COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Baker, Benton, Coleman,
Willis, Elder, Bray, Fitzpatrick, Annunziata and
Overton
Argued at Richmond, Virginia
ULYSSES LAVANDA THOMAS
OPINION BY
v. Record No. 1291-95-2 JUDGE SAM W. COLEMAN III
JANUARY 21, 1997
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Michael S. Ewing (Rawlings & Wood, on brief),
for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
The defendant, Ulysses L. Thomas, appeals his convictions
for driving after having been declared an habitual offender, Code
§ 46.2-357, and refusing to submit to a blood or breath test,
Code § 18.2-268.2. A panel of this Court reversed the conviction
for driving after having been declared an habitual offender and
transferred the refusal appeal to the Supreme Court. Thomas v.
Commonwealth, 22 Va. App. 735, 473 S.E.2d 87 (1996). We granted
the Commonwealth a rehearing en banc.
Upon rehearing en banc, we hold that the trial court did not
err in refusing to require the Commonwealth to prove that the DUI
roadblock had been established in accordance with the
constitutional requirements set forth in Delaware v. Prouse, 440
U.S. 648 (1979). Because the defendant was not stopped or
arrested at the roadblock, the validity of the roadblock was
immaterial to the legality of his seizure. Furthermore, because
the police officer had reason to suspect that the defendant was
unlicensed, the officer had the duty to investigate, which led to
the discovery that the defendant was an habitual offender. Thus,
the trial court did not err in refusing to suppress the evidence
obtained as a result of the temporary detention, which led to the
habitual offender charge. Accordingly, we uphold the ruling of
the trial court and affirm the conviction for driving after
having been declared an habitual offender.
As to the appeal from the conviction for refusing to submit
to a blood or breath test, because that matter is civil we
transfer it to the Supreme Court of Virginia pursuant to Code
§ 8.01-677.1.
BACKGROUND
The evidence proved that on the night of November 19, 1994,
police officers of the Henrico County Police Department
established a roadblock where the exit ramp of Interstate 64
joins Nine Mile Road. Four or five police vehicles were
stationed at the roadblock with their lights flashing. Some
vehicles were parked on Nine Mile Road and others were located on
the right side of the exit ramp where it intersects Nine Mile
Road. The officers were standing at the stop sign at the top of
the exit ramp and approaching drivers as they came to the stop
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sign.
At approximately 11:17 p.m., Sergeant Marjorie Tussing
observed a small pickup truck proceed up the exit ramp and stop
on the shoulder of the exit ramp approximately thirty yards
before the roadblock. She testified that the roadblock was
visible from where the truck stopped. After the truck stopped,
Tussing approached the vehicle on foot. She observed a short,
stocky man, Thomas, exit the driver's side door and walk around
to the passenger's side of the truck. Then, a taller, thin man
exited from the passenger's side door and stood beside the
shorter man.
When Tussing approached Thomas and stated, "You were
driving," Thomas responded, "I was not." Tussing then asked
Thomas for his name and "other DMV information." She checked the
information on a computer and learned that Thomas' status was
"suspended habitual offender, notice received."
During their conversation, Tussing noticed a strong odor of
alcohol coming from Thomas and noticed that his eyes were
bloodshot. She then required Thomas to perform several field
sobriety tests. When Thomas refused to take "the field breath
test," Tussing placed Thomas under arrest for driving while
intoxicated and thereafter read him the implied consent law.
Thomas refused to submit to a blood or breath test.
On this evidence, the trial judge held that the arrest was
not illegal and overruled Thomas' motion to suppress the
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evidence. The trial judge found Thomas guilty of driving after
having been adjudicated an habitual offender and of violating the
implied consent law. The trial judge found Thomas not guilty of
driving under the influence of alcohol.
ANALYSIS
The Fourth Amendment protects people from unreasonable
searches and seizures by law enforcement officers. Katz v.
United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19
L. Ed. 2d 576, 582 (1967). Evidence obtained in violation of the
Fourth Amendment is inadmissible in a criminal prosecution for a
charged criminal violation pertaining to the seized evidence.
Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691-92, 6
L. Ed. 2d 1081, 1090 (1961). In 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. California v.
Hodari D., 499 U.S. 621, 628, 111 S. Ct. 1547, 1551, 113
L. Ed. 2d 690, 698-99 (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), cert. denied, 475 U.S. 1084
(1986). Here, Thomas was neither stopped nor physically
restrained at the roadblock and he did not submit to the show of
police authority. To the contrary, of his own volition, Thomas
stopped the truck on the shoulder of the exit ramp thirty yards
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before reaching the roadblock and took evasive action to avoid
being stopped at the roadblock while he was operating the
vehicle. Thomas 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.
As we said in Stroud v. Commonwealth, 6 Va. App. 633, 636,
370 S.E.2d 721, 723 (1988), where the defendant "was not stopped
at the roadblock, its constitutionality is immaterial to [the
defendant's] detention or arrest." Stroud made a U-turn within
100 to 150 feet of the roadblock in order to avoid being stopped
at it. Id. at 634-35, 370 S.E.2d at 722. Based on the police
officer's prior experience, Stroud's evasive action caused the
police officer reasonably to suspect that the driver was
unlicensed or otherwise in violation of the law. However,
because Stroud was not physically stopped or restrained at the
roadblock and did not submit to the roadblock, no seizure had
occurred. Id. at 636, 370 S.E.2d at 723.
We reject the argument that Thomas was seized when he
entered the line of traffic on the exit ramp. Thomas contends
that when he entered the exit ramp, he was within the "zone" of
the roadblock and could not legally avoid going through it. When
Thomas stopped, he was thirty yards from the roadblock and had
not yielded to the show of authority of the roadblock. The fact
that Thomas was in close proximity to the roadblock when he
stopped and took action to evade it does not alter the fact that
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he was not stopped at the roadblock checkpoint. Although Thomas'
options and freedom of movement may have been limited by the fact
that the roadblock was placed at the end of the exit ramp,
Thomas' freedom of movement had not been "terminated" by
governmental action. For 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 a
governmental termination of freedom of movement through means
intentionally applied." Brower v. Inyo County, 489 U.S. 593,
597, 109 S. Ct. 1378, 1381, 103 L. Ed. 2d 628, 635 (1989). Thus,
because appellant was not seized, the trial court did not err in
ruling that the Commonwealth was not required to establish the
constitutionality of the roadblock.
Although Thomas was not seized for purposes of the Fourth
Amendment when he stopped before reaching the roadblock, we
assume, for purposes of this opinion, that Thomas was seized when
Officer Tussing approached him and inquired about his having
driven the truck. See Brown v. Commonwealth, 17 Va. App. 694,
695, 440 S.E.2d 619, 620 (1994). However, at that time Officer
Tussing had reason to suspect that Thomas was either unlicensed
or otherwise in violation of the law. See Prouse, 440 U.S. at
663; Stroud, 6 Va. App. at 636, 370 S.E.2d at 723. But see
Murphy v. Commonwealth, 9 Va. App. 139, 384 S.E.2d 125 (1989)
(holding that making a lawful turn 350 feet before a roadblock
does not give rise to a reasonable suspicion of criminal activity
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unless coupled with other articulable facts). Thus, Tussing had
an articulable and reasonable suspicion that Thomas was engaged
in wrongdoing and had the right to briefly detain Thomas while
she investigated. Thus, the DMV information that Tussing
subsequently obtained about Thomas being a "suspended habitual
offender" and her observations that he had bloodshot eyes and a
strong odor of alcohol about him were not the result of an
illegal seizure or detention. Accordingly, we uphold the trial
court's ruling refusing to suppress the evidence, and we affirm
the conviction for driving after having been declared an habitual
offender.
This Court does not have jurisdiction over an appeal from a
conviction of refusal to take a blood or breath test. See
Commonwealth v. Rafferty, 241 Va. 319, 402 S.E.2d 17 (1991).
Therefore, the portion of the appeal challenging the conviction
under Code § 18.2-268.3 is transferred to the Supreme Court of
Virginia pursuant to Code § 8.01-677.1.
Affirmed in part and
transferred in part.
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Benton, Willis, and Elder, J.J., dissenting.
For the reasons stated in the panel decision, see Thomas v.
Commonwealth, 22 Va. App. 735, 473 S.E.2d 87 (1996), we would
reverse Thomas' conviction for driving after having been declared
an habitual offender. We concur in the decision transferring to
the Supreme Court the appeal from the conviction of refusal to
take a blood or breath test. See id. at 740, 473 S.E.2d at 90.
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