles. The Commonwealth proceeds from the dicta in United States v. Place, 462 U.S. 696 (holding: detaining luggage for 90 minutes is an unconstitutional seizure) which states that a canine sniffing luggage is not a search. The Commonwealth also cites a vehicle case, Brown v. Commonwealth, 15 Va.App 1 (1992)(en banc): "Nothing in the Fourth Amendment prohibits a law enforcement officer from using trained canines to augment the sensory faculties bestowed on the officer at birth." The difficulty with this assertion is that the Federal Supreme Court has stated in Kyllo v. United States, 533 U.S. 27, 34 (2001), that "obtaining by sense-enhancing technology any information . . . that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search--at least where (as here) the technology in question is not in general public use." The dissent in Kyllo recognizes that the majority's opinion would clearly make anyone using a technological tool to accomplish the same thing as a canine sniff in violation of the constitution's prohibition of unwarranted searches. Id. at 47-48. There can be little doubt but that the majority would agree. If a technological tool can be used unconstitutionally a biological tool which accomplishes the same thing can as well. The third case cited by the Commonwealth, United States v. McFarley, 991 F.2d 118 (4th Cir. 1993), it is a run of the mill holding of luggage until a dog can be used to see if odors emanating from luggage indicate to the dog that drugs are inside. (3) The officer brought a dog forward to perform a search of Ms. Smith, her truck, and the passenger. This clearly extends the stop beyond that which is necessary to conduct a radio check of Ms. Smith' license and registration. It turns the encounter into a seizure for the purpose of searching the person of Ms. Smith. Even if the dog's sniff of the truck is not a "search," it is clear that detaining someone without reasonable suspicion and then searching their person with a drug dog is unconstitutional. United States v. Foreman, 269 F.Supp.2d 683, 687 (E.D.Va. 2003)(even if a dog sniff is not a search, holding a person for a sniff without reasonable suspicion is an unconstitutional seizure); see also Horton v. Gross Creek Independent School District, 690 F.2d 470 (5th Cir 1982)(The Fourth Amendment applies with its fullest vigor against any intrusion on the human body and a dog sniff is unconstitutional "when there is no individualized suspicion"); & United States v. Kelly, 302 F.3d 291 (5th Cir 2002)(dog sniff of a person, as opposed to an object, is a search); B.C. v. Plumas Unified School District, 192 F.3d 1260 (9th Cir 1999)(adopting the 5th Circuit's rationale in holding that dog sniffs of a person are searches). The continued seizure of Ms. Smith in order to conduct a canine sniff-search is unconstitutional and therefore the trial court's action in not admitting the tainted evidence was proper and this Court should not grant the Commonwealth's petition. Impermissible Seizure in Violation of Richmond v. Commonwealth, 22 Va.App. 257 (1996): In dealing with the issue of whether there was an impermissible seizure, it is telling that the Commonwealth can only cite a Fourth Circuit case rather than one binding on this Court. In Richmond, a binding precedent on this Court, an officer approached a car and spoke with the driver. The Court found that there was no seizure, in violation of the Fourth Amendment, until the officer took the driver's license to operate a motor vehicle and did not return it to him. Richmond 22 Va.App. at 261. Much as in the case at bar, the deputy in Richmond did not articulate a suspicion of criminal activity which necessitated further investigation requiring a radio check of the license's veracity or the record of the license holder. In the case at bar the officer had determined that initial reason for the stop was not a concern (Ms. Smith was obviously not driving drunk). Nevertheless, the officer took Ms. Smith' license. The officer did not articulate a reason that she believed the license was improper, suspended, expired or revoked. The officer did not articulate a reason that she needed to check Ms. Smith's record. The officer had no reason to detain Ms. Smith in order to perform the check. Therefore, the seizure of Ms. Smith became a violation of the Fourth Amendment of the federal constitution. The trial court's action in not admitting the tainted evidence which proceeded from this unconstitutional seizure was proper and this Court should not grant the Commonwealth's petition. Conclusion Given the flaws in the Commonwealth's petition and the numerous constitutional violations which occurred at this stop, the appellant's petition should be denied. ____________________________ Ken Lammers Jr., Esquire Lammers Law Office