Lloyd Jordan Byers, Jr. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
LLOYD JORDAN BYERS, JR.
v. 	Record No. 0064-95-2 	MEMORANDUM OPINION* BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA 	JANUARY 30, 1996
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Thomas V. Warren, Judge
Michael J. Brickhill, for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Following a bench trial, the appellant, Lloyd J. Byers, Jr.
("Byers"), was convicted of operating a motor vehicle after
having been declared an habitual offender. 	The court sentenced
Byers to six months in jail, suspending all but sixty days, and a
$100.00 fine. 	On appeal, Byers contends that the police violated
his Fourth Amendment rights by detaining and questioning him as a
passenger in a motor vehicle stopped for speeding. 	Finding no
error, we affirm Byers' conviction.
On the morning of May 27, 1994, Captain Vernon Poe ("Poe")
and Detective Gregory Neal ("Neal") of the Powhatan County
Sheriff's Department were conducting narcotics surveillance on
the high school parking lot. 	The officers were watching for
school-age children involved in illegal activity. 	The officers
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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noticed a car with Georgia plates parked across the street at a
car wash. 	Byers appeared to be working under the car's hood,
while a woman sat inside the car. 	The officers had not seen any
school children around the car, but the out-of-state vehicle
seemed unusual to them.
Shortly thereafter, the car rapidly left the car wash. 	The
officers decided to follow the car, intending to ascertain its
owner. 	Neal testified that he saw Byers driving.
The officers lost sight of the car for a minute or so, but
Poe soon spotted it, paced it at sixty-five miles per hour in a
fifty-five mile per hour zone, and stopped the driver for
speeding. 	Poe identified the driver as the woman who had been
with Byers at the car wash. 	Poe confined his investigation to
the woman and the car.
Neal approached Byers and asked to see his license. 	Since
Byers was then in the passenger seat, Neal suspected that he had
been driving without a license. 	Byers complied, and Neal ran a
license check which determined that Byers was an habitual
offender in Virginia. 	Neal arrested Byers and advised him of his
Miranda rights. 	Byers signed a waiver and told Neal that his
girlfriend's car had been acting up and that he only drove it a
short distance to see if it was running properly.
Byers objected to the evidence obtained from the stop,
arguing that the stop was invalid under the Fourth Amendment and
that the police were not justified in interrogating the car's

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passenger. 	However, the court concluded that Poe executed a
valid stop and that Neal was justified in questioning Byers
because of the apparent seat switch.
On appeal, Byers concedes that the stop of the vehicle in
which he was a passenger was lawful. 	However, he argues that
Neal's questioning of him was an unlawful seizure, the evidence
from which should have been suppressed. 	The Commonwealth argues
that the seizure was legitimate since Neal had reasonable
suspicion to believe that Byers had violated the law.
An officer needs only an "articulable and reasonable
suspicion that [the] motorist is unlicensed . . . or an occupant
is otherwise subject to seizure for [a] violation of [the] law."
Brown v. Commonwealth, 17 Va. App. 694, 697-98, 440 S.E.2d 619,
621 (1994) (quoting Delaware v. Prouse, 440 U.S. 648, 663 (1979),
and citing Terry v. Ohio, 392 U.S. 1 (1968)). 	In determining
whether Neal had a reasonable suspicion that Byers was unlicensed
or otherwise violating the law, this Court looks at the totality
of the circumstances, viewing the "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).
We must take "into account that `trained law enforcement officers
may be able to perceive and articulate meaning in given conduct
which would be wholly innocent to the untrained observer.'"
Brown, 17 Va. App. at 698, 440 S.E.2d at 621 (quoting Castaneda

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v. Commonwealth, 7 Va. App. 574, 580, 376 S.E.2d 82, 85 (1989)
(en banc)).
Although Neal did not actually see Byers switch from the
driver's seat to the passenger's seat, he knew the switch had
occurred and articulated this observation as the basis for his
suspicion, stating "I knew that he had been driving and now that
he wasn't driving, I suspected him not to have a license." 	We
conclude that Neal had reasonable suspicion to warrant the
seizure and that Byers was lawfully detained and questioned about
his driver's license.
Accordingly, Byers' conviction is affirmed.
Affirmed.