COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Clements, Kelsey, McClanahan,
Haley, Petty and Beales
Argued at Richmond, Virginia
MATTHEW TREMAINE MOORE
OPINION BY
v. Record No. 2091-05-2 JUDGE ELIZABETH A. McCLANAHAN
DECEMBER 27, 2007
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Burnett Miller, III, Judge
John B. Mann for appellant.
Karen Misbach, Assistant Attorney General II (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Matthew Tremaine Moore appeals his conviction, upon a conditional guilty plea, for
possession of cocaine with intent to distribute and possession of a firearm after having been
convicted of a felony. Moore contends the trial court erred in denying his motion to suppress
evidence of these crimes because the officer who stopped him lacked probable cause to make a
warrantless traffic stop, in violation of Moore's Fourth Amendment rights. A panel majority of
this Court reversed the decision of the trial court on different grounds. We granted a petition for
rehearing en banc and stayed the mandate of the panel decision. Upon rehearing en banc, we
affirm the trial court.
I.
The following facts are undisputed. Henrico County Police Officer W.T. Bryan stopped
Moore's vehicle after observing a peeling inspection sticker on the windshield. Upon
approaching the vehicle, Officer Bryan smelled marijuana. Officer Bryan then conducted a
search of the vehicle and discovered various illegal drugs and a firearm. Moore was
subsequently indicted for possession of cocaine with intent to distribute and possession of a
firearm after having been convicted of a felony.
Moore moved to suppress the evidence seized from his vehicle, contending the stop was
illegal under the Fourth Amendment. The trial court concluded the stop was legally justified
under a reasonable articulable suspicion standard, and denied the motion. Moore subsequently
entered a conditional guilty plea on the two possession charges referenced above, preserving his
right to appeal the ruling on his motion.
II.
The question presented in Moore's petition for appeal is: "Did Officer Bryan have
probable cause to make a traffic stop of the vehicle being driven by Moore on the sole basis that
he observed that a valid inspection sticker was not totally affixed to the windshield of the
vehicle?" On brief, Moore reiterates that "the issue in this appeal" is whether the officer had
"probable cause" to conduct the traffic stop of Moore's vehicle. He further asserts on brief that
"[t]he Supreme Court has held that an officer must have probable cause to believe a traffic
violation to have occurred, only then can the officer have the right to conduct a traffic stop."
Moore sets forth the wrong legal standard that governs this case and also misstates the
law. Whether an officer is justified in making an investigatory traffic stop is not governed by
probable cause; rather, the officer's action is judged by the lesser standard of reasonable and
articulable suspicion of criminal activity. United States v. Arvizu, 534 U.S. 266, 273 (2002);
Jackson v. Commonwealth, 267 Va. 666, 673, 594 S.E.2d 595, 598 (2004); Shiflett v.
Commonwealth, 47 Va. App. 141, 146, 622 S.E.2d 758, 760-61 (2005).
As no appeal was sought or granted on the issue of whether "the officer's action [was]
supported by reasonable suspicion" of "legal wrongdoing" when making the traffic stop, Arvizu,
534 U.S. at 273, "we may not consider this issue on appeal" under Rule 5A:12(c). Selph v.
Commonwealth, 48 Va. 426, 434, 632 S.E.2d 24, 28 (2006) (holding assignment of error barred
under Rule 5A:12(c)). Rule 5A:12(c) provides that "[o]nly questions presented in the petition
for appeal will be noticed by the Court of Appeals." See Clifford v. Commonwealth, 274 Va. 23,
25, 645 S.E.2d 295, 297 (2007) (reversing decision of this Court based, in part, on application of
Rule 5A:12(c)); Lay v. Commonwealth, 50 Va. App. 330, 336 n.3, 649 S.E.2d 714, 716 n.3
(2007) (explaining that under Rule 5A:12(c) "[w]e . . . do not answer [an] unasked question");
McLean v. Commonwealth, 30 Va. App. 322, 329, 526 S.E.2d 717, 720 (1999) (en banc) ("Only
those arguments presented in the petition for appeal and granted by this Court will be considered
on appeal." (citing Rule 5A:12(c))). And unlike Rule 5A:18, Rule 5A:12(c) contains no "good
cause" or "ends of justice" exception to the prohibition of addressing issues outside the scope of
the question presented. See Thompson v. Commonwealth, 27 Va. App. 620, 626, 500 S.E.2d
823, 826 (1998); see also Selph, 48 Va. App. at 434, 632 S.E.2d at 28.
For these reasons, we affirm Moore's convictions.
Affirmed.
Humphreys, J., concurring.
I entirely join in the analysis and judgment of the majority and I write separately solely to
emphasize the rationale for Rule 5A:12(c) and the necessity for adherence to it.
As Judge Elder points out in his dissent, counsel for the appellant alleged in the trial court
that Officer Bryan lacked "probable cause or a reasonable suspicion of criminal activity to
conduct a stop of the vehicle operated by Matthew Moore." Although phrased in the disjunctive
in the trial court, it was apparent to me from appellant's brief and en banc oral argument, that
appellant's counsel was erroneously using the distinctively different terms of constitutional art -
"probable cause" and "reasonable suspicion" - interchangeably. See United States v. Arvizu,
534 U.S. 266, 273 (2002). This perhaps explains appellant's failure to allege as error in his issue
presented, the actual legal standard relied upon by the trial court. However, such an explanation
cannot operate as an excuse.
Some might suggest our disposition of this case is an overly technical application of our
Rules. However, under the constitutional and statutory scheme under which we operate, we
must decide cases based upon the issues appellants present to us, not the issues they might or
should have presented. At both the trial and appellate level, our system of justice is inherently an
adversarial system and the courts may not properly assume the role of an advocate for either
party.
The rule of law can only exist if laws are administered fairly, rationally, predictably,
consistently, and impartially. Our entire judicial system is premised upon the notion that, only a
party acting pro se or a professional attorney, making strategic and tactical decisions as an
advocate and theoretically in the client's best interest, may frame the issues the courts must
resolve. To second guess counsel for the parties and substitute our collective judgment to
re-frame issues in a way that may better serve the appellate interest of one of the parties, would
necessarily call into question our objectivity and impartiality with respect to both the other party
and the public generally.
Accordingly, we have no alternative but to affirm the judgment of the trial court for the
reasons more fully stated in the majority opinion.
Petty, J., concurring in the result.
The majority opinion and Judge Humphreys' concurring opinion both make a very valid
point regarding both the application and purpose of Rule 5A:12(c) as well as our obligation to
ensure that appellants adhere to our Rules. It is a point with which I would typically agree.
However, in this case I believe that we can decide the basic question presented by the appellant -
whether the trial court erred in denying the motion to suppress - without doing harm to the
purpose or effect of Rule 5A:12.
While it is clear that appellant employed the irrelevant probable cause standard in his
question presented, it is also clear that all parties involved in this case addressed the relevant
standard of reasonable suspicion in arguing and deciding the case. The defense attorney as well
as the Commonwealth's attorney identified the appropriate standard in their arguments to the
trial court. The trial court obviously understood those arguments, commenting that "it basically
boils down to whether or not the officer had a reasonable articulable suspicion . . . . " In his
opening brief, appellant argued that the officer had neither probable cause nor reasonable
suspicion to justify the stop. The Attorney General understood the issue, rephrased the question
presented to state the correct constitutional standard, and went on to address it. In a published
decision, a panel of this Court decided the case on the merits. Finally, we never asked appellant
to address the issue at oral argument. Simply put, at no time prior to our decision did the form of
the question presented raise any concern.
This case presents the rare occasion in which I believe that we should exercise our
inherent authority to expand the question presented and decide the issue argued -- whether the
stop of the appellant's car was in violation of the Fourth Amendment to the United States
Constitution. For that reason, I do not join in the reasoning of the majority.
I do, however, agree with the conclusion reached by the majority. For the reasons stated
by the dissent in the panel decision, Moore v. Commonwealth, 49 Va. App. 294, 308-11, 640
S.E.2d 531, 538-39 (McClanahan, J., dissenting), reh'g en banc granted by Moore v.
Commonwealth, 49 Va. App. 497, 642 S.E.2d 769 (2007), I would affirm the ruling of the trial
court.
Elder, J., with whom Felton, C.J., and Beales, J., join, dissenting.
It is undisputed that, in the proceedings before the trial court, Moore's argument
expressly included the assertion that Officer Bryan did not have "probable cause or a reasonable
suspicion of criminal activity to conduct a stop of the vehicle operated by Matthew Moore"
based solely on the fact that "the inspection sticker on the vehicle was not fully attached to the
windshield." Thus, Moore properly preserved for appeal under Rule 5A:18 the dispositive issue
of whether Officer Bryan had the reasonable suspicion necessary to validate the stop.
Although the majority does not dispute that Rule 5A:18's contemporaneous objection
requirement has been satisfied, it concludes Moore's statement of his question presented-which
contended the stop was unreasonable based on a lack of probable cause without reference to the
controlling legal standard of reasonable suspicion-failed to satisfy Rule 5A:12(c). I disagree
with the majority's application of Rule 5A:12(c), which the majority has raised for the first time
sua sponte following argument on rehearing en banc. The Commonwealth posed no Rule
5A:12(c) objection at any stage of these proceedings, including on rehearing en banc; rather it
merely restated the question presented so that it included the proper legal standard of reasonable
suspicion rather than probable cause and proceeded to make argument on this issue. Further, I
believe the majority interprets Rule 5A:12(c) too narrowly. Contrary to the majority's holding, I
would conclude the trial court's ruling that Officer Bryan had the reasonable articulable
suspicion necessary to conduct the stop was properly before us under Rule 5A:12(c).
Rule 5A:12(c) provides that "[o]nly questions presented in the petition for appeal will be
noticed by the Court of Appeals." Here, Moore noted a timely appeal on the question presented,
"Did Officer Bryan have probable cause to make a traffic stop of the vehicle being driven by
Moore on the sole basis that he observed that a valid inspection sticker was not totally affixed to
the windshield of the vehicle?" This question presented was specific enough to allow the
Commonwealth and this Court to focus on the relevant issue-whether the trial court's denial of
the motion to suppress was error-such that the purpose of Rule 5A:12(c) has been met. The
Commonwealth clearly understood the relevant issue and-without objection, as stated above-
simply rephrased the question presented to include the proper legal standard. Had Moore's
assignment of error in fact been worded more generally to allege that the trial court's denial of
the motion to suppress was error, without including any reference to reasonable suspicion or
probable cause, it would be undisputed that the requirement of Rule 5A:12(c) had been met.
This stands in marked contrast to a situation in which we grant a petition for appeal challenging
the sufficiency of the evidence to prove one element of a crime and the appellant later attempts
to challenge the sufficiency of the evidence to prove a different element of the offense. See
Selph v. Commonwealth, 48 Va. App. 426, 434, 632 S.E.2d 24, 28 (2006); see also Clifford v.
Commonwealth, 274 Va. 23, 24-26, 645 S.E.2d 295, 296-97 (2007) (involving one objection at
trial to limits on cross-examination, that Clifford should be allowed to cross-examine victim
about her prior sexual contact leading to prosecution of a different defendant in order to show
victim had access to law enforcement authorities but did not make contemporaneous report of
Clifford's sexual contact, and a wholly different statement of error on petition for appeal, that
Clifford had made a threshold showing of a "reasonable probability of falsity" necessary to
cross-examine victim about victim's prior false accusations against another under an exception to
the rape-shield law). Here, the question whether reasonable suspicion for the stop existed was
subsumed within the probable cause assignment of error because the same evidence was
involved and the only difference in the legal analysis was whether that evidence met the "lesser"
legal standard of reasonable suspicion rather than the "greater" legal standard of probable cause.
Further, we have expressly held that "the text of [Rule 5A:12(c)] does not prevent this
Court, in its discretion and pursuant to its inherent authority, from considering . . . additional
issues as long as the Court has acquired jurisdiction over the appeal via timely filing of the
original petition for appeal." Riner v. Commonwealth, 40 Va. App. 440, 455, 579 S.E.2d 671,
678-79 (2003) (citation omitted), aff'd on other grounds, 268 Va. 296, 601 S.E.2d 555 (2004).
To the extent the wording of Moore's assignment of error was not specific enough to place the
issue of reasonable suspicion before us, I believe our consideration of the reasonable suspicion
issue at the panel stage constituted an enlargement of the scope of the issues on which we
granted appellant's petition for appeal. As set out above, the Commonwealth posed no objection
to that consideration and, in fact, rephrased the question presented to set out the proper legal
standard before arguing on brief why the trial court's denial of the motion to suppress should be
affirmed.
Thus, I would reach the merits of appellant's reasonable suspicion argument. Further, for
the reasons set out in the panel majority decision in this case, see 49 Va. App. 294, 300-308, 640
S.E.2d 531, 534-38 (2007), I would reverse appellant's convictions. Accordingly, I respectfully
dissent.
Our en banc order had the effect of vacating the panel opinion. See Glenn v.
Commonwealth, 49 Va. App. 413, 423 n.3, 642 S.E.2d 282, 287 n.3 (2007) (en banc) (observing
that the "grant of en banc review vacates the prior panel opinion in toto" and thereby eliminates
the need to address the "differing views expressed by the panel majority and dissent"); see also
Logan v. Commonwealth, 47 Va. App. 168, 170, 622 S.E.2d 771, 772 (2005) (en banc)
(recognizing that, with an en banc order, we "set aside our panel opinion").
Source:
Virginia Judicial System
