Mason v. Commonwealth

Decision Date03 February 2015
Docket NumberRecord No. 1542–13–2.
PartiesLoren Anthony MASON, Jr. v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

Paul S. Roskin (Vergara & Associates, on brief), for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.



KELSEY, Judge.

The trial court convicted Loren Anthony Mason, Jr., of various drug offenses1 based upon evidence obtained during a traffic stop of a vehicle in which he was a passenger. Prior to trial, Mason moved to suppress the evidence, claiming that the traffic stop was unconstitutional. The trial court disagreed, denied the motion, and convicted Mason of the charged offenses.

On appeal, Mason challenges the trial court's denial of his motion to suppress. A divided panel of this Court agreed with Mason, reversed the trial court's ruling on the motion to suppress, and remanded the matter to the trial court. Mason v. Commonwealth, 63 Va.App. 587, 760 S.E.2d 831 (2014). We granted the Commonwealth's petition for rehearing en banc, vacated the panel opinion, and now affirm the decision of the trial court.2


We restate the facts “in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.”

Glenn v. Commonwealth, 49 Va.App. 413, 416, 642 S.E.2d 282, 283 (2007) (en banc ) (internal quotation marks omitted), aff'd, 275 Va. 123, 654 S.E.2d 910 (2008). “In doing so, we consider facts presented both at the suppression hearing and at trial.” Elliott v. Commonwealth, 61 Va.App. 48, 51, 733 S.E.2d 146, 148 (2012).

In this case, a police officer testified that, while operating a stationary radar unit, he saw a sedan with a “dangling object” that was “hanging from the rearview mirror.” App. at 24. The officer testified that he “saw it clearly” as the vehicle “went by” him at “approximately 2:30 in the afternoon.” Id. at 21, 31. The object, reproduced below, was admitted into evidence.

In his testimony, the officer identified this object as the “dangling object that [he] saw on that particular day.” Id. at 24. It is an opaque parking pass measuring five inches long and three inches wide. When asked if the dangling parking pass that he observed “could obstruct a driver's view,” the officer replied unequivocally, “It could, yes, ma'am.” Id. at 31. Code § 46.2–1054 prohibits, among other things, any object from being “suspended from any part of the motor vehicle in such a manner as to obstruct the driver's clear view of the highway through the windshield, the front side windows, or the rear window.” Mason conceded in the trial court that the officer made a traffic stop of the sedan believing that he was acting properly” pursuant to Code § 46.2–1054. Id. at 89.

At the time of the traffic stop, Mason was a passenger in the sedan. The officer intended to issue the driver a summons for driving without a seatbelt and for violating Code § 46.2–1054. Prior to issuing the summons, however, the officer asked the driver if he would consent to a “weapons” pat down.Id. at 58. The driver consented, and the officer found marijuana on the driver during the pat down.

The officer then searched the sedan and found a backpack containing cocaine, ecstasy pills, a “large sum of individually wrapped bags” of marijuana, id. at 130, a digital scale, and a box of plastic bags. Other evidence established that the backpack belonged to Mason. The officer then arrested Mason for possession of drugs. A search of Mason incident to his arrest yielded $3,381 in cash and a cell phone on his person.

Prior to trial, Mason sought to suppress all incriminating evidence gathered during the traffic stop on the basis that no officer could reasonably suspect that the parking pass violated Code § 46.2–1054. At the suppression hearing, the trial judge made various remarks from the bench suggesting his inclination to grant the motion to suppress. After making these remarks, however, the judge “asked for additional time to consider” the issue, id. at 101, and issued an order stating that the court needed “more time to deliberate on the motion to suppress,” id. at 98. The trial judge also took a “view of the scene,” id. at 101, to determine if the parking pass could obstruct a driver's vision in a sedan similar to the one that the officer had stopped. See Oral Argument Audio at 9:47 to 9:55, 26:04 to 26:30 (Apr. 1, 2014) (stipulation of counsel).

At a later hearing, the judge advised counsel that he had reconsidered his earlier remarks.3 He said that his initial “concern” was that the parking pass did not substantially obstruct” the driver's view of the highway. App. at 102 (emphasis added). But after reviewing the caselaw “stacked up against [him],” the judge explained, he realized that neither the statute nor the reasonable suspicion standard required a substantial obstruction. Id. at 105. The case law he reviewed included an unpublished opinion from our Court, Commonwealth v. Bryant, No. 0076–04–1, 2004 WL 1313044, at *1, 2004 Va.App. LEXIS 283, at *4 (Va.Ct.App. June 15, 2004), which reversed a suppression order when an officer had stopped a vehicle displaying an “air freshener hanging from the rear view mirror” that “could” have obstructed the driver's view in violation of Code § 46.2–1054. Accord Richardson v. Commonwealth, No. 0946–13–3, 2014 WL 1041799, at *1, 2014 Va.App. LEXIS 98, at *4, *11 (Va.Ct.App. Mar. 18, 2014) (upholding a traffic stop when the officer observed that an air freshener “could be in violation” of Code § 46.2–1054 ); Pegram v. Commonwealth, No. 1041–95–2, 1996 WL 537862, at *1, 1996 Va.App. LEXIS 611, at *2 (Va.Ct.App. Sept. 24, 1996) (validating a traffic stop pursuant to Code § 46.2–1054 given the officer's observation of a “large cloth object” hanging from the rearview mirror).

Acknowledging that he “initially disagreed” with the view taken by these unpublished (and thus nonbinding) opinions, the trial judge explained that “what carrie[d] the day” was the definition of “obstruction.” App. at 105. [U]ltimately it's the definition that persuaded the Court that that's what the law is intended and that's what the law says.” Id. Repudiating some of his earlier statements, the trial judge held:

[T]he Court is of the opinion that the standard for [the officer] to have stopped the vehicle was[:] is there reasonable suspicion that this object is ... cutting off from sight or blocking an unhampered, ... unrestricted view of the highway? Well, there is reason to believe that it could be, because there is an object dangling. He is entitled constitutionally to investigate further. So the Court believes that the presence of the object is, in fact, sufficient reasonable suspicion to justify a detention of the vehicle.

Id. (emphasis added).4 In short, the trial court explained, [I]t's a parking pass, it's not a driving pass.” Id. at 40.

A. The Reasonable Suspicion Standard

Reasonable suspicion is simply suspicion that is reasonable. It is not something more than suspicion. And it can hardly be called proof. To be sure, the degree of certitude required by reasonable suspicion is ‘considerably less than proof of wrongdoing by a preponderance of the evidence,’ and ‘obviously less demanding than that for probable cause.’ Perry v. Commonwealth, 280 Va. 572, 581, 701 S.E.2d 431, 436 (2010) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) ); see also Navarette v. California, –––U.S. ––––, ––––, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014). Consequently, “the mere possibility of an innocent explanation does not necessarily exclude a reasonable suspicion that the suspect might be violating the law.” Morris v. City of Va. Beach,

58 Va.App. 173, 183, 707 S.E.2d 479, 483 (2011) (internal quotation marks omitted).

No one can be arrested on the basis of reasonable suspicion. It serves merely to justify a brief detention to investigate. Because the need for justification is quite low, so too is the justifying legal standard. See 4 Wayne R. LaFave, Search & Seizure § 9.5(b), at 658–59 (5th ed.2012) (noting that reasonable suspicion requires merely “that there exists at the time of the stop a substantial possibility—or, indeed, even a ‘moderate chance’ —that [unlawful] conduct has occurred, is occurring, or is about to occur” (emphasis added) (footnotes omitted) (quoting Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 371, 129 S.Ct. 2633, 2639, 174 L.Ed.2d 354 (2009) )).

In suppression hearings, a police officer usually takes the stand and describes what he saw and, occasionally, why he did what he did. While the first part is highly relevant, the second is not. “Examining the subjective intent of the officer ‘is fundamentally inconsistent with our Fourth Amendment jurisprudence,’ Kentucky v. King, ––– U.S. ––––, ––––, 131 S.Ct. 1849, 1859, 179 L.Ed.2d 865 (2011), because ‘the Fourth Amendment regulates conduct rather than thoughts,’ Ashcroft v. al-Kidd, ––– U.S. ––––, ––– – –––, 131 S.Ct. 2074, 2080–81, 179 L.Ed.2d 1149 (2011) (noting narrow exceptions).” Washington v. Commonwealth, 60 Va.App. 427, 435, 728 S.E.2d 521, 525 (2012).

For these reasons, settled precedent governing Fourth Amendment cases has “repeatedly rejected a subjective approach.” Fernandez v. California, ––– U.S. ––––, ––––, 134 S.Ct. 1126, 1134, 188 L.Ed.2d 25 (2014) (internal quotation marks omitted); see also Robinson v. Commonwealth, 273 Va. 26, 37, 639 S.E.2d 217, 223 (2007) (holding that the officer's “subjective motivation is irrelevant” (quoting Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 1948, 164 L.Ed.2d 650 (2006) )). A police officer's “action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer's state of mind, ‘as long as the circumstances, viewed objectively, justify the action.’ Stuart, ...

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