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
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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
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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.
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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.
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