Dwight Antoine Bushnell v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Willis and Senior Judge Hodges
Argued at Alexandria, Virginia
DWIGHT ANTOINE BUSHNELL
v. Record No. 1314-94-4 MEMORANDUM OPINION * BY
JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA OCTOBER 24, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Richard J. Jamborsky, Judge
Jonathan Shapiro (Michael W. Lieberman; Jonathan
Shapiro & Associates, P.C. on brief), for appellant.
Marla Lynn Graff, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for
appellee.
Dwight Antoine Bushnell (appellant) was convicted of driving
after having been adjudicated an habitual offender. On appeal,
appellant contends that the police officer who stopped his car
lacked probable cause or reasonable suspicion to do so, and that
the trial court erred in refusing to suppress evidence obtained
from the stop. We disagree and affirm the judgment of the trial
court.
I.
On March 17, 1993, after midnight, Fairfax County Police
Officer Michael Reser was traveling on Richmond Highway in
Fairfax County. He saw appellant's Honda automobile. Appellant
was driving and there was one passenger in the car. Reser
checked the license tag number through the computer in his police
car. He received the social security number of the car's
registered owner. When Reser checked the social security number
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
in the computer, he learned that the car's registered owner had
been adjudicated an habitual offender.
Reser also obtained a description of the registered owner,
consisting of height, weight, age, and gender. With the
assistance of his headlights, Reser could see into appellant's
car. The driver appeared to match the description of the
registered owner. Reser stopped the car, and upon confirming
that appellant was the registered owner, arrested him for driving
after having been adjudicated an habitual offender.
Appellant filed a motion to suppress alleging that the stop
of his vehicle was constitutionally invalid because the officer
lacked probable cause or reasonable suspicion. The trial court
denied the motion, finding that the officer had reasonable
suspicion, "based on the vehicle's registration to an habitual
offender, and a similarity in height, weight, and age of the
driver to the habitual offender."
II.
On appeal, the burden is on the defendant to show that the
trial court's denial of a suppression motion, "when the evidence
is considered most favorably to the Commonwealth, constituted
reversible error." Fore v. Commonwealth, 220 Va. 1007, 1010, 265
S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980). "The trial
court's ruling will be affirmed on appeal unless that decision is
clearly erroneous." Hoye v. Commonwealth, 18 Va. App. 132, 134,
442 S.E.2d 404, 406 (1994).
"For evidence obtained as a result of a warrantless stop to
be admissible, the officer who made the stop must articulate a
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reasonable suspicion, based on objective facts, that the motorist
is subject to lawful seizure." Lee v. Commonwealth, 18 Va. App.
235, 238, 443 S.E.2d 180, 181 (1994). In stating his reasons for
the stop, "the officer must prove only that a reasonable
suspicion exists that criminal activity may be afoot." Id. at
238, 443 S.E.2d at 182. The standard for reasonable suspicion
"is less stringent than probable cause." Leeth v. Commonwealth,
223 Va. 335, 340, 288 S.E.2d 475, 478 (1982). See Logan v.
Commonwealth, 19 Va. App. 437, 441, 452 S.E.2d 364, 367 (1994)
(en banc).
In Hoye, upon facts nearly identical to this case, this
Court upheld the trial court's finding that the officer had
articulated a reasonable suspicion for an investigatory stop. In
Hoye, the officer believed that Hoye's license plate had expired,
although actually it had not. The officer, upon checking the
license plate number through the Department of Motor Vehicles
data base in the computer in her police car, learned the social
security number of the registered owner. Upon checking that
number, the officer learned that the owner was an habitual
offender. The officer also obtained a description of the owner
which included age, gender, weight, height, hair color, and eye
color. The officer testified that the driver appeared to be the
same gender and approximate age, and to have the same weight and
hair color as the owner. Upon those facts, she stopped Hoye's
car. Hoye, 18 Va. App. at 133-34, 442 S.E.2d at 405-06.
Hoye controls our decision in this case. We hold that upon
the facts in this case, the trial court did not err in finding
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that Officer Reser had a reasonable suspicion, based on specific
and articulated facts, that the driver of the vehicle was an
habitual offender. Accordingly, we affirm appellant's
conviction.
Affirmed.
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