Davis-type good faith exception applies to a violation of Rodriguez on the length of the detention where no state or Fourth Circuit case said an overlong stop was unreasonable. (Rodriguez was decided while the appeal was pending, but the defense properly set up the issue.) Matthews v. Commonwealth, 2015 Va. App. LEXIS 306 (Nov. 3, 2015):
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. 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.
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.” 2007 Va. App. LEXIS 166 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. 2007 Va. App. LEXIS 166 at *8-9. In fact, this Court found that the officers in Ramsdell were “solely focused on their narcotics investigation.” 2007 Va. App. LEXIS 166 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.
