THE COURT OF APPEALS OF VIRGINIA.
MASON, LOREN, Appellant: ROSKIN, PAUL STEVEN, (ESQ.).
COMMONWEALTH OF VIRGINIA, Appellee: MARTIN, KATHLEEN BEATTY,
(ESQ.), HERRING, MARK RANKIN, (ESQ.).
Lemons, C.J., Goodwyn, Mims, McClanahan, and Powell, JJ., and
Russell and Millette, S.JJ.
S. RUSSELL, SENIOR JUSTICE.
appeal arises from a motion to suppress evidence obtained by
police officers following the " Terry
stop" of an automobile.
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
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.
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.
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.
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.
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