Reel v. Com., Record No. 0168-99-1.

• Decision Date: 04 January 2000
• Docket Number: Record No. 0168-99-1.
• Court: Virginia Court of Appeals
• Parties: Gary Allen REEL v. COMMONWEALTH of Virginia.

522 S.E.2d 881

31 Va. App. 262

Gary Allen REEL v. COMMONWEALTH of Virginia.

Record No. 0168-99-1.

Court of Appeals of Virginia, Chesapeake.

January 4, 2000.

David Holland (David Holland's Law Group, L.L.C., on brief), Alexandria, for appellant.

Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J. and ELDER and LEMONS, JJ.

ELDER, Judge.

Gary Allen Reel (appellant) appeals from his bench trial conviction for driving after having been declared a habitual offender, second or subsequent offense, pursuant to Code § 46.2-357(B)(3). On appeal, he contends the mere fact that his windshield bore a pink rejection sticker indicating his vehicle failed to pass an official state inspection did not provide reasonable suspicion of criminal activity necessary to validate the stop of his vehicle. We hold that appellant's operation of a vehicle displaying a pink rejection sticker provided reasonable suspicion that he was committing a traffic infraction, thereby justifying an investigatory stop. Therefore, we affirm appellant's conviction.

I. FACTS

The relevant facts are not in dispute. At about 1:00 p.m. on August 3, 1998, Officer Riley of the Williamsburg Police Department observed appellant operating a vehicle on Henry Street in the City of Williamsburg. On appellant's windshield, Riley noticed a pink rejection sticker. Other than seeing the pink rejection sticker, Riley observed no violations of motor vehicle or other laws. Prior to executing the stop, Riley did not know when the sticker had been issued and noticed nothing, such as fading or curling, to indicate the sticker was old or otherwise invalid.

Upon executing the stop, Officer Riley learned that the vehicle had received the rejection sticker on "7-29-98 for tires and brakes." He also discovered that appellant was a habitual offender.

Appellant moved to suppress evidence of his habitual offender status on the ground that the stop was not supported by reasonable suspicion or probable cause. He admitted that if the court denied the motion to suppress, he had no defense. The trial court denied the motion and convicted appellant of the charged offense.

II ANALYSIS

At a hearing on a defendant's motion to suppress, the Commonwealth has the burden of proving that a warrantless search or seizure did not violate the defendant's Fourth Amendment rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989)

. On appeal, we view the evidence in the light most favorable to the prevailing party, granting to it all reasonable inferences fairly deducible therefrom. See Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991); see also Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996). We review de novo the trial court's application of defined legal standards such as probable cause and reasonable suspicion to the particular facts of the case. See Shears v. Commonwealth, 23 Va.App. 394, 398, 477 S.E.2d 309, 311 (1996); see also Ornelas, 517 U.S. at 699,

116 S.Ct. at 1659.

Under well established Fourth Amendment principles, "[t]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity `may be afoot.'" United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968)). "Actual proof that criminal activity is afoot is not necessary.. ." Harmon v. Commonwealth, 15 Va.App. 440, 444, 425 S.E.2d 77, 79 (1992). 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. See Murphy v. Commonwealth, 9 Va. App. 139, 143, 384 S.E.2d 125, 127 (1989)

(citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979)). "There are no bright line rules to follow when determining whether a reasonable and articulable suspicion exists to justify an investigatory stop. Instead, the courts must consider the totality of the circumstances — the whole picture.'" Hoye v. Commonwealth, 18 Va.App. 132, 135, 442 S.E.2d 404, 406 (1994) (quoting Sokolow, 490 U.S. at 8,

109 S.Ct. at 1585).

The Virginia Code provides that it is "unlawful for any person to use or have as equipment on a motor vehicle operated on a highway any device or equipment mentioned in § 46.2-1002 which is defective or in unsafe condition." Code § 46.2-1003. The equipment mentioned in Code § 46.2-1002 includes "any ... equipment for which approval is required by any provision of this chapter." That chapter sets standards for a wide range of equipment, including tires and brakes. See, e.g., Code §§ 46.2-1041 to -1046 (tires), 46.2-1066 to -1071 (brakes).

Motor vehicles registered in Virginia and operated on a highway within the state must receive a complete inspection at an official inspection station every twelve months. See Code §§ 46.2-1157, 46.2-1158. The Code further provides as follows:

No owner or operator shall fail to submit a motor vehicle, trailer, or semitrailer operated on the highways in this Commonwealth to such inspection or fail or refuse to correct or have corrected in accordance with the requirements of this title any mechanical defects found by such inspection to exist.

* * * * * *

Each day during which such motor vehicle, trailer, or semitrailer is operated on any highway in this Commonwealth after failure to comply with this law shall constitute a separate offense. However, no penalty shall be imposed on any owner or operator for operation of a motor vehicle, trailer, or semitrailer after the expiration of a period fixed for the inspection thereof, over the most direct route between the place where such vehicle is kept or garaged and an official inspection station, for the purpose of having it inspected pursuant to a prior appointment with such station.

* * * * * *

[A] violation of this section constitutes a traffic infraction.

Code § 46.2-1157.

The only reference to rejection stickers contained in the Code appears in §§ 46.2-1158 and 46.2-1167. Code § 46.2-1158 provides that "[al rejection sticker shall be valid for fifteen calendar days beyond the day of issuance. A complete inspection shall be performed on any vehicle bearing an expired rejection sticker." Id. However, "[a] reinspection of a rejected vehicle by the same station during the period of validity of the rejection sticker on such vehicle ... need only include an inspection of the item or items previously found defective unless there is found an obvious defect that would warrant further rejection of the vehicle." Id. Code § 46.2-1167 merely lists the fee to be charged for reinspection of a rejected vehicle.

Subject only to limited exception,¹ neither Code § 46.2-1158, § 46.2-1167, nor any other statute permits operation of a vehicle with defective equipment, whether the defect is detected during an official state inspection or in some other fashion. See Code §§ 46.2-1002, 46.2-1003. Any law enforcement officer who observes a defect in a vehicle, such as a vehicle which "is not equipped with proper. . . brakes" or other specified equipment or "is otherwise unsafe to be operated," "shall. . . take possession of the registration card, license plates, and decals of any such vehicle" and retain them for fifteen days unless the owner corrects the defects or obtains a new safety inspection sticker. Code § 46.2-1000. Further, the Virginia Administrative Code provides that, upon rejection of a vehicle during an official state inspection,

[t]he operator of the rejected vehicle shall be informed of the following:

1. The rejection sticker is valid for 15 days in addition to the date of inspection.

2. The rejection sticker places no travel restriction on operation of the vehicle and is issued in lieu of an approval sticker.

3. The vehicle operator is legally responsible for any defect if operated on the highway and may be subject to a traffic summons for any existing equipment violation.

19 Va. Admin. Code 30-70-60 (emphasis added).

Pursuant to Virginia's statutory scheme, a vehicle bearing a rejection sticker has been determined to have defective equipment, see Code § 46.2-4158, and the vehicle's owner or operator is under a legal duty imposed by Code § 46.2-4157 and other provisions of the motor vehicle laws to have the vehicle repaired before operating it on any highway in the Commonwealth. When an officer sees a vehicle being operated with a rejection sticker, he knows the vehicle has been determined to have defective equipment. We hold that this knowledge provides reasonable suspicion for the officer to conduct an investigatory stop of the vehicle to determine whether the defective equipment has been repaired.

Appell...