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Mason v. Commonwealth

Supreme Court of Virginia

May 5, 2016

LOREN MASON
v.
COMMONWEALTH OF VIRGINIA

          FROM THE COURT OF APPEALS OF VIRGINIA.

         For MASON, LOREN, Appellant: ROSKIN, PAUL STEVEN, (ESQ.).

         For COMMONWEALTH OF VIRGINIA, Appellee: MARTIN, KATHLEEN BEATTY, (ESQ.), HERRING, MARK RANKIN, (ESQ.).

         PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, and Powell, JJ., and Russell and Millette, S.JJ.

          OPINION

         CHARLES S. RUSSELL, SENIOR JUSTICE.

         This appeal arises from a motion to suppress evidence obtained by police officers following the " Terry stop" of an automobile.

         FACTS AND PROCEEDINGS

         The material facts are undisputed. At 2:30 p.m. on March 3, 2012, Officer Willie Richards of the Waverly Police Department was operating stationary radar on the side of Route 460 in the Town of Waverly, Sussex County. He was accompanied by another officer named Parker. Richards was watching for traffic speeding down a hill. He observed a green sedan that passed him. It attracted his attention only because he observed a dangling object hanging below its rear-view mirror. He followed it in his cruiser and brought it to a stop. He thought the dangling object might be in violation of the law. Code § 46.2-1054 provides, in pertinent part:

It shall be unlawful for any person to drive a motor vehicle on a highway in the Commonwealth with any object or objects, other than a rear view mirror, sun visor, or other equipment of the motor vehicle approved by the Superintendent, 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, or to alter a passenger-carrying vehicle in such a manner as to obstruct the driver's view through the windshield.

         There were two occupants of the green sedan. The driver was Tony Jarrett and the appellant here, Loren Mason, was a front-seat passenger. The dangling object was an opaque plastic parking pass for a nearby military facility, approximately 3" by 5" in size, suspended from the rear-view mirror mounting. Richards asked Jarrett to step out of the car. Jarrett complied and walked to the rear of the car. Richards testified that he intended to charge Jarrett with a seat-belt violation as well as a violation of Code § 46.2-1054 and so advised Jarrett. He asked Jarrett whether he had any weapons on his person and Jarrett said no. He then asked Jarrett if he would consent to a " pat-down" search for weapons and Jarrett gave his consent. The search revealed no weapons but led to the discovery of a bag of marijuana in Jarrett's pocket. Richards detained him for possession of marijuana as well as the two traffic infractions, and read him his Miranda rights.

         Meanwhile, Officer Parker asked Mason to step out of the car. He then conducted a pat-down search of Mason, which revealed nothing. Richards testified that Mason would " absolutely" have been free to leave the scene at that point if he had so desired. Richards detected a strong odor of marijuana in the car, searched its interior and found a black backpack in the middle of the rear seat. Neither Jarrett nor Mason admitted ownership of the backpack. Richards opened the backpack and found a large number of individually-wrapped bags of marijuana, a bag containing " Ecstasy" pills, cocaine residue, a box of sandwich bags and several letters that had been written to Mason. Richards then arrested Mason, read him his Miranda rights, and searched him incident to the arrest. The search revealed a cell phone and $3,381 in cash on Mason's person.

         Mason was indicted, tried and convicted in the Circuit Court of Sussex County of three felony drug offenses arising from his arrest. He made a pre-trial motion to suppress the evidence obtained as a result of the traffic stop, contending that it was an unconstitutional infringement of his Fourth Amendment rights. The circuit court denied his motion to suppress.

         Mason appealed to the Court of Appeals, assigning error only to the circuit court's denial of his motion to suppress. The Court of Appeals granted the appeal which was decided by a divided three-judge panel. In a published opinion, Mason v. Commonwealth, 63 Va.App. 587, 760 S.E.2d 831 (2014), the majority ruled that the " facts and circumstances available to the officer at the time of the stop did not support a reasonable suspicion that the driver was violating or about to violate the law," id. at 605, 760 S.E.2d at 840, ordering reversal and remand to the circuit court for a new trial. id. Sitting en banc, the full court, closely divided, reversed the panel decision and affirmed the judgment of the circuit court. Mason v. Commonwealth, 64 Va.App. 292, 308-09, 767 S.E.2d 726, 735 (2015). We awarded Mason an appeal.

         ANALYSIS

          When challenging the denial of a motion to suppress evidence on appeal, the defendant bears the burden of establishing that reversible error occurred. Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008). When the defendant contends that the evidence sought to be suppressed was obtained in violation of his Fourth Amendment rights, the standard of review on appeal is de novo. id. In performing this review, we consider the evidence in the light ...


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