Dwight Antoine Bushnell v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: October 24, 1995
• Docket: 1314944
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Willis and Senior Judge Hodges Argued at Alexandria, Virginia

DWIGHT ANTOINE BUSHNELL

v. Record No. 1314-94-4 MEMORANDUM OPINION * BY JUDGE WILLIAM H. HODGES COMMONWEALTH OF VIRGINIA OCTOBER 24, 1995

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Richard J. Jamborsky, Judge

Jonathan Shapiro (Michael W. Lieberman; Jonathan Shapiro & Associates, P.C. on brief), for appellant. Marla Lynn Graff, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Dwight Antoine Bushnell (appellant) was convicted of driving

after having been adjudicated an habitual offender. On appeal,

appellant contends that the police officer who stopped his car

lacked probable cause or reasonable suspicion to do so, and that

the trial court erred in refusing to suppress evidence obtained

from the stop. We disagree and affirm the judgment of the trial

court.

I.

On March 17, 1993, after midnight, Fairfax County Police

Officer Michael Reser was traveling on Richmond Highway in

Fairfax County. He saw appellant's Honda automobile. Appellant

was driving and there was one passenger in the car. Reser

checked the license tag number through the computer in his police

car. He received the social security number of the car's

registered owner. When Reser checked the social security number * Pursuant to Code § 17-116.010 this opinion is not designated for publication. in the computer, he learned that the car's registered owner had

been adjudicated an habitual offender.

Reser also obtained a description of the registered owner,

consisting of height, weight, age, and gender. With the

assistance of his headlights, Reser could see into appellant's

car. The driver appeared to match the description of the

registered owner. Reser stopped the car, and upon confirming

that appellant was the registered owner, arrested him for driving

after having been adjudicated an habitual offender. Appellant filed a motion to suppress alleging that the stop

of his vehicle was constitutionally invalid because the officer

lacked probable cause or reasonable suspicion. The trial court

denied the motion, finding that the officer had reasonable

suspicion, "based on the vehicle's registration to an habitual

offender, and a similarity in height, weight, and age of the

driver to the habitual offender."

II.

On appeal, the burden is on the defendant to show that the

trial court's denial of a suppression motion, "when the evidence

is considered most favorably to the Commonwealth, constituted

reversible error." Fore v. Commonwealth, 220 Va. 1007, 1010, 265

S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980). "The trial

court's ruling will be affirmed on appeal unless that decision is

clearly erroneous." Hoye v. Commonwealth, 18 Va. App. 132, 134,

442 S.E.2d 404, 406 (1994).

"For evidence obtained as a result of a warrantless stop to

be admissible, the officer who made the stop must articulate a

2 reasonable suspicion, based on objective facts, that the motorist

is subject to lawful seizure." Lee v. Commonwealth, 18 Va. App.

235, 238, 443 S.E.2d 180, 181 (1994). In stating his reasons for

the stop, "the officer must prove only that a reasonable

suspicion exists that criminal activity may be afoot." Id. at

238, 443 S.E.2d at 182. The standard for reasonable suspicion

"is less stringent than probable cause." Leeth v. Commonwealth,

223 Va. 335, 340, 288 S.E.2d 475, 478 (1982). See Logan v.

Commonwealth, 19 Va. App. 437, 441, 452 S.E.2d 364, 367 (1994)

(en banc). In Hoye, upon facts nearly identical to this case, this

Court upheld the trial court's finding that the officer had

articulated a reasonable suspicion for an investigatory stop. In

Hoye, the officer believed that Hoye's license plate had expired,

although actually it had not. The officer, upon checking the

license plate number through the Department of Motor Vehicles

data base in the computer in her police car, learned the social

security number of the registered owner. Upon checking that

number, the officer learned that the owner was an habitual

offender. The officer also obtained a description of the owner

which included age, gender, weight, height, hair color, and eye

color. The officer testified that the driver appeared to be the

same gender and approximate age, and to have the same weight and

hair color as the owner. Upon those facts, she stopped Hoye's

car. Hoye, 18 Va. App. at 133-34, 442 S.E.2d at 405-06. Hoye controls our decision in this case. We hold that upon

the facts in this case, the trial court did not err in finding

3 that Officer Reser had a reasonable suspicion, based on specific

and articulated facts, that the driver of the vehicle was an

habitual offender. Accordingly, we affirm appellant's

conviction.

Affirmed.