COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Lemons
Argued at Chesapeake, Virginia
GARY ALLEN REEL
OPINION BY
v. Record No. 0168-99-1 JUDGE LARRY G. ELDER
JANUARY 4, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel Taylor Powell, III, Judge
David Holland (David Holland's Law Group,
L.L.C., on brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
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.
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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 . . . ."
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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).
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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 "[a] rejection sticker shall be valid for fifteen
calendar days beyond the day of issuance. A complete inspection
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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.
1
Code § 46.2-1001 permits a qualified law enforcement
officer who discovers a defect in a vehicle on the highway to
authorize its "operation only to the nearest place where repairs
can be safely effected" if he determines that "such operation is
less hazardous to the public than to permit the motor vehicle,
trailer, or semitrailer to remain on the highway."
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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 § 46.2-1158, and the vehicle's owner or
operator is under a legal duty imposed by Code § 46.2-1157 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.
Appellant contends that our holding in Commonwealth v.
Spencer, 21 Va. App. 156, 462 S.E.2d 899 (1995), controls the
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outcome of this case. We disagree. Spencer involved the stop
of an automobile which bore Virginia license plates but no city
or county decal. See id. at 158, 462 S.E.2d at 900. The
evidence established that the vehicle was being operated in
Richmond, which required all cars registered there to display
city decals, but that "the officers knew that other cities and
counties in the state do not require decals." See id. at
159-60, 462 S.E.2d at 901. The officers made no effort before
executing the stop to determine whether the vehicle was
registered in a jurisdiction requiring a decal, and the trial
court found that determining the locality of registration was a
question that could have been "easily resolved by the officer
calling in" prior to the stop. See id. at 159, 462 S.E.2d at
901. Further, no evidence established that the decal served a
safety related purpose, only that the absence of such a decal
might or might not violate a local ordinance. Under the
totality of the circumstances, we held that the officers lacked
reasonable suspicion to execute a traffic stop.
Here, by contrast, Virginia law requires that all cars
registered and operated in Virginia undergo an annual safety
inspection, regardless of the city or county in which the owner
resides. A vehicle bearing a rejection sticker has expressly
been found to have a mechanical defect of such magnitude that
the legislature has declared the vehicle unsafe to operate until
the defect is repaired. Further, the record contains no
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indication that a less intrusive means of discovering whether
the defect had been repaired was available to the investigating
officer. The vehicle's driver, by contrast, had readily
available the means to communicate that information to the
officer--by obtaining a valid inspection sticker upon the
determination of an official inspection station that all
mechanical defects had been corrected. We hold, under the
totality of the circumstances, that until appellant obtained a
valid inspection sticker, the prior express finding of a safety
violation demonstrated by the rejection sticker provides
articulable suspicion necessary to justify a brief investigatory
stop.
Appellant contends that such an investigatory stop is
unconstitutional because "a vehicle can be legally driven with a
rejection sticker." He cites Code § 46.2-1157, which he says
"allows operation of a motor vehicle directly [between] 'the
place where such vehicle is kept or garaged and an official
inspection station for the purpose of having it inspected
pursuant to prior appointment with such station.'" We agree
with appellant that a vehicle can be driven legally with a
rejection sticker, but appellant misconstrues this provision.
The Code and related regulations, as outlined above,
provide that a rejection sticker is valid for fifteen days after
the date of the inspection and that the sticker is issued in
lieu of an approval sticker and places no travel restriction on
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the vehicle. See Code § 46.2-1157; 19 Va. Admin. Code 30-70-60.
Any travel restrictions arise from defects in the vehicle's
equipment. See Code § 46.2-1157; 19 Va. Admin. Code 30-70-60.
Once an inspection or rejection sticker has expired, however,
any operation of the vehicle constitutes a traffic infraction,
regardless of whether any equipment is defective and regardless
of the driver's destination. The Code merely provides that no
penalty may be imposed against a driver whose prior inspection
or rejection sticker has expired if that driver is traveling
"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." Code § 46.2-1157. A driver, however,
remains responsible for any equipment violations.
The fact that a vehicle displaying a rejection sticker may
be operated legally--if driven after the defective equipment has
been repaired and before the rejection sticker has expired--does
not mean a rejection sticker fails to provide reasonable
suspicion that the driver is committing a traffic infraction.
As set out above, when an officer sees a vehicle being operated
with a rejection sticker, he 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.
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For these reasons, we hold that the stop of appellant's
vehicle did not violate the Fourth Amendment and that the trial
court properly denied the motion to suppress. Therefore, we
affirm appellant's conviction.
Affirmed.
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