Moore v. Com.

Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Goodwyn, JJ., and Russell, S.J.

MATTHEW TREMAINE MOORE OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 080199 October 31, 2008

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal we consider whether a police officer’s

traffic stop invaded the Fourth Amendment rights of a

motorist. We also consider questions concerning the

application of Rules 5A:12(c) and 5A:34.

FACTS AND PROCEEDINGS

Because the case was appealed after conditional pleas of

guilty, there is no dispute as to the essential facts. On the

afternoon of February 15, 2005, Officer W. T. Bryan of the

Henrico County police was sitting in his police cruiser parked

in a parking lot behind a grocery store, facing an adjacent

street. He saw a car traveling southbound on the street. The

car displayed an inspection sticker that was “peeling off of

the windshield.” The car passed about five feet away from the

front of his cruiser and, although the sticker was “sort of

bowed,” the sticker was legible to the officer and he could

see that it was valid. The officer drove out of the parking

lot and followed the car while checking the car’s license
number on his computer. This check revealed that the car was

owned by a rental company in Midlothian, Virginia.

Later, at a hearing on a motion to suppress the evidence,

the officer testified that he had stopped numerous vehicles

with peeling inspection stickers and found that “a great

majority of the time . . . the inspection sticker, that will

be peeling off the window, does not belong on that vehicle.”

Asked to be more specific, the officer testified that he had

stopped approximately 50 vehicles within the previous six

months displaying peeling inspection stickers and that 30 to

35 of the 50 stickers did not belong to the vehicles on which

they were displayed.

After verifying the ownership of the car, Officer Bryan

stopped it because of his suspicion concerning the sticker.

He was unaware of any other traffic infractions on the part of

the driver. As the officer approached the car, he detected an

odor of marijuana coming from it. The driver, Matthew

Tremaine Moore, admitted that he had been smoking marijuana in

the car. The officer asked Moore and his passenger to leave

the car and then searched it, finding marijuana, cocaine,

heroin, digital scales and a semi-automatic pistol inside.

In the Circuit Court of Henrico County, Moore was

indicted for possession of cocaine with intent to distribute

and for possession of a firearm after being convicted of a

2
felony. He made a motion to suppress the evidence seized from

the car on the ground that the peeling inspection sticker did

not give Officer Bryan “probable cause or a reasonable

suspicion of criminal activity” to stop the vehicle and that

the stop and seizure therefore violated Moore’s rights under

the Fourth Amendment. After the circuit court denied the

motion to suppress, Moore, with the consent of the court and

agreement of the Commonwealth, entered conditional pleas of

guilty to both indictments, reserving his right, pursuant to

Code § 19.2-254, to appeal the circuit court’s ruling on the

motion to suppress.

Moore appealed the case to the Court of Appeals of

Virginia. His petition for appeal contained a single 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?” The

Commonwealth filed a brief in opposition that made no mention

of the wording of Moore’s question presented, but simply

rephrased the question as follows: “Whether Officer Bryan had

reasonable articulable suspicion to stop the defendant’s car.”

Thereafter, the case was briefed, argued and decided in the

Court of Appeals solely on the basis of the “reasonable

articulable suspicion” standard proposed by the Commonwealth.

3
By majority decision of a three-judge panel entered on

February 13, 2007, the Court of Appeals rejected the circuit

court’s decision on the motion to suppress, holding that, on

the facts in the record, Officer Bryan had nothing more than

“an inchoate and unparticularized ‘hunch’ that the inspection

sticker did not belong to appellant’s vehicle. Such a ‘hunch’

is too slender a reed to justify an investigatory stop under

the Fourth Amendment.” Moore v. Commonwealth, 49 Va. App.

294, 307, 640 S.E.2d 531, 537 (2007) (citation omitted). The

panel’s order remanded the case to the circuit court. Id. at

308, 640 S.E.2d at 538.

The Commonwealth filed a petition for rehearing en banc,

in which it stated the sole question presented as: “Did the

panel majority err in finding there was no reasonable

suspicion to justify the stop?” The Court of Appeals granted

the Commonwealth’s petition. Moore v. Commonwealth, 49 Va.

App. 497, 642 S.E.2d 769 (2007).

A majority of the Court of Appeals, sitting en banc,

declined to address the Fourth Amendment question upon which

the case had been argued, ruling instead, sua sponte, that

Moore was seeking reversal of the trial court on an issue

outside the question presented in his petition for appeal, in

4
violation of Rule 5A:12(c). 1 For that reason, the Court of

Appeals affirmed the convictions without reaching the merits.

Moore v. Commonwealth, 51 Va. App. 1, 3-4, 654 S.E.2d 305, 306

(2007).

Neither the Court of Appeals nor either of the parties

made any mention of the variance between the parties’

respective versions of the question presented until

publication of the court’s en banc decision. We awarded Moore

an appeal. He assigns error to the Court of Appeals’ en banc

decision, asserting that the court erred in ruling that he had

failed to satisfy the requirements of Rule 5A:12(c) and that

the court, by deciding the case on an issue that was never

pleaded, briefed or argued before the court, without notice to

the parties, had deprived him of his right to due process of

law. The Commonwealth assigns cross-error to the Court of

Appeals’ failure to “[rule] in the alternative that the stop

was supported by reasonable suspicion.”

Analysis

The Court of Appeals’ application and interpretation of

the Rules of Court, like the interpretation of a statute,

presents a question of law that we review de novo. Jay v.

Commonwealth, 275 Va. 510, 517, 659 S.E.2d 311, 315 (2008).

1
Rule 5A:12(c) provides, in pertinent part: “Only
questions presented in the petition for appeal will be noticed

5
The time limits for filing a notice of appeal and for filing a

petition for appeal under Rule 5A:3(a) are jurisdictional, but

the requirements of Rule 5A:12(c), like the contents of

several other rules, have been expressly held to be not

jurisdictional. Id. at 517-20, 659 S.E.2d at 315-17.

Any court may take notice of the violation of a

jurisdictional rule or statute sua sponte at any stage of the

proceedings. See Lucas v. Biller, 204 Va. 309, 312-13, 130

S.E.2d 582, 585 (1963); Rule 3A:9(b). On the other hand,

invocation of a non-jurisdictional rule to dismiss an appeal,

or to prevent consideration of its merits, should not be

undertaken without considering whether a party’s failure to

adhere strictly to the rule’s requirements is insignificant,

or so substantial as to preclude the court’s addressing the

merits of the case. Jay, 275 Va. at 520, 659 S.E.2d at 317.

As we pointed out in Jay, our holding in that case does

not leave the Court of Appeals without appropriate remedies.

It “may, among other things, require an appellant to re-submit

the petition for appeal or opening brief, or it may treat a

question presented as waived.” Id. A concurring opinion in

the Court of Appeals’ en banc decision in the present case

suggested an additional remedy: “This case presents the rare

occasion in which I believe that we should exercise our

by the Court of Appeals.”

6
inherent authority to expand the question presented and decide

the issue argued – whether the stop of the defendant’s car was

in violation of the Fourth Amendment to the United States

Constitution.” Moore v. Commonwealth, 51 Va. App. 1, 6, 654

S.E.2d 305, 307 (2007) (Petty, J., concurring in the result).

Moore, on appeal, agrees that the question presented in

his petition for appeal to the Court of Appeals erroneously

relied on the wrong standard governing his Fourth Amendment

claim because it invoked the “probable cause” standard rather

than the applicable “reasonable suspicion” standard. He

argues, however, that “reasonable suspicion” is subsumed

within “probable cause” and the question presented, if

inartfully expressed, was nevertheless sufficient to apprise

the Commonwealth and the Court of Appeals that he was

asserting a violation of his Fourth Amendment protection

against unreasonable search and seizure. Because “probable

cause” requires a more stringent standard, putting the

prosecution to a higher level of proof, we do not agree that

the “reasonable suspicion” standard inherently presents the

same issues. We do agree, however, that Moore’s question

presented left no doubt that a Fourth Amendment violation was

the subject of his appellate claim.

In that light, we consider the criteria we articulated in

Jay: Was Moore’s failure to adhere strictly to the

7
requirements of Rule 5A:12(c) insignificant, or was it so

substantial as to preclude the Court of Appeals from

addressing the merits of the case? In applying those

criteria, we take into consideration the factors itemized in

Judge Petty’s concurring opinion:

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.

Moore, 51 Va. App. at 6, 654 S.E.2d at 507 (Petty, J.,

concurring in the result). 2

Code § 17.1-402(D) provides that the Court of

Appeals sitting en banc “shall consider and decide the

2
The dissenting opinion in the panel’s decision did not
mention any violation of the rules, but instead disagreed with
the majority’s conclusion that the traffic stop was made

8
case and may overrule any previous decision by any panel

or of the full court.” (Emphasis added). This language

indicates a clear legislative preference for the prompt

and final disposition of appellate cases on the merits,

when that can be done without interfering with the

orderly administration of justice. 3

Rule 5A:34 provides for “Rehearing En Banc.”

Neither Code § 17.1-402(D) nor Rule 5A:34 expressly

provides for the status of an existing panel decision

when a rehearing en banc has been granted, but the Court

of Appeals has recently ruled that “[t]he grant of en

banc review vacates the prior panel opinion in toto.”

Glenn v. Commonwealth, 49 Va. App. 413, 423 n.3, 642

S.E.2d 282, 287 n.3 (2007) (en banc). In the present

case, the Court of Appeals expressly restated that

holding: “Our en banc order had the effect of vacating

the panel opinion.” Moore, 51 Va. App. at 2 n.1, 654

S.E.2d at 307 n.1.

without reasonable suspicion. Moore, 49 Va. App. at 308-11,
640 S.E.2d at 538-39 (McClanahan, J., dissenting).
3
A related and parallel purpose underlies the ancient
statute of jeofails, which survives in modern form as Code
§ 8.01-678. (“When it plainly appears . . . that the parties
have had a fair trial on the merits and substantial justice
has been reached, no judgment shall be arrested or reversed
[f]or any other defect, imperfection, or omission in the
record . . . .”)

9
 Nevertheless, in a decision four months after the

decision in the present case, the Court of Appeals, en

banc, unanimously 4 imposed a limitation on the issues to

be considered at a rehearing en banc: “We are limited to

the issues presented in the Commonwealth’s petition [for

a rehearing en banc]. Thus, the only issues currently

before us are the ones raised in the petition for

rehearing en banc.” Ferguson v. Commonwealth, 51 Va. App

427, 433, 658 S.E.2d 692, 695 (2008). As noted above,

the Commonwealth’s petition for a rehearing in the

present case was succinct: “Did the panel majority err

in finding there was no reasonable suspicion to justify

the stop?” No issue was raised concerning a rule

violation. 5

The Attorney General's election to rephrase the

question presented in Moore's petition for appeal, with

Moore's tacit acquiescence, relinquished any reliance the

Commonwealth might have made on Moore's violation of Rule

5A:12(c). The Commonwealth again adhered to that

election in its petition for rehearing en banc. The

effect of that election was to present the legally

4
Four judges dissented on other grounds.
5
Because the Court of Appeals’ ruling in Ferguson, quoted
above, is not before us in the present case, we express no
opinion as to its correctness.

10
correct, and constitutionally dispositive, question to

the Court of Appeals by agreement of the parties. That

question was thereafter fully briefed, argued and decided

on appeal. In those circumstances, it can hardly be said

that Moore's violation of that non-jurisdictional rule

was so substantial as to preclude the Court of Appeals

from addressing the merits of the case. We conclude

that, in the unusual circumstances of this case, the

Court of Appeals erred in foreclosing Moore's right to

defend the decision of the panel that had ruled in his

favor, and will accordingly reverse the judgment of the

Court of Appeals sitting en banc. 6

We turn to the issue of reasonable suspicion,

presented on appeal by the Commonwealth’s assignment of

cross-error. Because Moore’s conditional pleas of guilty

resolved all factual issues in the Commonwealth’s favor,

the only question presented to us on appeal is whether

those facts implicate the Fourth Amendment, and if so,

whether Officer Bryan unlawfully infringed upon an area

protected by the Fourth Amendment. Because that is a

question of law, we consider it de novo. Alston v.

6
In fairness to the Court of Appeals, it must be borne in
mind that its en banc decision in the present case was handed
down before our decision in Jay.

11
Commonwealth, 274 Va. 759, 764, 652 S.E.2d 456, 459

(2007). The majority panel opinion in the Court of

Appeals applied the same standard of review. Moore, 49

Va. App. at 297, 640 S.E.2d at 533 (quoting Hughes v.

Commonwealth, 31 Va. App. 447, 454, 524 S.E.2d 155, 159

(2002)).

The Fourth Amendment to the Constitution of the

United States prohibits “unreasonable searches and

seizures,” and that protection extends to brief

investigatory stops “that fall short of traditional

arrest.” United States v. Arvizu, 534 U.S. 266, 273

(2002). The requirements of the Fourth Amendment are

satisfied, however, if the officer’s action in making an

investigatory stop is supported by “reasonable suspicion

to believe that criminal activity ‘may be afoot.’ ” Id.

(quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).

Here, as both parties and the Court of Appeals

agree, the dispositive question is whether the officer’s

traffic stop was founded on a reasonable suspicion that

criminal activity was afoot, a standard less stringent

than probable cause. Nevertheless, reasonable suspicion,

like probable cause, “is dependent upon both the content

of information possessed by police and its degree of

12
reliability.” Alabama v. White, 496 U.S. 325, 330

(1990).

In weighing those factors, courts must consider the

totality of the circumstances. Arvizu, 534 U.S. at 273.

Among those circumstances, an officer’s specialized

training and personal experience, unavailable to a person

untrained in law enforcement, are entitled to some

weight. See United States v. Cortez, 449 U.S. 411, 418-

19 (1981). If, however, after considering those factors,

the court concludes that the officer’s concern was “more

an inchoate and unparticularized suspicion or ‘hunch,’

than a fair inference in the light of [the officer’s]

experience, [it] is simply too slender a reed to support

[a search or seizure].” Reid v. Georgia, 448 U.S. 438,

441 (1980) (internal quotation marks and citation

omitted).

Applying those principles, we conclude that the

majority panel opinion in the Court of Appeals reached

the correct result. Although inspection stickers may

undoubtedly become partially separated from a windshield

by a wide array of mishaps entirely unrelated to

violations of the law, the officer’s experience leading

him to suspect otherwise was entitled to some weight.

His conclusion, however, was undermined by his knowledge,

13
prior to making the stop, that Moore was driving a rental

car.

Violations of Article 21 of Chapter 10, Subtitle III

of the Motor Vehicle Code (Code §§ 46.2-1157 to 1175.1,

“Safety Inspections”) are made Class 3 misdemeanors, for

a first offense, by Code § 46.2-1171. Guilty knowledge,

however, is an essential element of the offense of

displaying a fictitious inspection sticker or one issued

for another vehicle. 7 Those who operate their own cars

may sometimes have a motive to evade the motor vehicle

inspection laws, but one who lawfully rents a car from a

rental company would have little or no reason to verify

the inspection status of the rental car, to be aware of

any offense that may have been committed by the rental

company, or to participate in concealing such an offense.

Accordingly, the officer’s experience with peeling

inspection stickers was entitled to little weight in the

circumstances of this case. We agree with the majority

panel decision in the Court of Appeals that, in this

instance, the officer’s observation of a peeling

inspection sticker, without more, gave rise to nothing

7
Code § 46.2-1173 provides, in pertinent part: “No
person shall display or cause or permit to be displayed upon
any vehicle any safety inspection sticker knowing it to be
fictitious or issued for another vehicle." (Emphasis added.)

14
more than a “hunch” that Moore was violating the motor

vehicle inspection laws, and, therefore, was “too slender

a reed” to justify an exception to the protections

afforded by the Fourth Amendment.

Conclusion

For the reasons stated, we will reverse the judgment

of the Court of Appeals en banc, reinstate the majority

panel decision and remand the case to the Court of

Appeals with direction to remand it to the circuit court

for further proceedings if the Commonwealth should be so

advised.

Reversed and remanded.

JUSTICE LEMONS, with whom JUSTICE KINSER joins,
dissenting.

In my judgment, the Court of Appeals simply followed our

example and our direction when it affirmed the trial court in

this case. I respectfully dissent.

Rule 5A:12(c) states in pertinent part that

[t]he petition for appeal shall contain the
questions presented. The form and contents of
the petition for appeal shall conform in all
respects to the requirements of the opening
brief of appellant (Rule 5A:20). . . . Only
questions presented in the petition for appeal
will be noticed by the Court of Appeals.

In Jay v. Commonwealth, 275 Va. 510, 659 S.E.2d 311

(2008), we held that the Court of Appeals erred when it

15
dismissed portions of the petitions for appeal at issue in the

case. Holding that the requirements of Rule 5A:20 are not

jurisdictional, we noted the difference between dismissing a

case for jurisdictional reasons and denying an appeal for

failure to comply with the rule. We stated that the Court of

Appeals “should . . . consider whether any failure to strictly

adhere to the requirements of Rule 5A:20(e) is insignificant,

thus allowing the court to address the merits of a question

presented.” Jay, 275 Va. at 520, 659 S.E.2d at 317. We gave

an example of what would be insignificant when we suggested

that an overly rigid application of the Rules might mean that

“if an appellant did not list cases alphabetically in the

table of citations as required by Rule 5A:20(a), dismissal of

the appeal would be mandated as a jurisdictional matter.” Id.

The sort of technical defect proffered as an example in

Jay is dramatically different from Appellant’s mistake here:

misstating the legal standard upon which his entire appeal was

based. Additionally, the fact that neither the Commonwealth

nor the panel of the Court of Appeals recognized the

Appellant’s noncompliance with the Rules does not preclude the

Court of Appeals sitting en banc from rendering a correct

judgment. In this case, the Court of Appeals not only has

done what this Court routinely does, it also has followed our

direction to do likewise. In Jay, we noted our analogous Rule

16
5:17(c) and stated, “[w]hen an appellant fails to comply with

Rule 5:17(c)(4), this Court generally treats the argument as

waived.” Jay, 275 Va. at 519, 659 S.E.2d at 316 (emphasis

added). We cited seven cases in support of our practice:

Atkins v. Commonwealth, 272 Va. 144, 149, 631
S.E.2d 93, 95 (2006) (failure to brief an
assignment of error constitutes a waiver of the
issue); Muhammad v. Commonwealth, 269 Va. 451,
477, 619 S.E.2d 16, 30 (2005) (same); Elliott
v. Commonwealth, 267 Va. 396, 422, 593 S.E.2d
270, 286 (2004) (same); Burns v. Commonwealth,
261 Va. 307, 318, 541 S.E.2d 872, 880 (2001)
(same); Kasi v. Commonwealth, 256 Va. 407, 413,
508 S.E.2d 57, 60 (1998) (same); Jenkins v.
Commonwealth, 244 Va. 445, 451, 423 S.E.2d 360,
364 (1992) (same); Quesinberry v. Commonwealth,
241 Va. 364, 370, 402 S.E.2d 218, 222 (1991)
(same).

Id. at 519-20, 659 S.E.2d at 316-17.

We have also required the Court of Appeals to apply Rule

5A:12(c), the rule at issue here, in the same way. For

example, in Clifford v. Commonwealth, 274 Va. 23, 645 S.E.2d

297 (2007), we reversed the Court of Appeals, on the ground

that the basis upon which its decision rested was not properly

before the Court because it was not contained in the

appellant’s petition for appeal. Id. at 25, 645 S.E.2d at

297. We cited the Court of Appeals’ own interpretation of

Rule 5A:12(c), in McLean v. Commonwealth, 30 Va. App. 322,

329, 516 S.E.2d 717, 720 (1999) (en banc) (holding that

“[o]nly those arguments presented in the petition for appeal

17
and granted by this Court will be considered on appeal”).

Clifford, 274 Va. at 25, 645 S.E.2d at 297. Other Court of

Appeals opinions affirm this interpretation of the rule. See,

e.g., Lay v. Commonwealth, 50 Va. App. 330, 336 n.3, 649

S.E.2d 714, 716 n.3 (2007); Selph v. Commonwealth, 48 Va. App.

426, 434, 632 S.E.2d 24, 28 (2006), vacated on other grounds,

51 Va. App. 238, 656 S.E.2d 425 (2008). We should not reverse

the Court of Appeals for failure to properly interpret the

rule as we did in Clifford, and then here reverse it again

when it has done so.

We have not had the opportunity since Jay was decided in

April of this year to reaffirm this approach to interpreting

the rule, but the Court of Appeals has followed it in several

unpublished opinions during that time. See Rahnema v.

Rahnema, Record No. 2701-07-1, slip op. at 4 (June 10, 2008);

Greene v. Greene, Record No. 3031-07-4, slip op. at 4-5 (June

3, 2008); Jones v. Charlottesville Dep’t of Soc. Servs.,

Record No. 1710-07-2, slip op. at 2 (May 27, 2008). And in

Parks v. Parks, Record No. 1991-07-1 (September 23, 2008),

decided just last month, a three-judge panel of the Court of

Appeals found that an appellant’s failure to provide legal

authority in support of her arguments violated Rule 5A:20(e).

Because this violation was significant, the Court of Appeals

treated the appellant’s questions presented as waived and

18
affirmed without opinion the judgment of the trial court.

Id., slip op. at 2. As the Court of Appeals rightly observed,

this outcome was dictated by and fully consistent with our

opinion in Jay. Id., slip op. at 1-2.

The issue of noncompliance in this case goes directly to

the heart of appellate review: stating the issue to be

considered and the legal principle that governs. Here, Moore

asked the Court of Appeals to reverse the trial court because

the evidence was insufficient to support a finding of probable

cause to stop him. The Court of Appeals could answer that

question and still not resolve the case before it because the

correct legal standard for a Terry stop is whether police had

a reasonable articulable suspicion that criminal activity was

afoot.

The majority holds that the Attorney General “[elected]

to rephrase the question presented in Moore’s petition for

appeal, with Moore’s tacit acquiescence.” In my opinion, this

holding avoids the issue. The issue is not what the parties

may have done; rather, it is the power of the Court of Appeals

to do what it has done in its en banc judgment. To restate

what should be obvious, Rule 5A:12(c) states: “Only questions

presented in the petition for appeal will be noticed by the

Court of Appeals.” The en banc majority of the Court of

Appeals simply enforced the plain language of this Rule.

19
 Our system of appellate review requires the litigants to

place before the reviewing court the issues that are the

subject of the appeal. It is not proper for an appellate

court to intervene on behalf of a particular party and reframe

an issue to help their cause; such action violates a basic

premise that American courts act as neutral arbiters. In this

case, the Court of Appeals en banc rendered its judgment in a

fashion identical to the manner in which we handle the

analogous rule and decided the issue exactly as we have

specifically directed them in a recent case. In doing so, the

Court of Appeals en banc embraced a neutral application of the

Rules. In short, the Court of Appeals en banc did not err.

20