dissent.
I respectfully dissent. In my opinion, the evidence was sufficient to permit the suppression court to find justification for the traffic stop because the misdemeanor of negligent driving was committed in the presence of the police officers.
*374The facts are critical, and the testimony must be taken in a light most favorable to the State, as the prevailing party on the suppression motion. Three officers were on routine patrol in a marked police cruiser at about 10:45 p.m. in the lower Park Heights area of Baltimore City. Detective Vaith was driving and Sergeant Jocuns was in the front passenger seat. The cruiser turned from Park Heights Avenue to proceed westbound on Oswego Avenue. Oswego Avenue is four lanes wide, with parking permitted in the lanes adjacent to the north and south curbs, leaving one lane for traffic westbound and one lane for eastbound trafile.
For reasons that are immaterial to this appeal, the police witnesses’ attention was directed to an SUV parked at the north curb. Detective Vaith drove slowly past the SUV and the officers looked inside it at the driver, later determined to be the appellant, Lamont Anthony Lewis, and at a woman in the front passenger seat. Detective Vaith stopped the police cruiser in the westbound traffic lane, sufficiently beyond the SUV to take the police cruiser out of the direct line of fire by an occupant of the SUV, in the event that the situation turned bad.
Detective Vaith described what then occurred.
“At that point the defendant activated his turn signal and started to pull out into the street nearly striking the back of my vehicle. That was—at that point that’s when Sergeant Jocuns said, ‘[H]e almost hit your vehicle[. Wjhat’s this guy doing?’ So I pulled to the side and parked and got out as well as Sergeant Jocuns. We both approached the vehicle.”
The unarticulated, but necessarily included, fact in this description is that Mr. Lewis stopped the SUV without any order by the police to stop. Detective Vaith’s testimony that he and Sergeant Jocuns “approached” the SUV means that they approached it on foot. Consequently, the SUV remained stopped while Detective Vaith pulled from the second westbound lane and parked and while the officers alighted the cruiser. In other words, the SUV did not swing fully past the police cruiser in order to proceed westerly on Oswego.
*375When the officers approached the SUV, Mr. Lewis was ordered to step out of the vehicle. It was at that point that there was a police initiated traffic stop. Mr. Lewis got out of the driver’s side, and his cell phone and the plastic bag of marijuana fell to the ground. Mr. Lewis apparently failed to secure the parking brake when he exited the SUV. It began to drift westerly on Oswego. Detective Vaith pursued on foot and was able to get into the SUV, stop it, and put the vehicle in park gear.
Mr. Lewis’s operation of the SUV, as above described, falls within the prohibition of Maryland Code (1977, 2006 Repl. Vol.), § 21-901.1(b) of the Transportation Article (TR) which reads in relevant part:
“A person is guilty of negligent driving if he drives a motor vehicle in a careless or imprudent manner that endangers any property[.]”
The opinion of the Court in this case would have the reader conclude that the “almost” accident, above described, was no more than the successful navigation of the narrow clearances regularly encountered in traffic-congested, urban areas. The suppression court, as I believe it properly could do, focused on Detective Vaith’s description of what Sergeant Jocuns said, i.e., “[H]e almost hit your vehicle[. WJhat’s this guy doing?” The testimony has the reliability indicia of an excited utterance. The suppression court saw and heard the witnesses, and was in a better position than is this Court to consider the volume and inflection of the voice in which the quoted testimony was given.1
Defense counsel also saw and heard the witnesses. Reviewing the evidence in argument to the court, defense counsel described the testimony as follows:
*376“You have Officer Jocuns[’s] testimony that he looked—that he saw the car coming into—saw Mr. Lewis’s car coming into their car. You had Officer Vaith’s testimony that Officer Jocuns looked back and saw Mr. Lewis almost coming into their car.”
(Emphasis added). Defense counsel argued that little or no weight should be given to this evidence because Mr. Lewis activated his left turn signal before pulling away from the curb and because the police officers issued no traffic citations.
To this argument the court replied:
“There’s nó traffic citations. But, if somebody is in a car and they almost hit another or almost hit a police car that’s not reason enough to make a further inquiry?”
“[Defense Counsel]: No, Your Honor.”
“THE COURT: What are you supposed to do; ignore it?”
The majority bolsters its conclusion that, as a matter of law, the suppression court could not find a violation of TR § 21-901.1(b), by noting that “[n]either officer ever suggested reckless or negligent driving as the basis for the stop.” Slip opinion at 22 n. 11. Of course, once the drugs hit the street, the officers had a more serious offense with which to be concerned. Apropos is United States v. Atkinson, 450 F.2d 835 (5th Cir.1971), where the court said:
“That the officer elected to charge Atkinson with the more serious of the two crimes involved does not prevent the validity of the arrest from resting on the lesser crime---- Any other rule would force police officers to routinely charge every citizen taken into custody with every offense they thought he could be held for in order to increase the chances that at least one charge would survive the test for probable cause. Such a clogging of the criminal process already heavily encumbered, would be pointless. We thus decide that there was probable cause to arrest for the improperly displayed license tag, and we look no further.”
Id. at 838 (citations omitted).
In any event, the constitutionality of a search or seizure under the Fourth Amendment is to be determined by the *377objective facts and is not limited to the legal theory which the police officer believed, even erroneously, justified the invasion. See Devenpeck v. Alford, 543 U.S. 146, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (sustaining, because of probable cause to believe arrestee was impersonating a police officer, warrant-less arrest assertedly for violation of state privacy statute); Lee v. State, 311 Md. 642, 669, 537 A.2d 235, 248 (1988) (“Nor is a search incident analysis ... precluded by Officer Baughman’s belief that his legal justification for opening the gym bag was a protective search for weapons.”); Marbury v. United States, 540 A.2d 114, 115 (D.C.App.1985) (upholding traffic stop as supported by the evidence and findings by the trial court, although the arresting officer “stated that he had not pulled appellant’s car over because of a traffic violation (driving without lights); and he made no mention of the traffic violation in any police department form.”); 1 W.R. LaFave, Search and Seizure § 1.4(d) (2004).
Based on Sergeant Jocuns’s excited exclamation, on the position of the vehicles when the SUV “almost” hit the police cruiser, and on Mr. Lewis’s recognition that he should stop, rather than proceed westerly on Oswego, the suppression court could conclude that there was justification for the traffic stop. In the language of TR § 21-901.1(b), the suppression court could find that Mr. Lewis had driven the SUV “in a careless or imprudent manner that endanger[ed]” property.
I find it unfortunate that the theme, recurring throughout the majority opinion, is that the subject occurrence was merely an “almost” accident. This case will be cited for the proposition that there can be no traffic stop for violating the prohibition against negligent driving, unless there has been a collision. TR § 21-901.1(b) makes plain that the negligent driving need merely endanger person or property. There is no requirement for impact.
Particularly unfortunate, in my opinion, is the majority’s reinforcement of its position by finding the police officers’ testimony in this case too subjective to satisfy Fourth Amendment jurisprudence. The factual premise of the argument is *378that the lack of any illegal activity is “evident.” Opinion at 368-69, 920 A.2d at 1091. I have discussed this, above. In the majority’s view, to allow a traffic stop based on an officer’s belief that there has “almost” been a collision “practically destroys the objective basis of the reasonable suspicion requirement.” Opinion at 368-69, 920 A.2d at 1091. There are, of course, rules of the road that similarly could be criticized as being subjective. For example, a motorist may violate a speed restriction when traveling below the posted speed limit. See TR § 21-801(a) (“A person may not drive a vehicle on a highway at a speed that, with regard to the actual and potential dangers existing, is more than that which is reasonable and prudent under the conditions.”). See also TR § 21-310(a) (“The driver of a motor vehicle may not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the other vehicle and of the traffic on and the condition of the highway.”). These are the kinds of violations that can lead to the apprehension of motorists driving under the influence of alcohol or drugs.
For the foregoing reasons, I dissent.
Judges RAKER and HARRELL authorize me to state that they join in this dissenting opinion.
. It is immaterial whether Mr. Lewis, to avoid the collision, either suddenly applied his brakes and stopped just short of the rear of the cruiser or whether he swerved at the last split-second and stopped with some part of the SUV beyond the rear of the cruiser. The point is that Mr. Lewis’s driving was such that it provoked an excited utterance from Sergeant Jocuns.