Commonwealth v Jonathan Lamont Spencer

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Coleman and Fitzpatrick
COMMONWEALTH OF VIRGINIA
v. 	Record No. 1065-95-2 	OPINION BY
JUDGE JOHANNA L. FITZPATRICK
JONATHAN LAMONT SPENCER 	OCTOBER 16, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Robert B. Beasley, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellant.
John W. Ferrell (White, Blackburn & Conte,
P.C., on brief), for appellee.
Jonathan Lamont Spencer (appellee) was indicted for
possession of a firearm while possessing cocaine and for
possession of cocaine with intent to distribute in violation of
Code §§ 18.2-308.4 and 18.2-248, respectively. 	Appellee filed a
motion to suppress the gun and the cocaine on the ground that the
police officers did not have a reasonable and articulable
suspicion sufficient to stop the vehicle in which appellee was a
passenger. 	The trial court granted the suppression motion, and
the Commonwealth appeals that ruling pursuant to Code
§ 19.2-398(2).1 On appeal, the Commonwealth argues that the
1Code § 19.2-398 provides, in pertinent part, as follows:
A petition for appeal from a circuit court
may be taken by the Commonwealth only in
felony cases . . . from . . . (2) [a]n order
of a circuit court prohibiting the use of
certain evidence at trial on the grounds such
evidence was obtained in violation of the
provisions of the Fourth, Fifth or Sixth
Amendments to the Constitution of the United

2
officers had a reasonable and articulable suspicion to stop the
vehicle because, although it had Virginia tags, it displayed no
Richmond city decal while in the city. 	We agree with appellee
and affirm the trial court's ruling.
On October 25, 1994, at approximately 9:00 p.m., Officer
Broadnax of the Richmond City Police Department and Trooper Perry
of the Virginia State Police were on patrol in Richmond. 	The
officers saw a vehicle with Virginia license plates and a
Virginia inspection sticker, but no city or county decal. 	The
officers followed the car a short distance but did not signal the
car to stop. 	The car pulled over to the side of the road and
stopped before the officers could complete a license and
registration check to determine the locality in which the vehicle
was registered. 	Officer Broadnax parked behind the car and
activated his signal lights.
Officer Broadnax approached the driver's side of the vehicle
and asked the driver for his license and registration, while
Trooper Perry walked to the passenger's side. 	Four people were
in the car, including appellee, who was in the front passenger
seat. 	At that moment, Trooper Perry saw a partially visible gun
in appellee's front jacket pocket. 	Trooper Perry arrested
appellee for carrying a concealed weapon, and, in a search
incident to the arrest, found cocaine on appellee.
States or Article I, Sections 8, 10 or 11 of
the Constitution of Virginia.

3
Appellee filed a pretrial motion to suppress. 	At the
suppression hearing, appellee argued that the stop was invalid
because the officers had no reasonable and articulable suspicion
that the vehicle or its occupants were violating any law. 	The
Commonwealth contended that the officers possessed a reasonable
and articulable suspicion that the vehicle was violating the law
because the officers saw the vehicle being driven in the City of
Richmond, which requires city decals. 	The trial court granted
the suppression motion and stated as follows:
[This is] a situation where you've got
automobiles all over the state. 	Some have
decals; some don't. 	It's something that is
easily resolved by the officer calling in and
finding out what the registration is. 	He
didn't do that here. . . . I think they've
got to find that out before they . . . make a
stop.
Upon appeal from a trial court's ruling on a motion to
suppress, we must view the evidence in the light most favorable
to the prevailing party, in this instance appellee, granting to
him all reasonable inferences fairly deducible from the evidence.
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991). 	"'When the police stop a motor vehicle and detain
an occupant, this constitutes a seizure of the person for Fourth
Amendment purposes, even though the function of the stop is
limited and the detention brief.'" 	Logan v. Commonwealth, 19 Va.
App. 437, 441, 452 S.E.2d 364, 367 (1994) (en banc) (quoting
Zimmerman v. Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709
(1988)). 	A police officer may conduct an investigatory stop of a

4
vehicle when he or she has an "articulable and reasonable
suspicion that a motorist is unlicensed or that an automobile is
not registered, or that either the vehicle or an occupant is
otherwise subject to seizure for violation of law." 	Delaware v.
Prouse, 440 U.S. 648, 663 (1979). 	"There are no bright line
rules to follow when determining whether a reasonable and
articulable suspicion exists to justify an investigatory stop.
Instead, the courts must consider 'the totality of the
circumstances--the whole picture.'" 	Hoye v. Commonwealth, 18 Va.
App. 132, 135, 442 S.E.2d 404, 406 (1994) (quoting United States
v. Sokolow, 490 U.S. 1, 8 (1989)).
Under the circumstances in this case, the trial court did
not err in finding that the officers lacked reasonable and
articulable suspicion for stopping the vehicle in which appellee
was a passenger. 	The record established that the officers knew
that other cities and counties in the state do not require
decals. 	Until the officers confirmed where the vehicle was
registered, no specific and objective facts indicated that
appellee's vehicle was violating a local ordinance requiring a
city or county decal. 	Although the City of Richmond requires
decals and the car was being driven in Richmond, the lack of a
city or county decal, without more, was insufficient to justify
this stop of the vehicle.2
2In reaching this holding, we do not address the
constitutionality of a vehicle checkpoint where the police stop
every vehicle to check for city or county decals.

5
The same rationale used to prohibit random spot checks in
Prouse is applicable here. 	In Prouse, the Supreme Court reasoned
that "[t]he marginal contribution to roadway safety possibly
resulting from a system of spot checks cannot justify subjecting
every occupant of every vehicle on the roads to a seizure--
limited in magnitude compared to other intrusions but nonetheless
constitutionally cognizable--at the unbridled discretion of law
enforcement officials." 	440 U.S. at 661. 	Likewise, the benefit
gained from stopping individual vehicles without decals is
marginal when compared to the constitutional rights of drivers
and their passengers who are seized.
Accordingly, we affirm the decision of the trial court.
Affirmed.