Bill Larry Wells v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 1, 2001
• Docket: 1016002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Humphreys and Senior Judge Coleman Argued at Richmond, Virginia

BILL LARRY WELLS MEMORANDUM OPINION * BY v. Record No. 1016-00-2 JUDGE ROSEMARIE ANNUNZIATA MAY 1, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY James A. Luke, Judge

Peter D. Eliades (Homer C. Eliades; Eliades & Eliades, P.C., on brief), for appellant.

Amy L. Marshall, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Appellant, Bill Larry Wells, appeals the trial court's

denial of his motion to suppress evidence of his intoxication

and refusal to take a blood or breath test. 1 Wells contends the

evidence was the fruit of an illegal seizure. We disagree and

affirm the trial court's ruling.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Because the Supreme Court has jurisdiction over issues involving a refusal to take a blood or breath test, Commonwealth v. Rafferty, 241 Va. 319, 323-24, 402 S.E.2d 17, 20 (1991), we granted Wells's petition for review on the issue of his motion to suppress the evidence of his intoxication only. BACKGROUND

In the early morning hours of July 3, 1999, Officer J.L.

Warren of the Prince George County Police Department initiated a

traffic stop after he observed Wells make a "U-turn" in front of

a Prince George Volunteer Fire Department station. After

stopping Wells for the alleged traffic offense, and detecting an

odor of alcohol about his person, Officer Warren asked Wells to

perform various field sobriety tests, all of which Wells failed.

Wells refused to submit to either a breath or blood test, and

Officer Warren charged Wells with violating Code § 18.2-268 for

such refusal. In addition, Officer Warren charged Wells with

driving under the influence of alcohol, in violation of Code

§ 18.2-266, and for making an illegal turn, in violation of Code

§ 46.2-845.

Prior to trial, Wells filed a motion to suppress the

evidence of his intoxication and refusal to take a blood or

breath test. The trial court denied the motion and found Wells

guilty of driving while under the influence of alcohol and

guilty of refusing to take a breath or blood test. However, the

court found Wells not guilty of making an illegal turn because

the evidence did not support the charge. Code § 46.2-845

provides, "[t]he driver of a vehicle within cities, towns or

business districts of counties shall not turn his vehicle so as

to proceed in the opposite direction except at an intersection."

A zoning administrator testified at trial that the business

- 2 - district ended just before the fire station and that the station

was actually in a residential area. Therefore, because the fire

station was not in a city, town or business district, Wells did

not violate Code § 46.2-845 by making a "U-turn" in front of the

station.

Wells contends that because he did not, in fact, commit a

traffic violation, Officer Warren's act of stopping Wells was

illegal and, therefore, any evidence obtained as a result of

that stop should have been suppressed. We disagree.

ANALYSIS

The Commonwealth has the burden of proving that a

warrantless seizure did not violate the defendant's Fourth

Amendment rights. Simmons v. Commonwealth, 238 Va. 200, 204,

380 S.E.2d 656, 659 (1989). On appeal, we view the evidence and

all reasonable inferences deducible from such evidence, in the

light most favorable to the Commonwealth, the party prevailing

below. Weathers v. Commonwealth, 32 Va. App. 652, 656, 529

S.E.2d 847, 849 (2000). While we are bound by the trial court's

findings of historical fact, we review de novo determinations of

probable cause and reasonable suspicion. Ornelas v. United

States, 517 U.S. 690, 699 (1996); Reel v. Commonwealth, 31 Va.

App. 262, 265, 522 S.E.2d 881, 882 (2000).

An officer may "stop and briefly detain a person for

investigative purposes if the officer has a reasonable suspicion

supported by articulable facts that criminal activity 'may be

- 3 - afoot.'" United States v. Sokolow, 490 U.S. 1, 7 (1989)

(citation omitted); Buck v. Commonwealth, 20 Va. App. 298, 302,

456 S.E.2d 534, 536 (1995). However, "[a]ctual proof that

criminal activity is afoot is not necessary . . . ." Harmon v.

Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d 77, 79 (1992);

see also Yeatts v. Minton, 211 Va. 402, 405, 177 S.E.2d 646, 648

(1970); Reel, 31 Va. App. at 265, 522 S.E.2d at 883; Richards v.

Commonwealth, 8 Va. App. 612, 617, 383 S.E.2d 268, 271 (1989). 2

In this case, Officer Warren observed Wells make a U-turn

in front of the fire station. At this location, only a few feet

separated the business district from the residential district.

Officer Warren believed the U-turn was made in a business

district and was, therefore, illegal. On that ground, he

stopped Wells and charged him with a traffic violation.

Although the evidence at trial showed that Wells's U-turn was

not illegal, Officer Warren had reasonable suspicion to stop

Wells's vehicle for conduct that was possibly illegal. See Hoye

v. Commonwealth, 18 Va. App. 132, 134, 442 S.E.2d 404, 406

(1994) ("'A police officer may stop a motor vehicle, without

probable cause, for investigatory purposes if [the officer]

2 Wells's reliance on Bass v. Commonwealth, 259 Va. 470, 525 S.E.2d 921 (2000), is misplaced. In Bass, the Supreme Court did not hold that a defendant's conduct must in fact be illegal to justify an investigatory stop. Rather, the Court held that, based on the facts of the case, the officer did not have a reasonable suspicion that the defendant may have committed a crime. Id. at 477-78, 525 S.E.2d at 925.

- 4 - possesses a reasonable and articulable suspicion that a motorist

is unlicensed or that an automobile is not registered, or that

either the vehicle or an occupant is otherwise subject to

seizure for violation of law.'" (citations omitted)). The fact

that Wells was later found to be not guilty of the alleged

traffic violation does not make the investigatory stop illegal.

Where a seizure is made pursuant to a mistake of fact, the

seizure will be deemed legal and evidence obtained during the

seizure will not be suppressed if the officer's mistaken belief

was held in good faith and was objectively reasonable. Barnette

v. Commonwealth, 23 Va. App. 581, 584, 478 S.E.2d 707, 708

(1996); Shears v. Commonwealth, 23 Va. App. 394, 399, 477 S.E.2d

309, 311 (1996). In this case, Officer Warren believed, in good

faith, that Wells had made an illegal turn. Furthermore, his

belief was objectively reasonable. The distance between the

location of Wells's turn and the business district was minimal

and the nature of the buildings in the area, such as the fire

station, supports the conclusion that his mistaken belief was

reasonable.

Because the investigatory stop was lawful, the evidence of

Wells's intoxication, obtained as a result of that stop, was

properly admitted. The trial court, therefore, properly denied

the motion to suppress. Accordingly, we affirm.

Affirmed.

- 5 -