Shiflett v. Com.

• Decision Date: 13 December 2005
• Docket Number: Record No. 2717-04-2.
• Citation: 622 S.E.2d 758,47 Va. App. 141
• Parties: Michael Paul SHIFLETT, s/k/a Michael C. Shifflett v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

622 S.E.2d 758

47 Va. App. 141

Michael Paul SHIFLETT, s/k/a Michael C. Shifflett v. COMMONWEALTH of Virginia.

Record No. 2717-04-2.

Court of Appeals of Virginia, Richmond.

December 13, 2005.

Kevin E. Johnson (Johnson Jones, L.L.P., on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: BENTON, McCLANAHAN, JJ., and COLEMAN, Senior Judge.

ELIZABETH A. McCLANAHAN, Judge.

Michael Paul Shiflett appeals his misdemeanor conviction, on a conditional guilty plea, for driving after having been adjudicated an habitual offender in violation of Code § 46.2-357. Shiflett contends the trial court erred in denying his motion to suppress evidence of the violation because the officer who stopped him lacked a reasonable, articulable suspicion of unlawful conduct to justify an investigatory traffic stop. For the reasons that follow, we affirm the decision of the trial court.

I. Background

In reviewing the trial court's denial of Shiflett's motion to suppress, we consider the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the Commonwealth, the prevailing party below. See Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004). On November 1, 2003, Warden Daniel Ross, a game warden with the Virginia Department of Game and Inland Fisheries, issued Shiflett a summons for a "spotlighting" violation.¹ At that time, Ross checked Shiflett's driving record and determined that his driving privilege was revoked, as Shiflett had been adjudicated an habitual offender. Ross also spoke with Shiflett about his habitual offender status when issuing the summons.

On March 31, 2004, Ross observed Shiflett walk out of a market, get into a vehicle, and drive onto a public highway. Ross proceeded to "[fall] in behind" Shiflett, at which time Ross observed objects "dangling" from the rearview mirror of Shiflett's vehicle. Based on Ross's observation of those objects and his knowledge of Shiflett's status as an habitual offender five months earlier, Ross stopped and detained Shiflett while checking on the current status of Shiflett's driving record. After confirming that Shiflett's driving privilege had not been restored, Ross issued Shiflett a summons for driving after being adjudicated an habitual offender, in violation of Code § 46.2-357.² Ross did not issue Shiflett a summons for any violation regarding objects hanging from the rearview mirror.

At a pretrial suppression hearing, Shiflett moved to suppress the evidence obtained as a result of the stop, contending the stop was illegal. Specifically, Shiflett argued that Ross effected the stop without a reasonable, articulable suspicion that Shiflett was involved in some form of criminal activity, in violation of Shiflett's Fourth Amendment rights. The trial court concluded that the stop was legally justified, and therefore denied the motion, upon finding that Ross possessed a reasonable suspicion that Shiflett was driving without a license as an habitual offender.³ Shiflett subsequently entered a conditional guilty plea, preserving his right to appeal the denial of his motion to suppress.

II. Analysis

When this Court reviews a trial court's denial of a motion to suppress, "`the burden is upon the [defendant] to show that the ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.'" McGee v. Commonwealth, 25 Va.App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). Where a Fourth Amendment challenge is at issue, "`[u]ltimate questions of reasonable suspicion and probable cause to make a warrantless search' involve questions of both law and fact." Id. at 197-98, 487 S.E.2d at 261 (quoting Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996)). Thus, "we give deference to the factual findings of the trial court but independently decide whether, under the applicable law, the manner in which the challenged evidence was obtained satisfies constitutional requirements." Jackson, 267 Va. at 673, 594 S.E.2d at 598.

In this case, Warden Ross stopped Shiflett's vehicle and detained him, effecting a seizure for Fourth Amendment purposes. See Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); Jackson, 267 Va. at 672, 594 S.E.2d at 598; Logan v. Commonwealth, 19 Va.App. 437, 441, 452 S.E.2d 364, 367 (1994) (en banc). To justify such action, a police officer must have 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, 1884-85, 20 L.Ed.2d 889 (1968)). "Actual proof that criminal activity is afoot is not necessary." Harman v. Commonwealth, 15 Va.App. 440, 444, 425 S.E.2d 77, 79 (1992). Consequently, "[a]n investigatory stop under Terry anticipates that some innocent people may be stopped. Nevertheless, it is a lawful stop designed 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) (citing Illinois v. Wardlow, 528 U.S. 119, 126, 120 S.Ct. 673, 677, 145 L.Ed.2d 570 (2000)).

A reasonable suspicion justifying an investigatory stop is "something more than an inchoate and unparticularized suspicion or `hunch' of criminal activity," but "something less than probable cause." Jackson, 267 Va. at 673, 594 S.E.2d at 598 (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883) (some internal quotation marks and other citations omitted). However, "[t]here 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.'" Reel v. Commonwealth, 31 Va.App. 262, 266, 522 S.E.2d 881, 883 (2000) (quoting Hoye v. Commonwealth, 18 Va.App. 132, 135, 442 S.E.2d 404, 406 (1994)).

The question thus presented under this objective standard is: "would the facts available to the officer at the moment of the seizure ... `warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Iglesias v. Commonwealth, 7 Va.App. 93, 102, 372 S.E.2d 170, 175 (1988) (quoting Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880). Because of Ross's recent knowledge of Shiflett's habitual offender status and his discussion with Shiflett about that status, Ross possessed a reasonable, articulable suspicion at the time of the stop that criminal activity was "afoot," i.e. that Shiflett was driving on a public highway without the privilege to do so, after having been declared an habitual offender. See Prouse, 440 U.S. at 663, 99 S.Ct. at 1401 (explaining that investigatory traffic stop does not violate Fourth Amendment when officer possesses reasonable and articulable suspicion that driver is unlicensed). Thus, Warden Ross did act appropriately in stopping and detaining Shiflett.

Shiflett contends that the stop was based on no more than Ross's "hunch" that Shiflett was driving without a license. He argues that, because Ross's information regarding Shiflett's habitual offender status was five months old at the time of the stop, the information was stale, thus negating it as justification for the stop. In support of this contention, Shiflett relies on Stovall v. Commonwealth, 213 Va. 67, 189 S.E.2d 353 (1972), in which the Supreme Court reversed the defendant's conviction for possession of illegal drugs because the incriminating evidence was the product of a search warrant issued upon information that was "too stale." Id. at 70, 189 S.E.2d at 356. There, the information was 72 days old. Id. The Supreme Court reasoned that "evidence that one was illegally in possession of drugs on a given date is not probable cause to believe that he possesses illegal drugs 72 days thereafter." Id.

Stovall is clearly distinguishable from the instant case. First, Stovall involved a review of a search warrant under the probable cause standard, not a review of an investigatory traffic stop under the reasonable suspicion standard. Second, one's possession of illegal drugs, transitory in nature, does not equate with one's ongoing status upon being adjudicated an habitual offender. Under Code § 46.2-356, a person who has been adjudicated an habitual offender generally will continue in that status for ten years and thereafter until the privilege has been restored by a court of competent jurisdiction.⁴ See, e.g., Sink v. Commonwealth, 28 Va.App. 655, 660, 507 S.E.2d 670, 672 (1998) (holding that defendant's habitual offender status remained in effect twenty-three years after he had been adjudicated an habitual offender). Although Ross's knowledge that Shiflett was an habitual offender five months earlier was not conclusive evidence that Shiflett was still an habitual offender, that fact gave Ross a reasonable basis to suspect that he was still an habitual offender, which, in turn, justified the investigatory stop. See Glasco v. Commonwealth, 26 Va.App. 763, 771, 497 S.E.2d 150, 154 (1998) (holding that officer's knowledge of defendant's arrest two weeks earlier on charges that often, but not always, resulted in suspension of driver's license established reasonable suspicion that defendant was driving without...