COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bray
Argued at Norfolk, Virginia
CHARLES LEON FREEMAN
OPINION BY
v. Record No. 2244-93-1 JUDGE SAM W. COLEMAN III
AUGUST 15, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Westbrook J. Parker, Judge
Timothy E. Miller, Public Defender (Lori B.
Galbraith; Office of the Public Defender,
on brief), for appellant.
Robert B. Condon, Assistant Attorney General
(James S. Gilmore, III, Attorney General,
on brief), for appellee.
Charles Leon Freeman appeals his conviction for driving
after having been adjudged an habitual offender. He contends the
trial court erred by denying his motion to suppress evidence
obtained from an allegedly illegal stop of his vehicle in
violation of the Fourth Amendment.
At approximately 9:30 a.m. on a Sunday morning, Officer A.P.
Bremer, Jr., observed a car being driven in the center lane of
three eastbound traffic lanes at speeds of ten to fifteen miles
per hour less than the posted fifty-five miles-per-hour speed
limit. Officer Bremer followed the car for two miles, during
which time he saw the car weave three to four times within its
lane of travel. On two occasions, other cars passed the car in
the right lane. On these facts and from Officer Bremer's
experience, he suspected the driver to be under the influence of
intoxicants.
Officer Bremer turned on his emergency lights but received
no response from the driver. When Officer Bremer turned on his
siren, the driver immediately pulled his vehicle over and
stopped. Charles Freeman, the appellant, was driving the car.
When Officer Bremer asked to see Freeman's driver's license,
Freeman stated that he did not have one. A DMV check indicated
that Freeman was an habitual offender. Bremer arrested Freeman
for driving after having been declared an habitual offender.
At trial, Officer Bremer testified that the normal speed for
cars travelling on the section of the six-lane highway where he
observed Freeman is fifty-five miles per hour. Bremer testified
that from his past experience as a police officer, a car that is
being driven slower than the normal speed, particularly when the
car is not travelling in the far right lane and is being passed
on the right by other vehicles, indicates that the driver
"possibly" is under the influence of alcohol.
Officer Bremer testified that the slow speed of Freeman's
vehicle in the center of three eastbound lanes and the fact that
vehicles were passing Freeman on the right first focused the
officer's attention on Freeman. Bremer stated:
I noticed the car was running between forty
and forty-five miles an hour and had some
indication of weaving. Not over the line,
but just going from the right to the left,
towards the yellow lines on both sides of the
road in the center lane. And through my past
experience when a car sometimes is driving
slower than the normal flow of traffic it
indicates possibly the operator could be
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under the influence of alcohol.
On appeal "the burden is on the [appellant] to show that the
trial court's denial of his suppression motion constituted
reversible error." DePriest v. Commonwealth, 4 Va. App. 577,
583, 359 S.E.2d 540, 544 (1987), cert. denied, 488 U.S. 985
(1988). The trial court's suppression ruling will not be
disturbed unless plainly wrong or without evidence to support it.
Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138,
139 (1994).
A police officer may stop the driver or occupants of an
automobile for investigatory purposes if the officer has "a
reasonable articulable suspicion, based upon objective facts,
that the individual is involved in criminal activity." Jacques
v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)
(quoting Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475,
478 (1982) (citations omitted)). To determine whether an officer
has articulated a reasonable basis to suspect criminal activity,
a court must consider the totality of the circumstances,
including the officer's knowledge, training, and experience.
Murphy v. Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128
(1989). "[A] trained law enforcement officer may [be able to]
identify criminal behavior which would appear innocent to an
untrained observer." Taylor v. Commonwealth, 6 Va. App. 384,
388, 369 S.E.2d 423, 425 (1988).
Other jurisdictions have considered whether similar
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circumstances give rise to a reasonable suspicion that a driver
is intoxicated and have held that weaving within a traffic lane
or travelling at an inordinately slow rate of speed under the
circumstances is sufficient to justify an investigatory stop.
State v. Malaney, 871 S.W.2d 634, 637 (Mo. App. 1994) (weaving
within the lane); State v. Aubin, 397 S.E.2d 653 (N.C. App. 1990)
cert. denied, 502 U.S. 842 (1991) (slowing of speed and weaving
within the lane); People v. Loweks, 481 N.E.2d 1086, 1087 (Ill.
App. 1985) (weaving within lane); State v. Ratliff, 728 P.2d 896,
898 (Ore. App. 1986), aff'd, 744 P.2d 247 (1987) (proceeding at
least ten miles per hour below speed limit may be indication of
driving under the influence); Sell v. State, 496 N.E.2d 799, 800
(Ind. App. 1986) (finding sufficient basis for a stop where a
driver was moving fifteen to twenty miles per hour below the
speed limit for two to three minutes).
Based on the totality of the circumstances, the trial court
found that Officer Bremer had a reasonable suspicion that the
driver of the car was intoxicated and that Bremer was justified
in stopping the vehicle to investigate his suspicions. The
circumstances that provided justification for the officer's
actions included Bremer's observations of similar conduct over
his twenty-one years of experience, his familiarity with the
traffic patterns of the area on a Sunday morning, Freeman's slow
speed in the center lane of a six-lane highway, and his weaving
within the lane of travel. Driving at a slow rate of speed so as
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to impede traffic constitutes a traffic violation, Code
§ 46.2-877, and weaving within a lane of traffic, depending on
the circumstances, may reasonably indicate to an officer that the
driver is impaired. Accordingly, the trial court did not err in
denying Freeman's motion to suppress the evidence obtained as a
result of the stop.
Affirmed.
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