COURT OF APPEALS OF VIRGINIA
Present: Judges De cker, AtLee and Malveaux Argued at Richmond, Virginia

SHAYQUAN QUANTAE MARSHALL MEMORANDUM OPINION * BY v. Record No. 2053-15-2 J UDGE RICHARD Y. ATLEE, JR. DECEMBER 6, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Beverly W. Snukals, Judge David B. Hargett (Hargett Law, PLC, on brief), for appellant. Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
The Circuit Court of the City of Richmond (“trial court”) convicted appellant Shayquan Quantae Marshall for possession of cocaine with th e intent to distribute, third or subsequent offense. On appeal, he contends the trial cour t erred in denying his motion to suppress because the officer unlawfully deviated from the stop in calling and assisti ng a K9 unit. For the following reasons, we find no erro r in the result and affirm.
I. B ACKGROUND “On appellate review, we are bound by the fam iliar principle that ‘we must consider the evidence and all reasonable inferences fairly dedu cible therefrom in the li ght most favorable to the Commonwealth, the prevailing party belo w.’” Collins v. Commonwealth, 65 Va. App. 37, 40, 773 S.E.2d 618, 620 (2015) (quoting Robins on v. Commonwealth, 273 Va. 26, 30, 639 S.E.2d 217, 219 (2007)), aff’d, ___ Va. ___, 790 S.E.2d 611 (2016). So viewed, the evidence

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - reflects that on July 22, 2014 at approximately 11:30 a.m., Detective Milton was patrolling an area “known for having a lot of street-level narcot ics.” A vehicle, driven by Marshall, cut in front of him. Milton pulled Marshall’s vehicle over for that traffic violation and for a dangling object hanging from his rearview mirror. Detect ive Melton, who recognized Marshall from prior drug arrests, happened to be nearby and witne ssed the stop. Immediatel y after Milton stepped away from Marshall’s vehicle to re turn to the patrol car, Melton, w ho was still in his patrol car, advised Milton of Marshall’s criminal history. He mentioned that Marshall likely had narcotics on his person, and recommended that Milton call a K9 unit. Milton radioed for a K9 unit as he returned to his patrol vehicle. In the patr ol car, he began checking the information he had collected from Marshall. Consistent with th e information Melton had provided, Marshall’s
“PISTOL” 1 background check indicated that he was a “narcotics seller, us er, probably armed, a gang member.” Officer Robinson arrived at the scene with he r drug-detection dog within five minutes of Milton calling for a K9 unit. At the tim e Robinson was dispatched at 11:37 a.m., 2 she was a mile away. She left the station at approximately 11:39 a.m. When she arrived, Milton had not yet finished investigating the traffic infracti on. She spoke with Milton for approximately 3 a “couple of minutes” in order to determine where Milton wanted her to run the dog. She removed the dog from the vehicle and it “immediatel y” alerted on the driver’s side of the vehicle, where Marshall

1 “PISTOL” is a database that advises officers of the “nature of the contact” a suspect has had with the Richmond Police Department, any prio r arrests, and whether the suspect might be armed.

2 Robinson testified she did not know what time the request was received; she only knew the time she was dispatched to the scene. Ho wever, Robinson’s testim ony regarding the time she was dispatched is consistent wi th Milton’s recollection that sh e arrived no more than five minutes after he requested a K9 unit.

3 On cross-examination, Robinson stated that sh e spoke with the officer at the scene for a “couple of minutes,” “[g]ive or take a minute or two minutes.”- 3 - was seated with the window open. The alert oc curred at 11:44 a.m. Af ter the alert, Marshall admitted he had drugs on his person. Later, police found a clear plastic bag sewn into the fly of his shorts. The bag contained multiple indivi dually-wrapped portions of a substance later determined to be crack cocaine.
II. A NALYSIS For Fourth Amendment purposes, Marshall wa s seized throughout the duration of the stop. “A ‘seizure that is justif ied solely by the interest in issu ing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.’” Matthews v. Commonwealth, 65 Va. App. 334, 344, 778 S.E.2d 122, 127 (2015) (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005 )). “The seizure remains lawful only ‘so long as [unrelated] inquiries do no t measurably extend the duration of the stop.’” Id. (alteration in original) (quoting Arizona v. Johnson, 555 U.S. 323, 333 (2009)). Marshall argues that Milton deviated from the traffic stop in three instances and that those deviations unlawfully prolonged the stop: (1) Milton’s and Melton’s c onversation about Marshall’s criminal history, (2) the delay attributed to Milton calling for a K9 unit, and (3) Milton’s conversation with Robinson upon her arrival. The stop here occurred prior to the United St ates Supreme Court de cision in Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015) (holding that during a lawful traffic stop, a police officer “may conduct certain unrelated checks,” bu t “may not do so in a way that prolongs the stop, absent the reasonable suspici on ordinarily demanded to justif y detaining an individual”). At the time of the stop in this case, bindi ng precedent stated that there was no Fourth Amendment violation if any de viations or delays unrelated to the traffic stop were “ de minimis .” Matthews, 65 Va. App. at 353, 778 S.E.2d at 132; Ellis v. Commonwealth, 52 Va. App. 220, 227, 662 S.E.2d 640, 643 (2008). Evidence obtained during a search con ducted in reasonable- 4 - reliance on binding precedent at the time is not subject to the exclusionary rule. Davis v. United States, 564 U.S. 229, 241 (2011) (d escribing this dimension of the “good faith” exception). Therefore, we may assume without deciding that any delay here was unlawful under Rodriguez, but nevertheless, the evidence should not be excl uded so long as the delays unrelated to the traffic offense were “ de minimis .” 4 Whether the delays were de minimis presents “a mixed question of law and fact that we review de novo on appeal.” McCain v. Commonwealth, 275 Va. 546, 551, 659 S.E.2d 512, 515 (2008). We are “bound by the trial court’s findings of historical fact unless plainly wrong or without evidence to suppor t them and we give due weight to the inferences drawn from those facts by resident judges and loca l law enforcement officers.” Matthews, 65 Va. App. at 341-42, 778 S.E.2d at 126 (quoting McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) ( en banc )). After considering each alleged devi ation individually, and then in their totality, we find that any extension of the stop caused by Milton’s inves tigation of a suspected drug offense was only a de minimis delay. Thus, the evidence was admissible under the good faith exception to the exclusionary rule.
A. Milton’s conversation with Melton The record is silent as to the exact amount of time that Milton and Melton spoke. The trial court noted that either “just sort of in passing [Melton] yelled out to him” or “there was some discussion as [Milton] was travelling to the squad car.” In either scenario, the conversation was limited in scope and duration. It also coincide d with Milton’s return to his patrol vehicle,

4 The trial court denied the motion to s uppress because it found the stop lawful under Rodriguez. We affirm the judgment not for that reason, but because this stop occurred prior to the Rodriguez decision and was lawful under then-exi sting law. Thus, the ex clusionary rule does not apply. Debroux v. Comm onwealth, 32 Va. App. 364, 371, 528 S.E.2d 151, 154 (2000) (“an appellate court may affirm the judgm ent of a trial court when it ha s reached the right result” for a reason other than the reason adopted by the a ppellate court (quoting Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312, 313 (1992))).- 5 - which was part of the traffic stop. Furthermore, such a conversation adva nces the interest of protecting officer safety, given that Melton had prior experience with Marshall, and Marshall’s PISTOL profile indicated he was “probabl y armed” and “a gang member.” Ultimately, characterizing this conversation as akin to Milto n checking Marshall’s criminal history, the trial court ruled that the ini tial conversation with Melton was not a “deviation” from the traffic stop. We agree.
B. Milton calling a K9 unit Second, Marshall challenges the delay caused by Milton’s call for a K9 unit. Viewing the evidence in the light most favorable to the Commonwealth, Milton had already placed the call before he returned to his patrol vehicle to run Marshall’s information. Because he needed to return to the patrol car as part of the investigation into the tr affic offense, the most reasonable inference, viewing the evidence as we must, is that his placing this call en route did not result in any measurable delay.
C. Milton speaking with Robinson Third, Marhsall contends the traffic stop wa s interrupted when Milton got out of his vehicle and spoke with the K9 officer, Robinson, upon her arrival. The trial court ruled that there was “no evidence” that the time it took Robinson to arrive and speak with Milton “delayed Milton in any way or that that di dn’t coincide with the reasonable time that Milton took to do his traffic investigation.” We ca nnot say this factual finding is plainly wrong or unsupported by the evidence. Furthermore, Robinson testified that this conversation was quite limited in scope — confined solely to determining where Milton want ed her to run the dog. Viewing the evidence in the light most favorable to the Commonwealth, th e conversation was at most two minutes long.- 6 - D. The alleged deviations as a whole Even if each alleged deviation, by itself, was de minimis , we must consider their collective effect on the duration of the st op. Milton stopped Marshall at approximately 11:30 a.m. The record does not specify exactly how long Milton spoke with Melton, but shortly after the exchange, Milton called for a drug dog. Robinson was contacte d by dispatch at 11:37 a.m. She left from a police station appr oximately one mile away at roughly 11:39 a.m. When she arrived shortly therea fter, Milton had nearly finished checking Marshall’s information for the traffic offense. Robinson spoke with Mi lton briefly “to find out what they want me to run,” which she estimated lasted a minute or two. She then removed her dog from her vehicle. The dog “immediately” alerted to the vehicle at 11 :44 a.m. The investigation into the traffic offense had not concluded before the dog alerted. In sum, over the course of an approximate fourteen-minute period between the beginning of the stop and the dog alerting, at most two to th ree minutes were attribut able to investigating the suspected narcotics offense. Although no bi nding case law presents these precise facts, persuasive guidance indicates that this is a de minimis intrusion. See United States v. Mason, 628 F.3d 123, 132 (4th Cir. 2010) (finding that “ 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”); Unit ed States v. Alexander, 448 F.3d 1014, 1017 (8th Cir. 2006) (upholding four-minute extension of a twenty-minute stop); United States v. Martin, 411 F.3d 998, 1002 (8th Cir. 2005) (stating th at a “two minute delay . . . is a de minimis intrusion on the driver’s personal liberty that does not violate the Fourth Amendment”); United States v. Purcell, 236 F.3d 1274, 1279 (11th Cir. 2001) (a ffirming a three-minute delay during fourteen-minute stop as de minimis ).- 7 - In Matthews, this Court addressed an analogous set of facts. Du ring the course of a traffic stop, the officer asked Matt hews questions unrelated to the traffic offense, on topics such as his travel history, criminal background, and whether his tattoos were “prison tattoos.” The officer also questioned Matthew s about drug use and why he appeared nervous. After taking Matthews’s information, the officer returned to his cruiser to check it and to call a K9 unit. The officer spent only “twenty to thirty seconds” sp eaking with Matthews about his prison tattoos, and only about “ten seconds” callin g the drug dog. We did not ta lly the total time devoted to “non-traffic citation” deviations out of the total duration of the stop, but emphasized that the “unrelated questions ‘were given in fairly quick order’” and that “t he ‘whole process [was] just a matter of minutes.’” Matthews, 65 Va. App. at 353, 778 S.E.2d at 132. We concluded that the deviations were unlawful under Rodriguez, but were de minimis , and therefore lawful, prior to Rodriguez. Accordingly, the excl usionary rule did not apply. Id. The delays here are similar to those in Ma tthews, consisting of two brief conversations and a request for a K9 unit. Viewing the ev idence in the light most favorable to the Commonwealth, these delays amounted to, at most, two to three minutes. Accordingly, because “the ‘whole process [was] just a matter of minutes ,’” id., the deviations from the total length of the traffic stop were de minimis. Because the search was lawful under the prevailing law of the time, the exclusionary rule does not apply, and th e trial court did not err in denying Marshall’s motion to suppress.
III. C ONCLUSION The trial court did not err in denying Ma rshall’s motion to suppress, because any deviation from the traffic stop was de minimis , and thus falls within the good faith exception to the exclusionary rule. Accordingly, we affirm Marshall’s conviction. Affirmed.