Moore v. Commonwealth

McCLANAHAN, J., dissenting.

I disagree that Officer Bryan had no “ ‘particularized and objective basis’ for suspecting legal wrongdoing” to justify the investigatory traffic stop. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002). In my opinion, reasonable articulable suspicion was established by evidence of both the officer’s observation of the peeling inspection sticker and “[his] own experience and specialized training to make inferences from and deductions about [that] information available to [him] that ‘might well elude an untrained person.’ ” Id. (quoting United States v: Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

I do not read the applicable case law as holding that the presence or absence of reasonable articulable suspicion may be determined by counting the number of “factors” presented for justifying the stop. There are “no [such] bright line rules to follow” when making that determination. Reel v. Commonwealth, 31 Va.App. 262, 266, 522 S.E.2d 881, 883 (2000). Nevertheless, Officer Bryan did not rely only on a single factor to justify stopping appellant’s vehicle—the partially peeling inspection sticker. The officer also articulated in detail why he was suspicious based on his recent experience.9 See Logan v. Commonwealth, 19 Va.App. 437, 442, 452 S.E.2d *309364, 368 (1994) (“[W]e agree with the Commonwealth that if a broken window is suggestive of a prior theft, it is just as suggestive of what the officers suspected it might be in this case, a theft in progress.”). Indeed, in light of that experience, it was more likely than not that the peeling inspection sticker was not lawfully attached to appellant’s vehicle—the officer having found the same violation in 30 to 35 out of approximately 50 vehicles he had stopped in the previous six months.10 The officer’s testimony on this issue does not pertain to something other than peeling stickers located on the wrong vehicles. The import of the officer’s entire testimony, in context, was that he found such to be the case with each of those 30 to 35 vehicles. As the trial court explained,

what he’s telling me is that [in the instant case] he felt it was a problem, because he had stopped many cars before, that have had stickers coming off, and in the majority of those he’s found that the sticker didn’t go to that car. So it goes to the issue of whether or not there’s reasonable suspicion.11

(Emphasis added).

In Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the United States Supreme Court held a *310police officer’s random traffic stop of a vehicle and detention of the driver for the sole purpose of checking his driver’s license and vehicle registration, without first observing “any suspicious activity,” whatsoever, was an unreasonable seizure in violation of the Fourth Amendment. Id. at 650, 99 S.Ct. at 1394. In doing so, the Court recognized that licensing, registration, and vehicle inspection requirements “are essential elements in a highway safety program,” through which a state may ensure that the drivers on its highways are qualified and that their vehicles are fit to operate. Id. at 658, 99 S.Ct. at 1398-99. The question, however, as framed by the Court, was “whether in the service of these important ends the discretionary spot check is a sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests which such stops entail.” Id. at 659, 99 S.Ct. at 1399. Deciding it was not, the Court reasoned:

It seems common sense that the percentage of all drivers on the road who are driving without a license is very small and that the number of licensed drivers who will be stopped in order to find one unlicensed operator will be very large *311indeed. The contribution to highway safety made by discretionary stops selected from drivers generally will therefore be marginal at best.

Id. at 659-60, 99 S.Ct. at 1399. The Court thus concluded that, “[i]n terms of actually discovering unlicensed drivers or deterring them from driving, the [random, discretionary] spot check does not appear sufficiently productive to qualify as a reasonable law enforcement practice under the Fourth Amendment.” Id. at 660, 99 S.Ct. at 1399.

In contrast, the stop in the instant case was particularized by the officer’s observation of the peeling sticker on the windshield, and in light of his recent experience he was likely to discover an inspection sticker violation upon making the stop. Thus, the stop was not “random,” “suspicionless” or an exercise in “unbridled discretion” in violation of appellant’s Fourth Amendment rights.

For these reasons, I would affirm the decision of the trial court denying appellant’s motion to suppress. Therefore, I dissent.

. It is important to note that “an 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 *309criminal 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)); see Shiflett v. Commonwealth, 47 Va.App. 141, 146, 622 S.E.2d 758, 760 (2005).

. Given the likelihood that the stop would reveal unlawful activity, it certainly meets a reasonable articulable suspicion standard when it may very well meet a heightened probable cause standard. See, e.g., United States v. Limares, 269 F.3d 794, 798 (7th Cir.2001) (holding that probable cause was clearly established when the record showed that the drug sniffing dog had been right sixty-two percent of the time); see generally, Ronald J. Bacigal, Making the Right Gamble: the Odds on Probable Cause, 74 Miss. L.J. 279, 313 (2004—05) (In analyzing the level of certainly required for probable cause under the Fourth Amendment, Professor Bacigal concludes that "statistical evidence is readily available in many cases and should be utilized whenever it exists.”).

. On direct examination, the officer testified that he was concerned when he saw the peeling inspection sticker on Moore’s vehicle, thinking *310"it was possibly an improper inspection sticker, that did not belong on that car.” That was because, "[biased on [his] experience, [he had] stopped numerous vehicles for this offense and found a great majority of the time that the inspection sticker, that will be peeling off the window, does not belong on that vehicle.” (Emphasis added.) He proceeded to explain that in the previous six months, he had stopped approximately 50 vehicles for that type of violation and 30 to 35 "resulted in finding a sticker that was not supposed to be with the car [he] stopped.” The officer further explained that "[a] new sticker typically does not peel off of a windshield on its own.”

In the limited exchange on cross-examination addressing this issue, quoted by the majority, defense counsel misstates the officer's testimony on direct, when counsel asks, "So basically in your testimony, you said in the last six months you stopped approximately fifty cars and you said that thirty to thirty-five per cent of the cars had-the inspection stickers may have been from another vehicle? Is that what you’re saying?” The officer responded, "No, sir. Thirty to thirty-five of the vehicles, out of the fifty, had bad inspection stickers” and thus the stickers were "invalid.” Counsel then confirmed with the officer that, "in other words,” he was stating that "sixty to seventy per cent of the cars” had inspection stickers from other vehicles and that "the glue had [just] come loose’ on the other ... thirty to forty per cent [that turned out to have] valid stickers.” (Emphasis added.)