Neal v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Coleman and
Senior Judge Duff
Argued at Alexandria, Virginia

JOHN LESLIE NEAL
OPINION BY
v. Record No. 0694-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 28, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
Dennis L. Hupp, Judge
Elwood Earl Sanders, Jr., Director Capital/
Appellate Services (Jay K. Wilk; Public
Defender Commission, on briefs), for
appellant.

Marla Graff Decker, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.

John Leslie Neal (appellant) was convicted in a jury trial

of operating a motor vehicle after having been declared an

habitual offender in violation of Code § 46.2-357(B)(3) and

operating a motor vehicle while intoxicated in violation of Code

§ 18.2-266. On appeal, he contends the trial court erred in

admitting evidence obtained as a result of an unreasonable

investigatory stop. We disagree and affirm the convictions.

I.

"'On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'" Juares v. Commonwealth,

26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997) (citation

omitted). On May 9, 1996, around 7:20 p.m., Trooper Jonathan D.
Fainter was on patrol in Shenandoah County when he received a

call to "be on the lookout" for a "reckless" driver southbound on

Interstate 81. Fainter was in the area and proceeded south. He

saw the vehicle and got "close enough" to observe it for

approximately one-half mile, which he estimated took

approximately twenty-five seconds. During this time, the car was

traveling at sixty-five miles per hour in the right lane of two

southbound traffic lanes and "[t]he vehicle, numerous times,

would weave to the center of the highway, then back to the right,

just constantly moving from side to side in its lane." Over

"that half-mile distance, it kept sort of weaving inside of his

lane," between five and ten times. The car crossed into the left

southbound lane and it "touched, just touched the line" on the

right side of the lane. After approximately twenty-five seconds

of observation, Fainter, who had been involved in eighteen DUI

arrests in 1996, stopped the car to investigate because he was

"concerned" about the erratic driving. Appellant, the driver of

the car, could not produce his driver's license or registration.

Fainter smelled the odor of alcohol coming from the vehicle, and

he asked appellant to step out of the car. When asked, appellant

admitted, "Yes, we've been drinking."
During the investigative stop, appellant was unsteady on his

feet and had to use the car to balance himself as he accompanied

Fainter to the patrol car. Additionally, appellant had bloodshot

eyes, smelled of alcohol, and slurred his speech. Appellant

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voluntarily submitted to a blood alcohol test and was arrested

for driving under the influence of alcohol. He was subsequently

charged with driving after having been declared an habitual

offender.

Appellant did not file a pretrial motion to suppress the

evidence alleged to have been illegally obtained as a result of

the investigatory stop. 1 At trial, after the Commonwealth

rested, appellant moved to strike Fainter's testimony on the

ground the Commonwealth failed to prove the trooper had "probable
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cause" to stop appellant's car. The trial court denied the

motion, finding that the combination of the "be on the lookout"

warning and the observed weaving "would have given rise to a

stop."

II.

Appellant contends Trooper Fainter lacked reasonable,

articulable suspicion necessary to stop the vehicle. We disagree

and hold that repeated weaving within a lane provides sufficient

reasonable and articulable suspicion to justify an investigatory

1
The Commonwealth contends appellant's failure to address the
reasonableness of the stop in a pretrial motion to suppress
deprived the Commonwealth of its right to a pretrial appeal under
Code § 19.2-398. The question is moot as the trial court decided
the motion in the Commonwealth's favor, rendering an appeal
unnecessary.
2
Although appellant's motion to strike incorrectly held the
Commonwealth to the standard of probable cause for the stop,
rather than the lesser standard of reasonable and articulable
suspicion, this error was harmless as the greater burden clearly
encompassed the lesser.

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stop.

"'Ultimate questions of reasonable suspicion and probable

cause' . . . involve questions of both law and fact and are

reviewed de novo on appeal." McGee v. Commonwealth, 25 Va. App.

193, 197, 487 S.E.2d 259, 261 (1997) (quoting Ornelas v. United

States, 517 U.S. 690, ___, 116 S. Ct. 1657, 1659 (1996)). This

Court is "bound by the trial court's findings of historical fact

unless 'plainly wrong' or without evidence to support them and we

give due weight to the inferences drawn from those facts by

resident judges and local law enforcement officers." McGee, 25

Va. App. at 198, 487 S.E.2d at 261.

"'[W]hen the police stop a motor vehicle and detain an

occupant, this constitutes a seizure of the person for Fourth

Amendment purposes.'" Logan v. Commonwealth, 19 Va. App. 437,

441, 452 S.E.2d 364, 367 (1994) (quoting Zimmerman v.

Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709 (1988)). "In

order to justify an investigatory stop of a vehicle, the officer

must have some reasonable, articulable suspicion that the vehicle

or its occupants are involved in, or have recently been involved

in, some form of criminal activity." Logan, 19 Va. App. at 441,

452 S.E.2d at 367. "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." Freeman v.
Commonwealth, 20 Va. App. 658, 661, 460 S.E.2d 261, 262 (1995)

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(citing 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.'" Freeman, 20 Va. App. at 661, 460

S.E.2d at 262 (quoting Taylor v. Commonwealth, 6 Va. App. 384,

388, 369 S.E.2d 423, 425 (1988)).

We have held that weaving within a lane, in combination with

unusually slow speed, may create a reasonable and articulable

suspicion of illegal activity justifying an investigatory stop.
See Freeman, 20 Va. App. 658, 460 S.E.2d 261. However, the

question of whether weaving within a lane, without more, may

support an investigatory stop is an issue of first impression in

Virginia.

In Freeman, we acknowledged that
[o]ther jurisdictions have considered whether
similar 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.

20 Va. App. at 661, 460 S.E.2d at 262 (emphasis added). Several

of these jurisdictions have held that weaving within a single

traffic lane, without more, is sufficient to justify an

investigatory stop. See People v. Diaz, 617 N.E.2d 848, 851

(Ill. App. Ct. 1993) ("[T]he officer's own observation of

defendant's erratic driving provided a sufficient basis for the

stop. This is true regardless of whether defendant crossed the

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white line or stayed within the same lane, since weaving within a

lane is sufficient grounds for a stop."); People v. Loucks, 481

N.E.2d 1086, 1087 (Ill. App. Ct. 1985) ("[w]eaving [continuously

for two blocks] within the lane of traffic in which a vehicle is

traveling provides a sufficient basis for an investigatory stop

of a motor vehicle"); State v. Malaney, 871 S.W.2d 634 (Mo. Ct.

App. 1994) (investigatory stop was reasonable where the officer

observed a vehicle weaving within its lane three times over a

distance of one mile); State v. Watson, 472 S.E.2d 28, 30 (N.C.
Ct. App. 1996) (officer who observed defendant's vehicle "weaving

back and forth within his lane for 15 seconds" on a road near a

nightclub had a reasonable suspicion of illegal activity); State

v. Gedeon, 611 N.E.2d 972, 973 (Ohio Ct. App. 1992) ("weaving

within one's lane alone presents a sufficient scenario for an

officer to conduct an investigatory stop"). But see New Lebanon

v. Blankenship, 65 Ohio Misc.2d 1, 640 N.E.2d 271 (1993) (weaving

on a road without a center line marking the lanes was

insufficient to justify an investigatory stop).

We agree with our sister states that weaving within a single

traffic lane is an articulable fact which may give rise to a

reasonable suspicion of illegal activity. An isolated instance

of mild weaving within a lane is not sufficiently erratic to

justify an investigatory stop. Cf. United States v. Gregory, 79

F.3d 973 (10th Cir. 1996) (investigatory stop not justified when

a truck crossed once onto the right shoulder of a winding

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mountain road on a windy day). The test is one of reasonableness

under "the totality of the circumstances." Freeman, 20 Va. App.

at 661, 460 S.E.2d at 262.

In the instant case, the officer observed appellant's

vehicle for twenty-five seconds weaving repeatedly within its

lane between five and ten times over a distance of a half-mile.

Trooper Fainter had experience with intoxicated drivers, and in

light of that experience, he suspected that the erratic driver

was either inattentive or impaired. Under these circumstances,

we hold that repeated weaving in one's own lane gave the officer

reasonable and articulable suspicion to stop the vehicle and
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investigate further. Consequently, we affirm the convictions.

Affirmed.

3
Additionally, appellant claims Fainter's testimony
established no specific training or experience regarding
intoxicated drivers. See Helms v. Commonwealth, 10 Va. App. 368,
392 S.E.2d 496 (1990). Appellant's contention lacks merit. The
record provided uncontested evidence of the officer's experience
with intoxicated drivers. Furthermore, the record established
that Fainter's basis for the stop was to investigate erratic
driving behavior, which clearly could encompass more than
intoxication.

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