COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges Argued by Teleconference
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 0906-97-1 JUDGE WILLIAM H. HODGES OCTOBER 14, 1997 TONY MAURICE DAVIS
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Junius P. Fulton, Judge Marla Graff Decker, Assistant Attorney General (Richard Cullen, Attorney General; John K. Byrum, Jr., Assistant Attorney General, on brief), for appellant.
Michael E. Grey (Gary P. Arsenault; Grey & Arsenault, P.C., on brief), for appellee.
In this appeal, taken pursuant to Code § 19.2-398, the
Commonwealth contends that the trial judge erroneously suppressed
evidence, finding that the police exceeded their authority in
implementing a traffic checking roadblock. The Commonwealth
argues that Davis never fell subject to the traffic check and its
validity was, therefore, immaterial to Davis' seizure. We agree
and reverse the order of suppression.
I.
On August 7, 1996, Norfolk police officers established a
traffic checkpoint on Lexington Street between O'Keefe Street and
Amelia Street. Lexington Street is a one-way street. Officer
Rychen was assigned to a "chase car," located on Proescher * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Street. 1 The task of the chase car was to stop vehicles that
backed up, turned around, or otherwise attempted to avoid the
roadblock.
Rychen saw a car driven by Davis pass him on Lexington
Street heading towards the checkpoint. Rychen received a radio
message concerning the vehicle, pulled onto Lexington Street, and
observed the car moving backward on the one-way street away from
the checkpoint and toward Rychen's car. Rychen activated his
emergency lights. As the vehicle backed in the wrong direction
along Lexington Street, a passenger with a pistol in his
waistband jumped from the car and ran between houses along the
street. When Rychen exited his car and began to chase the
passenger, Davis, the driver, also jumped from the car and began
"yelling." Rychen testified at the suppression hearing that he
stopped Davis because he observed him commit a traffic infraction
and attempt to avoid the checkpoint. Rychen, who did not know whether Davis was also armed, was,
therefore, concerned for his safety and the safety of others and
instructed Davis to lie on the ground. When assistance arrived,
Rychen looked into the car Davis had been driving and observed an
exposed handgun between front seat cushions.
II.
Davis moved the trial court to suppress both the weapon and
oral statements made by him to the police. He argued that Rychen 1 Proescher Street is one block away from O'Keefe Street.
-2- lacked reasonable suspicion to make the stop and that the traffic
checkpoint, as implemented, was unconstitutional. He argued that
the roadblock deviated from the plan authorized by the police and
that his arrest occurred after the period for which the checking
detail had been authorized.
The Commonwealth argued, inter alia, that Rychen had a
reasonable, articulable suspicion to seize Davis and that because
Davis was not stopped at the checkpoint, its constitutionality
was not implicated in the stop. The trial judge held that at the point at which Rychen
stopped Davis, "the officer certainly had a right to stop him and
to investigate, which is what happened, so I don't have a problem
with that part." The judge, however, granted the motion to
suppress, holding: The problem I have with this case is that, in effect, this roadblock extended beyond the authority that was given to these officers by their superiors. So the extent to which the police operated this roadblock is such that it would affect people who should be caught and probably will be caught again if they continue to do what they were doing on that day and will also affect me, you, and anybody else who happens to be driving down Lexington Street on that particular day and find yourself in the position where I've got to go through a roadblock, even if I want to turn on O'Keefe or not.
And I tend to believe the defendant that he could not turn on O'Keefe because he could have just turned there and not driven in reverse, if in fact, O'Keefe wasn't blocked off.
III.
-3- For purposes of Fourth Amendment analysis, "[i]n order for a
seizure to occur, an individual must be under some physical
restraint by an officer or have submitted to the show of police
authority." Thomas v. Commonwealth, 24 Va. App. 49, 54, 480
S.E.2d 135, 137 (1997) (en banc). See California v. Hodari D.,
499 U.S. 621, 628 (1991). "[S]topping a motor vehicle and
detaining the operator [at a roadblock] constitute a 'seizure'
within the meaning of the Fourth Amendment . . . . " Lowe v. Commonwealth, 230 Va. 346, 349, 337 S.E.2d 273, 275 (1985).
Here, Davis never reached the roadblock. He stopped his car
after backing it, the wrong way on a one-way street, away from
the checkpoint. "[Davis] did not submit to the authority of the
police officers at the roadblock nor was he seized by proceeding
to and going through the roadblock." Thomas, 24 Va. App. at 54,
480 S.E.2d at 138.
In Thomas, the driver, Thomas, stopped his truck on the
shoulder of an exit ramp, thirty yards before reaching the
roadblock. He and a passenger exited the truck and Thomas walked
to the passenger's side of the truck, standing next to the
passenger. An officer approached and accused Thomas of being the
driver, which he denied.
We rejected Thomas' argument that he was seized when he
entered traffic on the exit ramp because he was in the "zone" of
the roadblock and could not legally avoid going through it. Id.
at 55, 480 S.E.2d at 138. Although we recognized that Thomas'
-4- "options and freedom of movement may have been limited" due to
the placement of the roadblock at the end of the exit ramp, we
held that "[f]or a seizure to occur, there must be more than an
impending threat that a person's freedom of movement may be
restricted or limited; a seizure occurs 'only when there is
governmental termination of freedom of movement through means
intentionally applied.'" Id. (quoting Brower v. Inyo County, 489
U.S. 593, 597 (1989)). Thus, unless a citizen is actually stopped at the roadblock,
its constitutionality is immaterial to the seizure. Id. Here,
Davis, like Thomas, was not stopped at the roadblock, therefore,
the constitutionality of the roadblock is immaterial.
Thus, we turn to the question of whether, as the trial court
found, Rychen had the necessary level of suspicion of criminal
activity to justify an investigatory seizure. "We view the
evidence in a light most favorable to [Davis], the prevailing
party below, and we grant all reasonable inferences fairly
deducible from that evidence." Commonwealth v. Grimstead, 12 Va.
App. 1066, 1067, 407 S.E.2d 47, 48 (1991). We are bound to
review de novo the ultimate questions of reasonable suspicion and
probable cause. See Ornelas v. United States, 116 S. Ct. 1657,
1663 (1996).
A valid investigatory stop requires a reasonable and
articulable suspicion of criminal activity, based upon the
totality of the circumstances. See Beckner v. Commonwealth, 15
-5- Va. App. 533, 539, 425 S.E.2d 530, 534 (1993). The quantum of
suspicion required for such a stop is less demanding than the
standard for probable cause. See Richards v. Commonwealth, 8 Va.
App. 612, 616, 383 S.E.2d 268, 270 (1989). "Actual proof that
criminal activity is afoot is not necessary; the record need only
show that it may be afoot." Harmon v. Commonwealth, 15 Va. App.
440, 444, 425 S.E.2d 77, 79 (1992).
Here, prior to the seizure, Rychen observed Davis driving
backward, the wrong way on a one-way street, away from the traffic checkpoint. Rychen saw an armed passenger jump from the
car while it still was moving. Davis stopped the car, exited,
and began yelling. These factors combined to provide Rychen with
reasonable suspicion that criminal activity may be afoot,
properly justifying the stop. See Thomas, 24 Va. App. at 56, 480
S.E.2d at 138; Commonwealth v. Eaves, 13 Va. App. 162, 165-66,
408 S.E.2d 925, 927 (1991) (abrupt, but legal u-turn 100 to 500
feet before checkpoint, at last possible crossover before
checkpoint, where signal activated at last moment before turn
executed, provided reasonable suspicion to officer that driver
took evasive action because he was operating vehicle in violation
of law).
Accordingly, the trial judge erroneously granted the motion
to suppress, the attendant order is reversed, and the case
remanded for further proceedings consistent with this opinion.
-6- Reversed and
remanded.
-7- Benton, J., dissenting.
Because the traffic safety checkpoint, as implemented, was
constitutionally defective and because the officer had no
reasonable basis to stop and detain Tony Maurice Davis for
backing his automobile along the street, I would affirm the
ruling of the trial judge.
Pursuant to a plan prepared by Officer M.J. Johansen and
approved by Lieutenant W.D. Creekmore, the Norfolk police
established a motor vehicle safety checkpoint on Lexington Street
in the City of Norfolk. The plan stated that the checkpoint
would be located at the "800 block of Lexington" Street and
operated from 11:00 a.m. to 1:00 p.m. Officer Johansen testified
that this plan authorized chase cars on O'Keefe Street and Amelia
Street. The evidence, viewed in the light most favorable to Davis,
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991), proved that the checkpoint deviated in several ways
from the plan approved by Lieutenant Creekmore. First, although
the plan authorized a roadblock at the 800 block of Lexington
Street, the roadblock was actually at the 700 block of Lexington
Street. Second, while the plan did not authorize the police
officers to block O'Keefe Street, the deviation in the
checkpoint's location effectively blocked traffic traveling on
Lexington Street from entering O'Keefe Street. Thus, if a car
-8- entered Lexington Street, a one-way street, at any place after
Proescher Street, it was in the roadblock. Third, the plan only
authorized chase cars on Amelia Street and O'Keefe Street.
However, Officer M.D. Rychen testified that he was operating a
chase car on Proescher Street. Fourth, the checkpoint did not
begin at the scheduled time of 11:00 a.m. Rather, it began an
hour and a half later at 12:30 p.m. Fifth, although the
checkpoint was scheduled to end at 1:00 p.m., the officers did
not terminate the checkpoint until 1:45 p.m. No evidence proved that the changed location had been
approved. Officer Johansen testified that the time change was
orally approved by Lieutenant Creekmore. However, the report
submitted after completion of the checkpoint did not indicate
that the time change had been approved. Davis was apprehended at
1:05 p.m., five minutes after the time authorized for termination
of the checkpoint.
The Fourth Amendment requires that a roadblock "be
undertaken pursuant to an explicit plan or practice which uses
neutral criteria and limits the discretion of the officers
conducting the roadblock." Simmons v. Commonwealth, 238 Va. 200,
203-04, 380 S.E.2d 656, 658-59 (1989). To be constitutional, a
roadblock must be "safe and objective in its operation,
employ[ing] neutral criteria, and . . . not involv[ing]
standardless, unbridled discretion by the police officer in the
-9- field." Lowe v. Commonwealth, 230 Va. 346, 352, 337 S.E.2d 273,
277 (1985). Thus, when the police have adopted a roadblock plan,
the officers in the field do not have discretion to deviate from
that plan. See Brown v. Commonwealth, 20 Va. App. 21, 25, 454
S.E.2d 758, 759 (1995). "'To allow the [police] to do anything
short of complying in full with [their] own guidelines would
inject an element of discretion into the [checkpoint] procedures
and thus undercut the very foundation upon which the [checkpoint]
seizure is constitutionally justified.'" Id. (citation omitted).
By moving the roadblock to the 700 block of Lexington
Street, extending the time of the roadblock beyond that
authorized in the plan, and stopping Davis after the roadblock
was scheduled to be terminated, the officers exercised "the type
of 'unconstrained exercise of discretion' that violates the
Fourth Amendment guarantees against stopping and detaining
private citizens without probable cause or reasonable suspicion
of criminal activity or other justifiable reasons." Id.
(citation omitted); see Delaware v. Prouse, 440 U.S. 648, 663 (1979). Even small deviations from the authorized plan render a
roadblock unconstitutional. See Brown, 20 Va. App. at 25, 454
S.E.2d at 759 (citing Commonwealth v. Anderson, 547 N.E.2d 1134,
1137-38 (Mass. 1989) (stopping a driver fifteen minutes after the
scheduled termination of the roadblock is unconstitutional)).
Thus, I would affirm the trial judge's finding that "this
roadblock extended beyond the authority that was given to these
-10- officers by their superiors." Because the checkpoint did not
conform to the authorized limits contained in the plan and was,
therefore, invalid, I would hold that the warrantless stop of
Davis contravened the protections of the Fourth Amendment.
Accordingly, the trial judge correctly ruled that the stop was an
illegal seizure and suppressed the evidence.
The majority holds that because Davis was not stopped at the
roadblock, the constitutionality of the roadblock is immaterial.
However, when we view the evidence in the light most favorable
to Davis, the roadblock encompassed Lexington Street from Amelia
to Proescher Streets, blocking O'Keefe Street. Thus, Davis was
effectively within the zone of the roadblock as soon as he
entered Lexington Street and passed the chase car on Proescher
Street. Even assuming that Davis was not seized simply by
traveling in this area, see Thomas v. Commonwealth, 24 Va. App.
49, 55, 480 S.E.2d 135, 138 (1997) (en banc), he was seized when
he was detained by Officer Rychen's chase car.
Officer Rychen testified that the reason he stopped Davis'
vehicle was because he received a radio message from another
officer at the roadblock indicating that a vehicle was attempting
to avoid the roadblock. In response to this radio message,
Officer Rychen pulled onto Lexington Street and observed Davis'
vehicle moving backward on the street. Officer Rychen testified
that the purpose of a chase car is to stop vehicles that back up,
-11- turn around, or otherwise attempt to avoid the roadblock.
Although the evidence proved that Lexington Street is residential
with on-street parking permitted, Officer Rychen intended to stop
any vehicle that backed on the street. Therefore, when Davis was
stopped for avoidance of a roadblock by the roadblock chase car
whose specific purpose was to stop vehicles that back up, Davis
was seized within the meaning of the Fourth Amendment.
"[S]topping a motor vehicle and detaining the operator [because
of a roadblock] constitute a 'seizure' within the meaning of the
Fourth Amendment." Lowe, 230 Va. at 349, 337 S.E.2d at 275.
Accordingly, I would hold that the constitutionality of the
roadblock is material.
IV.
I would also hold that Officer Rychen did not have a
reasonable, articulable suspicion to stop Davis and that,
therefore, the seizure violated the Fourth Amendment.
To stop and detain a vehicle for investigatory purposes,
"[t]he detaining officer 'must have a particularized and
objective basis for suspecting the particular person stopped of
criminal activity.'" Zimmerman v. Commonwealth, 234 Va. 609,
612, 363 S.E.2d 708, 709 (1988) (citation omitted). Thus, the
detaining officer must have at least an articulable and
reasonable suspicion that the motorist is unlicensed, the vehicle
is unregistered, or the motorist or vehicle is otherwise subject
to seizure for violation of the law. See Prouse, 440 U.S. at
-12- 663; Waugh v. Commonwealth, 12 Va. App. 620, 621, 405 S.E.2d 429,
429 (1991).
Officer Rychen admitted that he "did not move [his] vehicle
onto Lexington Street because of anything [he] observed about the
defendant's driving." He testified that "the only reason that
[he] moved [his] vehicle onto Lexington Street was because [he]
received a message from another officer." Officer Rychen stated
that when he entered Lexington Street to stop Davis' vehicle, he
"stopped [Davis] because he was doing a traffic violation and
also trying to avoid the traffic safety checkpoint." Even if I accept the majority premise that Davis was not
stopped by the roadblock, backing a vehicle in the vicinity of a
traffic checkpoint does not in itself raise the necessary
suspicion of criminal activity justifying an investigatory stop.
See Murphy v. Commonwealth, 9 Va. App. 139, 384 S.E.2d 125
(1989). A driver is permitted to avoid a roadblock by making a
lawful driving maneuver before reaching the roadblock. Id. at
145, 384 S.E.2d at 128-29. Because the mere backing up in the
vicinity of a traffic checkpoint is not sufficient to justify
Officer Rychen's stop of Davis, the record must show that the
officer had some other articulable, reasonable suspicion that
Davis was unlicensed, his vehicle unregistered, or that he was
otherwise engaged in criminal activity.
The only other reason articulated by Officer Rychen for his
stop of the vehicle was that he observed Davis committing a
-13- traffic violation. However, backing one's automobile on a public
street is not a violation of the traffic laws. Only when a
driver, while backing a vehicle on a public street, operates a
vehicle in an unsafe manner does a violation occur. The manner
of backing must constitute reckless or improper driving. Code
§§ 46.2-852 and 46.2-869. 2
Indeed, statutes that govern the rules of the road recognize
that backing a vehicle is a necessary part of driving. They
require only that a driver look first to determine whether the
maneuver can be made safely and, when appropriate, to signal the
maneuver. For example, a violation of Code § 46.2-848 occurs
only where a driver who intends to back a motor vehicle does not
"first see that such movement can be made safely and, whenever
the operation of any other vehicle may be affected by such
movement, [does not] give the signals required . . . plainly
visible to the driver of such other vehicle, of his intention to
make such movement." This statute does not make backing a
vehicle on a public street a traffic violation. The majority
cites to no statute that does. Backing a vehicle is a common maneuver performed by every
driver. Unless that maneuver is performed unsafely or without
the appropriate signals, it does not constitute a traffic 2 Code § 46.2-852 provides that "any person who drives a vehicle on any highway recklessly . . . or in a manner so as to endanger the life, limb, or property of another shall be guilty of reckless driving." Code § 46.2-869 is the lesser included offense of improper driving.
-14- violation. No evidence in the record indicates that Davis was
operating his vehicle in an unsafe manner. Indeed, Officer
Rychen never issued Davis a citation for reckless driving or any
other traffic violation. Furthermore, the evidence does not
exclude the reasonable hypothesis, consistent with Davis'
testimony, that Davis was backing to a parking space to visit his
aunt. Under these circumstances, Davis was conducting a lawful
traffic maneuver. Because Officer Rychen was without reasonable cause to stop
Davis' vehicle, I would affirm the trial judge's order
suppressing the evidence.
-15-