LOREN ANTHONY MASON, JR.
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SUSSEX COUNTY. W. Circuit Court Nos. CR12-215 through CR12-217. Allan Sharrett, Judge.
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.
Present: Judges Kelsey and Petty. KELSEY, J., dissenting.
ROBERT J. HUMPHREYS, J.
Upon a Petition for Rehearing En Banc Before the Full Court
On August 15, 2014 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on August 5, 2014, and grant a rehearing en banc on the issue(s) raised in the petition.
On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s) raised therein, the mandate entered herein on August 5, 2014 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35(b). The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the appendix previously filed in this case. In addition, any party represented by counsel shall file twelve electronic copies of their brief (and the appendix, if the party filing the appendix is represented by counsel) with the clerk of this Court. [63 Va.App. 715] The electronic copies must be filed on twelve separate CDs or DVDs and must be filed in Adobe Acrobat Portable Document Format (PDF).
Loren Anthony Mason, Jr., (" Mason" ) was convicted at a bench trial in the Sussex County Circuit Court (" trial court" ) of distribution of marijuana, possession of a Schedule I or II controlled substance, and possession of a Schedule I or II controlled substance with the intent to distribute. On appeal, Mason argues that the trial court erred in denying his motion to suppress the evidence because the Commonwealth failed to prove that the officer had a reasonable and articulable suspicion to stop the vehicle in which Mason was riding.
Around 2:30 on the afternoon of March 3, 2012, Officer Willie Richards (" Officer Richards" ) was parked on the side of the road operating stationary speed radar when he observed a vehicle pass by with a " [d]angling object on the rearview mirror." Officer Richards executed a traffic stop of the vehicle because he observed the " dangling object." He identified the driver of the vehicle, Tony Jarrett (" Jarrett" ), and " ran his information." When Officer Richards returned to the stopped vehicle after running a search of Jarrett's information, he was going to issue Jarrett summonses for the dangling object and failure to wear a seatbelt. However, before issuing any summonses, Officer Richards asked Jarrett if he would mind stepping out of the car. Jarrett complied. Jarrett walked to the back of the vehicle he was driving, and Officer Richards told Jarrett why he stopped him. Then Officer Richards asked Jarrett if he had any weapons on him. Jarrett said no. Officer Richards asked him " if he minded if [Officer Richards] patted him down." Jarrett said, " that's fine." Officer Richards patted Jarrett down for weapons. Officer Richards then saw a multi-colored sunglasses case sticking out of Jarrett's left rear pocket. Officer Richards asked Jarrett what was in his back pocket. Jarrett paused, pulled out the bag, and threw it on the car stating, " I'm not selling it, I'm just using it." Officer Richards opened the bag and found green leaf material inside. At that point, Officer Richards placed Jarrett in an investigatory detention and read him his Miranda rights. Up to this point, Mason was sitting in the front passenger seat of the vehicle. Upon the detention of Jarrett, Officer Parker, who was training under Officer Richards, pulled Mason out of the vehicle. Officer Parker checked Mason for weapons and walked him to the front of the police vehicle, parked directly behind the vehicle Jarrett and Mason were riding in.
Officer Richards began searching the stopped vehicle. Inside the vehicle, Officer Richards saw a black backpack sitting on top of a jacket in the middle of the backseat. Inside the backpack were about twenty to twenty-five individually wrapped bags in a larger bag, digital scales, cocaine, ecstasy pills, and a large amount of marijuana. After neither individual claimed ownership of the backpack, Officer Richards placed them both under arrest for possession. He searched Mason and found $3,381 in cash and a cell phone on his person.
Other evidence established that the backpack belonged to Mason. Mason filed a motion to suppress the evidence seized from the backpack, the evidence found on Mason's person, and any statements made by Mason at the time of his detention and arrest and while in the custody of Officer Richards. Mason argued that the stop was based solely on Officer Richards's observation of a parking pass that hung from the rearview mirror and that Officer Richards lacked reasonable and articulable suspicion to stop the vehicle as that concept is defined in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
With the agreement of the parties, the trial court took up the suppression motion during the course of Mason's trial. Officer Richards was questioned about his reason for stopping the vehicle. The prosecutor asked, " what brought your attention to the vehicle again?" Officer Richards replied, " Dangling object [sic] on the rearview mirror." Officer Richards subsequently agreed with Mason's counsel that the dangling object, a parking pass, would block only a small portion of the entire windshield. He also agreed that if a driver was looking straight ahead, the object would not be in his field of vision at all. There was nothing about Jarrett's driving that made Officer Richards believe that Jarrett's view was obstructed. The rearview mirror to which the object was attached was in its normal position on the windshield. Mason's counsel introduced the object into evidence through Officer Richards--it was a 3" x 5" parking pass issued by the Department of Defense for use at Ft. Lee, the top portion of which hooks onto the post that holds the rearview mirror (see below).
The trial court concluded, and both parties acknowledged, that this pass hung behind the rearview mirror from the driver's perspective. App. at 33-34.
On redirect, the Commonwealth asked, " So it's not clear that you can't--you can't see through it, so it could obstruct a driver's view?" Officer Richards replied, " It could, yes, ma'am." After some discussion off the record, Officer Richards was recalled and the Commonwealth resumed questioning him:
[Commonwealth:] What about [the vehicle] caught your attention?
[Officer Richards:] Just the--initially when it was coming down I was running radar, so I was watching it come down the hill to make sure it wasn't speeding. And when it got a little closer, I saw the tag on the rearview mirror.
[Commonwealth:] And was it moving, or anything about it cause you concern for the driver?
[Officer Richards:] Just that there was a dangling object. I mean, I can't say it was moving back and forth, just that I saw it when it came by.
[Commonwealth:] Were you able to see everything from your vantage point when you saw the vehicle with the object in the window? Were you able to see everything in the car with that object there?
[Officer Richards:] For the most part, yes.
[Commonwealth:] And when you say " for the most part" ?
[Officer Richards:] I could see the two, the passenger and the driver.
[Commonwealth:] Okay. Once you pulled the vehicle over, did you get in the vehicle?
[Officer Richards:] Get in it?
[Commonwealth:] Yes, the stopped vehicle?
[Officer Richards:] Eventually, yes, ma'am.
[Commonwealth:] And did you look at the ...