Moore v. Commonwealth

640 S.E.2d 531, 49 Va. App. 294, 2007 Va. App. LEXIS 45

• Court: Court of Appeals of Virginia
• Decided: February 13, 2007
• Docket: Record 2091-05-2
• Status: Published

Opinions

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 Code § 18.2-248 and possession of a firearm after having been convicted of a felony in violation of Code § 18.2-308.2. He argues the trial court erred in denying his motion to suppress evidence obtained during an investigatory stop of his vehicle, based solely on an observation by the arresting officer that an otherwise valid inspection sticker was partially “peeling” away from the vehicle’s •windshield. For the following reasons, we reverse the judgment of the trial court.

I. BACKGROUND

When we review a trial court’s denial of a suppression motion, “[w]e view the evidence in a light most favorable to ... the prevailing party below, and we grant all reasonable inferences fairly deducible from that evidence.” Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991) (citation omitted). “[W]e are bound by the trial court’s findings of historical fact unless ‘plainly wrong’ or without evidence to support them.” McGee v. Commonwealth, 25 Va.App. 198, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). “However, we consider de novo whether those facts implicate the Fourth Amendment, and if so, whether the officers unlawfully infringed upon an area protected by the Fourth Amendment.” Hughes v. Commonwealth, 31 Va.App. 447, 454, 524 S.E.2d 155, 159 (2000) (en banc) (citing McGee, 25 Va.App. at 198, 487 S.E.2d at 261).

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 subsequent search of the vehicle, Officer Bryan recovered marijuana, cocaine, heroin, digital scales, and an operable firearm.

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 stops turned out to be for inspection sticker related infractions.

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 , 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 Code §§ 46.2-1157, 46.2-1158. If no mechanical or equipment defects are discovered, the official inspection station must place an approval sticker on the windshield of the vehicle.⁴ Code § 46.2-1163. Failure to comply with the annual inspection requirement constitutes a traffic infraction. See Code §§ 46.2-1157, 46.2-1163. Additionally, it is unlawful to display an official state inspection sticker that was issued for another vehicle or is known to be counterfeit. Code § 46.2-1173.

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 regulation resulting in numerous instances of police-citizen contact.” Id. at 662, 99 S.Ct. at 1400 (citations omitted). Thus, the Court held that the

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 of [a] vehicle.” 21 Va.App. at 160, 462 S.E.2d at 901. There, we found that, because the officers knew other jurisdictions in the state did not require decals, the absence of a city or county decal, standing alone, did not constitute a specific and objective fact indicating that the vehicle was in violation of a local ordinance. We noted that, had the officers confirmed that the vehicle in question was registered in a jurisdiction requiring a decal prior to initiating the stop, the officers would have had a specific and objective basis for stopping the vehicle. We concluded, therefore, that the “benefit gained from stopping individual vehicles without decals is marginal when compared to the constitutional rights of drivers and their passengers who are seized.” Id.

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 Code § 46.2-1173. Virginia’s vehicle-safety regulations prescribe the location on the windshield inspection stickers must be affixed. However, we find no specifications in these regulations as to the manner in which such stickers must be attached. The only requirement is that the expiration date of the sticker must be clearly visible. Because the inspection sticker was lawful on its face, our holding in Spencer mandates that more information was required in order for Officer Bryan to formulate a particularized and objective suspicion that the sticker had been unlawfully transferred or was counterfeit in violation of Code § 46.2-1173.

Furthermore, Code § 46.2-1164 provides that a valid inspection sticker may be removed from a vehicle’s broken windshield and reattached to the vehicle’s new windshield without submitting the vehicle to re-inspection. This provision is also silent as to the means by which an inspection sticker is to be re-attached to a vehicle’s new windshield. A logical consequence of such a legislatively sanctioned transfer is that the inspection sticker’s glue may not fully affix to the new windshield, causing the sticker to appear to be “peeling” from the windshield.

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 Code § 46.2-1173.

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. . However, it held that while “[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, [ ] standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens.” Id. at 886-87, 95 S.Ct. at 2583 (emphasis added).

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, lawful in and of itself, is insufficient to furnish reasonable articulable suspicion.⁷ Moreover, the record reflects that Officer Bryan’s experience with both invalid and partially peeling, but otherwise valid, inspection stickers “did not attach with any particularity” to appellant’s partially peeling, but otherwise valid inspection sticker or to appellant himself. Harris v. Commonwealth, 262 Va. 407, 416, 551 S.E.2d 606, 611 (2001).⁸

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 enforcement] to make a random, suspicionless stop of any car with a [partially peeling inspection sticker]. The Fourth Amendment does not afford the police such unbridled discretion.” United States v. Wilson, 205 F.3d 720, 724 (4th Cir. 2000) (citing Prouse, 440 U.S. at 663, 99 S.Ct. at 1401).

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.

1 . The valid inspection, sticker expired in June 2005, three and one-half months after the stop.

2 . The statement of the trial court appearing in the text of the dissent came during the direct examination of Officer Bryan following an objection by defense counsel that the Commonwealth failed to establish a foundation for the line of questioning it was pursuing.

3 . The officer testified at appellant's suppression hearing that he did not observe appellant committing a traffic infraction, or otherwise violating an equipment regulation.

4 . The regulations governing the placement of inspection stickers provide that

the sticker is to be placed at the bottom of the windshield so that the inside or left edge of the sticker is one inch to the right of the vertical center of the windshield when looking through the windshield from the inside of the vehicle.

19 Va. Admin. Code § 30-70-50.

5 . See Prouse, 440 U.S. at 658, 99 S.Ct. at 1398-99 ("We agree that the States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed____ Unquestionably, these provisions, properly administered, are essential elements in a highway safety program.”).

6 . We also note that the record contains no evidence of when, where, or under what circumstances Officer Bryan made these stops.

7 . Our Supreme Court recently observed that it has

consistently declined to find that probable cause can be established solely on the observation of material which can be used for legitimate purposes, even though the experience of an officer indicates that such material is often used for illegitimate purposes. To support a finding of probable cause, such observations must be combined with some other circumstances indicating criminal activity.

Brown v. Commonwealth, 270 Va. 414, 420-21, 620 S.E.2d 760, 763 (2005). There, the Court determined the trial court had erroneously denied the defendant’s motion to suppress evidence because, upon consideration of the totality of the circumstances, the investigating officer’s observation of the defendant sleeping in a parked car with a hand-rolled cigarette in his hand was insufficient by itself to establish probable cause to arrest him for possession of marijuana.

Although reasonable suspicion imposes a less stringent requirement to effect a Fourth Amendment seizure than does probable cause, we find the principles articulated in Brown persuasive because both legal standards require reviewing courts to objectively consider the "totality of the circumstances." See Taylor v. Commonwealth, 222 Va. 816, 820-21, 284 S.E.2d 833, 836 (1981) (whether probable cause exists depends upon "what the totality of the circumstances means to police officers trained in analyzing the observed conduct for purposes of crime control” (citations omitted)).

8 . Even assuming, arguendo, that Officer Biyan was suspicious that the otherwise valid inspection sticker did not belong on the vehicle appellant was driving, surely that suspicion would have dissipated when, prior to initiating the traffic stop, he learned from his computer check that the vehicle was a validly licensed and registered rental car.