Criminal – Probable cause includes dog’s positive alert for narcotics

Where a police dog’s handler testified about his training, including how he was trained to alert when he located narcotic odor, the district court did not err in considering that positive alert in determining whether there was probable cause to search a vehicle.

Background

Following a bench trial, James Douglas Cason was convicted of possessing with an intent to distribute a schedule I or II controlled substance, third or subsequent offense.

Traffic stop

Cason contends that the circuit court erred by denying his motion to suppress, claiming that the police exceeded the scope of the stop. This court disagrees.

Here, while Cason was initially stopped for failure to come to a complete stop at a stop sign, when the deputy (Stutes) encountered him, he informed Stutes that his driver’s license was restricted and did not have insurance information readily at hand. With the information that Cason may have been driving illegally, Stutes began investigating his driving history.

Corporal Kirby then arrived on scene. At the time, Stutes had not run a query transcript of Cason’s driver’s license history. Stutes exited his vehicle “immediately” and gave Cason’s information to Kirby and requested he run a query transcript to confirm Cason’s status and determine his driver’s license history; he then removed Cason and began the free air sniff.

Stutes testified that the free air sniff would take about as long as running the query transcript, and the circuit court found that no delay was caused by the free air sniff “as it seemed to have concluded by the time Kirby had spent approximately one minute conducting a QT.” Though he said he would look on his phone for proof of insurance, Cason never proved proof of insurance. Given the circumstances of this case, it cannot be said that the circuit court erred in finding no delay or in not finding that the officers exceed the scope of the traffic stop.

K-9

Cason also contends that the circuit court erred by denying his motion to suppress because the K-9, Vudu, behavior did not create probable cause to search. For trial testimony, the foundation relating to dog alert testimony “must establish the appropriate training and reliability of the dog in the detection of specific drugs by odor and the witness handler’s expertise in interpreting the dog’s behavior, together with circumstances conducive to a dependable scent identification by the animal and a credible evaluation of its related behavior.”

Here, the testimony of Stutes included a great amount of detail about Vudu’s training, including that the two had been trained together, that he and Vudu underwent blind training and that Vudu responded how he was trained to alert when he located narcotic odor. Looking at the totality of the circumstances, it cannot be said that the circuit court erred in considering Vudu’s alert in its probable cause analysis. As such, the circuit court did not err in denying the motion to suppress.

Mitigation letter

Cason finally asserts that the circuit court erred by not permitting a mitigation letter to be used at sentencing. However the record on appeal does not contain timely-filed transcripts of the trial or the sentencing hearing. As such, this court must consider whether one is indispensable to a determination of the assignment of error on appeal.

Cason claims that the circuit court erred by not permitting a certain mitigation letter to be used at sentencing. Cason claims that the Commonwealth objected to the letter on hearsay and authentication grounds. On appeal, the Commonwealth asserts that Cason did not proffer the letter’s contents. A sentencing judge has wide discretion in the evidence to be admitted during sentencing, and “[h]earsay testimony may be admissible in a sentencing hearing if it has ‘some indicia of reliability.’”

Without a timely-filed sentencing transcript, or statement of facts in lieu of a transcript, this court cannot evaluate his arguments nor determine if he properly preserved his argument. Thus, a transcript or a written statement of facts in lieu of a transcript is indispensable in resolving this issue on appeal. As Cason failed to provide a timely-filed transcript or a written statement of facts in lieu of a transcript necessary to resolve his assignments of error, this court will not consider them.

Affirmed.

Carson v. Commonwealth, Record No. 1082-25-3, April 28, 2026. CAV (unpublished opinion) (Frucci). From the Circuit Court of Augusta County (Workowski). Caleb Routhier for appellant. J. Brady Hess, Assistant Attorney General (Jason S. Miyares,1 Attorney General, on brief), for appellee. VLW 026-7-166. 11 pp.

Full-Text Opinion

VLW 026-7-166
Virginia Lawyers Weekly