FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH William R. O'Brien, Judge
Melinda R. Glaubke (Slipow, Robusto & Kellam, P.C., on briefs), for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief) for appellee.
Present: Judges Humphreys, Beales and Huff Argued at Chesapeake, Virginia.
MEMORANDUM OPINION [*]
GLEN A. HUFF, JUDGE.
Tracy Brian Shaw ("appellant") appeals his conviction of possession with intent to distribute a Schedule I or II substance, in violation of Code § 18.2-248. At a bench trial in the Circuit Court for the City of Virginia Beach ("trial court"), appellant entered a conditional guilty plea pursuant to Code § 19.2-254 and was sentenced to two years in the Virginia Department of Corrections. On appeal, appellant contends that the trial court erred in finding that the officer had a reasonable, articulable suspicion that criminal activity was afoot and in denying defendant's motion to suppress evidence.
For the following reasons, this Court affirms the appellant's conviction.
On appeal, "'we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.'" Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.
On May 16, 2011, Virginia Beach Police Officer Brian Slomeana ("Slomeana") was on a routine patrol when he observed appellant driving a scooter on a public road. Slomeana noticed appellant was wearing a "shiny low-profile helmet, " which is sometimes "call[ed] . . . a skull cap." Upon further observation, Slomeana believed appellant was wearing a "novelty helmet" because "it kind of hug[ged] the head" and "didn't have a sticker on the back."
Based on his "training and experience, " Slomeana initiated a traffic stop because he believed appellant's helmet "was not approved by the Department of Transportation." Slomeana testified that a Department of Transportation ("DOT") approved helmet "usually has a sticker in the rear in the center that says DOT." Moreover, Slomeana testified that proper helmets are normally thicker and "not as low-profile to the skull. It's kind of out a little more. More padding between the outer helmet and the skull." Upon examination, Slomeana discovered a label on the helmet that read, "WARNING/Novelty helmet not for use . . . On road or Off road motor vehicle!"
During the traffic stop, Slomeana also discovered that appellant was driving while a habitual offender and possessed a quantity of cocaine. Appellant moved to suppress the evidence obtained as a result of the traffic stop, asserting Slomeana did not have a reasonable, articulable suspicion to stop him.
At the suppression hearing, appellant submitted a picture of a similar DOT approved helmet. Slomeana testified that the picture looked similar to appellant's helmet "just based off . . . the color and shape" but could not determine whether it was a "proper helmet . . . ...