Freeman v. Commonwealth

65 Va.App. 407

778 S.E.2d 519

William Edward FREEMAN, Jr.

v.COMMONWEALTH of Virginia

Record No. 2302–14–4.

Court of Appeals of Virginia, Alexandria.

Nov. 17, 2015.

David A. Downes, Front Royal, for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellee.

Opinion

PETTY, Judge.

After entering a conditional guilty plea under Code § 19.2–254, William Edward Freeman, Jr. now appeals the trial court's denial of his motions to suppress evidence. The evidence was obtained after law enforcement officers stopped him on suspicion of having objects hanging from his rearview mirror that obstructed his clear view of the highway, in violation of Code § 46.2–1054.¹

Freeman argues that no reasonable suspicion existed to support the stop because the law enforcement officers did not articulate objective facts in addition to the presence of the dangling objects to support the suspicion that the objects blocked Freeman's clear view of the highway. Additionally, Freeman argues Code § 46.2–1054could not have provided the basis for reasonable suspicion because it is unconstitutionally vague. For the reasons set forth below, we affirm the conviction.

I. BACKGROUND

When reviewing the trial court's ruling denying a defendant's motion to suppress evidence, this Court considers the evidence in the light most favorable to the Commonwealth and “ ‘accord[s] the Commonwealth the benefit of all inferences fairly deducible from the evidence.’ ” Glenn v. Commonwealth,275 Va. 123, 130, 654 S.E.2d 910, 913 (2008)(quoting Riner v. Commonwealth,268 Va. 296, 303, 601 S.E.2d 555, 558 (2004)).

On March 7, 2014, three law enforcement officers from the Frederick County Sheriff's Office were conducting surveillance of Freeman in connection with a drug investigation. When Freeman left his residence and drove away, the officers followed. One of the officers, Investigator Kahle, testified they were close enough to see Freeman's face in the side view mirror. Additionally, Investigator Kahle looked through the back window of the vehicle and saw multiple objects dangling from the rearview mirror. He testified that there appeared to be two or three objects clumped together so that he could not determine a single shape. The size alone of the clumped objects caused Investigator Kahle to be concerned that the objects might impair or obstruct Freeman's view of the highway in violation of Code § 46.2–1054. The officers stopped Freeman to investigate. Investigator Kahle took photographs of the air fresheners, and copies of those photographs were introduced into evidence. The pictures reveal a cluster of several air fresheners, one of which appears to be a replica of a hand grenade, which hung from the rearview mirror down to the dashboard of the car.

Freeman made two motions to suppress the evidence. The first motion argued that there was no reasonable suspicion for the stop because the officers had no objective basis for believing a traffic infraction had occurred. Freeman argued in that motion that the trial court

must make the factual determination of the location of the object in the car and based on the observations of the police officer of the driver's height, seating position, size of the object, and topography of the highway would have caused the object to obstruct the [sic] his clear view of the highway.

Freeman subsequently made a second motion to suppress, which argued that Code § 46.2–1054is unconstitutional. He argued that the statute is void for vagueness because persons of common intelligence must necessarily guess at which objects the statute prohibits.

The trial court denied both motions. It found the officers had reasonable suspicion to stop Freeman for violation of Code § 46.2–1054. It reasoned “absolutely that this amount of material of this width ... would ‘obstruct the driver's vision in any car in America’ in which they are making a right hand turn. So it clearly falls within the clear purview of the statute as it is drafted.” The court found an additional basis for reasonable suspicion because one of the objects looked like a hand grenade, the possession of which violates Code § 18.2–85.²

Further, the court denied Freeman's “void for vagueness” argument. It reasoned that this Court has declined to address the constitutionality of the statute when this Court has reviewed cases where reasonable suspicion for a traffic stop was founded on the officer's observation of an object hanging from the rearview mirror.

Freeman then entered a conditional guilty plea.

II. ANALYSIS

Freeman now appeals on two grounds the denial of his motions to suppress. First, he argues the trial court erred by not finding the statutory language of Code § 46.2–1054unconstitutionally vague. Second, he argues the

trial court erred by finding that the police officer had reasonable articulable suspicion to stop the vehicle operated by Freeman based on air fresheners suspended from the rearview mirror without identifying any objective facts, but for the air fresheners themselves, to suspect that the objects obstructed the driver's clear view of the highway.

We address the second assignment of error first.

A. Reasonable Suspicion That Freeman Was in Violation of Code § 46.2–1054

A defendant's claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that the Court reviews de novoon appeal. Bolden v. Commonwealth,263 Va. 465, 470, 561 S.E.2d 701, 704 (2002). Specifically, “determinations of reasonable suspicion and probable cause should be reviewed de novoon appeal.” Ornelas v. United States,517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996). “In performing such analysis, we are 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 v. Commonwealth,25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997)(en banc).

“ ‘[W]hen 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)). Therefore, “[i]n order to justify an investigatory stop of a vehicle, [an] 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.” Id.

A police officer's “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.’ ” Raab v. Commonwealth,50 Va.App. 577, 583 n. 2, 652 S.E.2d 144, 148 n. 2 (2007)(alteration in original) (quoting Brigham City v. Stuart,547 U.S. 398, 404, 126 S.Ct. 1943, 1948, 164 L.Ed.2d 650 (2006)).

“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.” 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.(quoting United States v. Brown,232 F.3d 589, 594 (7th Cir.2000)).

Code § 46.2–1054prohibits, among other things, any object from being “suspended from any part of the motor vehicle in such a manner as to obstruct the driver's clear view of the highway through the windshield, the front side windows, or the rear window.” By statute, a highway includes “the entire width between the boundary lines of every way or place open to the use of the public for purposes of vehicular travel in the Commonwealth, including the streets and alleys.” Code § 46.2–100. Recently, we recognized that the term highway also includes “overhead highway signs, on-ramps and off-ramps, merge lanes, deceleration lanes, roadways, bridges, intersections, shoulders, pedestrian crosswalks, and shared-use paths.” Mason v. Commonwealth,64 Va.App. 292, 304–05, 767 S.E.2d 726, 733 (2015)(en banc) (footnotes omitted).

Freeman argues:

The trial court erred by finding the police officer had reasonable articulable suspicion to stop the vehicle operated by Freeman based on air fresheners suspended from the rearview mirror without identifying any objective facts, but for the air fresheners themselves, to suspect that the objects obstructed the driver's clear view of the highway.

We rejected a similar argument in Mason.In that en bancopinion, this Court held that a five-inch-long-by-three-inch-wide parking pass attached to the rearview mirror provided a reasonable basis for further investigation into whether the parking pass violated the proscription of Code § 46.2–1054. We noted:

It is enough that the officer is aware of facts that, viewed objectively, could rise to a reasonable suspicion that the parking pass may be non-compliant with Code § 46.2–1054. Settled precedent has consistently recognized that reasonable suspicion need not rule out the possibility of innocent conduct.

Mason,64 Va.App. at 306, 767 S.E.2d at 733–34.

Freeman discounts that the air fresheners themselves, suspended from the rearview mirror, provided objective facts upon which the officer could rely. However, the officer testified that the objects suspended from the rearview mirror “appeared to be multiple objects hanging [together]” and “[j]ust the size of it” caused him concern that the “dangling object ... would impair or obstruct [Freeman's] view.” The officer testified that he could see the objects through the glass of the back window even when he was a distance—more than a car...