COURT OF APPEALS OF VIRGINIA
Record No. 1577-25-3
ROBERT L. MCCUMBER
v.
COMMONWEALTH OF VIRGINIA
Present: Judges Causey, Raphael and Duffan
Argued at Lexington, Virginia
Opinion Issued June 23, 2026
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
Christopher B. Russell, Judge
Tiffany J. Fix (Simons, Thurman & Fix, P.C., on brief), for appellant.
Allison M. Mentch, Assistant Attorney General (Jay Jones, Attorney General, on brief), for appellee.
PUBLISHED OPINION BY
JUDGE STUART A. RAPHAEL
Robert L. McCumber appeals his conviction for driving while intoxicated in violation of
Code § 18.2-266, arguing that the trial court erred in denying his Fourth Amendment suppression
motion. A sheriff’s deputy detained McCumber after observing him driving at night without his
taillights illuminated, five miles below the posted speed limit, and weaving twice within the lane.
McCumber argues that two weaves were too few to create reasonable suspicion that he was
driving drunk. He also argues that the violation of the taillight-illumination requirement in
Code § 46.2-1030 invalidated the stop because subsection F of that statute provides that “[n]o
law-enforcement officer shall stop a motor vehicle for a violation of this section.”
Rejecting McCumber’s statutory argument and finding that a reasonable officer
considering the totality of circumstances could reasonably suspect that McCumber was driving while intoxicated, we find no error by the trial court in denying McCumber’s suppression
motion. So we affirm his conviction.
BACKGROUND
We recite the facts in the light most favorable to the Commonwealth, the prevailing party
below. Camann v. Commonwealth, 79 Va. App. 427, 431 (2024) (en banc). “Doing so requires that
we ‘discard’ the defendant’s evidence when it conflicts with the Commonwealth’s evidence, ‘regard
as true all the credible evidence favorable to the Commonwealth,’ and read ‘all fair inferences’ in
the Commonwealth’s favor.” Id. (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)).
At about 9:00 p.m. on December 9, 2024, Lieutenant Chris Young of the Rockbridge
County Sheriff’s Office followed a truck driven by McCumber. McCumber was driving below
the speed limit and weaved twice within the travel lane. His truck would drift to the edge of the
roadway, then “abruptly jerk back to the left.” McCumber’s taillights were not illuminated.
Young activated his emergency equipment and pulled over the truck. When Young approached
McCumber to speak with him, he smelled alcohol on McCumber’s breath. McCumber first said
he had consumed one beer but later admitted to having two “tall” beers. After McCumber failed
a field-sobriety test, Young arrested him for driving while intoxicated. Testing showed
McCumber’s blood-alcohol level to be 0.12%.
McCumber moved to suppress the evidence on the ground that he was detained in
violation of the Fourth Amendment. He argued that a law-enforcement officer may stop a
vehicle for not having the taillights illuminated only “if the officer has reasonable suspicion to
stop the vehicle for other valid causes.” McCumber also argued that weaving twice within the
travel lane and driving below the speed limit did not provide reasonable suspicion for an
investigatory detention.
-2-Young testified at the suppression hearing that he had conducted “a couple hundred”
traffic stops during his 11-year career. He said that McCumber’s in-lane weaving and slower
driving at night concerned him. McCumber’s truck would slowly “drift to the right” and then
make “an abrupt movement back to the left, back towards the center lane.” Young characterized
the movements as “two swervings.” Young estimated that the truck was traveling 30 miles per
hour in a 35 mile-per-hour zone. While the truck’s brake lights were working, the truck’s
taillights were not illuminated. The record does not reveal whether the headlights were
illuminated.
When asked why he stopped McCumber, Young said: “It was the culmination of the
driving behaviors, the two drifts to the right, abrupt jerking back to the left, the no illumination
of taillights as well as the thirty in a thirty-five, it was all of that combined to give me reasons,
suspicion to make a traffic stop.” When asked what crime he reasonably suspected was being
committed, Young answered, “Driving under the influence of drugs or alcohol.”
After taking the suppression motion under advisement, the trial court issued an order
denying the motion without explaining its reasoning. McCumber entered a conditional guilty
plea to driving while intoxicated and preserved his appeal rights to contest the suppression
ruling. McCumber was sentenced to 60 days’ incarceration, all suspended, and one year of
probation. The court also suspended McCumber’s license for a year and ordered him to
complete an alcohol-safety program. McCumber appeals.
ANALYSIS
McCumber claims that the trial court erred in denying his suppression motion, arguing
that the traffic stop violated his Fourth Amendment rights because Young lacked reasonable
suspicion to pull him over. McCumber also claims that the stop was tainted by the fact that
Young stopped him in part because his taillights were not illuminated. He reasons that the
-3-sunset-to-sunrise illumination requirement in subsection (A)(i) of Code § 46.2-1030 applies to
taillights, and that subsection F renders evidence inadmissible that was obtained as a result “of a
stop in violation of this subsection.”
A. Reasonable suspicion supported the traffic stop.
Whether “evidence was seized in violation of the Fourth Amendment presents a mixed
question of law and fact that we review de novo on appeal.” Brooks v. Commonwealth, 282 Va.
90, 94 (2011) (quoting Jones v. Commonwealth, 277 Va. 171, 177 (2009)); United States v.
Arvizu, 534 U.S. 266, 275 (2002) (“[T]he standard for appellate review of reasonable-suspicion
determinations should be de novo, rather than for ‘abuse of discretion.’” (quoting Ornelas v.
United States, 517 U.S. 690, 691 (1996))). In other words, “‘determinations of reasonable
suspicion and probable cause should be reviewed de novo on appeal[,]’ while findings of
historical fact are reviewed for clear error.” Brooks, 282 Va. at 95 (quoting Ornelas, 517 U.S. at
699).
“[T]he Fourth Amendment permits an officer to initiate a brief investigative traffic stop
when he has ‘a particularized and objective basis for suspecting the particular person stopped of
criminal activity.’” Kansas v. Glover, 589 U.S. 376, 380 (2020) (quoting United States v.
Cortez, 449 U.S. 411, 417-18 (1981)). A “police officer must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts, reasonably
warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968). “Although a mere ‘hunch’ does
not create reasonable suspicion, the level of suspicion the standard requires is considerably less
than proof of wrongdoing by a preponderance of the evidence, and obviously less than is
necessary for probable cause.” Glover, 589 U.S. at 380 (quoting Navarette v. California, 572
U.S. 393, 397 (2014)). “Reasonable suspicion ‘depends on the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal technicians,
-4-act.’” District of Columbia v. R.W., 146 S. Ct. 1069, 1071 (2026) (per curiam) (quoting Glover,
589 U.S. 376, 380 (2020)). “It permits officers to make ‘commonsense judgments and
inferences about human behavior.’” Id. (quoting Glover, 589 U.S. at 380-81).
“In assessing whether an officer had reasonable suspicion, a reviewing court must ‘look
at the “totality of the circumstances” of each case’—an analysis that precludes the ‘evaluation
and rejection’ of ‘factors in isolation from each other.’” Id. at 1070 (quoting Arvizu, 534 U.S. at
273-74). Because “the whole is often greater than the sum of its parts—especially when the
parts are viewed in isolation,” District of Columbia v. Wesby, 583 U.S. 48, 60-61 (2018), courts
may not “excis[e]” and discount each circumstance individually, R.W., 146 S. Ct. at 1072. “The
totality-of-the-circumstances test . . . ‘precludes this sort of divide-and-conquer analysis.’” Id.
(quoting Arvizu, 534 U.S. at 274); Hill v. Commonwealth, 297 Va. 804, 815 (2019) (same).
Although the trial court here did not articulate the basis for denying McCumber’s
suppression motion, we “presume that the trial court made the requisite findings of fact to
support its decision. And those findings of fact ‘will not be disturbed unless plainly wrong or
without evidence to support [them].’” Commonwealth v. Holland, 304 Va. 34, 47 (2025)
(alteration in original) (quoting Jones v. Commonwealth, 29 Va. App. 503, 512 (1999)). “We
also presume—even in the absence of specific factual findings—that the trial court resolved all
factual ambiguities or inconsistencies in the evidence in favor of the prevailing party and gave
that party the benefit of all reasonably debatable inferences from the evidence.” Id. (quoting
Fitzgerald v. Commonwealth, 223 Va. 615, 627-28 (1982)). See also Hill, 297 Va. at 808-09
(applying same standard when considering the trial court’s denial of a suppression motion).
McCumber argues that his weaving twice within the traffic lane did not create reasonable
suspicion of driving while intoxicated because two intra-lane weaves are far fewer than what we
found sufficient in Freeman v. Commonwealth, 20 Va. App. 658 (1995), and Neal v.
-5-Commonwealth, 27 Va. App. 233 (1998). After surveying caselaw from other jurisdictions, we
held in Freeman that “weaving within a traffic lane or travelling at an inordinately slow rate of
speed under the circumstances is sufficient to justify an investigatory stop.” 20 Va. App. at 661
(collecting cases). Freeman weaved “three to four times within [his] lane of travel” and was
driving “ten to fifteen miles per hour” under the 55 mile-per-hour speed limit. Id. at 659. Those
facts sufficed for reasonable suspicion that Freeman was driving while intoxicated. Id. at
661-62.
In Neal, after again surveying other jurisdictions, we “agree[d] with our sister states that
weaving within a single traffic lane is an articulable fact [that] may give rise to a reasonable
suspicion of illegal activity.” 27 Va. App. at 238-39 (collecting cases). We cautioned that “[a]n
isolated instance of mild weaving within a lane is not sufficiently erratic to justify an
investigatory stop.” Id. (emphasis added). Still, we found reasonable suspicion that Neal was
driving while intoxicated because he was “weaving inside of his lane, between five and ten
times.” Id. at 236. We “h[e]ld that repeated weaving in one’s own lane gave the officer
reasonable and articulable suspicion to stop the vehicle and investigate further.” Id. at 239. We
also noted that “[t]he record provided uncontested evidence of the officer’s experience with
intoxicated drivers.” Id. at 239 n.3.
Nothing in Freeman or Neal suggested a minimum number of weaves or swerves that a
driver must commit before an officer has reasonable suspicion to detain him on suspicion of
driving while intoxicated. Rather, “[t]he test is one of reasonableness under ‘the totality of the
circumstances.’” Neal, 27 Va. App. at 239 (quoting Freeman, 20 Va. App. at 661). Those
circumstances “includ[e] the officer’s knowledge, training, and experience.” Id. at 237 (quoting
Freeman, 20 Va. App. at 661).
-6-Our sister states have likewise rejected a bright-line rule as inconsistent with the totalityof-circumstances test. See, e.g., People v. Johnston, 440 P.3d 1223, 1226 (Colo. App. 2018);
State v. Otto, 566 N.W.2d 509, 511 (Iowa 1997) (per curiam); State v. Pratt, 932 A.2d 1039,
1041-42 (Vt. 2007); State v. Post, 733 N.W.2d 634, 641 (Wis. 2007). Wisconsin’s highest court
said it well:
[W]e adopt neither the bright-line rule proffered by the State that
weaving within a single lane may alone give rise to reasonable
suspicion, nor the bright-line rule advocated by [the defendant] that
weaving within a single lane must be erratic, unsafe, or illegal to
give rise to reasonable suspicion. Rather, we maintain the
well-established principle that reviewing courts must determine
whether there was reasonable suspicion for an investigative stop
based on the totality of the circumstances.
Post, 733 N.W.2d at 641.
Determining the reasonableness of an investigative detention from the totality of
circumstances “is a common[-]sense test.” Id. at 638. As a matter of common sense, an
“isolated instance of mild weaving” alone is not enough. Neal, 27 Va. App. at 239. “Indeed, if
failure to follow a perfect vector down the highway or keeping one’s eyes on the road were
sufficient reasons to suspect a person of driving while impaired, a substantial portion of the
public would be subject each day to an invasion of their privacy.” United States v. Lyons, 7 F.3d
973, 976 (10th Cir. 1993), overruled in part on other grounds by United States v. Botero-Ospina,
71 F.3d 783 (10th Cir. 1995). But repeated or abrupt weaving reasonably suggests impaired
driving. “Weaving within a lane is a widely recognized characteristic of an intoxicated driver,”
something “within the ability of most fellow drivers” to identify. Arburn v. Dep’t of Motor
Vehicles, 61 Cal. Rptr. 3d 15, 18 (Cal. Ct. App. 2007).
Thus, courts in other jurisdictions have found two intra-lane weaves sufficient for
reasonable suspicion when combined with other circumstances to suggest driving while
intoxicated, or when the weaves were unusual and not readily explained by road conditions or
-7-weather. See, e.g., United States v. Gibbs, 547 F. App’x 174, 179-80 (4th Cir. 2013) (per
curiam) (finding that two instances of “drift[ing] slowly toward the double yellow lines before
quickly ‘recorrecting’ the vehicle to the center of the lane . . . . could not be excused on account
of either poor road or poor weather conditions”); Gaddis ex rel. Gaddis v. Redford Twp., 364
F.3d 763, 771 (6th Cir. 2004) (finding reasonable suspicion where the defendant “weaved twice
to the left to touch the dividing line in a fairly short span”); Amundsen v. Jones, 533 F.3d 1192,
1199 (10th Cir. 2008) (“We have . . . held that drifting onto the shoulder twice creates reasonable
suspicion of driving under the influence.”); People v. Greco, 783 N.E.2d 201, 206 (Ill. App. Ct.
2003) (defendant “swerved two or three times from the center of the road towards the curb”);
Robinson v. State, 5 N.E.3d 362, 368 (Ind. 2014) (defendant “swerved twice on a relatively
straight, flat roadway”); State v. Thomte, 413 N.W.2d 916, 917, 919 (Neb. 1987) (defendant’s
“vehicle twice weav[ed] within its lane of traffic,” including one “sharp weave”). In Robinson,
for instance, the Indiana Supreme Court explained that although the defendant’s two swerves
within the traffic lane “could have been attributable to driver distraction or some other more
innocuous cause, Terry does not require absolute certainty of illegal activity, but rather
reasonable suspicion.” Robinson, 5 N.E.3d at 368.
McCumber relies principally on our unpublished decision in Commonwealth v. Augustus,
No. 1603-15-1, 2016 Va. App. LEXIS 76 (Mar. 11, 2016), where the panel affirmed the
suppression ruling, but Augustus is both factually distinguishable and a good example of the
totality-of-the-circumstances test in action.1 The police officers there tailed a truck driver after
observing him engage in a suspected drug transaction. Unlike in this case, the Commonwealth
did not assert that the stop was warranted by the driver’s “suspected impaired driving.” Id., slip
1
Our unpublished opinions “will not be received as binding authority” but may be cited and considered for their persuasive value. Rule 5A:1(f).
-8-op. at 8, 2016 Va. App. LEXIS 76, at *12. The Commonwealth advanced other theories instead,
but the trial court and this Court found none of them meritorious. One theory was that the driver
had engaged in reckless driving because, after the officers turned on their emergency lights, the
driver did not pull over immediately, “sped up a little, but stayed under the posted speed limit,”
and “weaved several times within [the] lane.” Id., slip op. at 3, 2016 Va. App. LEXIS 76, at *4.
The trial court was unpersuaded, noting that the defendant’s large truck “filled up the entire lane
almost,” the driver’s actions “were not ‘outlandish[,]’ the weaving was the extent of any sort of
traffic violation[,] and [the] stop was based solely on the alleged drug transaction.” Id., slip op.
at 3, 2016 Va. App. LEXIS 76, at *5. While the panel of this Court agreed that “[o]ngoing
weaving within one’s lane can provide reasonable suspicion to justify a stop,” it said that the trial
court reasonably “found that there was only an isolated instance of mild weaving within a traffic
lane over a very short distance,” so “law enforcement did not have reasonable suspicion of
reckless driving to justify the stop.” Id., slip op. at 9, 2016 Va. App. LEXIS 76, at *13-14.
By contrast, the facts brought out at the suppression hearing here sufficed to create
reasonable suspicion that McCumber was driving while intoxicated. To start, McCumber’s truck
weaved twice within the lane. And it was no “isolated instance of mild weaving,” Neal, 27
Va. App. at 239, but a swerve that was both suspicious and repeated. McCumber drifted slowly
to one side and then abruptly jerked back to stay in his lane. Nothing in the record suggests that
those swerves could be explained by road or weather conditions; the swerves occurred along a
“small flat straight stretch” where there was only a “very slight” bend.
In addition, McCumber was driving 5 miles an hour under the 35 mile-per-hour speed
limit—a fact that could suggest an impaired driver doing his best to stay on the road. And
McCumber’s taillights were not illuminated, suggesting the possibility of an impaired driver who
neglected to turn them on. True, the record does not tell us whether McCumber’s headlights
-9-were turned off or whether his taillights were just not working. But a reasonable officer in
Young’s position could properly suspect that an impaired driver had failed to turn on his lights.2
The trial court was also entitled to credit Young’s training and experience in assessing
whether McCumber’s driving behavior established reasonable suspicion. See Neal, 27 Va. App.
at 239 n.3 (citing “uncontested evidence of the officer’s experience with intoxicated drivers”).
Young had conducted “a couple hundred” traffic stops over his 11-year tenure as a
law-enforcement officer. When asked what crime he “reasonably suspect[ed] was being
committed” based on the conduct he observed, Young answered, “Driving under the influence of
drugs or alcohol.” The trial court could properly rely on Young’s experience to recognize that
McCumber’s behavior established reasonable suspicion that McCumber was driving under the
influence of drugs or alcohol.
McCumber posits a series of “innocent explanations” that could account for his behavior
and negate the inference that he swerved because he was intoxicated:
• “Mr. McCumber could have been swerving for trash that perhaps was too
insignificant for the officer to notice.”
• “Mr. McCumber could have been trying to prohibit his irascible dog from eating
the groceries he was taking home.”
• “Maybe Mr. McCumber accidentally spilled hot coffee on himself.”
McCumber Br. 10. Maybe so. There could also be innocent explanations for why McCumber
was driving five miles per hour under the speed limit and for why his taillights were not on.
But that misapprehends the “reasonable suspicion” standard. “A determination that
reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.” Arvizu,
2
“In conducting a Terry stop, the police must diligently pursue a means of investigation likely to confirm or dispel their suspicions quickly.” Brown v. Commonwealth, 33 Va. App. 296, 307 (2000). Young did so here, detecting alcohol on McCumber’s breath as soon as he approached the driver’s side door.
- 10 -534 U.S. at 277. “To the contrary, ‘the principal function of [the] investigation is to resolve that
very ambiguity . . . to “enable the police to quickly determine whether they should allow the
suspect to go about his business or hold him to answer charges.”’” Turay v. Commonwealth, 79
Va. App. 286, 298 (2023) (en banc) (alterations in original) (quoting Morris v. City of Virginia
Beach, 58 Va. App. 173, 183 (2011)). “Undoubtedly, each of these factors alone is susceptible
to innocent explanation, and some factors are more probative than others. Taken together,
[however] . . . they sufficed to form a particularized and objective basis for [the officer’s]
stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment.”
Arvizu, 534 U.S. at 277-78.
B. The stop did not violate Code § 46.2-1030(F) because McCumber was not detained
for violating that statute.
McCumber argues, as he did below, that the stop here was fatally tainted because Young
cited as one of the reasons for pulling him over that his taillights were not illuminated.
Subsection A(i) of Code § 46.2-1030 requires that illuminating devices be lighted “from sunset
to sunrise.” But subsection F imposes an exclusionary rule for “evidence discovered or obtained
as the result of a stop in violation of this subsection,” except that “a law-enforcement officer may
stop a vehicle if it displays no lighted headlights during the time periods set forth in subsection
A.” That code section was one of 19 statutes that the General Assembly amended in 2020 to
prevent pretextual traffic stops based on what the General Assembly determined were
comparatively minor traffic offenses. See Smith v. Commonwealth, 78 Va. App. 371, 380-81 &
n.3 (2023). The amendment created “a statutory ‘exclusionary rule’ that provide[s] broader
protection for defendants than is required by the Fourth Amendment.” Id. at 384.
We reject the Commonwealth’s argument that the statutory exclusionary rule in
Code § 46.2-1030(F) does not apply to taillight violations. The Commonwealth maintains that
the statute refers only to “headlights and illuminating devices,” while “tail lights” are governed
- 11 -by Code § 46.2-1013.3 The Commonwealth argues that it was dicta when we said in Flores v.
Commonwealth, 82 Va. App. 249, 260 (2024), that Code § 46.2-1030 required “tail lights” to be
turned on from sunset to sunrise. But Code § 46.2-1030(A) requires nighttime illumination not
only of “headlights” but of “illuminating devices as required by this article,” and the taillight
requirement in Code § 46.2-1013 is part of the same “article.” Thus, taillights are among the
“illuminating devices” covered by the nighttime illumination requirement in
Code § 46.2-1030(A).
Even so, the statutory exclusionary rule does not apply here because Young did not stop
McCumber “for a violation of” the illumination requirement. Code § 46.2-1030(F). We agree
with McCumber that for such “secondary offenses” as this one, a suspect “may only be stopped
and ticketed if the officer has other lawful reason to stop the vehicle.” McCumber Br. 11. But as
McCumber’s counsel admitted in the trial court, “Young didn’t stop [McCumber] for a violation
of” Code § 46.2-1030. Young stopped him because he suspected that McCumber was “[d]riving
under the influence of drugs or alcohol” in violation of Code § 18.2-266. In other words, the fact
that the taillights were not illuminated was not “a ‘legal pretext to stop the [vehicle].’” Smith, 78
Va. App. at 384 (quoting Thomas v. Commonwealth, 57 Va. App. 267, 274 (2010)). It was
simply one among the totality of circumstances that created reasonable suspicion that McCumber
was driving while intoxicated.
3
The Code uses inconsistent terms to refer to the red lights mounted on the rear of a vehicle. Some provisions like Code § 46.2-1013 refer to “tail lights.” See, e.g., Code §§ 46.2-1012, -1088.5, -1150. Others refer to “taillights.” See, e.g., Code
§§ 46.2-1008, -1029.2, -1036. Unless quoting a statute, we use taillights, which is now the more common usage. See, e.g., Taillight, Webster’s Third New Int’l Dictionary Unabridged (2021).
- 12 -CONCLUSION
In sum, we find that McCumber’s weaving and driving below the speed limit at night
without his taillights on established reasonable suspicion to justify the traffic stop. So the trial court
did not err in denying McCumber’s motion to suppress.
Affirmed.
- 13 -Causey, J., concurring in part and dissenting in part.
I concur with the majority’s holding that the exclusionary rule in Code § 46.2-1030(F)
covers non-ignited taillights. However, I respectfully dissent from the judgment for two reasons:
First, I would hold that in Code § 46.2-1030(F), the General Assembly intended to prohibit a
lack of illuminated taillights from serving as a predicate—even in part—for reasonable suspicion
to stop a vehicle. Second, I would hold that the police lacked reasonable articulable suspicion to
stop McCumber’s vehicle on the basis of two in-lane swerves that occurred in quick succession
and were followed by a short period of slow driving. Therefore, I would hold that the trial court
erred in denying the motion to suppress.
I. McCumber’s Defective Taillights Should Not Be Considered as Part of the Reasonable Suspicion Analysis
First, I would hold that under Code § 46.2-1030(F), a driver’s non-ignited taillights
cannot serve as any portion of the justification considered by a court in support of the legality of
a traffic stop. Therefore, I would limit the reasonable suspicion analysis to McCumber’s brief
in-lane swerving and driving under the speed limit.
As the majority rightly recognizes, our legislature recently passed a rule prohibiting
vehicle stops for non-ignited taillights. Code § 46.2-1030(A) requires vehicles to “display
lighted headlights and illuminating devices” during certain periods, including “from sunset to
sunrise.” Code § 46.2-1030(F) then states that “[n]o law-enforcement officer may stop a vehicle
for a violation of this section, except that a law-enforcement officer may stop a vehicle if it
displays no lighted headlights” during the relevant period. (Emphasis added). Therefore, a
vehicle may not be stopped “for” non-ignited taillights—another form of illuminating device.1
1
If the legislature wanted for lighted taillights to also be a factor that law enforcement officers could weigh when deciding to initiate a traffic stop, the General Assembly easily could have included the words “illuminating devices” in Code § 46.2-1030(F)—as it did in Code § 46.2-1030(A). We must assume that the General Assembly made a deliberate decision to only
14
Id. And, under that code section, “[n]o evidence discovered or obtained as the result of” such an
unlawful stop “shall be admissible.” Id. I join in the majority’s reasoning rejecting the
Commonwealth’s arguments to the contrary.
Unlike the majority, however, I would further interpret the General Assembly’s
prohibition on “stop[ping] a vehicle for a violation of” the ignited-taillight requirement to
indicate the following rule: non-ignited taillights may not serve as a necessary portion of the
legal justification for any stop.
First, I would note that the majority does not appear to suggest that non-ignited taillights,
in isolation, could legally constitute the sole reasonable suspicion undergirding a stop for
suspected DUI. In other words, an officer cannot observe a vehicle driving with non-ignited
taillights, become “suspicious” that the driver failed to remedy that issue because he was
intoxicated, and conduct a stop on that basis. Putting aside the clear unconstitutionality of this
kind of stop,2 construing that situation to comply with Code § 46.2-1030(F) would negate the
unambiguous legislative intent: to shield members of the public from seizures based on nonignited taillights. See McFadden v. McNorton, 193 Va. 455, 461 (1952) (“[A] statute ought to be
interpreted in such manner that it may have effect, and not to be found vain and elusive.”).
Again, I do not believe that such an interpretation is advanced by the majority in this case.
I do also believe, however, that the majority’s position creates similar problems. Under
the majority’s reading, all that would seem to be necessary to comply with Code § 46.2-1030(F),
include the word “headlights” in Code § 46.2-1030(A). City of Richmond v. VEPCO, 292 Va. 70, 75 (2016) (“[Courts] assume that the General Assembly chose, with care, the words it used . . . .” (alteration in original) (citation omitted)).
2
See Navarette v. California, 572 U.S. 393, 402 (2014) (“Of course, not all traffic infractions imply intoxication. Unconfirmed reports of driving without a seatbelt or slightly over the speed limit, for example, are so tenuously connected to drunk driving that a stop on those grounds alone would be constitutionally suspect.” (emphases added)).
15
is for a police officer to testify that a given traffic stop was not based solely on a defendant’s
taillights. It is troubling that a factor that the legislature has taken pains to identify as an illicit
basis for a stop could serve as a significant part of a “mixed-motives” stop. See Almond v.
Gilmer, 188 Va. 1, 49 (1948) (“It must be remembered that legislatures are ultimate guardians of
the liberties and welfare of the people in quite as great a degree as the courts.”). On a practical
level, in my view, permitting such stops simply due to the coexistence of some other nontaillight criteria, no matter how small,3 risks undercutting the General Assembly’s clearly
expressed will. See McFadden, 193 Va. at 461.
In my view, the most natural interpretation of the plain language does not create this
issue. The best reading of the language, I would argue, is that the General Assembly has
completely excised defective taillights from the reasonable suspicion analysis.
I would argue that the word, “for” in Code § 46.2-1030(F) should be construed to convey
a causal meaning; the sentence could be reframed as, “No law-enforcement officer may stop a
vehicle” because of “a violation of” the taillight requirement. In other words, the General
Assembly has identified defective taillights as an impermissible basis for a traffic stop. As our
case law in another context helps illustrate, when the legislature has spoken by identifying a
particular criterion as an illicit basis for a decision, we must ordinarily interpret that term to
mean that a decision cannot be based on that factor at all.
Our Supreme Court has explicitly held that in the absence of language creating a “sole
causation” requirement, a prohibition on performing a specific act for an improper purpose,
means that actions also may not be performed even partly for that purpose. Shaw v. Titan Corp.,
255 Va. 535, 543 (1998). In Shaw, the Supreme Court distinguished the causation standard
3
For example, what is to prevent an officer from observing non-ignited taillights and then following the driver until he, inevitably, exhibits a mild aberration like weaving within his lane of travel? See infra § II (discussion of the ubiquity of in-lane weaving).
16
applicable in wrongful termination case law using the term “because” from the standard stated in
case law interpreting a code section that used the words “solely because.” Id. at 542-43 (second
emphasis added) (first quoting Lockhart v. Commonwealth Educ. Sys. Corp., 247 Va. 98, 106
(1994); and then quoting Code § 65.2-308(A)). In the absence of the term “solely” in the
common law’s precedential standard, the Court held, a termination may be wrongful even if the
improper purpose is not its sole cause or purpose. Id. at 543.
Similarly, under federal law, many consequential decisions—such as those relating to
employment and housing—cannot be made on the basis of (i.e., “because of” or “for”) a person’s
membership in a protected class. See, e.g., 42 U.S.C. § 2000e-2(a)(1) (stating in part that “[i]t
shall be an unlawful employment practice for an employer . . . to fail or refuse to hire . . . any
individual . . . because of such individual’s race, color, religion, sex, or national origin”
(emphasis added)). Under controlling precedent, this means that a decision made even partly on
that basis is illicit. See, e.g., Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir.
2016) (“For status-based discrimination claims, the [claimant] must ‘show that the motive to
discriminate was one of the [defendant’s] motives, even if the [defendant] also had other, lawful
motives that were causative in the [defendant’s] decision.’”). Even under the standard of “butfor causation,” the strictest federal civil rights causation standard, an illicit factor may not play
any necessary part in a decision. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03
(1973). Further, this same interpretation is standard across the nation outside the realm of antidiscrimination law. See, e.g., Hillview Assocs. v. Bloomquist, 440 N.W.2d 867, 871 (Iowa 1989)
(interpreting a prohibition on landlord retaliation against tenants to apply in cases when
retaliation was not the sole motive for an action); Wright v. Brady, 889 P.2d 105, 109 (Idaho Ct.
App. 1995) (same); Elk Creek Mgmt. Co. v. Gilbert, 303 P.3d 929, 940 (Or. 2013) (same).
17
The language at play in Code § 46.2-1030 lends itself to interpretation along the lines of
Shaw. The legislature did not add limiting language to convey that it was only prohibiting stops
performed “solely for a violation of” the taillight requirement. Instead, it more broadly and
straightforwardly said that no stop may be performed “for a violation of” that requirement. Code
§ 46.2-1030(F) (emphasis added). The most natural interpretation of that language is that the
legislature intended to prohibit this factor from being any necessary part of the legal basis of a
stop. See Shaw, 255 Va. at 542-43. It rendered impermissible not only stops based solely on
malfunctioning taillights, but also stops depending in part on the basis of malfunctioning
taillights. Id.
Under the more stringent but-for causation standard, the language in Code § 46.2-1030(F)
means that a stop is barred if there is no independently sufficient constitutional basis for it, aside
from the non-ignited taillights. In other words, a stop is prohibited if an observation of nonignited taillights was a necessary part of the totality of the circumstances that would (in the
absence of the statute) support a finding of reasonable suspicion. Stops will then truly be
prohibited from occurring “for” violations of the lighted taillight requirement.4 Code
4
The majority quotes McCumber’s counsel’s statement that the police officer “didn’t stop him for a violation of [Code § 46.2-1030].” This statement was not a concession that the exclusionary rule was inapplicable to this case; to the contrary, it was an argument about pretext.
As is clear from the surrounding context, the above statement was made in support of McCumber’s counsel’s argument that the police brought up the taillight issue as a post-hoc rationalization for an otherwise-unconstitutional stop. McCumber’s counsel followed the statement by adding,
[The officer] had absolutely no intent of stopping him for any kind
of defective equipment in violation[.] . . . [T]hat is all merely a
pretext for a constitutional violation against my client’s rights
simply because they’ve looked at the case law and discovered that
I’m right, that you cannot stop a vehicle for swerving twice within
the lines.
McCumber’s point is that the exclusionary rule in Code § 46.2-1030(F) not only precludes taillight issues from serving as any part as the actual justification employed by an
18
§ 46.2-1030(F). See Shaw, 255 Va. at 543; McDonnell Douglas, 411 U.S. at 802-03; Guessous;
828 F.3d at 216; Elk Creek Mgmt. Co., 303 P.3d at 940.
In sum, I would interpret Code § 46.2-1030(F) to create a causal inquiry, barring stops
that depend on an illicit factor for their constitutionality. This interpretation, in my view, is the
best reading of the plain language of the statute and underlying legislative intent.
II. The Police Lacked Reasonable Suspicion to Stop McCumber
As part of its prohibition on unreasonable searches and seizures, the Fourth Amendment
bars any police officer from performing even a “brief investigative traffic stop” of an automobile
unless he possesses “reasonable suspicion” that the person stopped is engaged in criminal
activity. Kansas v. Glover, 589 U.S. 376, 380 (2020). This requirement of “reasonable,
articulable suspicion that criminal activity is afoot,” Illinois v. Wardlow, 528 U.S. 119, 123
(2000) (citing Terry v. Ohio, 392 U.S. 1 (1968)), is assessed from the perspective of a reasonable
officer, viewing the facts “through the lens of his police experience and expertise,” Ornelas v.
United States, 517 U.S. 690, 699 (1996).
Viewing the facts through this lens, courts look for objective justifications for a stop. The
Fourth Amendment requires “a particularized and objective basis for suspecting the particular
person stopped of criminal activity.” Navarette v. California, 572 U.S. 393, 396 (2014) (quoting
United States v. Cortez, 449 U.S. 411, 417-418 (1981)). At the other end of the spectrum, “an
‘inchoate and unparticularized suspicion or “hunch” of criminal activity’” will not pass
constitutional muster. Wardlow, 528 U.S. at 124 (quoting Terry, 392 U.S. at 27). See Hill v.
Commonwealth, 297 Va. 804, 827 (2019) (“[D]ue weight must be given, not to his inchoate and
officer for a stop—but it also prohibits taillights from functioning as an alternative justification grafted by the Court onto an otherwise-unconstitutional stop. Here, we need not determine whether McCumber’s defective taillights was an actual justification or post-hoc rationalization. Either way, it cannot serve as any part of the Commonwealth’s case for reasonable suspicion.
19
unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is
entitled to draw from the facts in light of his experience.” (quoting Whitaker v. Commonwealth,
279 Va. 268, 274 (2010))). These minimum requirements for reasonable suspicion are strictly
upheld; they “safeguard[] the privacy and security of individuals against arbitrary invasions by
governmental officials.” Brown v. Commonwealth, 270 Va. 414, 418 (2005).
The policing of drivers traversing the Commonwealth’s roads can present a thorny
reasonable suspicion issue. On the one hand, if an officer actually perceives a driver committing
a traffic infraction, that person, of course, may generally be stopped.5 But when legal6 driving is
observed by police, many minor indicia that a police officer may consider possible indications
that a driver might be intoxicated—undoubtedly a critical safety issue—are equally consistent
with lawful, sober drivers encountering brief obstacles or distractions. State v. Smith, 21 S.W.3d
251, 258 (Tenn. Crim. App. 1999) (“Only the hypothetical ‘perfect driver’ would not be subject
to seizure if we were to hold that minor driving ‘errors,’ which neither violate our traffic code
nor create a hazard, indicate that a person might be intoxicated.”). Thus, while driving that
reaches a certain level of recklessness will certainly merit a stop, careful scrutiny must be applied
to reasonable suspicion analyses based on intrinsically lawful behavior to ensure that everyday
citizens are not subject to the prospect of constant temporary seizures. See Harris v.
Commonwealth, 276 Va. 689, 697 (2008) (“Lawful conduct that the officer may subjectively
5
As noted supra, this rule is subject to numerous exceptions, such as that stated in Code § 46.2-1030(F).
6
Consistently in our case law, special scrutiny is applied to seizures performed on the basis of lawful but ostensibly concerning behavior. See Brown, 270 Va. at 420‑21 (noting our Supreme Court “has consistently declined to find that probable cause can be established solely on the observation of material which can be used for legitimate purposes, even though the experience of an officer indicates that such material is often used for illegitimate purposes”).
20
view as unusual is insufficient to generate a reasonable suspicion that the individual is involved
in criminal activity.”); Brown, 270 Va. at 418.
As particularly relevant to this case, several jurisdictions have made the commonsense7
observation that brief, occasional periods of weaving or swerving in a lane are a ubiquitous
occurrence for law-abiding drivers. See State v. Tague, 676 N.W.2d 197, 205 (Iowa 2004)
(noting that “any vehicle could . . . briefly cross[] an edge line of a divided roadway,” as this
“happens all too often” and might be due to “[d]rivers talking on their cell phone, looking at a
map, adjusting the radio, adjusting the heater, defroster or air conditioner, or checking on a child
restrained in the back seat”). Permitting these minor aberrations to serve as a predicate for a stop
would, as noted, permit a great many law-abiding drivers to be subject to seizure by police
officers—a type of “governmental invasion[]”—on a nearly everyday basis. Brown, 270 Va. at
418; see also United States v. Lyons, 7 F.3d 973, 976 (10th Cir. 1993) (“Indeed, if failure to
follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient
reasons to suspect a person of driving while impaired, a substantial portion of the public would
be subject each day to an invasion of their privacy.”), overruled on other grounds by United
States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc).
For these reasons, it is necessary to draw a careful distinction between weaving that can
and cannot suffice for a finding of reasonable suspicion. In Virginia, the precedent of Neal v.
Commonwealth, 27 Va. App. 233 (1998), discussed below, supports drawing the line pursuant to
the above observations: to establish reasonable suspicion, a driver’s brief, in-lane weaving must
exceed that which is equally consistent with the driver possibly encountering an obstacle or
7
See Glover, 589 U.S. at 380-81 (noting that the reasonable suspicion analysis depends on officers’ “commonsense judgments and inferences about human behavior”).
21
ordinary distraction. See Tague, 676 N.W.2d at 205; Smith, 21 S.W.3d at 258; Lyons, 7 F.3d at
976.
In Neal, this Court held that the facts of the case at hand sufficed for reasonable
suspicion, as the vehicle “weav[ed] inside of [its] lane . . . between five and ten times.”
27 Va. App. at 236 (emphasis added). But even in upholding Neal’s conviction, the Court also
took pains to explicitly caution Virginia courts: “An isolated instance of mild weaving within a
lane is not sufficiently erratic to justify an investigatory stop.” Id. at 239 (emphasis added)
(citing United States v. Gregory, 79 F.3d 973 (10th Cir. 1996)). The Neal Court used clear
prohibitory language (“is not sufficiently erratic to justify”). Thus, if this Court concludes that
McCumber’s driving constituted an “isolated instance of mild weaving within a lane,” then we
have no discretion and must reverse the denial of the motion to suppress.
I would conclude that in this case, as a primary matter, the prohibitory rule in Neal
controls: McCumber’s actions merely constituted an “isolated instance of mild weaving within a
lane.” Id. The weaving should be considered “isolated” because it occurred over a very short
period and did not recur thereafter. McCumber’s weaving occurred in two back and forth
movements that happened in quick succession and that lasted roughly five seconds each. After
this instance of swerving, McCumber proceeded on his route and did not weave any more until
he was pulled over.
The majority appears to suggest that “isolated” in Neal means that the prohibitory rule
applies only to drivers who perform one “weave,” or one singular discrete back-and-forth
movement. I disagree with this interpretation. Neal uses the word “weaving” rather than
“weaves.” This word choice indicates that an “isolated . . . instance of weaving” could cover
multiple repeated back and forth movements. See Weaving, Webster’s Third New International
Dictionary (1981) (“[T]he action of a vehicle that alternately diverges from and merges into
22
traffic flows moving in the same direction, shifting from one lane to another, and repeatedly
crossing the paths of other vehicles” (emphases added)). The term “isolated instance,” as applied
to the term “weaving,” is best read to require that the alternate back-and-forth movements
happen together and in quick succession—as opposed to stopping completely and then recurring
after a period of cessation. See Commonwealth v. Augustus, No. 1603-15-1, slip op. at 3, 9, 2016
Va. App. LEXIS 76, at *4, *14 (Mar. 11, 2016) (affirming lower court’s suppression order in
part due to circuit court’s finding that a driver who “weaved several times within [the] lane” had
merely engaged in an “isolated instance of mild weaving within a traffic lane over a very short
distance” (emphases added)).
The majority also indicates that McCumber’s driving cannot qualify for the per se rule
because his weaving was not “mild.” This argument may present a closer question, as the officer
described two “abrupt” movements. However, in my view, the weaving in question should still
be considered “minor.” McCumber never once crossed over the center line of the road, nor onto
the rumble strip on the right side of the road. He weaved only for a few seconds each time.
While abruptness may be considered as part of the analysis, I view the brevity and minimal
movement involved in the weaving as sufficient to qualify for Neal’s absolute prohibitory rule.
Had McCumber crossed any lines on the road, perhaps the outcome would differ.
However, even if the weaving did not qualify as “mild” under Neal’s absolute prohibitory
rule, I would still hold that, under the principles of Neal, McCumber’s weaving was insufficient
to support a finding of reasonable suspicion under the totality of the circumstances.
The Neal Court, in articulating its “isolated instance of mild weaving within a lane”
caveat, did not purport to set a ceiling for the degree of weaving that can be insufficient to show
reasonable suspicion. 27 Va. App. at 239. Rather, through the use of clear prohibitory language
(“is not sufficiently erratic to justify”), it explicitly only set a bright-line rule prohibiting this
23
Court from upholding a traffic stop when its weaving-related justification is below a specific
level. To determine what Neal has to say about cases beyond this minimum threshold, we should
look to its underlying principles.
The broader principle underlying the brief but forceful caveat in Neal can be seen in the
primary case it cites in support of that rule: United States v. Gregory, a Tenth Circuit opinion. In
Gregory, a driver was stopped after briefly crossing “two feet into the right shoulder emergency
lane of the interstate” on a windy day. 79 F.3d at 975-76. The Gregory Court reasoned that this
movement was insufficient to justify a stop precisely because it was the kind of brief weaving
that is ubiquitous for ordinary drivers. See id. at 978-79 (“As we have stated, ‘[I]f failure to
follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient
reasons to suspect a person of driving while impaired, a substantial portion of the public would
be subject each day to an invasion of their privacy.’” (alteration in original) (quoting Lyons, 7
F.3d at 976)).
The Neal Court reaffirmed that—outside of the above-discussed realm of strict
prohibition on stops for “isolated instance[s] of mild weaving”—“[t]he test is one of
reasonableness under ‘the totality of the circumstances.’” 27 Va. App. at 239 (quoting Freeman
v. Commonwealth, 20 Va. App. 658, 661 (1995)). In performing this assessment, courts
interpreting Neal should be guided by the principle discussed in Gregory, as well as the other
cases discussed above: that while constant or continual weaving over a significant period may
suffice for reasonable suspicion, drivers should not be stopped for minor, in-lane aberrations
consistent with temporary distractions or obstacles. See Tague, 676 N.W.2d at 205; Smith, 21
S.W.3d at 258; Lyons, 7 F.3d at 976.
In this case, under the totality of the circumstances, McCumber’s driving did not rise to
the level of “reasonable, articulable suspicion” because his brief in-lane weaving was consistent
24
with a possible response to any number of ordinary, legal occurrences that happen to drivers on
an everyday basis. A driver exhibiting McCumber’s level of brief, mild weaving may have been
avoiding small animals on the road—and the police officer acknowledged such animals were
often out at night in the area. He could have been changing the radio station or fumbling for a
necessary item in the cupholder. He could have been distracted by a child passenger’s urgent
whining. In any case, McCumber’s movements on the road, while imperfect, were brief and
mild enough that they did not provide grounds for a restriction of his liberty via a temporary
stop.
Before concluding, I will note that while the majority provides a list of out-of-jurisdiction
decisions that appear to support a finding of reasonable suspicion on similar facts, there are also
numerous courts who have come to the opposite conclusion in similar situations. See State v.
Fields, 673 S.E.2d 765, 766 (N.C. Ct. App. 2009) (holding lower court erred in finding
reasonable suspicion where “[o]n three separate occasions, [a police officer] saw defendant’s car
swerve to the white line on the right side of the traffic lane” over the course of “approximately
one and a half miles”); United States v. Jimenez-Medina, 173 F.3d 752, 754 (9th Cir. 1999)
(finding district court erred in finding reasonable suspicion where a police officer observed a
pickup truck “weave within its lane” while driving in an area in which pickup trucks were known
to be used for smuggling undocumented immigrants across the border, while driving 45-50 miles
per hour in a 75-mile-per-hour zone); State v. Dexter, No. 1-622, 2011 Iowa App. LEXIS 915, at
*1, *7-8 (Iowa Ct. App. 2011) (holding lower court erred in finding reasonable suspicion where
an officer observed a vehicle “weav[ing] slowly and gently from right to left” four or five times,
and once “hugg[ing] the center and fog lines,” while driving at 2:39 a.m.); State v. Post, 733
N.W.2d 634, 639 (Wis. 2007) (noting that “movements that may be characterized as ‘repeated
weaving within a single lane’ may, under the totality of the circumstances, fail to give rise to
25
reasonable suspicion,” including, “for example, where the ‘weaving’ is minimal or happens very
few times over a great distance”). I would argue that this battle of out-of-state case law shows
that the best result will be reached on the basis of applying the underlying principles I have
advocated for above rather than trying to match facts perfectly with out-of-jurisdiction cases.
Further, it bears noting that the driving behaviors noted by the U.S. Supreme Court as
examples of indicia of driving while intoxicated are orders of magnitude more severe than what
was observed in this case. The Supreme Court provided the following string citation as
exemplifying “sound indicia of drunk driving”:
See, e.g., People v. Wells, 38 Cal. 4th 1078, 1081, 45 Cal. Rptr. 3d
8, 136 P. 3d 810, 811 (2006) (“‘weaving all over the roadway’”);
State v. Prendergast, 103 Haw. 451, 452-453, 83 P. 3d 714,
715-716 (2004) (“cross[ing] over the center line” on a highway and
“almost caus[ing] several head-on collisions”); State v. Golotta,
178 N.J. 205, 209, 837 A. 2d 359, 361 (2003) (driving “‘all over
the road’” and “‘weaving back and forth’”); State v. Walshire, 634
N.W. 2d 625, 626 (Iowa 2001) (“driving in the median”).
Navarette, 572 U.S. at 402.
Finally, I will note that the slow speed observed by the police officer in this case was
very mild. Traveling five miles per hour below a 35 mile-per-hour speed limit is hardly a
striking occurrence. While speed—and perhaps even slow speed—is a factor that can be
considered as a meaningful part of the totality of the circumstances analysis in some reasonable
suspicion cases, I would hold that the slow driving in this case did not suffice to move the needle
to the point of creating “a particularized and objective basis for suspecting the particular person
stopped of criminal activity.” Id. at 396.
III. Conclusion
I would first hold that under Code § 46.2-1030(F), McCumber’s non-ignited taillights
could play no part in supporting a finding of reasonable suspicion for a stop in this case. Second,
I would hold that under the totality of the circumstances, McCumber’s in-lane weaving did not
26
suffice for a finding of reasonable suspicion to perform a temporary seizure under the Fourth
Amendment. I would therefore reverse the circuit court’s denial of McCumber’s motion to
suppress.
27