                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and Powell
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                                MEMORANDUM OPINION * BY
v.      Record No. 2759-09-1                                     JUDGE ROBERT P. FRANK
                                                                      MAY 4, 2010
JOHN M. DALEY


                FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                 Stephen C. Mahan, Judge

                  Craig W. Stallard, Assistant Attorney General (Kenneth T.
                  Cuccinelli, II, Attorney General, on brief), for appellant.

                  Melinda R. Glaubke (Larry B. Slipow; Slipow, Robusto & Kellam,
                  P.C., on brief), for appellee.


        The Commonwealth, pursuant to Code § 19.2-398, appeals a pretrial order granting the

motion of John M. Daley, defendant/appellee, to suppress evidence obtained during a traffic stop.

The Commonwealth contends the trial court erred in concluding that the officer had no reasonable

suspicion to effect a traffic stop. For the reasons stated, we agree and reverse the trial court.

                                           BACKGROUND

        On May 2, 2009, Officer D.C. Meeks, of the Virginia Beach Police Department, received a

radio broadcast that the driver of a particular vehicle was intoxicated. The officer observed a

vehicle matching that description being driven by defendant, but noticed no erratic driving. As he

followed that vehicle, Officer Meeks observed a crack in the windshield that spanned approximately

two feet “from the driver’s side near the steering wheel . . . past the center rear view mirror,”

approximately four inches above the dash. Officer Meeks indicated at the suppression hearing that

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
he would have stopped the vehicle for the cracked windshield even if he had not gotten the radio

dispatch. Officer Meeks testified, “I do make traffic stops for vehicles with defective equipment

such as cracked windshields, and this was a large crack.”

       After initiating a traffic stop, Meeks advised defendant he had been stopped because of the

cracked windshield. When asked for his operator’s license, defendant told Officer Meeks his

license was suspended. Ultimately, defendant was arrested for felony driving after having been

declared an habitual offender and felony driving while suspended.

       Meeks, on cross-examination, admitted that he used the cracked windshield to investigate

the intoxicated driver complaint. The parties stipulated that the cracked windshield would pass state

inspection.

       After the presentation of evidence and argument of counsel, the court granted defendant’s

motion to suppress, finding that Officer Meeks had no reasonable suspicion to effect a traffic stop

based on the cracked windshield. The court concluded:

               [T]he court’s ruling is based upon the failure of the officer ever to
               articulate why the officer believed it was reasonable under the
               circumstances to stop a vehicle with a cracked windshield. He did
               it. There’s no question he did it. And he said he would do it for
               any other vehicle in the same condition, but he never told us why.
               He never told us what he reasonably believed that the condition of
               such a windshield constituted in terms of a violation of any law of
               the Commonwealth of Virginia or the City of Virginia Beach.
               Never told us that. Never purported to tell us that. And as I said,
               your articulation of a reason, Ms. [prosecutor], is not unreasonable;
               but it is conjecture or speculation. It may well have been what he
               had in mind, but to reach that conclusion I have to guess since he
               didn’t tell us. And since there was no other evidence presented
               from which I reasonably can infer what he had in his mind, it
               would be a pure guess that that’s why he did it.

       This appeal follows.




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                                            ANALYSIS

       The Commonwealth argues the trial court erred in finding the officer did not have

reasonable suspicion to stop defendant’s vehicle for defective equipment. We agree.

       “On appeal from a denial of a suppression motion, we must review the evidence in the

light most favorable to the [prevailing party] giving it the benefit of any reasonable inferences.”

Slayton v. Commonwealth, 41 Va. App. 101, 103, 582 S.E.2d 448, 449 (2003).

               An appellant’s claim that evidence was seized in violation of the
               Fourth Amendment “presents a mixed question of law and fact that
               we review de novo on appeal. In making such a determination, we
               give deference to the factual findings of the trial court and
               independently determine whether the manner in which the
               evidence was obtained [violated] the Fourth Amendment.”

Wilson v. Commonwealth, 45 Va. App. 193, 202-03, 609 S.E.2d 612, 616 (2005) (alteration in

original) (quoting Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002)).

On appeal, “we defer to the trial court’s findings of ‘historical fact’ and give ‘due weight to the

inferences drawn from those facts by resident judges and local law enforcement officers.’”

Barkley v. Commonwealth, 39 Va. App. 682, 690, 576 S.E.2d 234, 238 (2003) (quoting Davis v.

Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374, 378 (2002)).

       In stopping defendant, Officer Meeks effected a seizure for Fourth Amendment purposes.

For a lawful stop commonly referred to as a “Terry stop,” a police officer must have “reasonable

suspicion supported by articulable facts that criminal activity ‘may be afoot.”’ Shiflett v.

Commonwealth, 47 Va. App. 141, 146, 622 S.E.2d 758, 760 (2005) (quoting United States v.

Sokolow, 490 U.S. 1, 7 (1989)). “‘Actual proof that criminal activity is afoot is not necessary.’”

Id. (quoting Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d 77, 79 (1992)). A

reasonable suspicion justifying an investigatory stop is “something more than an inchoate and

unparticularized suspicion or ‘hunch’ of criminal activity,” but “something less than probable

cause.” Jackson v. Commonwealth, 267 Va. 666, 673, 594 S.E.2d 595, 598 (2004) (quoting
                                                -3-
Terry v. Ohio, 392 U.S. 1, 27 (1968)) (some internal quotation marks and other citations

omitted). If a police officer is so justified in stopping a suspect, “the officer may detain the

suspect to conduct a brief investigation without violating the person’s Fourth Amendment

protection against unreasonable searches and seizures.” McGee v. Commonwealth, 25 Va. App.

193, 202, 487 S.E.2d 259, 263 (1997) (en banc). In determining whether such justification for an

investigatory stop has been established, “the courts must consider the totality of the

circumstances – the whole picture.” Shiflett, 47 Va. App. at 146, 622 S.E.2d at 761 (citations

and internal quotation marks omitted).

       An officer may stop a vehicle when he observes an equipment violation. McCain v.

Commonwealth, 275 Va. 546, 553, 659 S.E.2d 512, 516 (2008). Here, Officer Meeks observed

defendant driving a vehicle with what he characterized as a “large crack” in the windshield. The

crack measured approximately two feet in length, “from the driver’s side near the steering wheel

. . . past the center rear view mirror . . . .” Meeks further indicated he makes traffic stops for

defective equipment such as cracked windshields. Further, Code § 46.2-1003 proscribes the use

of a motor vehicle with defective equipment or equipment in an unsafe condition. 1

       Essential to the trial court’s granting the motion to suppress was its conclusion that the

officer never articulated why he believed the crack was a violation of the law. However, the

officer’s subjective reasons for the stop are irrelevant. Whether or not he articulated to the trial

court that he believed the cracked windshield was a traffic violation is also not required under

Terry and its progeny.

       We examine the objective reasonableness of the officer’s behavior. Terry, 392 U.S. at

21-22. “[A]n officer’s subjective characterization of observed conduct is not relevant to a


       1
        Defendant does not contest that a defective windshield, as opposed to simply a cracked
windshield, is a traffic violation.

                                                 -4-
court’s analysis concerning whether there is a reasonable suspicion because the [c]ourt’s review

of whether there was reasonable suspicion involves application of an objective rather than a

subjective standard.” Harris v. Commonwealth, 276 Va. 689, 697, 668 S.E.2d 141, 146 (2008).

       In determining whether a police officer had a reasonable suspicion to justify the seizure, a

reviewing court must consider the totality of the circumstances and view those facts “objectively

through the eyes of a reasonable police officer with the knowledge, training and experience of

the investigating officer.” Murphy v. Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128

(1989). This evaluation is based on “‘an objective assessment of the officer’s actions in light of

the facts and circumstances confronting [them] at the time,’ and not on the officer’s actual state

of mind at the time the challenged action was taken.” Maryland v. Macon, 472 U.S. 463, 470-71

(1985) (quoting Scott v. United States, 436 U.S. 128, 138 (1978)).

       Applying these standards, we conclude that a cracked windshield, approximately two feet

long, from the driver’s side near the steering wheel past the center rearview mirror, provides an

officer with reasonable suspicion to conduct a traffic stop. The fact that the Commonwealth and

defendant stipulated at trial that the windshield would pass inspection is not dispositive of this

analysis. We do not determine whether defendant is guilty of driving a vehicle with a defective

windshield, but only whether reasonable suspicion existed to stop defendant’s vehicle for further

investigation. Based on the size and location of the crack, the officer had a right, and a duty, to

stop the vehicle in order to confirm or dispel his suspicion that the crack may render the

windshield defective or unsafe. See Code § 46.2-1003 (“It shall be unlawful for any person to

use or have as equipment on a motor vehicle operated on a highway any device or equipment . . .

which is defective or in unsafe condition.”).




                                                -5-
       Defendant supports the trial court’s decision by contending the officer’s belief of criminal

activity was premised on a mistaken belief that a broken windshield is a traffic violation. He

suggests not all cracks in windshields violate the law.

               Reasonable suspicion “need not rule out the possibility of innocent
               conduct.” [United States v. Arvizu, 534 U.S. 266, 277 (2002)]
               (citing Illinois v. Wardlow, 528 U.S. 119, 125 (2000)). “Thus,
               there may be circumstances where wholly lawful conduct might
               justify the suspicion that criminal activity ‘may be’ afoot.”
               Richards v. Commonwealth, 8 Va. App. 612, 617, 383 S.E.2d 268,
               271 (1989) (citations omitted). As one commentator has
               explained: “The possibility of an innocent explanation does not
               deprive the officer of the capacity to entertain a reasonable
               suspicion of criminal conduct. Indeed the principal function of his
               investigation is to resolve that very ambiguity and establish
               whether the activity is in fact legal or illegal – to ‘enable the police
               to quickly determine whether they should allow the suspect to go
               about his business or hold him to answer charges.’” 4 Wayne R.
               LaFave, Search and Seizure § 9.5(b), at 482 (4th ed. 2004)
               (citations and footnote omitted))

Raab v. Commonwealth, 50 Va. App. 577, 581-82, 652 S.E.2d 144, 147 (2007) (en banc).

       While a crack in a windshield may not be a traffic violation, the officer had a right to stop

defendant’s vehicle for further investigation.

       Defendant argues the trial court’s decision was correct because the stop was pretextual.

Defendant’s contention fails. Based on his observations, Meeks was justified in stopping

defendant’s vehicle to investigate the crack in the windshield, even if his subjective intent was to

investigate the drunk driving complaint. Bosworth v. Commonwealth, 7 Va. App. 567, 570, 375

S.E.2d 756, 758 (1989).

       For similar reasons, we reject defendant’s argument that Officer Meeks failed in his

testimony to identify the precise legal basis for the traffic stop. This argument rests on a

common, yet fallacious, assumption that “an articulable suspicion under Terry must be

specifically articulated by the officer from the witness stand.” Raab, 50 Va. App. at 583 n.2, 652

S.E.2d at 148 n.2. We answered this point in Raab:
                                                 -6-
              Not so. “An action is ‘reasonable’ under the Fourth Amendment,
              regardless of the individual officer’s state of mind, ‘as long as the
              circumstances, viewed objectively, justify [the] action.’” Brigham
              City v. Stuart, 547 U.S. 398, 126 S. Ct. 1943, 1948 (2006)
              (emphasis in original and citations omitted). “It is important to
              remember that ‘we are not limited to what the stopping officer says
              or to evidence of his subjective rationale; rather, we look to the
              record as a whole to determine what facts were known to the
              officer and then consider whether a reasonable officer in those
              circumstances would have been suspicious.’” United States v.
              Brown, 232 F.3d 589, 594 (7th Cir. 2000) (citation omitted).
              Consequently, the “police officer conducting a stop is not required
              to ‘precisely and individually articulate the facts that added up to
              suspicion in his mind.’” Id. (citation omitted).

Raab, 50 Va. App. at 583 n.2, 652 S.E.2d at 148 n.2.

       We conclude that the trial court erred in granting the motion to suppress. We reverse the

judgment and remand for trial on the merits.

                                                                         Reversed and remanded.




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