Opinion
Criminal Docket No.: CR16-1421
09-02-2016
Re: Commonwealth of Virginia v. Melvin Douglas Howard, Sr.
LeRon Gilchrist, Esq. Office of the Commonwealth's Attorney City of Norfolk 800 East City Hall Avenue, Suite 600 Norfolk, Virginia 23510 Seth Doherty, Esq. Norfolk Public Defender's Office 125 St. Paul's Boulevard, Suite 600 Norfolk, Virginia 23510
LeRon Gilchrist, Esq.
Office of the Commonwealth's Attorney
City of Norfolk
800 East City Hall Avenue, Suite 600
Norfolk, Virginia 23510 Seth Doherty, Esq.
Norfolk Public Defender's Office
125 St. Paul's Boulevard, Suite 600
Norfolk, Virginia 23510 Dear Counsel:
Today the Court rules on the Motion to Suppress filed by Defendant Melvin Douglas Howard ("Howard"). The only issue before the Court is whether a law enforcement officer had reasonable, articulable suspicion to conduct an investigatory traffic stop of Howard's vehicle—for a suspected violation of Section 46.2-715 of the Code of Virginia—when Howard's vehicle displayed no front license plate and a rear Virginia "Transport Tag" license plate. Because the vehicular stop was based solely on the absence of a front license plate, the Court finds that there were insufficient objective facts that would justify a reasonable officer's conclusion that Howard was involved in criminal activity. The Court therefore GRANTS the Motion to Suppress.
Background
The essential facts of the case are undisputed. On March 27, 2016, Officer Lazarz saw Howard's automobile (the "Automobile") traveling on 26th Street in the City of Norfolk and observed that there was no license plate on the front of the Automobile. (Tr. 14.) Officer Lazarz followed the Automobile in his patrol car, during which time he noticed that a Virginia license plate apparently issued to a person licensed as a transporter of an unladen vehicle (a "Transport Tag") was affixed to the rear of the Automobile. (Tr. 17.) The license plate in question indicates that it was issued by "ALL CARS INC" on March 26, 2016, and is valid for five days. (Def.'s Ex. 1.) After following Howard for about a minute, Officer Lazarz pulled over Howard based on the belief that Howard violated Section 46.2-715 of the Code of Virginia by not displaying a front license plate. (Tr. 18); see also Va . Code Ann. § 46.2-715 (2014 Repl. Vol.). Officer Lazarz testified that, prior to pulling over Howard, he had read and was familiar with Section 46.2-715, which does not require the display of a front license plate for plates issued to licensed transporters of unladen vehicles. (Tr. 18.) Officer Lazarz conceded that the "only reason" he pulled over Howard was that the Automobile "didn't have a front tag." (Id.) Officer Lazarz did not testify that there were any indications that the Transport Tag was fraudulent or improperly issued. During the traffic stop, Officer Lazarz's investigation revealed that Howard's operator's license had been revoked due to his status as a habitual offender.
The license plate includes additional information about which Officer Lazarz did not testify. The language on the license plate states that the plate "must be in the immediate possession of the assigned operator at all times" and identifies the assigned operator is "HAMIO JBLIOU." Because a reasonable law enforcement officer could not read this information—due to its extremely small size—without stopping the vehicle, these facts are not considered in determining whether there was reasonable, articulable suspicion to stop Howard's vehicle.
In fact, Officer Lazarz cited Howard for not having a properly displayed license plate on the front of the Vehicle. (Tr. 18.)
Howard subsequently filed a motion to suppress all evidence obtained as a result of the allegedly unconstitutional traffic stop, which is the subject of this letter opinion. A hearing was held on August 3, 2016 (the "Hearing"), after which the Court took the matter under advisement and granted the parties leave to file post-hearing submissions.
Neither party elected to submit any post-hearing submissions.
Positions of the Parties
Howard contends that, based on the totality of the circumstances, Officer Lazarz did not possess a particularized and objective basis for the investigatory stop. (Def's Mot. to Suppress ¶ 3.) He points out that—under Virginia law—persons licensed as transporters of unladen vehicles are not required to display a front license plate on the vehicle. He thus argues that because Officer Lazarz pulled him over based solely on the absence of a front license plate—despite the officer's understanding that a Transport Tag need only be displayed on the rear of a vehicle—there was no reasonable, articulable suspicion that Howard was involved in or about to engage in criminal activity.
The Commonwealth avers that the failure to display a front license plate is a per se violation of Section 46.2-715 of the Code of Virginia, which provides the necessary reasonable, articulable suspicion to conduct an investigatory stop. It contends that operators of vehicles who are not required by statute to display a front license plate, such as persons licensed as transporters of unladen vehicles, can assert at a court proceeding—as a statutory defense—that they were not required to display a front license plate. Under the circumstances of the case at bar, the Commonwealth argues that Officer Lazarz therefore had reasonable, articulable suspicion that Howard had violated Section 46.2-715 upon noting the absence of a front license plate. It argues that Officer Lazarz's observation of the Transport Tag and understanding that there was an "exception" for display of a front license plate are irrelevant. In short, the Commonwealth asserts that the statutory authorization not to display a front license plate merely provided Howard a defense he could assert should he be brought to trial for an alleged violation of the statute.
As discussed infra, the Court rejects the characterization of the Transport-Tag provision as an "exception" to the statutory prescriptions found in Section 46.2-715 of the Code of Virginia, despite the fact that both parties—and the Court—used this term at the Hearing.
Analysis
Legal Standard
Pursuant to the exclusionary rule, evidence must be suppressed if it is seized by the government in violation of the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). A court shall exclude evidence that was obtained either: (1) as a direct result of an illegal search and seizure; or (2) as a proximate result of an illegal search and seizure. Wong Sun v. United States, 371 U.S. 471, 485-86 (1963).
Conducting an investigatory stop of an automobile is a seizure for Fourth Amendment purposes. Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004) (citing Delaware v. Prouse, 440 U.S. 648, 653 (1979)). An officer need only have reasonable, articulable suspicion to "detain a person for the purpose of investigating possibly criminal behavior," and such a stop is valid "even though there is no probable cause to make an arrest." Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003) (citing Terry v. Ohio, 392 U.S. 1, 22 (1968)).
The stopping officer's reasonable suspicion needs to be "based on objective facts, that the individual is involved in criminal activity." Id. (citing Brown v. Texas, 443 U.S. 47, 51 (1979)). In determining whether an officer had an objective basis for reasonable, articulable suspicion, a court must consider the totality of the circumstances. Whitaker v. Commonwealth, 279 Va. 268 (2010). The totality of the circumstances "include[s] the officer's knowledge, training, and experience." Freeman v. Commonwealth, 20 Va. App. 658, 661, 460 S.E.2d 261, 262 (1995).
Courts apply an objective standard when determining whether a police officer has sufficient grounds to make an investigatory stop, the pertinent inquiry being "whether . . . a police officer could entertain a reasonable suspicion that the defendant was involved in criminal activity." Zimmerman v. Commonwealth, 234 Va. 609, 612, 363 S.E.2d 708, 709 (1988). Courts will not, however, "overlook or disregard the officer's articulated, particularized, subjective basis for his actions" when making such an evaluation. Id. at 612, 363 S.E.2d at 710.
Section 46.2-715 of the Code of Virginia provides as follows:
License plates assigned to a motor vehicle, other than a moped, motorcycle, autocycle, tractor truck, trailer, or semitrailer, or to persons licensed as motor vehicle dealers or transporters of unladen vehicles, shall be attached to the front and the rear of the vehicle. The license plate assigned to a moped, motorcycle, autocycle, trailer, or semitrailer shall be attached to the rear of the vehicle. The license plate assigned to a tractor truck shall be attached to the front of the vehicle. The license plates issued to licensed motor vehicle dealers and to persons licensed as transporters of unladen vehicles shall consist of one plate for each set issued and shall be attached to the rear of the vehicle to which it is assigned.Va. Code Ann. § 46.2-715 (2014 Repl. Vol.).
Discussion
The Court has considered the pleadings; evidence and oral argument presented at the August 3, 2016, hearing; and applicable authorities. The Court now rules on the issues before it.
A. Officer Lazarz Did Not Possess the Requisite Reasonable, Articulable Suspicion to Justify Stopping Howard's Automobile.
By its plain wording, Section 46.2-715 of the Code of Virginia provides different requirements for different license plates depending on the type of vehicle or to whom the plates are issued. Most motor vehicles are required to have license plates displayed on both the front and the rear of the vehicle. License plates issued to a person licensed as a transporter of unladen vehicles, however, are only required to be displayed on the rear of the vehicle to which it is assigned. The license-plate requirement for unladen vehicles properly being transported therefore is an alternative to the requirement applicable to most motor vehicles.
Howard argues that the lack of a front tag alone is insufficient to establish the reasonable, articulable suspicion of criminal activity required to justify an investigatory stop. The Court agrees. Although Howard cites Zimmerman v. Commonwealth in support of this assertion, that decision is only minimally helpful as an analogue. See 234 Va. 609, 363 S.E.2d 708 (1988). In Zimmerman, a passenger left his vehicle to ask a police officer for directions and, upon reentering the vehicle, took the driver's seat while the previous driver slid over to the passenger side. Id. at 610-11, 363 S.E.2d at 709. Upon observing the vehicle pass the point where the officer had indicated that they should turn in response to the request for directions, the officer stopped the vehicle. Id. at 611, 363 S.E.2d at 709. The Virginia Supreme Court ruled that the stop was unconstitutional because the "scenario, viewed as a whole, demonstrates innocent, lawful conduct." Id. at 612, 363 S.E.2d at 709. Although similarly "innocent" conduct arguably exists in the instant case—simply not displaying a front license plate—Zimmerman did not involve an officer's observation of an apparent statutory violation and concomitant recognition of the suspect's compliance with an alternative statutory prescription.
The limited value of Zimmerman notwithstanding, other Virginia opinions confirm that where there are alternatives to statutory prescriptions for vehicular displays, more than mere apparent non-compliance with one statutory requirement is necessary to establish reasonable, articulable suspicion that a crime has been or is about to be committed.
The Greensville County Circuit Court was presented with a factual situation similar to that present in the case at bar. In Commonwealth v. Smith, a Virginia police officer observed a vehicle with a Pennsylvania license plate on the rear of the vehicle and no plate on the front of the vehicle. 79 Va. Cir. 16, 16 (Greensville Cty. 2009). The court rejected the Commonwealth's argument that the lack of a front plate alone was sufficient to establish reasonable articulable, suspicion that the driver had violated Section 46.2-715 of the Code of Virginia. Id. at 21. The court held that, because some states do not require a front license plate, the officer was not justified in stopping the vehicle without first confirming that Pennsylvania requires a front plate. Id. The court relied on two Virginia Court of Appeals cases: Commonwealth v. Spencer and Campbell v. Commonwealth.
In fact, Pennsylvania does not require motor vehicles to display a front license plate.
In Commonwealth v. Spencer, a Richmond police officer pulled over a vehicle with Virginia license plates and a Virginia inspection sticker because it was not displaying a locality decal, which is required for motor vehicles registered in Richmond. 21 Va. App. 156, 158, 462 S.E.2d 899, 900 (1995). Because some surrounding localities did not require such a decal—a fact known to the officer—and the officer did not determine where the vehicle was registered, the court found that the officer lacked a reasonable, articulable suspicion that an ordinance had been violated. Id. at 159-60, 462 S.E.2d at 901. The Virginia Court of Appeals held that "the lack of a city or county decal, without more, was insufficient to justify this stop of the vehicle." Id. at 160, 462 S.E.2d at 901.
Vehicles registered in Richmond are required to display a city decal, and some of Richmond's surrounding localities required the display of a city or county decal.
In Campbell v. Commonwealth, a Virginia state trooper pulled over a vehicle with antique tags solely because it was not displaying a state inspection sticker. No. 2252-05-2, 2007 Va. App. LEXIS 50, at *2 (Feb. 13, 2007). The trial court denied a motion to suppress because it reasoned that the trooper could not determine whether the driver met any of the exceptions without stopping and questioning him. Id. at *3. The Court of Appeals reversed, finding that "[e]ven if stopping and questioning Campbell was [the trooper's] only way of determining his compliance with this code section, as the trial court reasoned in denying Campbell's suppression motion, the stop was not permitted without a "'particularized and objective basis" for suspecting legal wrongdoing.'" Id. at *6-7 (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). Like in Spencer, the existence of alternatives to the statute's prescriptions—in Campbell, that certain antique vehicles were not required to display an inspection sticker—resulted in the court finding that there was no particularized and objective basis for an investigatory stop. Id. at *7-8.
As is appropriate, the Court does not consider the unpublished Court of Appeals Opinion to hold precedential value. The Court instead considers the rationale offered by the Court of Appeals to the extent that the Court finds it persuasive, which is permissible. See Fairfax County School Board v. Rose, 29 Va. App. 32, 39 n.3, 509 S.E.2d 525, 528 (1999).
In Smith, Spencer, and Campbell, there was a possible statutory violation related to the display of vehicular plates, decals, or stickers. If an alternative statutory provision did not apply, each defendant would in fact have been in violation of a statute or ordinance. In none of these cases, however, did the court treat the applicable statutory alternative as a "statutory defense." The court also held in each case that—in light of the statutory alternative to the display requirement—the officer needed evidence beyond the absence of a plate, decal, or sticker to establish the requisite reasonable, articulable suspicion to justify a vehicular stop. The Court finds these cases persuasive.
The Commonwealth cites Savage v. Commonwealth in support of its position that the absence of a front license plate is, by itself, a sufficient ground to conduct an investigatory stop of a vehicle. No. 0799-02-01, 2003 Va. App. Lexis 187 (Va. App. Apr. 1, 2003). In Savage, the vehicle in question apparently had a temporary dealership license plate displayed in the rear and no license plate displayed in the front. Id. at *5. As an initial matter, Savage is an unpublished matter and therefore is not binding on this Court. Further, although the police officer in Savage "testified that he stopped the vehicle because it did not have a front license plate," id. at *3, it is not clear whether the officer knew that the vehicle displayed a temporary dealership plate on the rear, i.e., whether the stop was based solely on the absence of a front license plate. Savage argued that the temporary dealership plate constitutes an exemption from the requirements of Section 46.2-715 but, as the Court of Appeals noted, "Savage provide[d] no support for this contention." Id. at *5-6. The Court of Appeals therefore affirmed the trial court's denial of Savage's motion to suppress. Id. at *9. In contrast, Howard's contention that a Transport Tag displayed only in the rear of the vehicle complies with the statute is undisputed. The Court therefore finds that Savage provides no substantial support for the Commonwealth's position.
Id.
There in fact is no such exemption in Section 46.2-715.
Although the Commonwealth suggested, by way of proffer, that the validity of the Transport Tag was in question, it presented no evidence that Officer Lazarz had reason to believe at the time of the investigatory stop that the Transport Tag was fraudulent. In fact, the Commonwealth conceded that the only basis for the stop was the failure to display a front license plate, despite the officer observing the Transport Tag and understanding that proper display of a Transport Tag did not require display of a front license plate. The success of the Commonwealth's argument therefore depends upon its assertion that the Transport-Tag provision of Section 46.2-715 constitutes a statutory defense to be raised at trial. The Court disagrees with this assertion.
Section 46.2-715 is comprised of four sentences, each of which states an alternative requirement regarding the number and placement of license plates based upon either the type of vehicle or to whom the plate is issued. The use of the phrase "shall be attached" in each of these sentences demonstrates that the statute is a list of four distinct, affirmative requirements that apply in alternative contexts. The instruction that Transport Tags "shall be attached to the rear of the vehicle to which it is assigned" is a stand-alone command, and thus is not an "exception" or "exemption". Put simply, following the statute's clear prescription is not a statutory defense.
Based on the above, the Court finds that—considering the totality of the circumstances—the display of a rear Transport Tag license plate and absence of a front license plate on Howard's automobile did not, by itself, establish reasonable, articulable suspicion to justify an investigatory stop.
B. Public Policy Considerations Weigh Against the Commonwealth's Position.
The court also recognizes the startling public policy ramifications of accepting the Commonwealth's contention that the lack of a front license plate alone is sufficient grounds to make an investigatory stop of a vehicle, especially where other factors suggest compliance with Section 46.2-715's alternate requirements. In response to the Court's questioning at the suppression hearing, the Commonwealth failed to articulate any limiting principle that would prevent officers from stopping any and all vehicles bearing a Transport Tag.
Based on the plain language of Section 46.2-715, the Commonwealth's rationale by definition also would apply to all vehicles displaying a license plate assigned to a motor vehicle dealer.
The Commonwealth's assertion that Officer Lazarz lacked information by which he could verify the validity of the Transport Tag does not ameliorate the Court's concerns. Although the Commonwealth undoubtedly is correct that Officer Lazarz could not confirm that the Transport Tag was properly issued without stopping the Automobile, the same argument can be made with respect to city and county vehicle decals, state inspection stickers, and operator licenses. Surely the Commonwealth is not suggesting that any officer unable to confirm the validity of any of these documents from the confines of his patrol car—without more—possesses the required reasonable, articulable suspicion of criminal activity to justify an investigatory stop. The Court finds that the Commonwealth's position simply is untenable.
This was the argument that was expressly rejected by the Virginia Court of Appeals in Campbell v. Commonwealth. See No. 2252-05-2, 2007 Va. App. LEXIS 50 (Va. App. Feb. 13, 2007), at *6-7.
Following to its logical conclusion the Commonwealth's argument that the Transport-Tag requirement is a statutory defense seemingly leads to other bizarre outcomes. Presumably, Section 46.2-715's requirements that license plates be displayed only on the back of mopeds, motorcycles, autocycles, trailers, or semitrailers and only on the front of tractor trucks are also statutory defenses only. If so, an officer observing any of these types of vehicles violating the statute's general prescription to display both front and rear license plates would have a reasonable, articulable suspicion to conduct an investigatory stop of the vehicle. Moreover, the police officer could cite the driver, who then would bear the burden of proving this so-called "statutory defense." The Court is simply not willing to go so far.
The cases on which this Court relies today each cited the following holding of the U.S. Supreme Court: "the 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." Delaware v. Prouse, 440 U.S. 648, 661 (1979) (quoted in Commonwealth v. Spencer, 21 Va. App. 156, 160, 462 S.E.2d 899, 901 (1995); quoted in part in Campbell v. Commonwealth, No. 2252-05-2, Va. App. LEXIS 50 (Feb. 13, 2007), at *9; cited in Commonwealth v. Smith, 79 Va. Cir. 16, 21 (Greensville Cty. 2009)). Today this Court likewise refuses to subject a large swath of drivers to the "unbridled discretion of law enforcement officials" for a similarly "marginal contribution" to roadway safety.
As the Virginia Court of Appeals noted in Campbell v. Commonwealth, "The potential random stops permitted under the reasoning advanced for justifying the stops at issue in both Spencer and the instant case would not be unlimited, as in Prouse, but would be exceedingly broad in scope nonetheless." No. 2252-05-2, 2007 Va. App. LEXIS 50 (Va. App. Feb. 13, 2007), at *9. --------
Conclusion
Because the Court finds that, based on the totality of the circumstances, there were insufficient objective facts to support a reasonable, articulable suspicion of criminal activity to justify an investigatory stop of Howard's vehicle, the Court GRANTS Howard's Motion to Suppress. The Clerk's Office is directed to prepare an Order consistent with this Opinion and forward a copy to the parties. Counsel shall notify the Court of any objections within fourteen days.
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/jmk/dyl