                                                COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Beales and Huff
UNPUBLISHED


              Argued at Chesapeake, Virginia


              TRACY BRIAN SHAW
                                                                                  MEMORANDUM OPINION* BY
              v.        Record No. 0002-13-1                                         JUDGE GLEN A. HUFF
                                                                                      DECEMBER 17, 2013
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                                William R. O’Brien, Judge

                                  Melinda R. Glaubke (Slipow, Robusto & Kellam, P.C., on briefs),
                                  for appellant.

                                  Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T.
                                  Cuccinelli, II, Attorney General, on brief) for appellee.


                        Tracy Brian Shaw (“appellant”) appeals his conviction1 of possession with intent to

              distribute a Schedule I or II substance, in violation of Code § 18.2-248. At a bench trial in the

              Circuit Court for the City of Virginia Beach (“trial court”), appellant entered a conditional guilty

              plea pursuant to Code § 19.2-254 and was sentenced to two years in the Virginia Department of

              Corrections. On appeal, appellant contends that the trial court erred in finding that the officer

              had a reasonable, articulable suspicion that criminal activity was afoot and in denying

              defendant’s motion to suppress evidence.

                        For the following reasons, this Court affirms the appellant’s conviction.




                        *
                            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                        1
                            Appellant also pled guilty to a misdemeanor habitual offender charge, but that is not on
              appeal.
                                       I. BACKGROUND

       On appeal, “‘we consider the evidence and all reasonable inferences flowing from that

evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”

Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)

(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows.

       On May 16, 2011, Virginia Beach Police Officer Brian Slomeana (“Slomeana”) was on a

routine patrol when he observed appellant driving a scooter on a public road. Slomeana noticed

appellant was wearing a “shiny low-profile helmet,” which is sometimes “call[ed] . . . a skull

cap.” Upon further observation, Slomeana believed appellant was wearing a “novelty helmet”

because “it kind of hug[ged] the head” and “didn’t have a sticker on the back.”

       Based on his “training and experience,” Slomeana initiated a traffic stop because he

believed appellant’s helmet “was not approved by the Department of Transportation.” Slomeana

testified that a Department of Transportation (“DOT”) approved helmet “usually has a sticker in

the rear in the center that says DOT.” Moreover, Slomeana testified that proper helmets are

normally thicker and “not as low-profile to the skull. It’s kind of out a little more. More

padding between the outer helmet and the skull.” Upon examination, Slomeana discovered a

label on the helmet that read, “WARNING/Novelty helmet not for use . . . On road or Off road

motor vehicle!”

       During the traffic stop, Slomeana also discovered that appellant was driving while a

habitual offender and possessed a quantity of cocaine. Appellant moved to suppress the

evidence obtained as a result of the traffic stop, asserting Slomeana did not have a reasonable,

articulable suspicion to stop him.




                                               -2-
       At the suppression hearing, appellant submitted a picture of a similar DOT approved

helmet. Slomeana testified that the picture looked similar to appellant’s helmet “just based

off . . . the color and shape” but could not determine whether it was a “proper helmet . . . without

seeing it on someone’s head or in his hands.”

       The trial court denied the motion to suppress and stated:

               The officer testified that he believed the helmet worn by Defendant
               at the time of arrest to be illegal and not of the type approved
               by . . . Code § 46.2-910. This statute applies to motorcycles and to
               mopeds being driven in excess of 35 mph, while . . . Code
               § 46.2-915.2 applies to mopeds. Due to the technical distinctions
               between mopeds and motorcycles provided for in . . . Code
               § 46.2-100, the officer may not have known for certain the type of
               vehicle the Defendant was operating until the stop was executed.
               Therefore, if the officer erred in stopping Defendant for wearing an
               illegal helmet while operating a motorcycle when in reality
               Defendant was operating a moped, this was a reasonable mistake
               of fact.

               Under the totality of the circumstances, the officer had an objective
               and particularized basis for suspecting that Defendant was
               violating the helmet law provided for in . . . Code § 46.2-910. The
               officer articulated at the hearing that the appearance of the helmet
               combined with the officer’s training and experience led him to
               believe that it was not a legal helmet. Therefore, the officer’s
               investigatory stop did not violate the Fourth Amendment.

       Subsequently, the trial court denied appellant’s motion to reconsider the motion to

suppress in light of Bennett v. Commonwealth, 60 Va. App. 656, 731 S.E.2d 40 (2012). The

trial court distinguished Bennett from the matter at hand by noting Bennett concerned a

challenge to the sufficiency of evidence to prove a violation of Code § 46.2-910, while the

instant case concerned “merely whether [Slomeana] had a ‘reasonable, articulable suspicion that

criminal activity [was] afoot.’ Bass v. Commonwealth, 259 Va. 470, 475-75, 525 S.E.2d 921,

921 (2000).” This appeal followed.




                                                -3-
                                         II. ANALYSIS

       On appeal, appellant contends that the trial court erred in finding that Slomeana had a

reasonable, articulable suspicion that criminal activity was afoot and therefore erred in denying

defendant’s motion to suppress evidence. Specifically, appellant argues Slomeana’s reasons for

stopping him were insufficient. The Commonwealth asserts, however, the evidence supports the

trial court’s conclusion that Slomeana had reasonable suspicion to stop appellant under the

totality of the circumstances.

                                     A. Standard of Review

       On appeal, “we determine whether the evidence, viewed in the light most favorable to the

prevailing party, the Commonwealth, and the reasonable inferences fairly deducible from that

evidence support each and every element of the charged offense.” Haskins v. Commonwealth,

31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 (1999).

       “On appeal, we consider the entire record in determining whether the trial court properly

[ruled on] appellant’s motion to suppress.” Patterson v. Commonwealth, 17 Va. App. 644, 648,

440 S.E.2d 412, 415 (1994) (citing DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d

540, 543 (1987)). A question of whether “‘evidence was seized in violation of the Fourth

Amendment presents a mixed question of law and fact that we review de novo on appeal.’”

Brooks v. Commonwealth, 282 Va. 90, 94, 712 S.E.2d 464, 466 (2011) (quoting Jones v.

Commonwealth, 277 Va. 171, 177, 670 S.E.2d 727, 731 (2009)).

                                    B. Reasonable Suspicion

       On appeal, appellant argues that the trial court erred in finding that Slomeana had a

reasonable, articulable suspicion that criminal activity was afoot and in denying defendant’s

motion to suppress evidence. Specifically, appellant argues that Slomeana’s belief that

appellant’s helmet did not meet DOT standards, the helmet did not appear to fit appellant’s head

                                               -4-
properly, and the helmet appeared to be a novelty helmet do not meet the requisite reasonable

suspicion standard.

       “While an arrest requires probable cause, a mere investigatory stop requires only a

‘reasonable suspicion’ that unlawful activity ‘may be afoot.’” Shifflett v. Commonwealth, 58

Va. App. 732, 735, 716 S.E.2d 132, 134 (2011) (quoting United States v. Arvizu, 534 U.S. 266,

273 (2002)). A reasonable suspicion is more than an “unparticularized suspicion or ‘hunch.’”

Terry v. Ohio, 392 U.S. 1, 27 (1968). “This degree of certitude required is ‘considerably less

than . . . a preponderance of the evidence, and obviously less demanding than that for probable

cause.’” Shifflett, 58 Va. App. at 736, 716 S.E.2d at 134 (quoting Perry v. Commonwealth, 280

Va. 572, 581, 701 S.E.2d 431, 436 (2010) (emphasis added)). Additionally, reasonable suspicion

“requires at least a minimal level of objective justification for making the stop.” Bass, 259 Va. at

475, 525 S.E.2d at 923 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).

       “There is no ‘litmus test’ for reasonable suspicion. Each instance of police conduct must

be judged for reasonableness in light of the particular circumstances.” Harmon v.

Commonwealth, 15 Va. App. 440, 445, 425 S.E.2d 77, 79 (1992) (quotation marks and citations

omitted). On the other hand, “[t]he court must consider the totality of the circumstances in

determining whether a police officer had a particularized and objective basis for suspecting that a

person stopped may be involved in criminal activity.” Bass, 259 Va. at 475, 525 S.E.2d at 924

(citing United States v. Cortez, 449 U.S. 411, 417-18 (1981)). Specifically, the totality of the

circumstances must be viewed “objectively through the eyes of a reasonable police officer with

the knowledge, training and experience of the investigating officer.” Jones v. Commonwealth,

52 Va. App. 548, 560, 665 S.E.2d 261, 267 (2008).

       Lastly, “reasonableness is judged from the perspective of a reasonable officer on the

scene allowing for the need of split-second decisions and without regard to the officer’s intent or

                                               -5-
motivation.” Scott v. Commonwealth, 20 Va. App. 725, 727, 460 S.E.2d 610, 612 (1995)

(citations omitted). Therefore, “[i]f the detention was objectively reasonable, the Fourth

Amendment authorizes the action, ‘whatever the subjective intent’ motivating the officer.”

Shifflett, 58 Va. App. at 736 n.2, 716 S.E.2d at 135 n.2.

       Appellant argues that he did not violate any traffic law because Code § 46.2-9102 does

not require persons on motorcycles to wear a DOT approved helmet and is not applicable to

mopeds. The issue in this matter, however, is not whether appellant violated any traffic law but

whether Slomeana had reasonable suspicion in stopping appellant. Therefore, the proper inquiry

is whether Slomeana had a reasonable, articulable suspicion under the totality of the

circumstances.

       In the case at hand, Slomeana testified that “through his experience and training,” he

believed the helmet was not approved by DOT. He also stated that the appellant wore a “shiny

low-profile” helmet, known as a “skull cap,” which he recognized from his experience. Lastly,

Slomeana testified that he believed appellant was actually wearing a novelty helmet because of

the way it hugged his head and did not have a sticker on the back. These facts alone suggest

Slomeana had a “particularized and objective basis” for stopping appellant. Moreover, Slomeana



       2
           The Code in relevant part states:

                 [e]very person operating a motorcycle shall wear a face shield,
                 safety glasses or goggles, or have his motorcycle equipped with
                 safety glass or windshield at all times while operating the vehicle,
                 and operators and any passengers thereon shall wear protective
                 helmets . . . . The windshields, face shields, glasses or goggles,
                 and protective helmets required by this section shall meet or
                 exceed the standards and specifications of the Snell, Memorial
                 Foundation, the American National Standards Institute, Inc., or the
                 federal Department of Transportation.

Code § 46.2-910(A).

                                                 -6-
based his suspicion on his “training and experience” as a police officer in the City of Virginia

Beach.

         Appellant argues that because Code § 46.2-910 does not require motorcycle helmets to be

approved by DOT3 and marked or labeled in accordance with any safety standard, Slomeana

could not have had a reasonable suspicion that appellant was violating the law. Appellant relies

on Bass, 259 Va. at 477, 525 S.E.2d at 925, wherein the Supreme Court found that the

defendant’s driving maneuvers did not constitute a violation of the Code and, therefore, could

not rise to reasonable suspicion. In Bass, the Court rejected the Commonwealth’s argument that

even if defendant did not violate the Code, his actions were sufficient to give rise to the officer’s

reasonable suspicion. Id.

         In this matter, however, the absence of the DOT sticker was merely one of multiple

factors that Slomeana considered based on his training and experience to determine that the

helmet violated the Code. Furthermore, unlike the defendant in Bass, appellant was in violation

of the Code because he was using a novelty helmet. Moreover, Slomeana’s awareness of the

Snell Memorial Foundation (“Snell”) and American National Standards Institute, Inc. (“ANSII”)

standards are irrelevant to the analysis in this matter.4 The reasonable suspicion analysis focuses

on the officer’s objective intent, therefore, Slomeana’s reasoning, supported by his training and

experience, that appellant’s helmet did not appear to comply with DOT standards is sufficient.



         3
         Under Code § 46.2-910, helmets “shall meet or exceed the standards and specifications
of the Snell Memorial Foundation, the American National Standards Institute, Inc., or the federal
Department of Transportation.” (Emphasis added)
         4
          Appellant also relies on expert testimony referenced in the Bennett opinion discussing
the Snell and ANSII standards. 60 Va. App. at 664, 731 S.E.2d at 44. Appellant appears to rely
on these experts to suggest that Slomeana could not have determined whether the helmet met the
standards by merely looking at the helmet from a distance. These experts, however, did not
testify in the current matter and in any event would not change the objective observations made
by Slomeana which provided the basis for the traffic stop.
                                                -7-
       Lastly, appellant relies on Commonwealth v. Snyder, No. 0234-07-2, 2007 Va. App.

LEXIS 307 (Va. Ct. App. Aug. 14, 2007), in arguing that Slomeana had a mistaken

understanding of law that could not give rise to reasonable suspicion. In Snyder, a police officer

stopped defendant for a broken passenger’s side mirror, which the officer mistakenly believed to

be a violation of Code § 46.2-1003. In upholding the trial court’s ruling for the defendant, this

Court held “‘a belief based on a mistaken understanding of law cannot constitute the reasonable

suspicion required for a constitutional traffic stop.’” Id. at *14 (quoting United States v. Twilley,

222 F.3d 1092, 1096 (9th Cir. 2000)).

       This Court’s ruling in Snyder, however, is distinguishable from the matter at hand. In

this case, a helmet that does not comply with DOT, Snell, or ANSII standards is a violation of

Code § 46.2-910. Furthermore, appellant was charged in violation of Code § 46.2-910, after

Slomeana inspected the helmet. Moreover, the missing DOT sticker was merely one of multiple

circumstances that aroused Slomeana’s suspicion. For example, the shape of the helmet, the lack

of padding, and the way it hugged appellant’s head all contributed to Slomeana’s suspicion that

appellant had violated the Code. All of these circumstances provided Slomeana with a

“particularized and objective basis” for suspecting appellant had violated Code § 46.2-910.

Therefore, appellant’s arguments fail.

                                         III. CONCLUSION

       Based on the foregoing, this Court finds that the trial court did not err in holding that

Slomeana had a reasonable, articulable suspicion that criminal activity was afoot and therefore

the trial court did not err in denying defendant’s motion to suppress evidence. Accordingly, the

trial court’s judgment is affirmed.

                                                                                           Affirmed.




                                                -8-
