Matthew Tremaine MOORE v. COMMONWEALTH of Virginia
Record No. 2091-05-2
Court of Appeals of Virginia
Feb. 13, 2007
640 S.E.2d 531
III.
Finding no error in the trial court‘s decision to continue the trial date or in the sufficiency of the evidence supporting Bolden‘s firearm convictions, we affirm.
Affirmed.
Karen Misbach, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Chief Judge FELTON, Judge McCLANAHAN and Senior Judge FITZPATRICK.
WALTER S. FELTON, JR., Chief Judge.
Matthew Tremaine Moore (appellant) appeals his convictions, following his conditional pleas of guilty, for possession of cocaine with the intent to distribute in violation of
I. BACKGROUND
When we review a trial court‘s denial of a suppression motion, “[w]e view the evidence in a light most favorable
At 3:30 p.m. on February 15, 2005, Officer Bryan of the Henrico County Police Department was sitting in a marked police vehicle parked in a grocery store parking lot, facing Cool Lane, “a foot or two off the roadway.” Officer Bryan saw a white 2001 Ford drive past his position, some five feet away. He observed that a portion of a valid inspection sticker1 on the Ford‘s windshield was partially peeling from the windshield. Officer Bryan testified that based on his experience, an inspection sticker not fully attached to a vehicle‘s windshield often “did not belong on that car.” He initiated a traffic stop of the vehicle to further investigate the inspection sticker.
Prior to initiating the traffic stop of the Ford, Officer Bryan “ran” the vehicle‘s license plates and learned that the vehicle was a rental car with valid plates and registration. He testified that the sole reason he stopped the vehicle was because the valid inspection sticker was partially peeling from the windshield. When he approached the vehicle to speak with its driver, he smelled marijuana emanating from the vehicle‘s interior. Appellant, the Ford‘s driver, admitted he had been smoking marijuana in the vehicle. During his subse-
At a pretrial hearing, appellant moved to suppress the evidence obtained as a result of the stop, contending the stop violated his Fourth Amendment rights because the manner by which the valid inspection sticker was affixed to the windshield did not give rise to a reasonable articulable suspicion that the sticker on the Ford was not validly on that car. Officer Bryan testified that he had stopped approximately 50 cars within the previous six months for improper inspection stickers and 30 to 35 of those vehicles possessed invalid inspection stickers. He explained the nature of those stops during cross-examination:
DEFENSE COUNSEL: So basically in your testimony, you said in the last six months you stopped approximately fifty cars and you said that thirty to thirty-five per cent of the cars had-the inspection stickers may have been from another vehicle? Is that what you‘re saying?
OFFICER BRYAN: No, sir. Thirty to thirty-five of the vehicles, out of the fifty, had bad inspection stickers.
DEFENSE COUNSEL: All right. That were valid or invalid?
OFFICER BRYAN: Invalid.
DEFENSE COUNSEL: Now-so in other words, that would be sixty to seventy per cent of the cars?
OFFICER BRYAN: Approximately.
DEFENSE COUNSEL: And the other thirty-thirty to forty per cent had valid stickers. They had just-the glue had come loose?
OFFICER BRYAN: Yes, sir.2
When asked how many vehicles he stopped during the past twelve to eighteen months, he responded that he “guess[ed] it would be a hundred vehicles” and that the “majority” of the
The trial court overruled appellant‘s motion to suppress, finding that
the [inspection] sticker was peeling off, and the officer having had the experience that he had, would subjectively raise an appropriate suspicion in his mind, that this sticker could have been stolen or otherwise inappropriate.
Appellant subsequently entered conditional pleas of guilty for possession of cocaine with the intent to distribute and possession of a firearm after having been convicted of a felony, preserving his right to appeal the trial court‘s denial of his motion to suppress the evidence obtained as a result of the investigatory stop.
II. ANALYSIS
Appellant asserts the investigatory stop violated his Fourth Amendment right to be free from unreasonable seizure because it was “neither supported by probable cause that a traffic violation had occurred or reasonable articulable suspicion that criminal activity was afoot.” Specifically, he contends Officer Bryan‘s observation that the vehicle‘s inspection sticker “was not totally affixed to the windshield” amounted to no more than a mere “hunch that there might be a problem with the vehicle[‘s] inspection sticker.” Such a hunch, he argues, does not justify the stop of a motor vehicle. We agree.
“The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002) (citing Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968); United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981)). “Because the ‘balance between the public interest and the individual‘s right to personal security,’ United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975), tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer‘s action is supported by reasonable suspicion to believe that criminal activity ‘may be afoot.‘” Id. (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)). Thus, “[a] police officer may conduct an investigatory stop of a motor vehicle if he has at least ‘articulable and reasonable suspicion’ that the operator is unlicensed, the vehicle is unregistered, or the vehicle or an occupant is otherwise subject to seizure for violating the law.” Reel v. Commonwealth, 31 Va.App. 262, 265-66, 522 S.E.2d 881, 883 (2000) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979); Murphy v. Commonwealth, 9 Va.App. 139, 143, 384 S.E.2d 125, 127 (1989)).
“Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990). “There are no bright line rules to follow when determining whether a reasonable and articulable suspicion exists to justify an investigatory stop.” Reel, 31 Va.App. at 266, 522 S.E.2d at 883. Instead, courts “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer ha[d] a ‘particularized and objective basis’ for suspecting legal wrongdoing.” Arvizu, 534 U.S. at 273, 122 S.Ct. at 750 (quoting Cortez, 449 U.S. at 417-18, 101 S.Ct. at 695). While this standard “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person,‘” id. (quoting Cortez, 449 U.S. at 418, 101 S.Ct. at 695), “[i]f the officer‘s suspicion amounts merely to an ‘inchoate and unparticularized suspicion or “hunch[,]” [rather] than a fair inference in the light of his experience, [it] is simply too slender a reed to support the seizure’ under the [F]ourth and [F]ourteenth [A]mendments of the United States Constitution.” Murphy, 9 Va.App. at 144, 384 S.E.2d at 128 (quoting Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980)).
Here, Officer Bryan concedes he stopped appellant‘s vehicle solely because of his brief observation that a portion of the vehicle‘s otherwise valid inspection sticker was not completely affixed to the windshield.3 As part of its highway safety program, Virginia requires motor vehicles registered in the Commonwealth to be inspected annually for mechanical and equipment defects at an official inspection station. See
In Prouse, 440 U.S. 648, 99 S.Ct. 1391, the United States Supreme Court recognized the states’ vital interest in ensuring that motor vehicles are fit for safe operation.5 However, it noted that “[t]he ‘grave danger’ of abuse of discretion does not disappear simply because the automobile is subject to state
marginal contribution to roadway safety possibly resulting from a system of spot checks cannot justify subjecting every occupant of every vehicle on the roads to a seizure-limited in magnitude compared to other intrusions but nonetheless constitutionally cognizable-at the unbridled discretion of law enforcement officials. To insist neither upon an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion “would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches....”
Id. at 661, 99 S.Ct. at 1400 (quoting Terry, 392 U.S. at 22, 88 S.Ct. at 1880) (emphasis added). Accordingly, the Court determined that because many violations of minimum vehicle-safety requirements are immediately observable, it is unnecessary to stop vehicles merely to ascertain compliance with a state‘s registration and vehicle-safety requirements. Id. at 660, 99 S.Ct. at 1399 (emphasis added).
Our holdings in Reel and Commonwealth v. Spencer, 21 Va.App. 156, 462 S.E.2d 899 (1995), illustrate the principles articulated in Prouse. In Reel, we concluded that, under the totality of the circumstances, observation of a rejection sticker is sufficiently specific and objective to provide a reasonable and articulable suspicion of legal wrongdoing. 31 Va.App. at 268, 522 S.E.2d at 885. We reasoned that, “when an officer sees a vehicle being operated with a rejection sticker, he [immediately] knows the vehicle has been determined to have defective equipment, and this knowledge provides reasonable suspicion for the officer to conduct an investigatory stop to determine whether the defective equipment has been repaired.” Id.
In Spencer, we held that “the lack of a city or county decal, without more, was insufficient to justify [an investigatory] stop
Similar to the officers in Reel and Spencer, Officer Bryan relied on a single factor to justify stopping appellant‘s vehicle-his brief observation of a partially peeling, but otherwise valid, inspection sticker. Unlike the rejection sticker in Reel, however, the appearance of appellant‘s partially peeling, but otherwise valid inspection sticker did not immediately identify the vehicle as being in violation of a vehicle-safety requirement or
Furthermore,
Accordingly, because there is no requirement that an inspection sticker must be completely affixed to a vehicle‘s windshield, we conclude that a “peeling” inspection sticker is not, in and of itself, unlawful. Nor does it, standing alone, constitute a particularized and objective fact that gives rise to a reasonable articulable suspicion that the sticker has unlawfully been transferred from another vehicle or is otherwise counterfeit in violation of
We recognize that “the mere fact that particular conduct may be susceptible of an innocent explanation does not [automatically] establish a lack of reasonable suspicion.” United States v. Perkins, 363 F.3d 317, 326 (4th Cir.2004), cert. denied, 543 U.S. 1056, 125 S.Ct. 867, 160 L.Ed.2d 781 (2005). See also Arvizu, 534 U.S. at 277, 122 S.Ct. at 753 (“A determination that reasonable suspicion exists[ ] [ ] need not rule out the possibility of innocent conduct.” (citing Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 676-77, 145 L.Ed.2d 570 (2000))). However, where particular conduct is, on its face, lawful or at least susceptible to a legitimate explanation, the Fourth Amendment requires the presence of additional factors that, under the totality of the circumstances, objectively point to legal wrongdoing. See Spencer, 21 Va.App. 156, 462 S.E.2d 899. See also Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574 (apparent Mexican ancestry of vehicle‘s occupants, standing alone, insufficient to furnish border patrol agent with a reasonable articulable suspicion that occupants were illegal aliens because “[l]arge numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry“).
In Brignoni-Ponce, the United States Supreme Court noted that there are “[a]ny number of factors [that] may be taken into account in deciding whether there is a reasonable suspicion to stop a car in the border area,” including the fact that a person appears to be of Mexican ancestry. Id. at 884, 95 S.Ct.
The same can be said of partially peeling inspection stickers. It is unquestionable that the “peeling” appearance of a valid inspection sticker is a relevant factor in determining whether the sticker was unlawfully transferred from another vehicle. However, because a partially peeling inspection sticker is not unlawful, it does not justify, without some additional indicia of legal wrongdoing, stopping all vehicles displaying valid inspections stickers that are not completely affixed to their windshields. Trial courts must consider the totality of all of the circumstances surrounding a stop of a vehicle, including whether a relevant factor may have a legitimate explanation, when determining whether an officer had a reasonable articulable suspicion, based on particularized and objective facts, to stop a vehicle.
In this case, Officer Bryan relied on a single factor to justify stopping appellant‘s vehicle-the vehicle‘s partially peeling, but otherwise valid, inspection sticker. He testified that he suspected appellant‘s partially peeling inspection sticker could belong to another car because he had stopped approximately 50 vehicles within the previous six months and approximately 30 to 35 of those vehicles had invalid, as opposed to valid and partially peeling, inspection stickers.6
After considering Officer Bryan‘s testimony, the trial court ruled that his experience with inspection sticker violations “subjectively raise[d] an appropriate suspicion in his mind[] that th[e] [peeling] sticker could have been stolen or otherwise inappropriate.” In so doing, the trial court ignored the prescriptions of Spencer and Brignoni-Ponce that a single factor,
Under the record presented to us in this case, Officer Bryan‘s observation of appellant‘s partially peeling inspection sticker, without more, amounted to 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. Murphy, 9 Va.App. at 144, 384 S.E.2d at 128. “Upholding a stop on these facts would permit [ ] [law
Accordingly, we reverse the trial court‘s denial of appellant‘s motion to suppress the evidence seized during the investigatory stop of his vehicle, and remand for further proceedings if the Commonwealth be so advised.
Reversed.
McCLANAHAN, J., dissenting.
I disagree that Officer Bryan had no “‘particularized and objective basis’ for suspecting legal wrongdoing” to justify the investigatory traffic stop. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002). In my opinion, reasonable articulable suspicion was established by evidence of both the officer‘s observation of the peeling inspection sticker and “[his] own experience and specialized training to make inferences from and deductions about [that] information available to [him] that ‘might well elude an untrained person.‘” Id. (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).
I do not read the applicable case law as holding that the presence or absence of reasonable articulable suspicion may be determined by counting the number of “factors” presented for justifying the stop. There are “no [such] bright line rules to follow” when making that determination. Reel v. Commonwealth, 31 Va.App. 262, 266, 522 S.E.2d 881, 883 (2000). Nevertheless, Officer Bryan did not rely only on a single factor to justify stopping appellant‘s vehicle-the partially peeling inspection sticker. The officer also articulated in detail why he was suspicious based on his recent experience.9 See Logan v. Commonwealth, 19 Va.App. 437, 442, 452 S.E.2d 364, 368 (1994) (“[W]e agree with the Commonwealth that if a broken window is suggestive of a prior theft, it is just as suggestive of what the officers suspected it might be in this case, a theft in progress.“). Indeed, in light of that experience, it was more likely than not that the peeling inspection sticker was not lawfully attached to appellant‘s vehicle-the officer having found the same violation in 30 to 35 out of approximately 50 vehicles he had stopped in the previous six months.10 The officer‘s testimony on this issue does not pertain to something other than peeling stickers located on the wrong vehicles. The import of the officer‘s entire testimony, in context, was that he found such to be the case with each of those 30 to 35 vehicles. As the trial court explained,
what he‘s telling me is that [in the instant case] he felt it was a problem, because he had stopped many cars before, that have had stickers coming off, and in the majority of those he‘s found that the sticker didn‘t go to that car. So it goes to the issue of whether or not there‘s reasonable suspicion.11
(Emphasis added).
In Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the United States Supreme Court held a police officer‘s random traffic stop of a vehicle and detention of the driver for the sole purpose of checking his driver‘s license and vehicle registration, without first observing “any suspicious activity,” whatsoever, was an unreasonable seizure in violation of the Fourth Amendment. Id. at 650, 99 S.Ct. at 1394. In doing so, the Court recognized that licensing, registration, and vehicle inspection requirements “are essential elements in a highway safety program,” through which a state may ensure that the drivers on its highways are qualified and that their vehicles are fit to operate. Id. at 658, 99 S.Ct. at 1398-99. The question, however, as framed by the Court, was “whether in the service of these important ends the discretionary spot check is a sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests which such stops entail.” Id. at 659, 99 S.Ct. at 1399. Deciding it was not, the Court reasoned:
It seems common sense that the percentage of all drivers on the road who are driving without a license is very small and that the number of licensed drivers who will be stopped in order to find one unlicensed operator will be very large
indeed. The contribution to highway safety made by discretionary stops selected from drivers generally will therefore be marginal at best.
Id. at 659-60, 99 S.Ct. at 1399. The Court thus concluded that, “[i]n terms of actually discovering unlicensed drivers or deterring them from driving, the [random, discretionary] spot check does not appear sufficiently productive to qualify as a reasonable law enforcement practice under the Fourth Amendment.” Id. at 660, 99 S.Ct. at 1399.
In contrast, the stop in the instant case was particularized by the officer‘s observation of the peeling sticker on the windshield, and in light of his recent experience he was likely to discover an inspection sticker violation upon making the stop. Thus, the stop was not “random,” “suspicionless” or an exercise in “unbridled discretion” in violation of appellant‘s Fourth Amendment rights.
For these reasons, I would affirm the decision of the trial court denying appellant‘s motion to suppress. Therefore, I dissent.