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COURT OF APPEALS OF VIRGINIA
Present:    Chief Judge Fitzpatrick, Judge Coleman and
Senior Judge Duff
Argued at Alexandria, Virginia
JOHN LESLIE NEAL
OPINION BY
v.                                                                      Record No.  0694-97-4   CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL  28,  1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
Dennis L. Hupp, Judge
Elwood Earl Sanders, Jr., Director Capital/
Appellate Services  (Jay K. Wilk; Public
Defender Commission, on briefs), for
appellant.
Marla Graff Decker, Assistant Attorney
General  (Richard Cullen, Attorney General, on
brief), for appellee.
John Leslie Neal  (appellant) was convicted in a jury trial
of operating a motor vehicle after having been declared an
habitual offender in violation of Code  §  46.2-357(B)(3) and
operating a motor vehicle while intoxicated in violation of Code
§  18.2-266.    On appeal, he contends the trial court erred in
admitting evidence obtained as a result of an unreasonable
investigatory stop.    We disagree and affirm the convictions.
I.
"'On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'"    Juares v. Commonwealth,
26 Va. App.  154,  156,  493 S.E.2d  677,  678  (1997)  (citation
omitted).    On May  9,  1996, around  7:20 p.m., Trooper Jonathan D.




Fainter was on patrol in Shenandoah County when he received a
call to "be on the lookout" for a "reckless" driver southbound on
Interstate  81.    Fainter was in the area and proceeded south.    He
saw the vehicle and got "close enough" to observe it for
approximately one-half mile, which he estimated took
approximately twenty-five seconds.    During this time, the car was
traveling at sixty-five miles per hour in the right lane of two
southbound traffic lanes and "[t]he vehicle, numerous times,
would weave to the center of the highway, then back to the right,
just constantly moving from side to side in its lane."    Over
"that half-mile distance, it kept sort of weaving inside of his
lane," between five and ten times.    The car crossed into the left
southbound lane and it "touched, just touched the line" on the
right side of the lane.    After approximately twenty-five seconds
of observation, Fainter, who had been involved in eighteen DUI
arrests in  1996, stopped the car to investigate because he was
"concerned" about the erratic driving.    Appellant, the driver of
the car, could not produce his driver's license or registration.
Fainter smelled the odor of alcohol coming from the vehicle, and
he asked appellant to step out of the car.    When asked, appellant
admitted, "Yes, we've been drinking."
During the investigative stop, appellant was unsteady on his
feet and had to use the car to balance himself as he accompanied
Fainter to the patrol car.    Additionally, appellant had bloodshot
eyes, smelled of alcohol, and slurred his speech.    Appellant
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voluntarily submitted to a blood alcohol test and was arrested
for driving under the influence of alcohol.    He was subsequently
charged with driving after having been declared an habitual
offender.
Appellant did not file a pretrial motion to suppress the
evidence alleged to have been illegally obtained as a result of
the investigatory stop.1    At trial, after the Commonwealth
rested, appellant moved to strike Fainter's testimony on the
ground the Commonwealth failed to prove the trooper had "probable
cause" to stop appellant's car.2    The trial court denied the
motion, finding that the combination of the "be on the lookout"
warning and the observed weaving "would have given rise to a
stop."
II.
Appellant contends Trooper Fainter lacked reasonable,
articulable suspicion necessary to stop the vehicle.    We disagree
and hold that repeated weaving within a lane provides sufficient
reasonable and articulable suspicion to justify an investigatory
1The Commonwealth contends appellant's failure to address the
reasonableness of the stop in a pretrial motion to suppress
deprived the Commonwealth of its right to a pretrial appeal under
Code  §  19.2-398.    The question is moot as the trial court decided
the motion in the Commonwealth's favor, rendering an appeal
unnecessary.
2Although appellant's motion to strike incorrectly held the
Commonwealth to the standard of probable cause for the stop,
rather than the lesser standard of reasonable and articulable
suspicion, this error was harmless as the greater burden clearly
encompassed the lesser.
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stop.
"'Ultimate questions of reasonable suspicion and probable
cause'  .  .  . involve questions of both law and fact and are
reviewed de novo on appeal."    McGee v. Commonwealth,  25 Va. App.
193,  197,  487 S.E.2d  259,  261  (1997)  (quoting Ornelas v. United
States,  517 U.S.  690,  ___,  116 S. Ct.  1657,  1659  (1996)).    This
Court is "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,  25
Va. App. at  198,  487 S.E.2d at  261.
"'[W]hen the police stop a motor vehicle and detain an
occupant, this constitutes a seizure of the person for Fourth
Amendment purposes.'"    Logan v. Commonwealth,  19 Va. App.  437,
441,  452 S.E.2d  364,  367  (1994)  (quoting Zimmerman v.
Commonwealth,  234 Va.  609,  611,  363 S.E.2d  708,  709  (1988)).    "In
order to justify an investigatory stop of a vehicle, the officer
must have some reasonable, articulable suspicion that the vehicle
or its occupants are involved in, or have recently been involved
in, some form of criminal activity."    Logan,  19 Va. App. at  441,
452 S.E.2d at  367.    "To determine whether an officer has
articulated a reasonable basis to suspect criminal activity, a
court must consider the totality of the circumstances, including
the officer's knowledge, training, and experience."    Freeman v.
Commonwealth,  20 Va. App.  658,  661,  460 S.E.2d  261,  262  (1995)
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(citing Murphy v. Commonwealth,  9 Va. App.  139,  144,  384 S.E.2d
125,  128  (1989)).    "'[A] trained law enforcement officer may  [be
able to] identify criminal behavior which would appear innocent
to an untrained observer.'"    Freeman,  20 Va. App. at  661,  460
S.E.2d at  262  (quoting Taylor v. Commonwealth,  6 Va. App.  384,
388,  369 S.E.2d  423,  425  (1988)).
We have held that weaving within a lane, in combination with
unusually slow speed, may create a reasonable and articulable
suspicion of illegal activity justifying an investigatory stop.
See Freeman,  20 Va. App.  658,  460 S.E.2d  261.    However, the
question of whether weaving within a lane, without more, may
support an investigatory stop is an issue of first impression in
Virginia.
In Freeman, we acknowledged that
[o]ther jurisdictions have considered whether
similar circumstances give rise to a
reasonable suspicion that a driver is
intoxicated and have held 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,  460 S.E.2d at  262  (emphasis added).    Several
of these jurisdictions have held that weaving within a single
traffic lane, without more, is sufficient to justify an
investigatory stop.    See People v. Diaz,  617 N.E.2d  848,  851
(Ill. App. Ct.  1993)  ("[T]he officer's own observation of
defendant's erratic driving provided a sufficient basis for the
stop.    This is true regardless of whether defendant crossed the
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white line or stayed within the same lane, since weaving within a
lane is sufficient grounds for a stop."); People v. Loucks,  481
N.E.2d  1086,  1087  (Ill. App. Ct.  1985)  ("[w]eaving  [continuously
for two blocks] within the lane of traffic in which a vehicle is
traveling provides a sufficient basis for an investigatory stop
of a motor vehicle"); State v. Malaney,  871 S.W.2d  634  (Mo. Ct.
App.  1994)  (investigatory stop was reasonable where the officer
observed a vehicle weaving within its lane three times over a
distance of one mile); State v. Watson,  472 S.E.2d  28,  30  (N.C.
Ct. App.  1996)  (officer who observed defendant's vehicle "weaving
back and forth within his lane for  15 seconds" on a road near a
nightclub had a reasonable suspicion of illegal activity); State
v. Gedeon,  611 N.E.2d  972,  973  (Ohio Ct. App.  1992)  ("weaving
within one's lane alone presents a sufficient scenario for an
officer to conduct an investigatory stop").    But see New Lebanon
v. Blankenship,  65 Ohio Misc.2d  1,  640 N.E.2d  271  (1993)  (weaving
on a road without a center line marking the lanes was
insufficient to justify an investigatory stop).
We agree with our sister states that weaving within a single
traffic lane is an articulable fact which may give rise to a
reasonable suspicion of illegal activity.    An isolated instance
of mild weaving within a lane is not sufficiently erratic to
justify an investigatory stop.    Cf. United States v. Gregory,  79
F.3d  973  (10th Cir.  1996)  (investigatory stop not justified when
a truck crossed once onto the right shoulder of a winding
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mountain road on a windy day).    The test is one of reasonableness
under "the totality of the circumstances."    Freeman,  20 Va. App.
at  661,  460 S.E.2d at  262.
In the instant case, the officer observed appellant's
vehicle for twenty-five seconds weaving repeatedly within its
lane between five and ten times over a distance of a half-mile.
Trooper Fainter had experience with intoxicated drivers, and in
light of that experience, he suspected that the erratic driver
was either inattentive or impaired.    Under these circumstances,
we hold that repeated weaving in one's own lane gave the officer
reasonable and articulable suspicion to stop the vehicle and
investigate further.3    Consequently, we affirm the convictions.
Affirmed.
3Additionally, appellant claims Fainter's testimony
established no specific training or experience regarding
intoxicated drivers.    See Helms v. Commonwealth,  10 Va. App.  368,
392 S.E.2d  496  (1990).    Appellant's contention lacks merit.    The
record provided uncontested evidence of the officer's experience
with intoxicated drivers.    Furthermore, the record established
that Fainter's basis for the stop was to investigate erratic
driving behavior, which clearly could encompass more than
intoxication.
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