Gibbs v. Commonwealth
| Decision Date | 06 June 2017 |
| Docket Number | Record No. 1115-16-1 |
| Court | Virginia Court of Appeals |
| Parties | JERRY LEE GIBBS v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Alston, Chafin and Decker
Argued at Norfolk, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge Designate1
Anthony J. Balady, Jr., Assistant Public Defender, for appellant.
Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Jerry Lee Gibbs appeals his conviction for driving after being adjudicated a habitual offender, in violation of Code § 46.2-357. He contends that the traffic stop that led to the discovery of his offense was unreasonable under the Fourth Amendment of the Constitution of the United States. He concludes that, consequently, the trial court should have granted his motion to suppress evidence. We hold that the trial court did not err in denying the motion. Accordingly, we affirm the conviction.
On February 4, 2015, Trooper Jason Vaughters of the Virginia Department of State Police saw that a car driven by the appellant had an inspection sticker that was "excessively taped" to the windshield with "heavy" clear tape on each corner.3 He also noticed that the sticker was dirty. Vaughters explained that he considered these observations significant because inspection stickers are self-adhesive and usually clean, but if one is taken off of a windshield and then used again, the adhesive "catches dirt." He also testified that a new sticker "will stick to the windshield until it's taken off." Vaughters suspected that someone had removed the sticker from another vehicle and placed it on the car driven by the appellant.
Trooper Vaughters testified that he thought that the inspection sticker was suspicious based on "several instances of that and dealing with counterfeit stickers" during his five years of experience as a law enforcement officer. Specifically, Vaughters said that he had conducted "thousands" of traffic stops and had encountered vehicle inspection stickers held on with tape approximately fifty or sixty times. He explained that he worked in traffic enforcement and looked at the inspection sticker of almost every vehicle that passed him on the roadway. Vaughters also testified that he could not verify the legality of the inspection sticker on the car driven by the appellant without making a traffic stop.
Based on his suspicion that the inspection sticker was unlawful, the trooper stopped the car. He asked the appellant for his driver's license. During the encounter, Vaughters learnedthat the Virginia Department of Motor Vehicles had listed the appellant as a felony habitual offender.
Before the appellant's trial for driving after being determined to be a habitual offender, he made a motion to suppress the evidence obtained during the traffic stop. He argued that the stop was not supported by a reasonable suspicion of unlawful activity. The trial court denied the motion. In doing so, the court found that an inspection sticker is not "normally" taped to a windshield. The court concluded that the tape adhering the sticker to the windshield "justif[ied] a reasonable suspicion to stop, to make sure it's properly inspected."
A jury found the appellant guilty of driving after being adjudicated a habitual offender. He was sentenced to five years of imprisonment, with one year suspended.
The appellant argues that the trial court erred in denying his motion to suppress the evidence because Trooper Vaughters did not have a reasonable suspicion that he was engaged in criminal activity or had committed a traffic infraction at the time that he was stopped.
On appeal of the denial of a motion to suppress evidence, the appellant has the burden to show that the trial court's ruling constituted reversible error. Mason v. Commonwealth, 291 Va. 362, 367, 786 S.E.2d 148, 151 (2016). The ultimate determinations of whether reasonable suspicion exists and "whether a person has been seized in violation of the Fourth Amendment" involve "questions of both law and fact and are reviewed de novo on appeal." Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000). The appellate court must "independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment." McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 515 (2008). In doing so, however, the Court is "bound by the trial court's factual findings unless those findings are plainly wrong or unsupported by the evidence." Jones v.Commonwealth, 279 Va. 665, 670, 691 S.E.2d 801, 803 (2010) (quoting Whitehead v. Commonwealth, 278 Va. 300, 306, 683 S.E.2d 299, 301 (2009)). In addition, we "give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Reittinger, 260 Va. at 236, 532 S.E.2d at 27 (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).
The Fourth Amendment protects people from unreasonable searches and seizures. E.g., Sidney v. Commonwealth, 280 Va. 517, 522, 702 S.E.2d 124, 127 (2010). This "protection extends to brief investigatory stops 'that fall short of traditional arrest.'" Moore v. Commonwealth, 276 Va. 747, 757, 668 S.E.2d 150, 155 (2008) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). The Fourth Amendment requirements are met, 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)). "[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped . . . briefly while attempting to obtain additional information." Sidney, 280 Va. at 524, 702 S.E.2d at 128-29 (quoting Hayes v. Florida, 470 U.S. 811, 816 (1985)). The purpose of an investigatory stop, including the stop of a vehicle, is "to permit an officer with reasonable suspicion of criminal activity to quickly confirm or dispel that suspicion." Davis v. Commonwealth, 35 Va. App. 533, 539, 546 S.E.2d 252, 255 (2001).
"There are no bright line rules to follow when determining whether a reasonable and articulable suspicion exists . . . ." Hoye v. Commonwealth, 18 Va. App. 132, 134-35, 442 S.E.2d 404, 406 (1994). A "reasonable suspicion is more than an unparticularized suspicion or 'hunch.'" Sidney, 280 Va. at 523, 702 S.E.2d at 128 (quoting Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000)). However, "[t]he likelihood of criminality 'need not rise to the level required forprobable cause and it falls considerably short of satisfying a preponderance of the evidence standard' applicable in other contexts." Raab v. Commonwealth, 50 Va. App. 577, 581, 652 S.E.2d 144, 146 (2007) (en banc) (quoting Arvizu, 534 U.S. at 274).
The law is well settled regarding the analysis. On appellate review, we must consider "the 'totality of the circumstances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing." Mason, 291 Va. at 368, 786 S.E.2d at 151 (quoting Arvizu, 534 U.S. at 273). In conducting this analysis, we are mindful that an officer is permitted to view the circumstances confronting him "in light of his training and experience." Jones, 279 Va. at 673, 691 S.E.2d at 805. "[A] trained law enforcement officer may [be able to] identify criminal behavior which would appear innocent to an untrained observer." Lovelace v. Commonwealth, 37 Va. App. 120, 124-25, 554 S.E.2d 688, 690 (2001) (alterations in original) (quoting Freeman v. Commonwealth, 20 Va. App. 658, 661, 460 S.E.2d 261, 262 (1995)). "The test is . . . whether the facts and circumstances apparent to [the officer] at the time of the stop were such as to create in the mind of a reasonable officer in the same position a suspicion that a violation of the law was occurring or was about to occur." Mason, 291 Va. at 368, 786 S.E.2d at 151; see also Ornelas, 517 U.S. at 696. Further, "[t]he possibility of an innocent explanation for the suspicious conduct does not necessarily forbid an officer from making a brief, investigatory stop" to confirm or dispel his suspicion. Raab, 50 Va. App. at 581, 652 S.E.2d at 146.
The Commonwealth maintains that the trial court correctly found that Vaughters had reasonable articulable suspicion to believe that the appellant was violating Code §§ 46.2-1172 and -1173. Code § 46.2-1172 proscribes using a vehicle safety inspection sticker "otherwise than as authorized by the Superintendent" of State Police. Code § 46.2-1173 provides that "[n]o person shall make, issue, or knowingly use any imitation or counterfeit of an official safetyinspection sticker" and "[n]o 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."
In Mason, 291 Va. at 369, 786 S.E.2d at 152, the Supreme Court of Virginia considered whether an officer lawfully stopped a vehicle based on an object dangling from the rearview mirror. The Court held that the traffic stop did not violate the Fourth Amendment because "[a] reasonable person could readily conclude" that the parking pass "might have violated the statute" prohibiting objects hanging from the rearview mirror "'in such a manner as to obstruct the driver's clear view of the highway through the windshield.'" Id. at 365, 371, 786 S.E.2d at 150, 153 (quoting Code § 46.2-1054).
Similarly, here, a reasonable person viewing the circumstances could conclude that the inspection sticker may have been placed illegally on the car. See, e.g., Shifflett v. Commonwealth, 58 Va. App. 732, 735, 716 S.E.2d 132, 134 (2011) (). The facts in the record are critical to this legal conclusion....
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