Bass v. Commonwealth

Present: Carrico, C.J., Compton, 1 Lacy, Hassell, Keenan, Koontz,
and Kinser, JJ.

ROY BERGER BASS
OPINION BY
v. Record No. 990894 JUSTICE LAWRENCE L. KOONTZ, JR.
March 3, 2000
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether a police officer’s

perception that a legal driving maneuver was made with the

intent to evade a temporary traffic checkpoint is sufficient to

give rise to a reasonable, articulable suspicion that the driver

was involved in criminal wrongdoing, justifying an investigative

stop of the driver’s vehicle.

BACKGROUND

On March 24, 1997, Chesterfield County police officer

William Shane Wickham was assigned to participate along with

other officers in a temporary traffic checkpoint. The

checkpoint was located on Cogbill Road between its intersections

with Remuda and Tyrone Streets. Tyrone Street intersects

Cogbill Road at a distance of approximately 210 feet from the

intersection of Jefferson Davis Highway and Cogbill Road.

Remuda Street intersects Cogbill Road at a distance of

1
Justice Compton participated in the hearing and decision of
this case prior to the effective date of his retirement on
February 2, 2000.
approximately 568 feet from Jefferson Davis Highway. A gasoline

station is located on the southwest corner of the intersection

of Cogbill Road and Jefferson Davis Highway. The traffic

checkpoint was located approximately 500 feet from this

intersection. 2

Officer Wickham was assigned to a “chase vehicle” with

instructions to stop any vehicle that attempted to evade the

checkpoint. From his position on Cogbill Road, nearer to Tyrone

Street than Remuda Street, Officer Wickham observed a vehicle,

subsequently determined to have been operated by Roy Berger

Bass, turn left from the northbound lane of Jefferson Davis

Highway onto Cogbill Road. Officer Wickham further observed

that after making this turn, the vehicle proceeded toward the

traffic checkpoint, turned left into the parking lot of the

gasoline station, traveled through the parking lot without

stopping, and exited the parking lot into the southbound lane of

Jefferson Davis Highway.

After observing these turns, Officer Wickham decided to

stop the vehicle because it was the policy of his police

department to stop any vehicle being driven in a manner so as to

2
The record does not pinpoint the exact distance between the
checkpoint and this intersection. However, the Commonwealth
does not challenge Bass’ assertions on appeal that the trial
court determined that this distance was approximately 500 feet.

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evade a traffic checkpoint. Officer Wickham testified that he

believed that Bass was attempting to evade this particular

traffic checkpoint because “[u]nlike any other vehicles that had

pulled to the gas station [during the one hour that the

checkpoint was in operation], Mr. Bass did not make any attempt

to stop or check to see if the station was open, which, in fact,

it was. He continued to travel through the gas station and

travel southbound [on Jefferson Davis Highway].” Officer

Wickham further testified that “to [his] knowledge, other than

evading the checkpoint” Bass committed “no violation of any law”

that Officer Wickham was able to observe prior to stopping Bass’

vehicle.

On March 24, 1997, a warrant was issued charging Bass with

a violation of Code § 18.2-266, driving a motor vehicle while

intoxicated. Ultimately in the trial court, the Circuit Court

of Chesterfield County, Bass filed a motion to suppress all

evidence obtained as a result of the stop of his vehicle,

asserting that Officer Wickham did not have adequate grounds

upon which to stop and detain Bass. On October 22, 1997, prior

to the commencement of trial, the motion to suppress was heard

and denied. At the conclusion of the Commonwealth’s case at

trial, Bass’ motion to strike the evidence was overruled. Bass

then rested without presenting evidence and was found guilty.

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 Bass subsequently appealed his conviction to the Court of

Appeals. In an unpublished opinion, Bass v. Commonwealth,

Record No. 2535-97-2 (February 16, 1999), a divided panel of the

Court of Appeals affirmed the judgment of the trial court. The

majority found that the stop of Bass did not violate his Fourth

Amendment right against unreasonable search and seizure. The

majority reasoned that “[t]he manner in which Bass made two

quick turns, cutting through the parking lot without stopping at

the [gasoline] station, reasonably supported Officer Wickham’s

suspicion that Bass sought to evade the [checkpoint]. That

suspicion legitimated the stop.” The dissent concluded that

Bass’ case is controlled by the Court of Appeals’ decision in

Murphy v. Commonwealth, 9 Va. App. 139, 384 S.E.2d 125 (1989).

There, the Court held that “a driver’s action in making a legal

turn within sight of a [traffic checkpoint] does not give a

police officer a reasonable basis to suspect that the driver is

involved in criminal wrong doing.” Id. at 141, 384 S.E.2d at

126. On March 29, 1999, the Court of Appeals denied Bass’

petition for rehearing. We awarded Bass this appeal.

DISCUSSION

Although we have not previously addressed the specific

issue presented by this appeal, the issue is rooted in and must

be resolved by well-established principles that need not be

recited in detail here. The undisputed facts establish that

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Bass was subjected to an investigatory stop, a brief encounter

between a citizen and a police officer, and it is ultimately to

be determined whether that stop was consistent with Bass’ right

protected by the Fourth Amendment to the Constitution of the

United States to be free from an unreasonable seizure. A police

officer may constitutionally conduct a brief, investigatory stop

when the officer has a reasonable, articulable suspicion that

criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30

(1968). A reasonable suspicion is more than an

“unparticularized suspicion or ‘hunch.’” Id. at 27. Reasonable

suspicion, while requiring less of a showing than probable

cause, requires at least a minimal level of objective

justification for making the stop. United States v. Sokolow,

490 U.S. 1, 7 (1989). Accordingly, the stop of an automobile

and the resulting detention of the driver is unreasonable under

the Fourth Amendment absent a reasonable, articulable suspicion

that the driver is unlicensed or that the automobile is not

registered, or that either the vehicle or an occupant is

otherwise subject to seizure for violation of the law. Delaware

v. Prouse, 440 U.S. 648, 663 (1979). The court must consider

the totality of the circumstances in determining whether a

police officer had a particularized and objective basis for

suspecting that a person stopped may be involved in criminal

activity. United States v. Cortez, 449 U.S. 411, 417-18 (1981).

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Our prior decisions, involving various factual circumstances,

are in accord with these principles. See, e.g., Ewell v.

Commonwealth, 254 Va. 214, 491 S.E.2d 721 (1997); Zimmerman v.

Commonwealth, 234 Va. 609, 363 S.E.2d 708 (1988); Leeth v.

Commonwealth, 223 Va. 335, 288 S.E.2d 475 (1982).

These well-established standards are to be applied under

equally well-established principles of appellate review. We

consider the evidence and all reasonable inferences fairly

deducible therefrom in the light most favorable to the

Commonwealth, the prevailing party at trial. Reid v.

Commonwealth, 256 Va. 561, 564, 506 S.E.2d 787, 789 (1998). We

apply the same standard when, as here, we review the trial

court’s denial of the defendant’s motion to suppress the

evidence. Ewell, 254 Va. at 217, 491 S.E.2d at 723. However,

determinations of reasonable suspicion in the context of a

Fourth Amendment challenge involve questions of both law and

fact and consequently are to be reviewed de novo on appeal. In

performing such a review we give deference to the factual

determinations established in the record and independently

determine whether under the established law those facts satisfy

the constitutional standard. Ornelas v. United States, 517 U.S.

690, 697-99 (1996).

Bass contends that the totality of the circumstances in

this case, as established by the undisputed evidence, did not

6
give rise to the requisite reasonable suspicion that he may have

been involved in some form of criminal or otherwise unlawful

activity. He argues that none of his driving maneuvers in

proximity to the checkpoint was unlawful and that, indeed, the

avoidance of a checkpoint is not unlawful. Thus, he contends

that under such circumstances neither Officer Wickham nor any

objectively reasonable police officer would believe that the

pursuit and stop were appropriate.

The Commonwealth responds with several different

contentions. Initially, the Commonwealth argues that Officer

Wickham’s observation of Bass’ driving maneuvers supports the

officer’s reasonable conclusion that Bass “was evading the

traffic checkpoint and, consequently, was violating the law.”

Although there is no specific statutory prohibition against the

avoidance or evasion of a traffic checkpoint, the Commonwealth

refers to Code § 46.2-817, which makes it unlawful for citizens

to refuse to stop their vehicles when commanded to do so by the

police, and contends that a traffic checkpoint is a command by

the police for all those approaching to stop their vehicles.

There is no merit to this contention. Assuming, arguendo, that

a checkpoint would constitute a police signal or command to

stop, we are unwilling to construe this statute so that such

command would extend over a distance of 500 feet and one street

intersection beyond the checkpoint in question.

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 Next, the Commonwealth contends that even though Officer

Wickham did not recognize that Bass was committing a traffic

offense, the fact that Bass was guilty of such an offense

nevertheless supports the objective reasonableness of the

officer’s actions. The Commonwealth identifies Code § 46.2-

833.1 as the statute that Bass violated. Code § 46.2-833.1

provides that:

It shall be unlawful for the driver of any motor
vehicle to drive off the roadway and onto or across
any public or private property in order to evade any
stop sign, yield sign, traffic light, or other traffic
control device.

The Commonwealth asserts that a traffic checkpoint falls

within the category of “other traffic control device” in this

statute. We disagree. A traffic checkpoint consists of police

vehicles and police officers that are temporarily located and

intended to discover unlawful activity. To the extent that a

checkpoint also “control[s]” traffic, it does so only for the

previously stated purpose. In contrast stop signs, yield signs,

and traffic lights are intended for traffic safety and are

generally not temporarily located. They are obviously not

intended to discover unlawful activity. Because of this patent

dissimilarity between the specific devices set forth in this

statute and a traffic checkpoint, we conclude that the

legislature did not intend to include traffic checkpoints within

the scope of this statute. In addition, under the doctrine

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ejusdem generis, a traffic checkpoint does not fall under the

statutory definition of “other traffic control device.” See,

e.g., Graybeal v. Commonwealth, 228 Va. 736, 740, 324 S.E.2d

698, 700 (1985). Accordingly, Bass’ driving maneuvers did not

constitute a violation of Code § 46.2-833.1, thus allowing the

stop of his vehicle.

Finally, the Commonwealth contends that even if Bass’

driving maneuvers did not constitute a traffic violation, they

provided Officer Wickham with a reasonable, articulable

suspicion that Bass was “either unlicensed or otherwise in

violation of the law.” In support of this contention, the

Commonwealth relies upon several cases decided by the Court of

Appeals, giving particular emphasis to Thomas v. Commonwealth,

24 Va. App. 49, 480 S.E.2d 135 (1997)(en banc), and Stroud v.

Commonwealth, 6 Va. App. 633, 370 S.E.2d 721 (1988). In

addition, the Commonwealth argues that there is a factual

distinction between the present case and Murphy, the Court of

Appeals decision relied upon by the dissenting judge in the

present case. We are not persuaded by this contention. Thomas,

Stroud, and Murphy, while employing the appropriate analysis for

the determination of reasonable suspicion to justify an

investigative stop, are all necessarily fact specific. Thus,

these cases do not control our independent review of the

totality of the circumstances in the present case. Indeed, if

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that were not so, Murphy, which more closely resembles the

factual circumstances here, would be more on point than Thomas

and Stroud.

In the present case, Bass made a series of legal driving

maneuvers the effect of which was to reverse the direction in

which he was going. These maneuvers also resulted in his not

passing through the traffic checkpoint that was approximately

500 feet away. The fact that Bass did not stop in the parking

lot of the gasoline station is entirely consistent with a motive

to accomplish a “U-turn.” The reasons for which a driver may

reverse direction other than to evade a traffic checkpoint are

legion in number and are a matter of common knowledge and

experience. Considering the totality of the circumstances and

viewing the facts in the light most favorable to the

Commonwealth, the most that the Commonwealth’s evidence

established in this case was a “hunch” that Bass chose to avoid

the checkpoint. This was not sufficient to give Officer Wickham

the requisite suspicion needed to seize Bass. 3

3
Contrary to the Commonwealth’s assertion, the evidence in
this case does not support a reasonable suspicion that Bass’
maneuvers were conducted in such a manner as to constitute
“headlong flight” from the police conducting the checkpoint.
Accordingly, the recent decision of the United States Supreme
Court in Illinois v. Wardlow, ___ U.S. ___, 120 S.Ct. 673
(2000), is not implicated here.
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 CONCLUSION

For these reasons, we hold that Bass was seized in

violation of his Fourth Amendment rights. Consequently, the

trial court erred in failing to suppress the evidence obtained

as a result of that seizure, and the Court of Appeals erred in

affirming the trial court’s judgment.

Accordingly, we will reverse the judgment of the Court of

Appeals and enter final judgment vacating Bass’ conviction and

dismissing the warrant.

Reversed and final judgment.

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