COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia
JOEL LOVELACE
OPINION BY
v. Record No. 2317-00-3 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Robert W. Williams, Jr. (Office of the Public
Defender, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General;
Shelly R. James, Assistant Attorney General,
on brief), for appellee.
On appeal from his bench trial conviction of driving after
being declared an habitual offender, second offense, in
violation of Code § 46.2-357(B)(3), Joel Lovelace contends the
trial court erred in denying his motion to suppress the evidence
against him. We affirm the judgment of the trial court.
I. BACKGROUND
On April 14, 2000, at 10:45 p.m., Officer L. R. Kennedy of
the Danville Police Department was working a traffic checkpoint
on Mount Cross Road. He was positioned off the side of the
road, approximately "thirty-five yards" from the checkpoint when
he saw Lovelace's car heading northbound toward the checkpoint.
Officer Kennedy testified that "[a]s the car got more or less
directly in front of [his] . . . [it] seemed to start to slow
down and it eventually [came] to a stop." He testified that
Lovelace stayed in the road "a second or two," looking at the
checkpoint, and then "took a left into a private driveway of a
residence." The driveway was semi-circular with an entrance and
an exit on Mount Cross Road.
Officer Kennedy testified that, other than Lovelace's
apparent attempt to evade the checkpoint, he saw Lovelace commit
no violation of law, nor did he observe an excited or panicked
look on Lovelace's face. He stated that, based on his
experience with this checkpoint, he believed Lovelace was
attempting to avoid the checkpoint.
Officer Kennedy observed Lovelace's vehicle until it "had
made it more or less half-way through and going back towards the
exit part when [Kennedy] put the lights on and [Lovelace]
stopped about three-quarters of the way through." He testified
that "[Lovelace] wasn't applying brakes, there were no brake
lights, he wasn't making any action to stop. . . . He continued
on and stopped at about three-quarters of the way through [the
driveway]." Lovelace exited his vehicle and admitted he was
avoiding the checkpoint because he was an habitual offender.
Lovelace moved to suppress the evidence against him,
arguing that Officer Kennedy lacked a reasonable and articulable
suspicion of criminal activity, justifying the stop of his
vehicle. The trial court denied the motion and convicted
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Lovelace of driving after being declared an habitual offender,
second offense.
II. ANALYSIS
"In reviewing a trial court's denial of a motion to
suppress, 'the burden is upon [the defendant] to show that the
ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (citation omitted). "We review de novo the trial
court's application of defined legal standards such as probable
cause and reasonable suspicion to the particular facts of the
case." Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d
357, 359 (1999) (citation omitted). "In performing such
analysis, we are bound by the trial court's findings of
historical fact unless 'plainly wrong' or without evidence to
support them and we give due weight to the inferences drawn from
those facts by resident judges and local law enforcement
officers." McGee, 25 Va. App. at 198, 487 S.E.2d at 261 (citing
Ornelas v. United States, 517 U.S. 690, 699 (1996)).
"'[W]hen the police stop a motor vehicle and
detain an occupant, this constitutes a
seizure of the person for Fourth Amendment
purposes.'" Logan v. Commonwealth, 19 Va.
App. 437, 441, 452 S.E.2d 364, 367 (1994)
(quoting Zimmerman v. Commonwealth, 234 Va.
609, 611, 363 S.E.2d 708, 709 (1988)). "In
order to justify an investigatory stop of a
vehicle, the officer must have some
reasonable, articulable suspicion that the
vehicle or its occupants are involved in, or
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have recently been involved in, some form of
criminal activity." Logan, 19 Va. App. at
441, 452 S.E.2d at 367. "To determine
whether an officer has articulated a
reasonable basis to suspect criminal
activity, a court must consider the totality
of the circumstances, including the
officer's knowledge, training, and
experience." Freeman v. Commonwealth, 20
Va. App. 658, 661, 460 S.E.2d 261, 262
(1995) (citing Murphy v. Commonwealth, 9 Va.
App. 139, 144, 384 S.E.2d 125, 128 (1989)).
"'[A] trained law enforcement officer may
[be able to] identify criminal behavior
which would appear innocent to an untrained
observer.'" Freeman, 20 Va. App. at 661,
460 S.E.2d at 262 (quoting Taylor v.
Commonwealth, 6 Va. App. 384, 388, 369
S.E.2d 423, 425 (1988)).
Neal v. Commonwealth, 27 Va. App. 233, 237-38, 498 S.E.2d 422,
424 (1998).
Lovelace relies on Bass v. Commonwealth, 259 Va. 470, 525
S.E.2d 921 (2000), and Murphy v. Commonwealth, 9 Va. App. 139,
384 S.E.2d 125 (1989), to argue that Officer Kennedy lacked a
justifiable basis for stopping him. That reliance is misplaced.
In Bass, the Supreme Court held that a police officer
lacked a justifiable basis for stopping a driver who "made a
series of legal driving maneuvers the effect of which was to
reverse the direction in which he was going" and which "also
resulted in his not passing through the traffic checkpoint that
was approximately 500 feet away." Bass, 259 Va. at 477, 525
S.E.2d at 925. The fact that Bass was the only driver who had
entered, but not stopped in the gas station parking lot was
consistent with a desire to make a U-turn and did not provide
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the officer a reasonable suspicion that he was engaged in
criminal activity. Id.
In Murphy, the defendant made a legal right turn onto a
public street approximately 350 feet from a police roadblock.
The police officer admitted that the defendant's actions were no
different from those of anyone lawfully turning into the street.
The defendant's driving was unremarkable, other than his turn
before reaching the checkpoint. In concluding that the
defendant's behavior supported no more than a "hunch" of
criminal activity, we held
that the act of a driver in making a lawful
right turn 350 feet before a roadblock does
not give rise to a reasonable suspicion of
criminal activity unless the driver's turn
or action is coupled with other articulable
facts, such as erratic driving, a traffic
violation, or some behavior which
independently raises suspicion of criminal
activity.
Murphy, 9 Va. App. at 145, 384 S.E.2d at 128.
Unlike Bass and Murphy, Lovelace's turn into the driveway,
though intrinsically lawful, was suspicious. Upon confronting
the roadblock only thirty-five yards ahead of him, he stopped
and hesitated, looking toward the roadblock. Turning into the
driveway, he proceeded more than half-way through, returning
toward the street, with no sign of stopping. These facts are
strikingly similar to those in Bailey v. Commonwealth, 28 Va.
App. 724, 508 S.E.2d 889 (1999), and Stroud v. Commonwealth, 6
Va. App. 633, 370 S.E.2d 721 (1988).
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In Bailey, the defendant came to the top of a knoll and saw
a police roadblock. He stopped "suddenly" and turned into the
driveway of a private residence between fifty and seventy-five
yards from the roadblock. Bailey, 28 Va. App. at 725, 508
S.E.2d at 889. He drove slowly into the driveway as though
hesitant about stopping there and continued to look at the
officer. Id. at 725-26, 508 S.E.2d at 990. Exiting his
vehicle, he continued to look at the officers at the roadblock.
Id. at 726, 508 S.E.2d at 889. One of the officers testified
that he was suspicious of the way the defendant entered the
driveway but kept looking at the roadblock. Id. at 726, 508
S.E.2d at 890. We held that these circumstances gave the
officers reason to suspect that the defendant pulled into the
driveway to evade the roadblock. Id. at 728, 508 S.E.2d at 891.
In Stroud, we held that a police officer had a reasonable,
articulable suspicion of wrongdoing when he observed a vehicle
make a U-turn within 100-150 feet of a roadblock. See Stroud, 6
Va. App. at 636, 370 S.E.2d at 723. The officer testified that
based upon his eleven years of state police experience he
suspected from this conduct that the driver was attempting to
avoid the roadblock because he was either unlicensed or
otherwise in violation of the law. See id. at 634-35, 370
S.E.2d at 722.
As Bass and Murphy hold, a driver's undertaking a lawful
driving maneuver which has the effect of avoiding a checkpoint
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does not, standing alone and without more, furnish reasonable
suspicion of possible criminal activity. Furthermore, a police
officer's generalized assertion that, based upon his training
and experience, he suspected that the driver was attempting to
evade the roadblock does not provide the necessary level of
suspicion to support a stop. The officer must be able to point
to specific suspicious facts, other than the lawful maneuver and
his personal suspicion, to justify the stop. The record in this
case sets forth sufficient additional facts.
Although Lovelace's turn into the driveway was
intrinsically lawful, the circumstances surrounding that turn
were suspicious. Lovelace approached the roadblock, stopped in
the roadway for "a second or two" and observed the checkpoint
before turning into a private driveway. At no point did he
attempt to stop in the driveway. His conduct belied any intent
to stop upon the property served by the driveway and suggested
only an intent to use the driveway to effect a U-turn. The
proximity of the roadblock suggested that the purpose of the
U-turn was to evade the roadblock. Lovelace's suspicious
behavior, coupled with Officer Kennedy's experience, supported a
reasonable suspicion that Lovelace was simply using the driveway
to reverse his course and evade the roadblock.
We hold that the circumstances observed by Officer Kennedy
afforded him a reasonable suspicion that Lovelace was attempting
to evade the roadblock because he was unlicensed or otherwise in
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violation of law and justified Officer Kennedy's stop of
Lovelace's vehicle.
The judgment of the trial court is affirmed.
Affirmed.
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