Present: Carrico, C.J., Compton, Stephenson, Whiting, 1 Lacy,
Hassell, and Keenan, JJ.
JETER RAY BARRETT
v. Record No. 941711 OPINION BY JUSTICE HENRY H. WHITING
September 15, 1995
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Jeter Ray Barrett appeals his conviction for operating a
motor vehicle while under the influence of intoxicants (DUI).
The dispositive issue is the admissibility of evidence of
Barrett's intoxication discovered during a brief police stop to
investigate whether Barrett's vehicle was malfunctioning.
State Trooper J.R. Lyons testified that while he was
travelling west on Route 360 in Northumberland County at 9:20
p.m. on October 2, 1991, he noticed a pickup truck occupied by a
driver and two passengers stopped in a yard off the east lane of
the highway. After continuing west for about one-half mile,
Lyons turned around and went back to investigate whether the
pickup truck had broken down.
Upon returning to the scene, Lyons observed the pickup truck
moving with its wheels partially on the shoulder of the road and
partially in the private yard, which "seemed odd" to Lyons since
the driver could have "pulled onto the roadway." As Lyons
approached the rear of the pickup truck, he activated the
1
Justice Whiting prepared the opinion in this case prior to the
effective date of his retirement on August 12, 1995, and the Court
subsequently adopted the opinion.
cruiser's flashing lights to stop the pickup truck "only to see
whether there was a problem."
Both vehicles stopped. As Lyons walked up to the pickup
truck, he smelled a strong odor of alcohol "on or about the
person of Barrett," who was driving the pickup truck. Barrett
admitted that he had been drinking. After Barrett performed
three field sobriety tests "very poorly," and a roadside
breathalizer test indicated that Barrett was intoxicated, Lyons
arrested him on a DUI charge. Shortly thereafter, a blood test
was administered to Barrett, which indicated that he had a blood
alcohol content of 0.12% by weight by volume.
Later ascertaining that Barrett had two prior DUI
convictions in the ten years preceding his arrest on this charge,
the Commonwealth amended the arrest warrant to reflect that fact.
Code § 18.2-270. Upon his conviction by the general district
court, Barrett appealed to the circuit court.
During his bench trial in the circuit court, Barrett moved
to suppress Lyons's testimony since the trooper's investigative
stop was not supported by "a reasonable, articulable suspicion
that a crime was occurring or [was] about to occur," and thus
violated Barrett's Fourth Amendment right not to be subjected to
unreasonable searches and seizures. 2 Overruling this motion and
2
The Fourth Amendment to the United States Constitution
provides in pertinent part that "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated."
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Barrett's subsequent motion to strike the Commonwealth's
evidence, the trial court reasoned that "due to the unusual
situation which Lyons was confronted with[,] he was required to
investigate [and that] it was natural for Lyons'[s] curiosity to
be aroused, since this was a situation that was not seen very
often." Following Lyons's testimony, proof of Barrett's blood
test and two prior DUI convictions, and testimony adduced by
Barrett of his good character, the trial court convicted and
sentenced Barrett.
Barrett appealed to the Court of Appeals. Concluding that
Lyons's action in stopping Barrett was a seizure in violation of
Barrett's Fourth Amendment rights, a panel of that court reversed
the judgment of the trial court. Barrett v. Commonwealth, 17 Va.
App. 196, 435 S.E.2d 902 (1993). However, after a rehearing en
banc, the Court of Appeals affirmed the trial court's judgment.
Barrett v. Commonwealth, 18 Va. App. 773, 447 S.E.2d 243 (1994).
Barrett appeals to this Court.
The Commonwealth concedes that Lyons's stop and detention of
Barrett was a "seizure" for Fourth Amendment purposes and that it
was not based on an investigation of any crime, motor vehicle
violation, or equipment violation. Hence, the admissibility of
the evidence of Barrett's intoxication depends upon whether Lyons
had the right to stop Barrett to investigate whether he was
experiencing mechanical difficulties with his vehicle.
Barrett contends that this stop can be justified only if
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Lyons reasonably believed that Barrett was engaged in criminal
activity at the time he was seized. On the other hand, the
Commonwealth claims that Lyons had the right to make the stop in
the exercise of the so-called "community caretaking functions"
doctrine articulated in the following language in Cady v.
Dombrowski, 413 U.S. 433 (1973):
Because of the extensive regulation of motor vehicles
and traffic, and also because of the frequency with
which a vehicle can become disabled or involved in an
accident on public highways, the extent of
police-citizen contact involving automobiles will be
substantially greater than police-citizen contact in a
home or office. Some such contacts will occur because
the officer may believe the operator has violated a
criminal statute, but many more will not be of that
nature. Local police officers . . . frequently
investigate vehicle accidents in which there is no
claim of criminal liability and engage in what, for
want of a better term, may be described as community
caretaking functions, totally divorced from the
detection, investigation, or acquisition of evidence
relating to the violation of a criminal statute. . . .
[O]ften [that] noncriminal contact with automobiles
will bring . . . officials in "plain view" of evidence,
fruits, or instrumentalities of a crime, or contraband.
413 U.S. at 441-42 (emphasis added).
However, neither Cady nor the two subsequent Supreme Court
cases applying the so-called "community caretaking functions"
doctrine involved investigative stops and "seizures"; they
involved the admissibility of incriminating evidence discovered
during a standard police procedure of inventorying property that
had properly been taken into custody. Cady, 413 U.S. at 443;
South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976); Colorado
v. Bertine, 479 U.S. 367, 375-76 (1987). Here, the Commonwealth
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urges us to extend this doctrine to validate investigative stops
and detention of persons not evidently engaged in criminal
activity, but who apparently need some police assistance.
Before we can decide whether this doctrine will be applied
in Virginia, we must first consider whether the evidence in this
case is sufficient to indicate that Barrett apparently needed
police assistance. Lyons testified that he stopped Barrett "to
see whether there was a problem" because it "seemed odd" that he
would drive partially upon the shoulder of the road and partially
on the adjoining yard and not enter the highway.
Zimmerman v. Commonwealth, 234 Va. 609, 363 S.E.2d 708
(1988), not cited by either party, is instructive. There, a
police officer observed the defendant driving a vehicle very
slowly on a military base. When the police officer "pulled" his
vehicle "up behind" the defendant's vehicle, the defendant drove
from the travelled portion of the street onto the grass and
stopped. Her husband left the passenger's seat and asked for
directions to a building on the base. After the police officer
gave these directions, the husband returned to the vehicle, the
defendant slid over to the passenger's seat, and the husband
drove the vehicle beyond the point at which he should have turned
had he followed the police officer's directions. The police
officer then stopped the vehicle because he noticed that "they
had switched operators and that attracted [his] attention." Id.
at 611, 363 S.E.2d at 709.
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Even though these actions may have seemed unusual to the
officer, we held the investigative stop unlawful, concluding that
these actions were insufficient to justify a reasonable suspicion
of criminal activity. Id. at 612, 363 S.E.2d at 709. We also
noted that the detention would have been justified if the police
officer had "a reasonable suspicion, based on objective facts,
that the individual is involved in criminal activity." Id. at
611, 363 S.E.2d at 709 (quoting Leeth v. Commonwealth, 223 Va.
335, 340, 288 S.E.2d 475, 478 (1982) (emphasis added)).
As previously indicated, the only justification offered for
Barrett's "seizure" is Lyons's testimony that he stopped Barrett
merely "to see whether there was a problem" because it "seemed
odd" that he would drive partially upon the shoulder of the road
and partially on the adjoining yard and not enter the highway.
Just as the actions in Zimmerman were insufficient to justify a
reasonable suspicion of criminal activity, we conclude that
Barrett's "odd" conduct, without more, did not give rise to "a
reasonable suspicion, based on objective facts," that he needed
police assistance. Thus, we need not decide whether the so-
called "community caretaking functions" doctrine will be applied
in Virginia when the evidence is sufficient to show that the
detained person required police assistance.
Accordingly, the Court of Appeals erred in affirming the
trial court's judgment. The judgment of conviction will be
vacated and the order appealed from will be reversed. And the
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warrant will be dismissed, since without the evidence acquired
during Lyons's illegal stop, there was no evidence to support his
conviction.
Reversed and dismissed.
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