COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Chafin and Malveaux Argued at Norfolk, Virginia

HOWARD ODELL HARROD, III MEMORANDUM OPINION * BY v. Record No . 1297-16-1 JUDGE RANDOLPH A. BEALES AUGUST 8, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Timothy S. Fisher, Judge Jessica E. B. Crossett, Deputy Public Defender (Robert Moody, IV, Chief Deputy Public Defender, on brief), for appellant. Stephen L. Forster, Assistant Attorney General (Mark R. Herrin g, Attorney General, on brief), for appellee.
On August 1, 2016, Howard Odell Harr od, III (“appellant”) enter ed a conditional guilty plea to felony possession with int ent to distribute marijuana ( more than a half ounce and less than five pounds) in viol ation of Code § 18.2-248.1. Appellant appeals the trial court’s denial of his motion to suppress evidence fo und in a rental vehicle that appellant was driving on the grounds that the evidence was sei zed as the result of an unlawf ul stop. Specifically, appellant argues that the initial tra ffic stop was not supported by reaso nable articulable suspicion and that “the traffic stop was unlawfull y prolonged and became a separat e criminal investigation.”
I. B ACKGROUND We consider the evidence on appeal “in the light most favorable to the Commonwealth as we must since it was the prevailing party” in the trial court. Beasley v. Commonwealth, 60

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) ( quoting Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E .2d 555, 574 (2004)). So viewed, the evidence at appe llant’s suppression hearing show ed that, on July 26, 2015, Officer Brendon Walzak of the N ewport News Police Departm ent was on patrol in a marked police car traveling southbound on Roanoke Avenue. As h e approached the corner of Roanoke Avenue and 16th Street, Off icer Walzak came to a stop a t a red stop sign. As he was stopping, Officer Walzak observed a n individual traveling eastb ound on 16th Street. Officer Walzak observed the individual (a ppellant) stop his vehicle in the road at an intersection even though appellant did not have a si gn requiring him to stop or s low down. Officer Walzak testified that he was “forced t o wait longer at the stop sign” because he did not have the right-of-way. Officer Walzak sai d he was also prevented “from turning left or going straight” by appellant’s actions. Officer Wal zak further testified that thi s was a “high-traveled area.” Officer Walzak then conducted a t raffic stop. Officer Walzak w alked up to the stopped vehicle. He informed appellant that appellant had stopped the vehicle in the road when he was not supposed to stop. Officer Walza k asked appellant if he was all right, and then asked, “You got your license on you?” Appellant provided Officer Walzak wi th his license, and Officer Walzak then returned to his pol ice car. Officer Walzak immedia tely began typing appellant’s information into his computer s ystem. As Officer Walzak was pe rforming that task, he requested police backup. While he was s till working on his computer to g et appellant’s driver’s information, Officer Walzak state d that he made another call an d asked whether a narcotics canine was on duty. Officer Walzak t estified that he was still working on investigating the traffic stop while he made the call for backup and while he ask ed if there was a canine officer available. The trial court found that the phone calls did not delay the stop. A short time after making those calls, Officer Walza k called dispatch and provided the dispatcher with appellant’s- 3 - information. After hearing back f rom the dispatcher, Officer W alzak then got out of the car, walked back to appellant, and ask ed appellant about his license . Appellant admitted that he knew his license was revoked. Officer Walzak and appellant had a short conversation about why appellant’s license had been re voked and about whether there wa s anything illegal or dangerous in the vehicle (appellant said t here was not). Officer Walzak then walked back to his police car as two backup police officers arri ved. The officers briefly sp oke with each other, 1 and then Officer Walzak went back to his car to start the paperwork for charging appellant with driving on a revoked license. Officer Walza k dealt with his paperwork unt il he observed appellant then standing outside of appellant’s car being put in handcuffs. At that point, Officer Walzak exited his vehicle and approached the ot her officers and appellant. T he encounter – from the time Officer Walzak observed appellan t stop while driving to the tim e appellant was placed in handcuffs – lasted approxim ately sixteen minutes. Officer Walzak never completed a s ummons for improperly stoppin g on a highway. At some point, Officer Walzak did com plete a summons for driving w ith a revoked license, but that summons was never given to appellant because Officer Walzak bec ame distracted by the subsequent narcotics investiga tion. Officers Hunt and Jessie ( the backup officers) questioned appellant, while Officer Walzak was preparing a summons, until they concluded that they had probable cause to search appellan t’s vehicle. One officer info rmed Officer Walzak that, when appellant opened his glove compar tment to retrieve the rental a greement for the vehicle, the officer observed a scale. The o fficers had appellant exit his vehicle and then they searched the

1 Officer Walzak summarized what had taken place before the othe r officers arrived, such as explaining that appellant was driving on a revoked license. The backup officers indicated that they would ask appellant for cons ent to search his vehicle and also ask him for his rental agreement. (According to one o fficer, rental agreements will s ometimes say “Tow car please” when the driver of a ren tal car is arrested).- 4 - vehicle. Officers recovere d marijuana, cash, and a scale. 2 The trial court admitted into evidence video footage of the events r ecorded by a camera that Officer W alzak wore on him. The trial court found that appe llant’s stopping of his vehicle could have impeded traffic, that Officer Walzak’s initial traffic stop was supported by rea sonable articulable suspicion, and that the traffic stop was not pr olonged beyond what was require d.
II. ANALYSIS In reviewing a trial court’s de nial of a motion to suppress, “w e determine whether the accused has met his burden to show that the trial court’s rulin g, when the evidence is viewed in the light most favorable to the C ommonwealth, was reversible er ror.” Roberts v. Commonwealth, 55 Va. App. 146, 150, 684 S.E.2d 824, 826 (2009). “[W]e are bound by the trial court’s findings of historical f act unless ‘plainly wrong’ or w ithout evidence to sup port them . . . .” McGee v. Commonwealth, 25 Va. Ap p. 193, 198, 487 S .E.2d 259, 26 1 (1997) ( en banc ) (citing Ornelas v. United State s, 517 U.S. 690, 699 (1996)). “However, we consider de novo whether those facts implicate the Fourth Amendm ent and, if so, whether the of ficers unlawfully i nfringed upon an area protected by the Fourth Ame ndment.” Hughes v. Commonwealt h, 31 Va. App. 4 47, 454, 524 S.E.2d 155, 159 (2000) ( en banc ) (citing McGee, 25 Va. App. a t 198, 487 S.E.2d at 261).
A. Reasonable Articulable Suspicion for the Initial Traffic Stop Appellant “does not contest the s earch [of appellant’s rental v ehicle], only the traffic stop and detention beyond what was necessa ry to complete the traffic stop.” Opening Br. at 5 n.1. Appellant argues, “The stop a t issue was unsupported by reasonable suspicion that a traffic or equipment violation had occurred a nd was instead clearly a pret ext to conduct a criminal investigation against Harrod.” A t trial, the Commonwealth just ified the initial stop by relying on

2 The three plastic bags of what appeared to be marijuana were se nt to the lab for testing. Each bag was analyzed separat ely and found to contain marijuana . In total, the bags weighed roughly 63.23 grams (2.230 ounces).- 5 - Code § 46.2-888 and arguing that the police did have reasonable suspicion to conclude that appellant had “stop[ped] a vehicl e in such manner as to impede or render dangerous the use of the highway by others.” Code § 46.2-888 reads in pertinent par t, “No person shall stop a vehicle in such manner as to impede or r ender dangerous the use of the highway by others, except in the case of an emergency, an accident, or a mechanical breakdown.” “An investigative stop constitutes a seizure within the meaning of the Fourth Amendment.” Mason v. Commonwealth, 291 Va. 362, 367-68, 786 S. E.2d 148, 151 (2016). “[T]o justify this type of seizu re, officers need only ‘reasonable suspicion’— that is, ‘a particularized and objective basi s for suspecting the particula r person stopped’ of breaking the law.” Id. Appellant argues that he should not have been punis hed for “pausing momentarily” and that such an interpretat ion of Code § 46.2-888 would result in police having an almost unrestricted ability to pull over cautious motorists. Appellan t notes that the Supreme Court of Virginia has recognized that Code § 46.2-888 “was not designed to prevent a motorist from stopping momentarily on the highwa y in an emergency or in order to avoid a collision . . . [s]topping momentarily is frequently a necessary incident to tr avel on the highway.” Doss v. Rader, 187 Va. 231, 238, 46 S.E.2d 434, 438 (1948). However, a ll of these arguments are more applicable to the ultimate quest ion of whether appellant had, i n fact, violated Code § 46.2-888. Whether the officer had reasonable articulable suspicion to sto p appellant for an alleged violation of Code § 46.2-888 requires more than a mere hunch bu t less than proof of wrongdoing by a preponderance of the evide nce. Commonwealth v. Thomas, 23 Va. App. 598, 610, 478 S.E.2d 715, 721 (1996). In this case, the trial court found th at appellant stopped his car in the road. There was no requirement f or appellant to stop or slow d own at that point. Officer Walzak testified that his travel was impeded by appellant’s stop. Con sequently, given the evidence at- 6 - trial, we hold that the trial c ourt did not err in finding that Officer Walzak had reasonable articulable suspicion to st op appellant for violating Code § 46 .2-888.
B. Scope of the Traffic Stop Even though the initial traffi c stop was supported by reasonabl e articulable suspicion, we must consider whether the police exceeded the scope of the stop in this case. Police traffic encounters must be limited in duration to what is necessary to effectuate a proper stop because “[a] traffic stop constitutes a ‘s eizure’ under th e Fourth Amen dment and is subject to review for reasonableness.” United States v. Hill, 852 F.3d 377, 381 (4th Cir. 2017). Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determ ined by the seizure’s “mission”—t o address the traffic violation t hat warranted the stop, and atte nd to related safety concerns. Because addressing the infraction is the purpose of the stop, it may “last no longer than is necessary t o effectuate th[at] purpose.” Rodriguez v. United Sta tes, 135 S. Ct. 1609, 1614 (2015) (inter nal citations omitted). Appellant argues that Matth ews v. Commonwealth, 65 Va. App. 334 , 778 S.E.2d 122 (2015), and Rodriguez make it clea r that there is no tolerance even for a “ de minimis ” delay and that the stop was prolonged by Officer Walzak’s actions. While it is undisputed that “[a]uthority for the seizure thus ends when t asks tied to the traffic infrac tion are—or reasonably should have been—completed,” Rodriguez, 135 S . Ct. at 1614, the Fourth Amen dment tolerates certain unrelated investigations that do not lengthen the roadside dete ntion. See Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”). Upon returning to his police cruise r, Officer Walzak first bega n typing appellant’s driver’s information into his co mputer system. As Officer Walz ak was performing that task, he simultaneously requested police backup. While he was still wor king on his computer to retrieve- 7 - appellant’s information, Officer Walzak made another call and a sked whether a narcotics canine was on duty. Officer Walzak specifi cally testified that he was still working on investigating the traffic stop while he made th e call for backup. Having backup officers present can be very important – and indeed absolutel y necessary – for officer safet y during traffic stops. See Pennsylvania v. Mimms, 434 U.S . 106 (1977) (placing importance on officer safety during searches and seizures as a res ult of a traffic violation). As the United States Supreme Court has stated: We think it too plain for argumen t that the State’s proffered justification—the safety of the officer—is both legitimate and weighty. “Certainly it would be unr easonable to require that p olice officers take unnecessary risks i n the performance of their dut ies.” And we have specifically rec ognized the inordinate risk confronting an officer as he a pproaches a person seated in an automobile. “According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.” We are aware that not all th ese assaults occur when issuing tra ffic summons, but we have before expressly declined to accept the argument that traffic violatio ns necessarily involve less danger to officers than other types of confrontations. Indee d, it appears “that a significant percent age of murders of police officers occurs when the officers are making traffic stops.” Id. at 110 (first quoting Terry v. Ohio, 392 U.S. 1, 23 (1969); then quoting Adams v. Williams , 407 U.S. 143, 148 n.3 (1972); and then quoting United States v. Robinson, 414 U.S. 218, 234 (1973)). Thus, we conclude that Officer Walzak’s requ est for backup while investigating the traffic stop was related to officer safety co ncerns and was, therefore, part of “the seizure’s ‘mission.’” Rodriguez, 135 S. Ct. at 1614. Appellant also took issue with Offi cer Walzak’s request for a c anine officer. Officer Walzak testified that he was s till working on investigating the traffic stop while he asked if there was a canine officer available . “While diligently pursuing the purpose of a traffic stop, officers also may engage in other investig ative techniques unrelated to the underlying traffic infraction or- 8 - the safety of the officers.” United States v. Hill, 852 F.3d 3 77, 382 (4th Cir. 2017) (citing Rodriguez, 135 S. Ct. at 1614-15) . “Such unrelated activity is permitted under the Fourth Amendment only as long as that activity does not prolong the ro adside detention for the traffic infraction.” Id. The trial cour t never made any factual findi ngs that would support the conclusion that Officer Walzak was not acting diligently in pursuing t he purpose of the stop. In Matthews v. Commonwealth, thi s Court found that a request fo r a canine unit, along with asking the suspect unrel ated questions during the course o f a routine traffic stop, impermissibly extended the stop. 65 Va. App. at 345, 778 S.E.2 d at 128. However, Matthews is distinguishable from the situa tion before us because, in this c ase, Officer Walzak called for the canine unit while he was retrieving a ppellant’s information. The circuit court found that Officer Walzak’s call for the canine unit “doesn’t delay anything.” Th us, given this finding by the trial court and given the holdings in R odriguez and Hill, we hold tha t Officer Walzak’s act of calling for a canine unit – while simultaneously working on his traffic stop paperwork – did not “measurably extend the durati on of the stop.” Arizona v. Johns on, 555 U.S. 323, 333 (2009). Appellant further argues that the backup officers – who were sp eaking with appellant while Officer Walzak prepared the s ummons and paperwork regardi ng appellant’s alleged driving on a revoked license – wer e conducting an “unrelated cr iminal investigation” that unlawfully prolonged the stop. The record indicates that the o fficers planned to ask appellant for consent to search his vehicle and to ask appe llant for a copy o f his car rental agreement. The video clearly shows the other two officers speaking with appell ant while Officer Walzak was back in his vehicle, diligentl y filling out a summons and vario us other paperwork until Officer Walzak observed appellant being h andcuffed. To the extent that the other officers’ questioning- 9 - of appellant was unrelated to t he alleged crime of driving on a revoked license, 3 such questioning is actually of no consequence t o determining whether the invest igation was unlawfully prolonged in this particular case because the other officers’ questioning took place at the same time Officer Walzak was in his police car retri eving appellant’s information and working on a summons. 4 Therefore, the other officers did not prolong the duration of t he stop in any way as a result of their investigation int o the presence of illegal drug s because Officer Walzak was concurrently engaged in the act of writing a summons for appell ant for the alleged violation of driving with a revoked license.
III. C ONCLUSION In summary, we hold that the tria l court did not err in finding that Officer Walzak had reasonable articulable suspici on to stop appellant for an alleg ed violation of Code § 46.2-888 because he saw appellant stop his vehicle in the road in a way that the trial judge concluded could have impeded traffic. On ce Officer Walzak had stopped ap pellant and learned that appellant was driving on a revoke d license, that fact changed t he nature of the stop and Officer Walzak was entitled to continue writing a new summons for drivi ng on a revoked license while the other officers spoke wit h appellant. In addition, the othe r officers in no way prolonged the duration of the stop by their spe aking with appellant – during which they developed probable cause that appellant possessed mar ijuana – while Officer Walzak was busy working on paperwork related to charging a ppellant with driving on a revok ed license. Therefore, we affirm

3 Driving on a revoked li cense is a Class 1 misdemeanor in Virgi nia. See Code § 46.2-301.

4 Because appellant “does not contest the search [of appellant’s rental vehicle], only the traffic stop and detention beyond what was necessary to complet e the traffic stop[,]” Opening Br. at 5 n.1, we assume that, by the tim e the other officers remove d appellant from his rental car to search the car, the officers posse ssed probable ca use to search it.- 10 - appellant’s conviction for possess ion with intent to distribute marijuana (more than a half ounce and less than five pounds) in violation of Code § 18.2-248.1. Affirmed.