FROM THE CIRCUIT COURT OF LOUDOUN COUNTY. Benjamin N.A. Kendrick, Judge Designate .
Alexis M. Downing (King Downing PLC, on briefs), for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Humphreys, Russell and AtLee.
[65 Va.App. 337] ROBERT
J. HUMPHREYS, JUDGE.
Joseph Leon Matthews (" Matthews" ) appeals the ruling of the Circuit Court of Loudoun County (the " circuit court" ) [65 Va.App. 338] denying his motion to suppress the evidence that was recovered pursuant to a traffic stop. Matthews's single assignment of error asserts that the circuit court erred in denying his motion to suppress because the officer's actions during the stop were not reasonably related in scope to the circumstances that justified the seizure, and thus violated the Fourth Amendment, which in turn invalidated his consent to search the vehicle.
On June 11, 2013, Officer J. Mocello (" Officer Mocello" ) of the Leesburg Police Department initiated a traffic stop of Matthews's vehicle based on an object dangling from the rearview mirror, in violation of Code § 46.2-1054. When Officer Mocello approached the vehicle, he asked Matthews for his license and registration. Matthews gave him a paper learner's permit from Pennsylvania and a photo ID. Officer Mocello then asked Matthews and the female passenger where they were going, how long they had been in Virginia, and where they lived in order to verify their addresses. Matthews and the passenger responded that they were moving from Pennsylvania and staying at the passenger's parents' home. Officer Mocello then asked Matthews if he had drugs or weapons in the car and if he had been arrested previously. Officer Mocello testified that Matthews was " a little evasive and kept looking at his front passenger and became increasingly nervous. That is when I asked him to step out of the car, and then we discussed his criminal history." Matthews responded that he had been charged with evading and eluding police, reckless driving, and a third offense which Mocello could not recall when he testified at the suppression hearing. Because the charges Matthews discussed were " dangerous," Officer Mocello had a heightened concern for his safety.
After Matthews stepped out of the car, Officer Mocello asked him some more questions related to the stop and engaged in " casual conversation." Officer Mocello asked Matthews [65 Va.App. 339] if his tattoos were " prison tattoos," which Matthews denied. In total, the
conversation about the tattoos lasted " roughly 20, 30 seconds." Officer Mocello observed that Matthews's teeth were " dirty and yellowish," which he considered to be " consistent with a narcotics user." Finally, Officer Mocello asked Matthews if his Pennsylvania learner's permit allowed him to drive outside of Pennsylvania. Matthews responded that he was unsure whether he was permitted to drive outside of Pennsylvania. Officer Mocello also questioned Matthews several times regarding him " being nervous" and why Matthews was shaking. Matthews responded that he did not like police and had " bad nerves."
Approximately five minutes after the traffic stop began, Officer Mocello returned to the police cruiser. First, Officer Mocello spent approximately one minute reviewing the documents Matthews had provided, noting they appeared to be legitimate and " state-issued." Next, Officer Mocello radioed his supervisor to request a K-9 unit for drug detection. After being switched to a different channel, his supervisor approved the K-9 en route. This request took approximately ten seconds. Officer Mocello requested the K-9 unit prior to calling into dispatch with the personal information obtained from Matthews because, based on his training and experience, he knew that he had " approximately twenty minutes" for the K-9 to arrive for him to be able to use the dog. Officer Mocello " wanted [to request a K-9 and call dispatch regarding Matthews's permit and ID] simultaneously, but [he] can't do two things at once."
Officer Mocello then gathered paperwork and looked up the relevant code section for the dangling object violation for approximately three minutes. Officer Mocello called dispatch and provided the personal information obtained from Matthews and the passenger. After searching Matthews's name through the database, dispatch reported that Matthews was " valid through Pennsylvania," but he " was not found" in Virginia.
[65 Va.App. 340] Approximately four minutes later, Officer J. Zebrine (" Officer Zebrine" ), who had been outside the vehicle with Matthews and the passenger while Officer Mocello was in the police cruiser, informed Officer Mocello that Matthews had consented to a search of his vehicle. At that time, Officer Mocello was still working on finishing the paperwork for issuing Matthews a warning for the dangling object violation. Upon learning of Matthews's consent to search his vehicle, Officer Mocello cancelled his request for a K-9 unit.
After completing the paperwork, Officer Mocello returned to Matthews's vehicle and advised that he did not believe Matthews was permitted to drive in Virginia on a learner's permit issued from another state. Then, the two men discussed how Matthews could obtain a Virginia driver's license. For approximately thirty seconds, Officer Mocello issued Matthews a warning for the dangling object and gave the learner's permit and ID back to Matthews. Officer Mocello again asked Matthews if there were any drugs or weapons in the car. Officer Mocello then stated, " If you're going to let us search, we're not going to bring the dog." Matthews confirmed that he consented to the search of his vehicle.
Officer Zebrine could not recall the exact conversation he had with Matthews while Officer Mocello was in the police cruiser, but remembered discussing the fact that both he and Matthews were natives of Pennsylvania. At some point, Officer Zebrine asked Matthews if a K-9 unit would alert to his car. Matthews responded that a K-9 would not alert " [a]nd at that point, he said that [the officers] could go ahead and search the vehicle."
After a hearing, the circuit court denied Matthews's motion to suppress stating,
[C]learly some of these questions are reasonably related to, at that point, officer safety and determining if anything was illegal in the car.
And specifically, more apropos to what then developed after he produced the Pennsylvania learner's permit, whether it was a valid learner's permit and whether he could drive in [65 Va.App. 341] the Commonwealth of Virginia, something this police officer candidly admits he didn't even know what [the] effect of it would be.
But clearly as the defense has argued, there were questions about prior arrests and the tattoos ...