COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia
ROY BERGER BASS
MEMORANDUM OPINION * BY
v. Record No. 2535-97-2 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 16, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Larry A. Pochucha (Coates & Davenport, on
brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his conviction for operating a motor vehicle
while intoxicated, in violation of Code § 18.2-266, Roy Berger
Bass contends that the trial court erred (1) in denying his
motion to suppress evidence collected after an officer stopped
him for evading a roadblock, and (2) in denying his motion to
strike the evidence on the ground that the roadblock's
constitutionality was not established. We affirm the judgment of
the trial court.
I. Background
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences deducible therefrom." Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987).
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
On the evening of March 24, 1997, the Chesterfield Police
Department set up a traffic checkpoint on Cogbill Road. All
vehicles approaching from both directions were stopped at the
checkpoint. Vehicles evading the checkpoint were stopped by
chase cars, one of which was being driven by Officer William
Wickham.
Officer Wickham saw Bass' vehicle turn left from Route 1
southbound onto Cogbill Road, then make an immediate left turn
into a Texaco gas station. Although the station was open, Bass
did not stop but drove straight through and exited the lot,
turning south on Route 1, thereby avoiding the checkpoint.
Because Bass did not stop in the station lot, Wickham concluded
that he was evading the checkpoint. Wickham stopped Bass and
determined that he was under the influence of alcohol. Wickham
testified that prior to the stop, he witnessed no illegal
activity by Bass except for his apparent evasion of the
checkpoint.
Bass was convicted of driving while intoxicated, in
violation of Code § 18.2-266.
II. Motion to Suppress
Bass contends that the trial court erred in denying his
motion to suppress evidence obtained after he was stopped. He
argues that the stop violated his Fourth Amendment right against
unreasonable search and seizure. In considering the legality of
the stop, we must consider the "objective reasonableness of the
officer's behavior." Riley v. Commonwealth, 13 Va. App. 494,
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497, 412 S.E.2d 724, 725 (1992). Officer Wickham was responsible
for stopping all drivers who attempted to evade the roadblock.
The manner in which Bass made two quick turns, cutting through
the parking lot without stopping at the station, reasonably
supported Officer Wickham's suspicion that Bass sought to evade
the roadblock. That suspicion legitimated the stop. See Miller
v. Commonwealth, 16 Va. App. 977, 979-80, 434 S.E.2d 897, 898-99
(1993). See also Bailey v. Commonwealth, 28 Va. App. 724,
727-28, ___ S.E.2d ___, ___ (1999).
III. Motion to Strike
When a driver is prosecuted after being stopped at a
roadblock, the Commonwealth must establish the constitutionality
of the roadblock. See Simmons v. Commonwealth, 238 Va. 200, 204,
380 S.E.2d 656, 659 (1989); Thomas v. Commonwealth, 22 Va. App.
735, 739, 473 S.E.2d 87, 89 (1996). Bass argues that the
Commonwealth failed to prove this element of the case against
him.
"Because [Bass] was not stopped or arrested at the
roadblock, the validity of the roadblock was immaterial to the
legality of his seizure." Thomas v. Commonwealth, 24 Va. App.
49, 52, 480 S.E.2d 135, 136 (1997). The trial court correctly
rejected Bass' argument that the chase car was an extension of
the roadblock. See id. at 55, 480 S.E.2d at 138. Bass' freedom
of movement was curtailed only upon Wickham's stop, and not by
the roadblock. Thus, the constitutionality of the roadblock is
irrelevant.
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The judgment of the trial court is affirmed.
Affirmed.
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Benton, J., dissenting.
In Murphy v. Commonwealth, 9 Va. App. 139, 384 S.E.2d 125
(1989), we specifically ruled that a motorist may not be stopped
simply because he or she engages in a lawful driving maneuver to
avoid a roadblock. See id. at 143-46, 384 S.E.2d at 127-29. In
making that ruling, we noted the following:
In this case, [the police officer] stopped
[the motorist] after the officer saw him make
a legal right turn onto a dead end street
approximately 350 feet from a police
roadblock. Officer Katz testified that he
was acting as the "chase car" and that his
role was to go after vehicles which turned to
avoid the roadblock. . . . Katz further
testified that he noted nothing unusual or
suspicious about [the] vehicle or the
operation of it, except for the fact that it
turned prior to reaching the roadblock.
While [the motorist's] turn onto the dead end
street may have justified a "hunch" that the
driver might be in violation of the traffic
laws or might be involved in criminal
activity, a legal turn into an existing
roadway prior to reaching a checkpoint,
standing alone, does not warrant reasonable
suspicion that the operator is involved in
criminal activity. Under the government's
view, every citizen who turned onto a road
within sight of a checkpoint, for whatever
legitimate reason, would be subject to an
investigative detention. This result we
cannot sanction.
Id. (footnote omitted).
In the case before us, Roy Bass made a lawful turn into a
service station lot. The police officer testified that, prior to
stopping Bass, he witnessed no unlawful activity by Bass. The
officer stopped Bass solely because he believed Bass was avoiding
the checkpoint. The similarity of those facts to the
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circumstances in Murphy is unmistakable. The Commonwealth merely
seeks to reargue the issue decided in Murphy and have the Court
adopt a view that we expressly rejected.
Applying the Murphy "hold[ing,] that a driver's action in
making a legal turn within sight of a roadblock does not give a
police officer a reasonable basis to suspect that the driver is
involved in criminal wrongdoing," id. at 141, 384 S.E.2d at 126,
I would reverse the conviction in this case. Therefore, I
dissent.
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