                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Decker, AtLee and Malveaux
UNPUBLISHED


              Argued at Richmond, Virginia


              WILBUR MAURICE WATTS
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0117-16-2                                  JUDGE MARLA GRAFF DECKER
                                                                               DECEMBER 20, 2016
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                             Steven C. McCallum, Judge

                               Alexander L. Taylor, Jr., for appellant.

                               Robert H. Anderson, III, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Wilbur Maurice Watts was convicted of possession of a firearm after having been convicted

              of a felony in violation of Code § 18.2-308.2. On appeal, he contends that the detention that led to

              the search of his vehicle and discovery of a firearm was unreasonable under the Fourth Amendment

              of the United States Constitution and, consequently, that the circuit court should have granted his

              motion to suppress evidence. We hold that the circuit court did not err in denying the motion to

              suppress. Accordingly, we affirm the conviction.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                       I. BACKGROUND1

       Shortly before 5:00 p.m. on June 9, 2014, Officer Cory Arrington, of the Chesterfield

County Police Department, was on patrol in a high crime area. Arrington was a member of a

special team within the department that focused on “the worst areas of Chesterfield, dealing with

drugs, guns, [and] prostitution.” While on patrol, Arrington saw a sport utility vehicle (SUV)

being driven erratically, intermittently changing speed and weaving from lane to lane without

signaling. Additionally, Officer Arrington could see that the SUV’s front windshield had two

large cracks in it. As the officer followed, the driver of the SUV switched lanes and turned

“abruptly” into a parking lot without signaling.

       Officer Arrington initiated a traffic stop of the SUV in the parking lot. He interacted with

the appellant, the vehicle’s only occupant, through the driver’s side window, identifying himself

and telling the appellant that he had stopped him for multiple traffic violations. Arrington asked

the appellant for his driver’s license and vehicle registration, which the appellant provided. The

officer then walked around to the front of the SUV to inspect the cracked windshield and check

for a valid inspection sticker. According to Arrington, he was investigating the appellant for

traffic offenses at that time. After inspecting the windshield, the officer went to the open

passenger side window of the vehicle to explain to the appellant what he was doing regarding the

traffic offenses. From that angle on the passenger side, Officer Arrington could see the cup

holders in the vehicle’s center console, and he noticed the top of a clear cellophane wrapper of

the type “familiar” to cigarette smokers protruding from one of them. Based on his training and

experience, Arrington knew that cellophane wrappers are “commonly used” for packaging


       1
          In ruling on the propriety of a trial court’s decision on a motion to suppress, the
appellate court must consider the evidence introduced at the suppression hearing and at trial.
See, e.g., Beasley v. Commonwealth, 60 Va. App. 381, 385 n.1, 728 S.E.2d 499, 501 n.1 (2012).
The Court views that evidence in the light most favorable to the party who prevailed below, in
this case the Commonwealth. E.g., id.
                                                  -2-
marijuana and cocaine. As a result, he asked the appellant, “What’s in the bag?” The appellant,

without being asked to do so, lifted the bag, providing the officer with a clear view of its

contents. Officer Arrington saw green plant material in the bag that he concluded was

“obvious[ly]” marijuana. The appellant admitted that the substance was marijuana and that it

belonged to him.

       Officer Arrington then searched the vehicle and found a loaded handgun, which the

appellant also admitted belonged to him.

       Arrington charged the appellant with making a turn without signaling. The appellant was

later indicted for possession of a firearm by a convicted felon. Prior to the appellant’s trial for

the firearm offense, he filed a motion to suppress the evidence, contending that the seizure and

search that yielded the marijuana and gun were unreasonable. The Commonwealth presented

testimony from Officer Arrington that was consistent with the events described above. The

appellant offered testimony from an alleged bystander. Also, the appellant, who was a convicted

felon, testified in his own behalf. The appellant’s position based on his and the bystander’s

testimony was that the officer asked the appellant repeatedly “[w]hat was in the bag.” The

appellant also claimed he turned over the bag only after the officer said, “[Y]ou’re going to jail

anyway.”

       The appellant conceded that the initial stop was lawful but moved to suppress the

evidence based on the officer’s actions thereafter. He argued in part that the evidence proved the

officer repeatedly demanded to see the contents of the cellophane bag and that this constituted an

illegal seizure of the bag. He did not separately challenge the officer’s right to ask what was in

the bag. The circuit court denied the motion. The appellant was tried by a jury and was

convicted of possession of a firearm by a convicted felon.




                                                 -3-
         After trial, the appellant filed a motion to set aside the verdict in which he asked the court

to reconsider its denial of his motion to suppress. Citing Rodriguez v. United States, 135 S. Ct.

1609 (2015), which was decided about five weeks after the appellant’s trial, he argued that the

traffic stop became unlawful because it was prolonged beyond the time reasonably required to

issue a traffic summons. He suggested that the officer had no reason to look into the passenger

side of the vehicle and was clearly “trying to find a reason to search the car.”

         The judge inferred from the officer’s testimony that he examined the cracks in the

windshield to determine whether they were large enough to constitute an equipment violation

and that this action legitimately placed him on the passenger side of the vehicle, from which he

first observed the suspicious cellophane wrapper. The trial court ruled that Rodriguez was

distinguishable from the appellant’s case because Rodriguez involved a traffic stop that had been

largely completed when the officer shifted his focus to investigating possible drug possession.

The court reasoned:

                [In the appellant’s case,] the traffic stop was not over. It had really
                just begun when the officer . . . simply walked in front of the
                vehicle to look at the windshield, look at the inspection sticker,
                ended up at the passenger side, and through th[e] passenger side
                window saw something [that] in his training and experience
                . . . appeared to look like packaging for marijuana. At that point,
                [the officer] said, what’s in the bag. [The appellant] lifted the bag
                up, showed it to him, and it was identifiable by the officer as
                marijuana.

The court found that “[t]here was no measurable increase in the duration of the traffic stop” and

Rodriguez did not render the detention or search invalid. As a result, it denied the motion to set

aside the verdict. At sentencing, the court imposed the jury’s recommended sentence of five

years.




                                                  -4-
                                            II. ANALYSIS

        The appellate standard of review relating to a trial court’s denial of a ruling on a motion to

suppress evidence is well settled. We “consider the facts in the light most favorable to the

Commonwealth, the prevailing party at trial.” Malbrough v. Commonwealth, 275 Va. 163, 168,

655 S.E.2d 1, 3 (2008). It is the appellant’s burden to show that when viewing the evidence in such

a manner, the trial court committed reversible error. Harris v. Commonwealth, 276 Va. 689, 695,

668 S.E.2d 141, 145 (2008). The question of whether a search or seizure violated the Fourth

Amendment is “a mixed question of law and fact that we review de novo” on appeal. Id. at 694,

668 S.E.2d at 145. In doing so, however, the Court is “bound by the trial court’s factual findings

unless those findings are plainly wrong or unsupported by the evidence.” Malbrough, 275 Va. at

168, 655 S.E.2d at 3. Moreover, “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). The trial court’s application of the law is independently

reviewed by the appellate court. Malbrough, 275 Va. at 168-69, 655 S.E.2d at 3.

        During the course of a traffic stop, an officer may engage in “ordinary inquiries incident to

[the] stop.” Illinois v. Caballes, 543 U.S. 405, 408 (2005). Such inquiries include, of course, the

“mission” of the stop, i.e., addressing the traffic violation that warranted the stop. Id. at 407. An

officer may also address related safety concerns. See, e.g., Arizona v. Johnson, 555 U.S. 323,

330-32 (2009). Appropriate matters include checking the driver’s license and examining proof of

the automobile’s registration, inspection, and insurance. See Delaware v. Prouse, 440 U.S. 648,

658-59 (1979). An officer also may inquire “into matters unrelated to the justification for the traffic

stop,” and such inquiries “do not convert the encounter into something other than a lawful seizure,

so long as th[ey] do not measurably extend the duration of the stop.” Johnson, 555 U.S. at 333

(citing Muehler v. Mena, 544 U.S. 93, 100-01 (2005)). Finally, if an officer develops independent

                                                  -5-
reasonable suspicion or probable cause that an occupant has committed an additional traffic offense

or crime, he may extend the stop for a reasonable amount of time in order to “confirm or dispel”

that new suspicion. See Matthews v. Commonwealth, 65 Va. App. 334, 345, 778 S.E.2d 122, 128

(2015); Davis v. Commonwealth, 35 Va. App. 533, 539, 546 S.E.2d 252, 255 (2001). An officer’s

actions during a traffic stop or any other encounter implicating the Fourth Amendment are judged

under a standard of objective, not subjective, reasonableness. See, e.g., Matthews, 65 Va. App. at

346, 778 S.E.2d at 128.

        The appellant does not contest the validity of the traffic stop. Nor does he claim that at the

time of the search of the SUV, the officer lacked probable cause to conduct the search. Instead, he

contends that the trial court erred in denying his motion to suppress the evidence because during the

course of the traffic stop, the officer asked about the contents of a plastic bag that was in a cup

holder and “demanded” that the appellant show him the bag, inappropriately extending the stop

beyond its permissible scope. The appellant suggests that because the officer could see only the top

of the bag and not its contents, he could not inquire further because the bag was not related to the

traffic offenses the officer was investigating. He maintains that the search of the vehicle was

improper based on the prolonged stop.

        The appellant’s argument regarding suppression is both factually and legally flawed.

Initially, it neither views the evidence in the light most favorable to the Commonwealth nor credits

the factual findings of the trial court. Consequently, it is entirely inconsistent with the standard of

review on appeal. When we view the evidence under the proper standard, the relevant law does not




                                                  -6-
support the appellant’s conclusion that the trial court erred in denying his motion to suppress the

evidence.2

        The evidence proves that Officer Arrington saw the appellant’s SUV operating erratically

and also noticed that the front windshield had two large cracks in it. As Arrington followed the

SUV, the driver switched lanes and abruptly turned into a parking lot without signaling. The officer

initiated a traffic stop of the vehicle and went to the driver’s window. He explained that he stopped

the appellant for traffic violations and asked the appellant for his license and registration. He then

proceeded to the front of the SUV to inspect the cracks in the windshield to determine if they

constituted an equipment violation and to check for a valid inspection sticker. As the appellant

concedes, all of these actions were entirely consistent with a lawful detention for traffic offenses.

See Johnson, 555 U.S. at 330-32; Caballes, 543 U.S. at 407-08; Prouse, 440 U.S. at 658-59.

        Once the officer had inspected the windshield, he walked to the open passenger’s side

window to explain what he was doing with regard to the traffic offenses and asked about the

contents of the suspicious cellophane bag. The appellant suggests that the stop was impermissibly

prolonged at both these points, first, when the officer went to the passenger side window after

looking at the front windshield and, second, when he asked the appellant about the partially visible

cellophane bag in the center console.



        2
            Good reason exists

                 for the rule that appellate courts must defer to the factual findings
                 of the trial judge in Fourth Amendment cases. The fact patterns in
                 such cases arrive in infinite variety, seldom or never exactly
                 duplicated. Moreover, they involve consideration of nuances such
                 as tone of voice, facial expression, gestures and body language
                 seldom discernable from a printed record. The controlling inquiry
                 is the effect of such matters on a reasonable person in light of all of
                 the surrounding circumstances.

Malbrough, 275 Va. at 171, 655 S.E.2d at 5.
                                                  -7-
       Regarding the first point, consistent with the trial court’s factual findings, nothing in the

record suggests that the officer was doing anything more when he walked to the passenger side

window than proceeding with a lawful traffic stop based on witnessed traffic offenses and a cracked

front windshield. The officer’s examination of the cracks in the windshield and the vehicle

inspection sticker were wholly consistent with efforts to ensure vehicle safety and check for an

equipment violation, permissible during a stop for traffic offenses. See Caballes, 543 U.S. at

407-08; Prouse, 440 U.S. at 658-59. The evidence, viewed objectively, establishes that when the

officer saw the top of the cellophane bag in plain view, he was legitimately in a place where he was

able to converse with the driver before he went back to his vehicle to process the traffic summons.

       Regarding the second point, the appellant’s argument is refuted by application of the

relevant law to the facts. When Officer Arrington looked in the window and saw the cellophane bag

protruding from the cup holder, he asked one question, “What’s in the bag?”3 The trial court found

that, at that point, the traffic stop was ongoing and “there was no measurable increase in the

duration of the traffic stop” as a result of the single question. The United States Supreme Court held

in Rodriguez v. United States, 135 S. Ct. 1609 (2015), however, that if an activity is not supported

by independent reasonable suspicion and that activity prolongs the stop even briefly, it measurably

extends the stop in an unconstitutional fashion. Id. at 1615-16 (holding de minimis delay

unconstitutionally extends a stop); see Matthews, 65 Va. App. at 344-45, 778 S.E.2d at 127-28.

Assuming without deciding that Officer Arrington’s single question prolonged the appellant’s




       3
          The appellant argues that the officer did more than simply ask what was in the bag. He
also claims that his response to what he characterizes as the officer’s “demands” was based on a
feeling that he had no choice but to show the officer the bag and admit to its contents. These
contentions disregard the Commonwealth’s evidence, relying instead on select portions of the
testimony of the appellant and the alleged bystander, evidence rejected by the trial court. See
McGee, 25 Va. App. at 198, 487 S.E.2d at 261. Accordingly, these arguments are not persuasive on
appeal.
                                                  -8-
detention in violation of Rodriguez and was not supported by independent reasonable suspicion of

criminal activity, we nevertheless must determine whether exclusion of the evidence is warranted.4

        The judicially created exclusionary rule “prevents evidence obtained in violation of the

[F]ourth [A]mendment from being used against an accused.” Redmond v. Commonwealth, 57

Va. App. 254, 260-61, 701 S.E.2d 81, 84 (2010) (quoting Commonwealth v. Ealy, 12 Va. App. 744,

750, 407 S.E.2d 681, 685 (1991)). However, the exclusionary rule is an extreme remedy that courts

do not apply lightly. The Supreme Court of the United States has made clear that “exclusion [of

evidence] ‘has always been our last resort, not our first impulse.’” Herring v. United States, 555

U.S. 135, 140 (2009) (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006)). Consequently,

“[t]he rule’s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle

for those urging [its] application.” Id. at 141 (second alteration in original) (quoting Pa. Bd. of

Prob. & Parole v. Scott, 524 U.S. 357, 364-65 (1998)). “‘[T]he exclusionary rule is not an

individual right,’ [and] prior precedent has ‘repeatedly rejected the argument that exclusion [of

evidence] is a necessary consequence of a Fourth Amendment violation.’” Washington v.

Commonwealth, 60 Va. App. 427, 436, 728 S.E.2d 521, 525 (2012) (quoting Herring, 555 U.S. at

141).

        The traditional test regarding application is two pronged: “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.” Matthews,

65 Va. App. at 347, 778 S.E.2d at 129 (quoting Herring, 555 U.S. at 144). As explained through


        4
         Consistent with the long held principle of “judicial restraint,” appellate courts decide
cases on the “best and narrowest ground available.” McGhee v. Commonwealth, 280 Va. 620,
626 n.4, 701 S.E.2d 58, 61 n.4 (2010) (quoting Air Courier Conf. v. Am. Postal Workers Union,
498 U.S. 517, 531 (1991) (Stevens, J., concurring)) (where the Court of Appeals and trial court
properly applied then-existing law regarding the search of a vehicle incident to arrest, declining
to consider a challenge to an inventory search of a vehicle under new United States Supreme
Court precedent). Consequently, we consider whether the exclusionary rule applies in this case.
                                               -9-
case law, “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or

in some circumstances recurring or systemic negligence.” Herring, 555 U.S. at 144. In Davis v.

United States, 564 U.S. 229 (2011), the Supreme Court considered how the exclusionary rule

applies in a situation in which the applicable law changed after the time of the search. The Court

held that evidence obtained during a search conducted in reasonable reliance on precedent that was

binding at the time of the search is not subject to the exclusionary rule. Id. at 240-41, cited with

approval in Matthews, 65 Va. App. at 347, 778 S.E.2d at 129. The Court went on to explain that in

such instances, the only thing exclusion of the evidence would do is punish “conscientious police

work” because responsible law enforcement officers keep up with “‘what is required of them’ under

Fourth Amendment [jurisprudence]” and act accordingly. Davis, 564 U.S. at 241 (quoting Hudson,

547 U.S. at 599); see Matthews, 65 Va. App. at 347-48, 778 S.E.2d at 129. This legitimate law

enforcement behavior simply does not fit the intended purposes of the exclusionary rule, and in fact,

the opposite is true.

        In the instant case, the stop and detention of the appellant occurred on June 9, 2014, more

than ten months prior to the April 21, 2015 decision of the United States Supreme Court in

Rodriguez. Therefore, under Davis and its progeny, the question before us is whether the officer’s

challenged actions that led to the discovery of the marijuana were objectively reasonable based

upon Fourth Amendment law that existed at the time of the stop. Davis, 564 U.S. at 239-40; see

Matthews, 65 Va. App. at 346-47, 352, 778 S.E.2d at 128-29, 131 (holding that the officers’

deviation from the purpose of the traffic stop to investigate drugs was unreasonable under

Rodriguez but did not warrant application of the exclusionary rule because the officers “were

following the law as it existed at the time of the stop,” which was before Rodriguez was decided).

        Like the Court in Matthews, 65 Va. App. 334, 778 S.E.2d 122, we hold that Officer

Arrington’s actions were entirely consistent with the law at the time of the stop and, therefore, the

                                                 - 10 -
exclusionary rule does not apply. Prior to Rodriguez, Supreme Court precedent made clear that

“[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do not

convert the encounter into something other than a lawful seizure, so long as those inquiries do not

measurably extend the duration of the stop.” Johnson, 555 U.S. at 333 (emphasis added) (citing

Muehler, 544 U.S. at 100-01). Virginia cases recognized this established principle and interpreted it

to permit de minimis delay. See Atkins v. Commonwealth, 57 Va. App. 2, 15-16, 698 S.E.2d 249,

256 (2010); Ellis v. Commonwealth, 52 Va. App. 220, 226-27, 662 S.E.2d 640, 643 (2008). In June

of 2014, therefore, “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.” Matthews, 65 Va. App. at 348, 778 S.E.2d at

129. Not until the decision in Rodriguez, 135 S. Ct. at 1615-16, did the United States Supreme

Court explain that such de minimis delay measurably extends a traffic stop and, consequently,

absent independent reasonable suspicion, violates the Fourth Amendment. See Matthews, 65

Va. App. at 344-45, 348-49, 778 S.E.2d at 127-30.

        When viewing the evidence in the light most favorable to the Commonwealth, under any

objectively reasonable interpretation, Officer Arrington’s single question to the appellant, “What’s

in the bag,” created—at most—a de minimis delay. See Ellis, 52 Va. App. at 226-28, 662 S.E.2d at

643-44 (holding that a de minimis delay caused by one minute of questioning about drugs, in the

middle of a traffic stop for an unrelated matter, did not invalidate later consent to a search). The

record supports the trial court’s factual finding that Officer Arrington had barely begun processing

the traffic violations when he went to the front of the vehicle to investigate the cracks in the

windshield and view the inspection sticker. No summonses had been issued for the traffic offenses

at that early point in the stop. When the officer went to the open passenger window to speak with

the appellant, he saw the cellophane and asked what was in the bag. The entire encounter, aside

                                                    - 11 -
from that one question, was dedicated to the traffic offenses and assessing the safety of the vehicle

before issuing whatever summonses the officer deemed appropriate following his brief

investigation. The sole question, related to the possible presence of illegal drugs in the SUV, did

not convert the lawful detention into an unlawful seizure. See id. Based on the facts and the law at

the time of the traffic stop, which permitted a de minimis delay, “the duration and scope of the

detention in this case does not trigger the application of the exclusionary rule.” Matthews, 65

Va. App. at 352, 778 S.E.2d at 131; cf. Heien v. North Carolina, 135 S. Ct. 530, 536, 540 (2014)

(noting that the state statute that the officer misapplied had never been interpreted by the state’s

appellate courts and that the officer’s misapplication of that law was reasonable).

        What happened next was also entirely lawful. Officer Arrington’s question about what was

in the bag resulted in the appellant’s exposing the bag and its contents to the officer.5 At that time,

Arrington saw “chunks” or “buds of green plant material” that he knew, based on his training and

experience, were “obvious[ly]” marijuana. Subsequently, the appellant admitted that the substance

was marijuana and that it belonged to him. The record supports the conclusion that once the officer

saw the contents of the bag, he had independent probable cause to arrest the appellant for possession

of marijuana. See, e.g., Arnold v. Commonwealth, 17 Va. App. 313, 317-18, 320, 437 S.E.2d 235,

238-39 (1993). Because he had probable cause to arrest the appellant for possession of an illegal

substance, the officer was permitted to search the vehicle incident to the arrest. See Arizona v.

Gant, 556 U.S. 332, 346-47 (2009). Therefore, the subsequent search of the vehicle that resulted in

the discovery of the firearm did not violate the appellant’s Fourth Amendment rights.




        5
          Other than the appellant’s factual claim that Officer Arrington repeatedly demanded to
see the bag’s contents, see supra note 3, and his additional claim that the inquiry impermissibly
prolonged the stop, the appellant does not challenge the nature of Arrington’s question, the
officer’s right to ask it, or the voluntariness of the appellant’s response.
                                                  - 12 -
                                       III. CONCLUSION

       We hold that the trial court correctly denied the appellant’s motion to suppress evidence.

Consequently, we affirm the conviction for possession of a firearm by a convicted felon.

                                                                                         Affirmed.




                                              - 13 -
