Moore v. Com.
| Decision Date | 31 October 2008 |
| Docket Number | Record No. 080199. |
| Citation | 668 S.E.2d 150,276 Va. 747 |
| Parties | Matthew Tremaine MOORE v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
John B. Mann, Richmond, for Appellant.
Karen Misbach, Asst. Atty. Gen. II (Robert F. McDonnell, Atty. Gen., on brief), for Appellee.
Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and GOODWYN, JJ., and RUSSELL, S.J.
OPINION BY Senior Justice CHARLES S. RUSSELL.
In this appeal we consider whether a police officer's traffic stop invaded the Fourth Amendment rights of a motorist. We also consider questions concerning the application of Rules 5A:12(c) and 5A:34.
Because the case was appealed after conditional pleas of guilty, there is no dispute as to the essential facts. On the afternoon of February 15, 2005, Officer W.T. Bryan of the Henrico County police was sitting in his police cruiser parked in a parking lot behind a grocery store, facing an adjacent street. He saw a car traveling southbound on the street. The car displayed an inspection sticker that was "peeling off of the windshield." The car passed about five feet away from the front of his cruiser and, although the sticker was "sort of bowed," the sticker was legible to the officer and he could see that it was valid. The officer drove out of the parking lot and followed the car while checking the car's license number on his computer. This check revealed that the car was owned by a rental company in Midlothian, Virginia.
Later, at a hearing on a motion to suppress the evidence, the officer testified that he had stopped numerous vehicles with peeling inspection stickers and found that "a great majority of the time ... the inspection sticker, that will be peeling off the window, does not belong on that vehicle." Asked to be more specific, the officer testified that he had stopped approximately 50 vehicles within the previous six months displaying peeling inspection stickers and that 30 to 35 of the 50 stickers did not belong to the vehicles on which they were displayed.
After verifying the ownership of the car, Officer Bryan stopped it because of his suspicion concerning the sticker. He was unaware of any other traffic infractions on the part of the driver. As the officer approached the car, he detected an odor of marijuana coming from it. The driver, Matthew Tremaine Moore, admitted that he had been smoking marijuana in the car. The officer asked Moore and his passenger to leave the car and then searched it, finding marijuana, cocaine, heroin, digital scales and a semi-automatic pistol inside.
In the Circuit Court of Henrico County, Moore was indicted for possession of cocaine with intent to distribute and for possession of a firearm after being convicted of a felony. He made a motion to suppress the evidence seized from the car on the ground that the peeling inspection sticker did not give Officer Bryan "probable cause or a reasonable suspicion of criminal activity" to stop the vehicle and that the stop and seizure therefore violated Moore's rights under the Fourth Amendment. After the circuit court denied the motion to suppress, Moore, with the consent of the court and agreement of the Commonwealth, entered conditional pleas of guilty to both indictments, reserving his right, pursuant to Code § 19.2-254, to appeal the circuit court's ruling on the motion to suppress.
Moore appealed the case to the Court of Appeals of Virginia. His petition for appeal contained a single question presented: "Did Officer Bryan have probable cause to make a traffic stop of the vehicle being driven by Moore on the sole basis that he observed that a valid inspection sticker was not totally affixed to the windshield of the vehicle?" The Commonwealth filed a brief in opposition that made no mention of the wording of Moore's question presented, but simply rephrased the question as follows: "Whether Officer Bryan had reasonable articulable suspicion to stop the defendant's car." Thereafter, the case was briefed, argued and decided in the Court of Appeals solely on the basis of the "reasonable articulable suspicion" standard proposed by the Commonwealth. By majority decision of a three-judge panel entered on February 13, 2007, the Court of Appeals rejected the circuit court's decision on the motion to suppress, holding that, on the facts in the record, Officer Bryan had nothing more than Moore v. Commonwealth, 49 Va. App. 294, 307, 640 S.E.2d 531, 537 (2007) (citation omitted). The panel's order remanded the case to the circuit court. Id. at 308, 640 S.E.2d at 538.
The Commonwealth filed a petition for rehearing en banc, in which it stated the sole question presented as: "Did the panel majority err in finding there was no reasonable suspicion to justify the stop?" The Court of Appeals granted the Commonwealth's petition. Moore v. Commonwealth, 49 Va.App. 497, 642 S.E.2d 769 (2007).
A majority of the Court of Appeals, sitting en banc, declined to address the Fourth Amendment question upon which the case had been argued, ruling instead, sua sponte, that Moore was seeking reversal of the trial court on an issue outside the question presented in his petition for appeal, in violation of Rule 5A:12(c).1 For that reason, the Court of Appeals affirmed the convictions without reaching the merits. Moore v. Commonwealth, 51 Va.App. 1, 3-4, 654 S.E.2d 305, 306 (2007).
Neither the Court of Appeals nor either of the parties made any mention of the variance between the parties' respective versions of the question presented until publication of the court's en banc decision. We awarded Moore an appeal. He assigns error to the Court of Appeals' en banc decision, asserting that the court erred in ruling that he had failed to satisfy the requirements of Rule 5A:12(c) and that the court, by deciding the case on an issue that was never pleaded, briefed or argued before the court, without notice to the parties, had deprived him of his right to due process of law. The Commonwealth assigns cross-error to the Court of Appeals' failure to "[rule] in the alternative that the stop was supported by reasonable suspicion."
The Court of Appeals' application and interpretation of the Rules of Court, like the interpretation of a statute, presents a question of law that we review de novo. Jay v. Commonwealth, 275 Va. 510, 517, 659 S.E.2d 311, 315 (2008). The time limits for filing a notice of appeal and for filing a petition for appeal under Rule 5A:3(a) are jurisdictional, but the requirements of Rule 5A:12(c), like the contents of several other rules, have been expressly held to be not jurisdictional. Id. at 517-20, 659 S.E.2d at 315-17.
Any court may take notice of the violation of a jurisdictional rule or statute sua sponte at any stage of the proceedings. See Lucas v. Biller, 204 Va. 309, 312-13, 130 S.E.2d 582, 585 (1963); Rule 3A:9(b). On the other hand, invocation of a non-jurisdictional rule to dismiss an appeal, or to prevent consideration of its merits, should not be undertaken without considering whether a party's failure to adhere strictly to the rule's requirements is insignificant, or so substantial as to preclude the court's addressing the merits of the case. Jay, 275 Va. at 520, 659 S.E.2d at 317.
As we pointed out in Jay, our holding in that case does not leave the Court of Appeals without appropriate remedies. It "may, among other things, require an appellant to re-submit the petition for appeal or opening brief, or it may treat a question presented as waived." Id. A concurring opinion in the Court of Appeals' en banc decision in the present case suggested an additional remedy: "This case presents the rare occasion in which I believe that we should exercise our inherent authority to expand the question presented and decide the issue argued—whether the stop of the defendant's car was in violation of the Fourth Amendment to the United States Constitution." Moore v. Commonwealth, 51 Va.App. 1, 6, 654 S.E.2d 305, 307 (2007) (Petty, J., concurring in the result).
Moore, on appeal, agrees that the question presented in his petition for appeal to the Court of Appeals erroneously relied on the wrong standard governing his Fourth Amendment claim because it invoked the "probable cause" standard rather than the applicable "reasonable suspicion" standard. He argues, however, that "reasonable suspicion" is subsumed within "probable cause" and the question presented, if inartfully expressed, was nevertheless sufficient to apprise the Commonwealth and the Court of Appeals that he was asserting a violation of his Fourth Amendment protection against unreasonable search and seizure. Because "probable cause" requires a more stringent standard, putting the prosecution to a higher level of proof, we do not agree that the "reasonable suspicion" standard inherently presents the same issues. We do agree, however, that Moore's question presented left no doubt that a Fourth Amendment violation was the subject of his appellate claim.
In that light, we consider the criteria we articulated in Jay: Was Moore's failure to adhere strictly to the requirements of Rule 5A:12(c) insignificant, or was it so substantial as to preclude the Court of Appeals from addressing the merits of the case? In applying those criteria, we take into consideration the factors itemized in Judge Petty's concurring opinion:
While it is clear that appellant employed the irrelevant probable cause standard in his question presented, it is also clear that all parties involved in this case addressed the relevant standard of reasonable suspicion in arguing and deciding the case. The defense attorney as well as the Commonwealth's attorney identified the appropriate standard in their arguments to the trial court. The trial court obviously understood...
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