COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Clements and Agee 

Argued at Richmond, Virginia 

JOHN EDWARD CAVE, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 1847-01-2 JUDGE ROBERT J. HUMPHREYS 

 SEPTEMBER 24, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 Cheryl V. Higgins (St. John, Bowling & 

Lawrence, LLP, on brief), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

John Edward Cave, Jr. appeals his convictions, upon his 

conditional plea of guilty, for driving after having been declared 

an habitual offender, in violation of Code § 46.2-357, and forgery 

of a public document, in violation of Code § 18.2-168. Cave 

contends the trial court erred in denying his motion to suppress 

evidence which was obtained by police as a result of a stop of his 

vehicle. For the reasons that follow, we affirm the judgment of 

the trial court. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. Further, because this opinion has 

no precedential value, we recite only those facts essential to 

our holding.
Prior to the trial on his indictment for driving after having 

been declared an habitual offender and for forgery of a public 

document, Cave filed a motion to suppress the evidence against him 

contending that he had committed no offense against the laws of 

the Commonwealth at the time he was stopped by Officer John McKay, 

of the Albemarle Police Department. Thus, Cave argued his 

subsequent arrest "was the result of an unauthorized stop and 

search." 

During the hearing on the motion to suppress, Officer McKay 

was qualified as an expert in auto mechanics and brakes, and 

testified as such over Cave's objection. 

At the conclusion of the evidence, the Court held: 

I think this is a closer case than most and 

I comprehend and understand [Cave's] 

argument. Just because someone has squeaky 

brakes doesn't mean they're driving with 

defective brakes. But here Officer McKay is 

saying more in that he recognizes the sound 

of metal-on-metal and that coupled with his 

experience as a mechanic and working on 

brakes and that the car did not appear to 

slow as it should have had the brakes been 

proper, in his opinion is enough to give him 

articulable suspicion to stop. So I 

overrule the motion. 

Cave subsequently entered a plea of guilty, pursuant to Code 

§ 19.2-252, conditioned upon his ability to appeal the court's 

ruling on the motion to suppress. 

On appeal, Cave argues the trial court erred in overruling 

his motion to suppress contending that Officer McKay lacked the 

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necessary reasonable articulable suspicion to stop his car. We 

disagree. 

Under well established Fourth Amendment 

principles, "[t]he police can stop and 

briefly detain a person for investigative 

purposes if the officer has a reasonable 

suspicion supported by articulable facts 

that criminal activity 'may be afoot.'" 

United States v. Sokolow, [490 U.S. 1, 7] 

(1989) (quoting Terry v. Ohio, [392 U.S. 1, 

30] (1968)). "Ultimate questions of 

reasonable suspicion and probable cause to 

make a warrantless search" or seizure 

involve issues of both law and fact and are 

reviewed de novo on appeal. See Ornelas v. 

United States, [517 U.S. 690, 691] (1996) 

. . . . "[I]n 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) (citing 

Ornelas, [517 U.S. at 699]). 

Glasco v. Commonwealth, 26 Va. App. 763, 770-71, 497 S.E.2d 150, 

153-54 (1998). Thus, the burden is upon Cave to show that this 

ruling, when the evidence is considered most favorably to the 

Commonwealth, constituted reversible error. See Fore v. 

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). 

"To determine whether an officer had a reasonable suspicion 

justifying an investigatory stop, we must examine the 'totality of 

the circumstances and view those facts objectively through the 

eyes of a reasonable police officer with the knowledge, training, 

and experience of the investigating officer.'" Davis v. 

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Commonwealth, 35 Va. App. 533, 539, 546 S.E.2d 252, 255 (2001) 

(quoting Murphy v. Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 

125, 128 (1989)). Indeed, we have recognized that "'a trained law 

enforcement officer may [be able to] identify criminal behavior 

which would appear innocent to an untrained observer.'" Freeman 

v. Commonwealth, 20 Va. App. 658, 661, 460 S.E.2d 261, 262 (1995) 

(quoting Taylor v. Commonwealth, 6 Va. App. 384, 388, 369 S.E.2d 

423, 425 (1988)). Therefore, although "reasonable articulable 

suspicion" must be more than a hunch, the facts need not show that 

criminal activity "actually is afoot, only that it may be afoot." 

Richards v. Commonwealth, 8 Va. App. 612, 616, 383 S.E.2d 268, 271 

(1989). 

 Code § 46.2-1066 provides as follows: 

Every motor vehicle when driven on a highway 

shall be equipped with brakes adequate to 

control the movements of and to stop and 

hold such vehicle. The brakes shall be 

maintained in good working order and shall 

conform to the provisions of this article. 

Every bicycle, electric power-assisted 

bicycle, and moped, when operated on a 

highway, shall be equipped with a brake that 

will enable the operator to make the braked 

wheels skid on dry, level, clean pavement. 

Every electric personal assistive mobility 

device, when operated on a highway, shall be 

equipped with a system that, when activated 

or engaged, will enable the operator to 

bring the device to a controlled stop. 

 Here, Officer McKay, a police officer with eleven years of 

experience, testified that he stopped Cave because he heard the 

vehicle's brakes make a "very loud metallic sort of 

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metal-on-metal squeal. It was much more severe than I normally 

associate with brakes that are just worn. It was very, very 

loud, very loud noise." In addition, Officer McKay testified 

that he observed that the car did not appear to slow down 

"normally." 

 Based upon the above jurisprudence, it is clear that the 

fact the brakes may not have been actually defective is 

irrelevant. A trained, experienced police officer heard Cave's 

obviously loud brakes make a "metal-on-metal" sound, and 

observed that his car did not appear to slow properly. Based on 

the totality of these circumstances, we find Officer McKay 

possessed reasonable suspicion sufficient to justify the stop of 

the car. Accordingly, as we have found that Officer McKay 

possessed the necessary reasonable suspicion to stop the car as 

a trained police officer, we do not address Cave's argument that 

the trial court relied too heavily upon McKay's expert 

testimony. 

For the reasons cited above, we hold that the stop of Cave's 

vehicle did not violate the Fourth Amendment and that the trial 

court properly denied the motion to suppress. Therefore, we 

affirm Cave's convictions. 

Affirmed.

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