Virginia Lawyers Weekly

When the cops have called out the drug dogs, a lawyer’s choice of defense can make all the difference, as demonstrated by two recent Virginia Beach cases involving K-9 collars.

The circumstances of the charges again Gloria Jean Ellis and Justin Jesse Middlebrooks were remarkably similar. But the nuances of their arguments on appeal led to different outcomes in their cases.

A police officer pulled Gloria Jean Ellis after he noticed that a brake light on her pickup truck wasn’t working. The officer intended to issue a summons but recalled that Ellis and her passenger had a “previous narcotics history.”

He asked for permission to search the truck but she refused. “Do I have to get a drug dog?” the officer asked. She told him to go ahead and get the dog. The dog alerted on the truck, and a female officer found cocaine on Ellis after she allowed the woman to search her. The Virginia Court of Appeals upheld the search in Ellis v. Commonwealth (VLW 008-7-301).

In the second case, police issued a summons to Justin Jesse Middlebrooks after they saw him urinate near a parked car about 1:10 a.m. on July 2, 2006, between 19th and 21st streets at the oceanfront.

Middlebrooks told the officers the nearby car was “my people’s,” but the officers checked the ownership of the vehicle and found that it belonged to Middlebrooks.

They became even more suspicious when Middlebrooks remained in the area for another 10 minutes. One of the officers approached him while he was in the vehicle and asked if he could search it.

After Middlebrooks refused the request, the officer said, “I just want to let you know I’m going to call the drug dog out. I’m going to have him run your car.” The officer then asked if there was any “weed” in the car and Middlebrooks admitted there was.
A search of the car and Middlebrooks produced an ounce of marijuana, a digital scale and $453 in cash. He was ultimately convicted of possession of marijuana with intent to distribute it. Last week, however, the Court of Appeals reversed in Middlebrooks v. Commonwealth (VLW 008-7-361).

Despite the similarity in circumstances, the defendants raised different defenses.

Ellis argued the seizure of the cocaine was unconstitutional because the length of the detention before the drugs were seized was unreasonably long. She said the officers abandoned the original purpose of the traffic stop and began a narcotics investigation without reasonable suspicion.

Judge D. Arthur Kelsey made quick work of the argument. The dog arrived before the officers had finished running traffic and records checks and filling out the summons, Kelsey noted. The “only period of delay attributable to the drug issue was the one-minute conversation the officer had with Ellis after he remembered seeing her about a week earlier at a home searched for narcotics.…

“The brief, incremental delay caused by the officer’s questions regarding drugs did not violate the Fourth Amendment” and “did not constitute an exploitive basis for securing Ellis’s consent,” Kelsey said in Ellis.

Before addressing the length of the detention, Kelsey noted that Ellis “does not argue that her consent was involuntary or in any way coerced.”

That was precisely Middlebrooks’ contention, and it proved to be a winner. “We agree with Middlebrooks that the encounter became non-consensual when [the officer] told Middlebrooks that a drug dog was coming to run his vehicle,” Judge LeRoy F. Millette Jr. wrote in Middlebrooks.

After the officer told Middlebrooks he was going to summon the drug dog, “no reasonable person would have felt free to leave,” Millette said. Looking at the totality of the circumstances, including the officer’s “use of compelling language, the presence of four officers at the scene, and the officers’ failure to tell Middelbrooks he was free to leave, Middlebrooks was seized.”

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