Neal v. Com., Record No. 0694-97-4.

• Docket Nº: Record No. 0694-97-4.
• Citation: 498 S.E.2d 422, 27 Va. App. 233
• Case Date: April 28, 1998
• Court: Court of Appeals of Virginia

498 S.E.2d 422
27 Va. App. 233

John Leslie NEAL
v.
COMMONWEALTH of Virginia

Record No. 0694-97-4.

Court of Appeals of Virginia, Alexandria.

April 28, 1998.

498 S.E.2d 423

Elwood Earl Sanders, Jr., Director Capital/ Appellate Services, Woodbridge (Jay K. Wilk, Winchester; Public Defender Commission, on briefs), for appellant

Marla Graff Decker, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., COLEMAN, J., and DUFF, Senior Judge.

FITZPATRICK, Chief Judge.

John Leslie Neal (appellant) was convicted in a jury trial of operating a motor vehicle after having been declared an habitual offender in violation of Code § 46.2-357(B)(3) and operating a motor vehicle while intoxicated in violation of Code § 18.2-266. On appeal, he contends the trial court erred in admitting evidence obtained as a result of an unreasonable investigatory stop. We disagree and affirm the convictions.

I.

"`On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Juares v. Commonwealth, 26 Va.App. 154, 156, 493 S.E.2d 677, 678 (1997) (citation omitted). On May 9, 1996, around 7:20 p.m., Trooper Jonathan D. Fainter was on patrol in Shenandoah County when he received a call to "be on the lookout" for a "reckless" driver southbound on Interstate 81. Fainter was in the area and proceeded south. He saw the vehicle and got "close enough" to observe it for approximately one-half mile, which he estimated took approximately twenty-five seconds. During this time, the car was traveling at sixty-five miles per hour in the right lane of two southbound traffic lanes and "[t]he vehicle, numerous times, would weave to the center of the highway, then back to the right, just constantly moving from side to side in its lane." Over "that half-mile distance, it kept sort of weaving inside of his lane," between five and ten times. The car crossed into the left southbound lane and it "touched, just touched the line" on the right side of the lane. After approximately twenty-five seconds of observation, Fainter, who had been involved in eighteen DUI arrests in 1996, stopped the car to investigate because he was "concerned" about the erratic driving. Appellant, the driver of the car, could not produce his driver's license or registration. Fainter smelled the odor of alcohol coming from the vehicle, and he asked appellant to step out of the car. When asked, appellant admitted, "Yes, we've been drinking."

During the investigative stop, appellant was unsteady on his feet and had to use the car to balance himself as he accompanied Fainter to the patrol car. Additionally, appellant had bloodshot eyes, smelled of alcohol, and slurred his speech. Appellant voluntarily submitted to a blood alcohol test and

498 S.E.2d 424

was arrested for driving under the influence of alcohol. He was subsequently charged with driving after having been declared an habitual offender

Appellant did not file a pretrial motion to suppress the evidence alleged to have been illegally obtained as a result of the investigatory stop.¹ At trial, after the Commonwealth rested, appellant moved to strike Fainter's testimony on the ground the Commonwealth failed to prove the trooper had "probable cause" to stop appellant's car.² The trial court denied the motion, finding that the combination of the "be on the lookout" warning and the observed weaving "would have given rise to a stop."

II.

Appellant contends Trooper Fainter lacked reasonable, articulable suspicion necessary to stop the vehicle. We disagree and hold that repeated weaving within a lane provides sufficient reasonable and articulable suspicion to justify an investigatory stop.

"`Ultimate questions of reasonable suspicion and probable cause' ... involve questions of both law and fact and are reviewed de novo on appeal." McGee v. Commonwealth, 25 Va.App. 193, 197, 487 S.E.2d 259, 261 (1997) (quoting Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 1659, ...