Joseph Leon Matthews v. Commonwealth of Virginia , 65 Va. App. 334 ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Russell and AtLee
PUBLISHED
Argued at Fredericksburg, Virginia
JOSEPH LEON MATTHEWS
OPINION BY
v. Record No. 1654-14-4 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 3, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Benjamin N.A. Kendrick, Judge Designate1
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.
Joseph Leon Matthews (“Matthews”) appeals the ruling of the Circuit Court of Loudoun
County (the “circuit court”) 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.
I. BACKGROUND
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 § 46.2-1054.2 When Officer Mocello approached the
vehicle, he asked Matthews for his license and registration. Matthews gave him a paper learner’s
1
Judge Burke F. McCahill denied Matthew’s motion to suppress the evidence.
2
Appellant raises no issue with regard to the basis for the stop.
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 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
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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.
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
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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 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 on the defendant’s arms that really
are not related to the purpose of the stop.
(Emphasis added.)
The circuit court determined that the unrelated questions about Matthews’s criminal
history and tattoos “were given in fairly quick order” and the request for the K-9 unit lasted for a
“very, very brief period” and “happened really almost contemporaneously with [Officer
Mocello’s] efforts to get information on the license.” Concluding the officer was “entitled to a
reasonable period” to execute the traffic stop, the circuit court found that the process was not
unnecessarily delayed. The circuit court also found that Officer Zebrine obtained voluntary
consent to search the car and held,
I just find that . . . while there are elements in this particular case
that can be raised as questions and raised as not pursuant to the
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investigation, that the amount of delay is so de minimus . . . I don’t
think it really sufficiently rises to the point where the [c]ourt can
find that there is a sufficient lack of diligence in pursuing this
investigation such that I find that it is in any way attenuating the
consent, nor do I find there was an unnecessary delay because
consent was given.
II. ANALYSIS
A. Standard of Review
In reviewing a trial court’s denial of a motion to suppress, “we determine whether the
accused has met his burden to show that the trial court’s ruling, when the evidence is viewed in
the light most favorable to the Commonwealth, was reversible error.” Roberts v.
Commonwealth, 55 Va. App. 146, 150, 684 S.E.2d 824, 826 (2009). This Court is “bound by the
trial court’s findings of historical fact unless plainly wrong or without evidence to support them
and we give due weight to the inferences drawn from those facts by resident judges and local law
enforcement officers.” McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261
(1997) (en banc). “However, we consider de novo whether those facts implicate the Fourth
Amendment and, if so, whether the officers unlawfully infringed upon an area protected by the
Fourth Amendment.” Hughes v. Commonwealth, 31 Va. App. 447, 454, 524 S.E.2d 155, 159
(2000) (en banc) (citing McGee, 25 Va. App. at 198, 487 S.E.2d at 261).
B. Consent to search
On appeal, Matthews argues that the police impermissibly prolonged the duration of the
traffic stop to conduct an unrelated drug investigation in violation of the Fourth Amendment,
which in turn invalidated his consent.
Our analysis begins with the general rule that “‘a search authorized by consent is wholly
valid.’” Kyer v. Commonwealth, 45 Va. App. 473, 483, 612 S.E.2d 213, 218 (2005) (en banc)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)). “Consent loses its validity only
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if it is involuntary, or is the product of a manipulative ‘exploitation’ by the police of an earlier
unconstitutional search or seizure.” Id. (citations omitted).  Therefore, to determine whether
Matthews’s consent was the product of an unconstitutional seizure as he alleges, we must first
determine whether Matthews was seized within the meaning of the Fourth Amendment at the
time he gave his consent to search the vehicle.
A person is “seized” “only when, by means of physical force or a show of authority, his
freedom of movement is restrained.” United States v. Mendenhall, 446 U.S. 544, 553 (1980). In
contrast, police officers may engage in consensual encounters with citizens, so long as such
encounters are those in which “a reasonable person would feel free ‘to disregard the police and
go about his business.’” Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v.
Hodari D., 499 U.S. 621, 628 (1991)). The United States Supreme Court has identified several
factors that may indicate that a seizure has occurred, including: “the threatening presence of
several officers, the display of a weapon by an officer, some physical touching of the person of
the citizen, or the use of language or tone of voice indicating that compliance with the officer’s
request might be compelled.” Mendenhall, 446 U.S. at 554.
In the present case, Matthews was in the presence of two armed and uniformed police
officers throughout the encounter. Officer Mocello never advised Matthews he was free to leave.
At some point while Officer Mocello was in the police cruiser finishing the paperwork for the
traffic violation, 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.” Moments after concluding the business related to the traffic
infraction, 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.”
Given the totality of the circumstances, we find that a reasonable person would not believe that
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he was free to disregard the questions posed by Officers Zebrine and Mocello and simply drive
away. See Harris v. Commonwealth, 266 Va. 28, 33, 581 S.E.2d 206, 210 (2003) (holding
defendant was not free to leave when the “officer did nothing to indicate to [defendant] that he
was no longer subject to detention for a traffic violation,” and defendant remained in the
presence of two armed, uniformed police officers and patrol vehicles with activated flashing
lights).
Therefore, we hold that Matthews was seized for the purposes of the Fourth Amendment
during his conversation with Officer Zebrine when he consented to the search of his vehicle and
at the time Officer Mocello sought to confirm Matthews’s consent to search the vehicle.
Concluding Matthews was seized and his liberty restrained during the entire interaction with the
officers, we next determine if such detention was justified under the Fourth Amendment.
Matthews contends that the traffic stop violated the Fourth Amendment and thus
invalidated his consent because it was improperly prolonged by three actions: (1) the
conversation regarding his arrest history and tattoos, (2) the request for a K-9 unit, and
(3) Officer Mocello’s request for Matthews’s consent to search the vehicle after he had issued
the written warning for the dangling object. The circuit court concluded the first two items
amounted to a de minimis delay in executing the stop and implicitly found that because consent
was obtained before Officer Mocello issued the warning to Matthews, the subsequent search did
not unnecessarily delay the execution of the valid traffic stop. Our analysis of this issue is
necessarily guided by the recent ruling of the United States Supreme Court in Rodriguez v.
United States, 135 S. Ct. 1609 (2015).
C. Impact of Rodriguez
“As a general matter, the decision to stop an automobile is reasonable where the police
have probable cause to believe that a traffic violation has occurred.” Whren v. United States,
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517 U.S. 806, 810 (1996). A “seizure that is justified solely by the interest in issuing a warning
ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to
complete that mission.” Illinois v. Caballes, 543 U.S. 405, 407 (2005). The seizure remains
lawful only “so long as [unrelated] inquiries do not measurably extend the duration of the stop.”
Arizona v. Johnson, 555 U.S. 323, 333 (2009).
Citing to both Caballes and Johnson, the Supreme Court made clear in Rodriguez that a
police officer “may conduct certain unrelated checks during an otherwise lawful traffic stop,” but
“may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily
demanded to justify detaining an individual.”3 135 S. Ct. at 1615. “Authority for the seizure
thus ends when tasks tied to the traffic infraction are—or reasonably should have been—
completed.” Id. at 1614. The Court went on to hold that a dog sniff that prolonged the traffic
stop was impermissible because a dog sniff is “not fairly characterized as part of the officer’s
traffic mission” because it is not related to an inquiry into the traffic infraction at issue or officer
safety. Id. at 1615-16.
In addition to asking relevant questions relating to the investigation into the dangling
object violation, Officer Mocello also engaged in unrelated conduct which prolonged the stop
including: inquiring into Matthews’s criminal history, asking Matthews if his tattoos were
“prison tattoos,” and requesting a K-9 unit to conduct a dog sniff. Although the circuit court
concluded that these actions resulted in only a de minimus delay in the completion of the traffic
3
The Supreme Court acknowledged that its decision resolved the split that existed among
lower courts regarding whether police officers “may extend an otherwise-completed traffic stop,
absent reasonable suspicion, in order to conduct a dog sniff.” Rodriguez, 135 S. Ct. at 1614
(comparing the Eighth Circuit case United States v. Morgan, 270 F.3d 625, 632 (8th Cir. 2001)
(holding delay of “well under ten minutes” of post-completion delay was permissible), with Utah
Supreme Court case State v. Baker, 229 P.3d 650, 658 (Utah 2010) (holding “without additional
reasonable suspicion, the officer must allow the seized person to depart once the purpose of the
stop has concluded”)).
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stop, the Supreme Court specifically rejected the “de minimus” line of cases, making it clear that
“a traffic stop ‘can become unlawful if it is prolonged beyond the time reasonably required to
complete th[e] mission’ of issuing a . . . ticket,” and officers may not conduct unrelated
investigations to prolong the traffic stop, absent independent reasonable suspicion ordinarily
required to detain the individual. Id. at 1614-15.
Accordingly, the seizure of Matthews and subsequent search of the vehicle was improper,
unless Officer Mocello’s unrelated questions and conduct can be supported by independent
reasonable suspicion or probable cause.
Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), “[i]f a police officer has reasonable,
articulable suspicion that a person is engaging in, or is about to engage in, criminal activity, the
officer may detain the suspect to conduct a brief investigation without violating the person’s
Fourth Amendment protection against unreasonable searches and seizures.” McGee, 25
Va. App. at 202, 487 S.E.2d at 263. When a court reviews whether an officer had reasonable
suspicion to temporarily detain a person, it must view the totality of the circumstances and view
those facts objectively through the eyes of a reasonable police officer with the knowledge,
training, and experience of the investigating officer. Murphy v. Commonwealth, 9 Va. App.
139, 144, 384 S.E.2d 125, 128 (1989).
Applying the above standards, and in consideration of all the circumstances then present,
we conclude that Officer Mocello did not have a reasonable articulable suspicion that Matthews
possessed illegal drugs to justify the extension of the stop by inquiring into his criminal record,
discussing his tattoos, and requesting a K-9 unit. The record in the light most favorable to the
Commonwealth indicates that Matthews was “a little evasive and kept looking at his front
passenger and became increasingly nervous,” had been previously charged with evading and
eluding police, third offense reckless driving, and had teeth that were “dirty and yellowish,”
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which Officer Mocello considered to be “consistent with a narcotics user.” Because these facts
alone are insufficient to rise to the level of either reasonable articulable suspicion or probable
cause that Mathews was engaged in criminal activity, Officer Mocello was not justified in
detaining Matthews beyond the completion of the traffic infraction investigation.
We conclude that pursuant to Harris, Matthews was detained at the time he gave his
consent to search to Officer Zebrine and when Officer Mocello subsequently confirmed
Matthews’s consent. Therefore, applying Rodriguez to the facts of this case, we hold that
because Matthews’s detention exceeded the time reasonably necessary to address the dangling
object traffic violation, the seizure violated the Fourth Amendment and consequently invalidated
Matthews’s consent to the search. See Florida v. Royer, 460 U.S. 491, 507-08 (1983) (holding
that because defendant was illegally detained when he consented to the search, his “consent was
tainted by the illegality and was ineffective to justify the search”).
However, our analysis does not end there. Before determining whether the evidence
resulting from the seizure should have been suppressed, we must consider whether the officers
complied with the parameters of the law as it existed at the time of the traffic stop.
D. Application of the Exclusionary Rule
Conceding that the stop was impermissibly extended under the Supreme Court’s recent
ruling in Rodriguez, the Commonwealth argues that the exclusionary rule should not apply.4
Specifically, the Commonwealth asserts that the purpose of the exclusionary rule, which is to
deter future police misconduct, is not served because the police officers in this case were
following the law as it existed at the time of the stop. We agree.
4
We are not bound by concessions of law by the parties. Hodges v. Commonwealth, 64
Va. App. 687, 699, 771 S.E.2d 693, 699 (2015) (citation omitted). However, for the reasons
stated above, the Commonwealth is correct that the stop impermissibly was extended under the
rule announced in Rodriguez.
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“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the
price paid by the justice system.” Herring v. United States, 555 U.S. 135, 144 (2009). In Davis
v. United States, 131 S. Ct. 2419 (2011), the Supreme Court extended this principle to instances
where the law changed after the time of the search, holding that evidence obtained during a
search conducted in reasonable reliance on binding precedent at the time is not subject to the
exclusionary rule. Id. at 2429. The Court explained that all exclusion would serve to do in such
a situation is to punish “conscientious police work” because “[r]esponsible law-enforcement
officers will take care to learn ‘what is required of them’ under Fourth Amendment precedent
and will conform their conduct to these rules.” Id. (quoting Hudson v. Michigan, 547 U.S. 586,
599 (2006)). “[W]hen binding appellate precedent specifically authorizes a particular police
practice, well-trained officers will and should use that tool to fulfill their crime-detection and
public-safety responsibilities” and thus an “officer who conducts a search in reliance on binding
appellate precedent does no more than ‘ac[t] as a reasonable officer would and should act’ under
the circumstances.” Id. (quoting United States v. Leon, 468 U.S. 897, 920 (1987)) (internal
quotations omitted). Therefore, the deterrent effect of exclusion in such a case can only be to
discourage the officer from performing his duty. Id. The Court summarized, “[u]nless the
exclusionary rule is to become a strict-liability regime, it can have no application in this
[context].” Id.
At the time of the stop in this case, binding precedent established that a de minimis delay
in the completion of a traffic stop to conduct an investigation unrelated to the purpose of the stop
did not violate the Fourth Amendment’s prohibition against unlawful seizures.
The United States Supreme Court held in 2009 that “[a]n officer’s inquiries into matters
unrelated to the justification for the traffic stop do not convert the encounter into something other
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than a lawful seizure, so long as the inquiries do not measurably extend the stop’s duration.”
Johnson, 555 U.S. at 325 (citing Muehler v. Mena, 544 U.S. 93, 100-01 (2005)). Citing Johnson,
the Fourth Circuit held,
There is no support in Fourth Amendment jurisprudence for the
notion that questioning unrelated to the purpose of a traffic stop
requires reasonable suspicion, provided that the questioning occurs
within the timeframe reasonably necessary to effectuate the traffic
stop. An officer’s questions or actions during the course of a
traffic stop or any other legal detention need not be solely and
exclusively focused on the purpose of that detention.
United States v. Mason, 628 F.3d 123, 131 (4th Cir. 2010). The Mason court noted that the
officer executed the stop efficiently, examining the papers, calling dispatch to relay information,
testing the tinted windows, and issuing a warning ticket within eleven minutes, and concluded
that the “one to two of the [eleven] minutes devoted to questioning on matters not directly related
to the traffic stop constituted only a slight delay that raises no Fourth Amendment concern.” Id.
at 132 (citing United States v. Farrior, 535 F.3d 210, 220 (4th Cir. 2008) (holding that de minimis
delays in conducting a traffic stop do not violate the Fourth Amendment); United States v.
Alexander, 448 F.3d 1014, 1017 (8th Cir. 2006) (“‘[A] two minute delay . . . is a de minimis
intrusion on the driver’s personal liberty that does not violate the Fourth Amendment’” (quoting
United States v. Martin, 411 F.3d 998, 1002 (8th Cir. 2005))); United States v. Purcell, 236 F.3d
1274, 1279 (11th Cir. 2001) (three-minute delay was de minimis and did not violate the Fourth
Amendment)).
Although now implicitly overruled by Rodriguez, this Court had similarly held “a police
officer with ‘probable cause’ to detain a suspect for the issuance of a traffic summons does not
convert the lawful encounter into an unreasonably long, unlawful seizure simply by asking a few
brief questions ‘related to possible drug trafficking amidst his other traffic-related inquiries and
tasks.’” Ellis v. Commonwealth, 52 Va. App. 220, 227, 662 S.E.2d 640, 643 (2008) (quoting
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United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir. 2007)). This Court explained that
a de minimis delay, caused by one minute of questioning about drugs, which was unrelated to the
specific reason for the detention, does not invalidate a later, voluntary consent to search. Id. at
226-28, 662 S.E.2d at 643-44.
In Ellis, the police officer stopped the defendant for an inoperative brake light, obtained
the defendant’s driver’s license, informed her of the reason for the stop and returned to his police
cruiser to verify the defendant’s information. Id. at 223, 662 S.E.2d at 641. While waiting for
dispatch to verify defendant’s information, the officer recalled that Ellis had a previous narcotics
history, so he asked Ellis if she would consent to a search of her vehicle. Id. Ellis refused and
the officer asked if he needed to request a canine, to which Ellis replied that he could go ahead
and get the drug dog. Id. The officer made the request for the dog, and when the dog arrived
shortly thereafter, it alerted to the presence of drugs in Ellis’s vehicle. Id. at 223-24, 662 S.E.2d
at 641-42. At that point, Ellis consented to a search of her person. Id. at 224, 662 S.E.2d at 642.
Similar to the officers in Ellis, Officer Mocello engaged in a brief conversation with
Matthews about his criminal history and tattoos, which were unrelated to the stop. Like
Matthews, the defendant in Ellis consented to a search while she was lawfully detained by an
officer who had probable cause to issue a citation for a traffic violation. Id. at 228, 662 S.E.2d at
644. Therefore, consistent with the factual findings of the circuit court and binding precedent at
the time, we find that the unrelated questions about Matthews’s criminal history and tattoos that
“were given in fairly quick order” and the request for the K-9 unit lasted for a “very, very brief
period” and “happened really almost contemporaneously with [Officer Mocello’s] efforts to get
information on the license,” and thus did not measurably extend the traffic stop.
Secondly, Matthews argues that his consent was invalid because his consent was given
after the traffic stop was completed. However, this argument ignores the fact that Matthews had
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given Officer Zebrine consent to search the vehicle while Officer Mocello was still completing
paperwork relating to the traffic infraction, which the officers could reasonably conclude, also
operated as consent for an extension of the stop in order for the officers to conduct the search of
the vehicle.
In contrast to this case, the search in Ellis which was also based on consent, was executed
prior to the officer completing the paperwork and issuing the traffic summons. Id. Therefore,
the case at bar presents a unique situation where the justification for the stop (a dangling object
violation) existed from the beginning of the stop up until the moment of consent to Officer
Zebrine—the only constitutional wrinkle being that Officer Mocello chose to later confirm
Matthews’s consent and execute the search after issuing the traffic citation.
While there was no binding precedent directly on point at the time of the stop, there was
an unreported case from the Fourth Circuit that is instructive. In United States v. Davis, 460
F. App’x 226, 232 (4th Cir. 2011), the Fourth Circuit held that a brief exchange that was
unrelated to the purpose of the traffic stop did not extend the scope and duration of the stop in a
manner that would render the stop unconstitutional. The court also noted that because the officer
had not issued the citation, he had “not yet effectuated the purpose of the stop,” and the
defendant was still lawfully detained. Id. at 231. Further, concluding the defendant’s consent to
search was “voluntary and provided during a lawful detention,” it was valid and also operated as
consent “to an extension of the traffic stop long enough for the officers to conduct the search.”
Id.
The Eighth Circuit had similarly found no Fourth Amendment violation occurred where
at the time the officer requested consent to search the defendant’s vehicle, he had not run a check
on defendant’s license or issued a written citation for the traffic violation, “so the legitimate
purposes for the stop had not yet ceased.” United States v. Long, 532 F.3d 791, 795-96 (8th Cir.
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2008); see also United States v. Nassar, 546 F.3d 569, 570 (8th Cir. 2008) (relying on Long,
upheld a search because the officer was still processing the traffic warning at the time he
obtained the defendant’s consent to search the vehicle, noting “the detention to that point was
supported by the facts that justified its initiation”).
Matthews provided his consent to search his vehicle to Officer Zebrine while Officer
Mocello was still in the process of writing the warning for the dangling object violation. Further,
there is no evidence in the record, nor does Matthews claim, that his consent was coerced in any
way or subsequently revoked. As such, Matthews was lawfully detained based on probable
cause that he had committed a traffic infraction at the time he provided his consent.
Accordingly, pre-Rodríguez, and under the circumstances present here, Matthews’s consent to
search his vehicle also operated as consent to an extension of the traffic stop long enough for the
officers to conduct the search. Thus, based upon the jurisprudence at the time of the traffic stop,
the duration and scope of the detention in this case does not trigger the application of the
exclusionary rule.
Matthews relies on a Fourth Circuit case and an unpublished opinion from this Court to
support his argument for reversal. However, both are easily distinguishable from the case at bar.
In United States v. Digiovanni, 650 F.3d 498 (4th Cir. 2011), after initiating a lawful traffic stop,
the officer “‘definitely abandoned the prosecution of the traffic stop and embarked on a sustained
investigation’ into the presence of drugs, instead of either completing the warning ticket or
beginning the driver’s license check.” Id. at 509-10 (quoting United States v. Everett, 601 F.3d
484, 495 (6th Cir. 2010)). The court also noted “the record, in particular the video, makes clear
that at just about every turn [the officer] was conducting a drug investigation instead of a traffic
infraction investigation.” Id. at 510. The Fourth Circuit distinguished Digiovanni from Mason,
and held that such delay was not de minimis.
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In the unpublished case from this Court, Commonwealth v. Ramsdell, Record No.
2925-06-3, 2007 Va. App. LEXIS 166 (Va. Ct. App. Apr. 20, 2007), the officers initiated a
lawful stop and obtained the driver’s license of the defendant, “but took no further steps to
complete the traffic stop.” Id. at *8. In that case, the officers did not inform defendant of the
reason for the stop, did not conduct a check on defendant’s license, and failed to take any action
towards issuing a ticket for the traffic offense. Id. at *8-9. In fact, this Court found that the
officers in Ramsdell were “solely focused on their narcotics investigation.” Id. at *9.
Unlike the officers in Digiovanni and Ramsdell, Officer Mocello pursued the purpose of
the traffic stop. The circuit court made findings of fact that the unrelated questions “were given
in fairly quick order” and the request for the K-9 unit lasted for a “very, very brief period” and
the “whole process [was] just a matter of minutes.” In contrast to the officers in Digiovanni and
Ramsdell, Officer Mocello spent the majority of the time during the stop reviewing the
documents Matthews had provided, calling into dispatch, gathering paperwork, reviewing the
code section for the dangling object violation, and preparing the written warning.
The officers in this case complied with the law at the time of the traffic stop, as
articulated in Ellis and Mason. Under exclusionary-rule precedents, the absence of police
culpability defeats Matthews’s claim for suppression. The purpose of the rule would not be
furthered by requiring clairvoyance on the part of police officers to predict how the law may
change in the future. Therefore, even though the police conduct here would be improper under
the recent Rodriguez decision, the exclusionary rule does not apply and we therefore hold that
the evidence should not be suppressed.
III. CONCLUSION
Pursuant to the recent United States Supreme Court decision in Rodriguez, we hold that
Officer Mocello’s delay in completing the traffic stop violated the Fourth Amendment and
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consequently invalidated Matthews’s consent to search the vehicle. However, because the
officers acted in good faith and consistent with the law in existence at the time of the stop, we
hold that the exclusionary rule does not apply and the evidence obtained from the seizure should
not be suppressed. Accordingly, we affirm the circuit court’s judgment.
Affirmed.
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