COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Elder
Argued at Salem, Virginia
SHANE LARUE BAILEY
OPINION BY
v. Record No. 2799-97-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 5, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
Sandra Lynn Haley, Assistant Public Defender,
for appellant.
Richard Barton Campbell, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Shane Larue Bailey (appellant) appeals his conviction for
driving after having been adjudged an habitual offender in
violation of Code § 46.2-357. The sole issue raised is whether
the evidence established a reasonable, articulable suspicion upon
which to stop appellant. Finding the evidence sufficient, we
affirm.
The facts are undisputed. On February 6, 1997 between
1:00 p.m. and 2:00 p.m., Trooper J.L. Turner (Turner) and two
other officers were conducting a roadblock at the intersection of
Routes 606 and 674 in Henry County. Traffic was "light." There
was a knoll on the road north of the roadblock, and a driver
travelling south could not see the roadblock until the vehicle
came to the top of the knoll.
As Turner looked north from the roadblock, he saw
appellant's vehicle reach the top of the knoll, "stop suddenly,"
and turn right into the driveway of a private residence
approximately 50-75 yards (150-225 feet) from the roadblock.
Turner stated that appellant drove slowly into the driveway as if
hesitant about stopping there and he continued to look at Turner.
As appellant stepped out of the vehicle, he continued to look at
Turner and the other two troopers. 1
Turner walked toward appellant, who knocked on the front
door of the residence and then walked back toward his vehicle.
Turner approached appellant and asked him for his "driver's
permit." Appellant stated that it was in his car and he went to
retrieve it. He gave Turner a Virginia identification card
rather than a driver's license. Turner said, "You're on a
suspended license," and appellant responded, "No, I'm an habitual
offender." Turner then placed appellant in his patrol car and
ran a DMV check, which verified that appellant was an habitual
offender.
Turner testified that at the time he first saw appellant he
was committing no traffic violation. Additionally, appellant did
not attempt to make a U-turn to avoid the roadblock. Rather,
Turner testified that "[t]he only reason I approached [appellant]
1
Specifically, Trooper Turner testified that "[t]he vehicle
was kind of real hesitant about going in the driveway. I can
remember that. It was real slow to stop. As he was turning in
the driveway, I was watching the vehicle and the driver, and the
driver kept looking toward me. He was going real slow, like he
was real hesitant about stopping at the driveway."
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in the first place was his suspicious way he was going through
the driveway and kept looking at me."
Appellant was charged with driving after having been
declared an habitual offender, second offense, in violation of
Code § 46.2-357. In denying appellant's pretrial motion to
suppress, the court stated:
In this situation . . . [appellant's] vehicle
immediately came to a stop and then in a very
hesitant fashion turned into a private
driveway at the same time, according to the
trooper, the [appellant] is basically keeping
his eye on the police officers, goes up and
knocks on the door. While he's knocking on
the door, he's still watching the State
Troopers. It's my feeling the trooper in
this case had reasonable articulable
suspicion and had the perfect right to go up
and see what was going on.
Accordingly, the trial court found appellant guilty as charged.
II.
When the police stop a vehicle and detain its occupants, the
action constitutes a "seizure" of the person for Fourth Amendment
purposes. See Delaware v. Prouse, 440 U.S. 648, 653 (1988);
Zimmerman v. Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709
(1988). If the stop of the vehicle is without a warrant, the
Commonwealth has the burden to prove the stop was legal. See
Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); Simmons
v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989).
Any warrantless stop of a vehicle which leads to an arrest of its
occupants requires probable cause to believe that a crime has
been committed. See Prouse, 440 U.S. at 654 n.10. However, if
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an officer has an "articulable and reasonable 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 the law," the officer may conduct an
investigatory stop of the vehicle limited in time and scope to
ascertaining whether the suspicions are accurate. Id. at 663;
Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984); Zimmerman, 234
Va. at 611, 363 S.E.2d at 709.
In the present case, appellant was seized within the meaning
of the Fourth Amendment when Turner approached and asked for
appellant's driver's license. See Thomas v. Commonwealth, 24 Va.
App. 49, 55-56, 480 S.E.2d 135, 138 (1997) (en banc); Brown v.
Commonwealth, 17 Va. App. 694, 695, 440 S.E.2d 619, 620 (1994).
However, at the time of the seizure, Turner had a reasonable
basis for believing that appellant was evading the roadblock.
See Commonwealth v. Eaves, 13 Va. App. 162, 408 S.E.2d 925
(1991); Stroud v. Commonwealth, 6 Va. App. 633, 636, 370 S.E.2d
721, 723 (1988).
In Stroud, we held that a police officer had a reasonable,
articulable suspicion of wrongdoing when he observed the
defendant make a U-turn within 100-150 feet of a police
roadblock. See Stroud, 6 Va. App. at 636, 370 S.E.2d at 723.
The officer testified that based upon his eleven years of
experience with the state police he suspected from the driver's
conduct that he was attempting to avoid the roadblock because he
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was either unlicensed or otherwise in violation of the law. See
id. at 634-35, 370 S.E.2d at 722.
Likewise, in Eaves, the officer observed the defendant make
a U-turn approximately 100 feet to 1/10 mile before the traffic
checkpoint. The officer testified that the defendant was
traveling in the left southbound lane when "all of a sudden" he
engaged his turn signal at a deceleration lane, made a U-turn,
and headed back in the opposite direction from the roadblock.
See Eaves, 13 Va. App. at 165, 408 S.E.2d at 927. The
deceleration lane was only about 35-40 feet long. The officer
described the turn of the vehicle as "abrupt," "immediate," and
"quick." Id. We concluded that the officer's observations gave
him a reasonable, articulable suspicion to stop the defendant.
See id. at 166, 408 S.E.2d at 927-28.
In the instant case, appellant's conduct produced at least
as much reasonable suspicion of possible criminal activity as
that involved in Stroud and Eaves and was sufficient to support
Turner's stop of appellant. As Turner looked north from the
roadblock, he saw appellant's vehicle reach the top of the knoll,
"stop suddenly," and turn right into the driveway of a private
residence. Turner described appellant's behavior as "real
hesitant," "slow to stop," "going real slow," "like he was real
hesitant about stopping in the driveway." Moreover, appellant
"started easing up into the driveway . . . looking at [Turner] at
all times." We find that this evidence gave Turner reasonable
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suspicion that appellant turned to avoid the roadblock because he
was unlicensed or otherwise in violation of the law. Murphy v.
Commonwealth, 9 Va. App. 139, 384 S.E.2d 125 (1989), relied on by
appellant, is distinguishable from this case. We held in Murphy
that a legal right turn onto a dead-end road with a roadblock in
view, without more, did not give police reasonable suspicion to
suspect the defendant of criminal misconduct. See id. at 141,
384 S.E.2d at 126. Appellant argues that like the driver in
Murphy, his actions in making a right turn into a private
driveway 50-75 yards ahead of the roadblock did not give Turner a
reasonable suspicion that criminal activity may have occurred or
been occurring. We disagree.
In Murphy, the officer observed the defendant make a "normal
and legal" right turn onto a dead-end street approximately 350
feet before a checkpoint. Id. (emphasis added). The officer
acknowledged that nothing distinguished the operation of the
defendant's vehicle from that of any other driver attempting to
make a right turn. See id. Unlike the situation in Murphy where
no suspicious circumstances existed apart from a lawful turn into
an existing roadway, Turner observed factors which "independently
raise[d] suspicion of criminal activity" and suggested that
appellant made the turn into the private residence to evade the
roadblock. Id. at 145, 384 S.E.2d at 128 (emphasis added).
Turner described appellant's car as "stop[ping] suddenly" when it
reached the top of the knoll. Additionally, appellant "slowly"
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turned into the driveway while constantly keeping his eyes on
Turner. Under the circumstances of this case, we hold that
Turner possessed a reasonable suspicion that appellant's purpose
in turning was to avoid the roadblock because he was unlicensed
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or involved in criminal activity. Accordingly, we affirm
appellant's conviction.
Affirmed.
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