Barrett v. Commonwealth

447 S.E.2d 243, 18 Va. App. 773, 11 Va. Law Rep. 108, 1994 Va. App. LEXIS 536

• Court: Court of Appeals of Virginia
• Decided: August 9, 1994
• Docket: Record No. 0532-92-2
• Status: Published

Opinions

Coleman, J., with whom Barrow, J., and Koontz, J.,

join, dissenting.

I agree with the majority that law enforcement officers may lawfully make a stop or a seizure unsupported by a reasonable suspicion of criminal activity “in the routine execution of community caretaking functions, totally divorced from the detection or investigation of crime.” However, I disagree that the facts are sufficient to show that Trooper Lyons was performing a community caretaking function when he stopped Barrett’s vehicle. The “community caretaking” exception should be cautiously and narrowly applied in order to minimize the risk that it will be abused or used as a pretext for conducting an investigatory search for criminal evidence.

When Trooper Lyons first witnessed Barrett’s truck stopped at night, partly on and partly off the shoulder of Route 360, he had a reasonable, objective basis to believe that the operator of the vehicle might be in need of assistance. However, when he turned and returned to the site and saw “the pickup truck . . . moving forward as if to re-enter the highway,” Trooper Lyons stated that “it seemed odd since it was [his] impression that the vehicle could have pulled onto the roadway.” In my opinion, at that point, the trooper’s concerns about the truck’s apparent disability had been dispelled. Thus, in my opinion, he lawfully could stop the vehicle only upon a reasonable suspicion of criminal activity. See State v. DeArman, 774 P.2d 1247, 1249-50 (Wash. Ct. App. 1989) (on very similar facts, once deputy determined driver was not having difficulty, no right to stop and compel identification). Because the situation no longer suggested that the operator of the vehicle was in need of assistance and Lyons had no reasonable articulable suspicion to make an investigatory stop, the seizure was unlawful. See Reid v. Georgia, 448 U.S. 438, 440-41 (1980); Murphy v. Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128 (1989); see generally Terry v. Ohio, 392 U.S. 1, 23-24 (1968). Accordingly, I dissent from the majority’s conclusion that the community caretaking function justified the stop of Barrett’s vehicle.