Opinion
Record No. 1995-99-3.
January 16, 2001.
Appeal from the Circuit Court of Amherst County, J. Michael Gamble, Judge.
Michael T. Garrett (Pendleton, Garrett Henderson, P.C., on brief), for appellant.
Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Judges Elder, Frank and Humphreys.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Vincent Anderson (appellant) was convicted in a bench trial of driving after having been declared a habitual offender in violation of Code § 46.2-357. On appeal, he contends the trial court erred in denying his motion to suppress. Finding no error, we affirm the judgment of the trial court.
I. BACKGROUND
On July 25, 1998, Deputy Travis Dooms of the Amherst County Sheriff's Department conducted a traffic checkpoint at the intersection of Wright Shop Road and Penn's Lane in Amherst.
The constitutionality of the checkpoint is not challenged.
Deputy Dooms was standing at the checkpoint with Sergeant Robinson when they saw appellant's vehicle heading eastbound on Wright Shop Road toward the checkpoint. Dooms testified, "It continually slowed down as it was coming up on the checking detail prematurely. At the last minute it took a right turn into the driveway just west of the Penn Lane and about twenty, twenty-five yards from me." There was nothing unusual about appellant's driving "other than he started slowing down a long ways prior to the checking detail." The officers observed the vehicle pull around behind the house. Appellant, who was the driver, exited the vehicle and walked up to the porch of the house. He spoke with an elderly woman for approximately two or three minutes and then walked back to the vehicle. According to Sergeant Robinson, it was "fairly obvious" that the people on the porch did not know the appellant. Appellant then got behind the wheel and pulled forward out of the driveway. The vehicle stopped prior to entering the highway as Deputy Dooms, in uniform and wearing his holstered handgun, approached the vehicle. The vehicle was stopped when the deputy approached it. Deputy Dooms testified he did not signal for the vehicle to stop and he was not in front of the vehicle prior to it stopping.
Dooms approached the driver's side of the vehicle and "simply asked [appellant] to see his operator's license." Appellant told Dooms he did not have his license with him. Appellant then consented to a search of the vehicle.
During Sergeant Robinson's search of the car, he found the appellant's photo identification card. Appellant told the police the photograph on the identification was of his father. However, the police could see that the picture was obviously of appellant. Deputy Dooms ran a check using the information from the identification card and discovered appellant was "an habitual offender," and was "wanted" on another charge. Appellant was arrested.
Deputy Dooms stated that he knew from experience that vehicles that turn into the driveway that appellant turned into, as well as the other nearby driveway on the other side of Penn's Lane, do so to avoid the checkpoint. Dooms had been involved with previous checkpoints at that location. In fact, on the same day appellant was charged, another vehicle attempted to avoid the checkpoint by turning into the other nearby driveway and the result was the discovery of a traffic offense. Dooms testified that on previous occasions, he had personally observed approximately five vehicles turn into the other nearby driveway, which, in each instance, resulted in the discovery of a traffic offense. Further, he had observed other deputies and troopers make similar traffic arrests. He testified that "one hundred percent" of the vehicles that turned into one of the two driveways during a traffic checking detail were cited for traffic offenses. The traffic charges were described by Deputy Dooms as habitual offender, operating on a suspended license, or operating a vehicle without a license. According to the deputy, when he saw appellant turn into the driveway, "[t]here [was] no question in [his] mind" appellant did so to avoid the checking detail.
Consistent with the deputy's assessment, Sergeant Robinson testified that the sheriff's department had conducted "numerous" checking details at the location. He explained that there is
a house on both corners prior to the checking detail [in each direction], and . . . every time a vehicle, in [his] experience, has pulled into one of those residences, they have been operating in some type of fashion that was in violation of either driving suspended, DUI, or some . . . part of the traffic code. . . .
He stated the "majority, if not all," of the vehicles that have turned into the driveways have received traffic citations.
Appellant filed a motion to suppress, which alleged that Deputy Dooms did not have probable cause to stop, detain and arrest him. The trial court denied the motion, ruling that probable cause to stop appellant was not required because the driveway was within the checkpoint area.
The trial court incorrectly applied probable cause as the standard necessary to justify a detention. Rather, the officers only had to have a reasonable, articulable suspicion in order to stop appellant. Terry v. Ohio, 392 U.S. 1, 30 (1968).
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). "[W]e 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 (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)).
Farrow v. Commonwealth, 31 Va. App. 517, 519, 525 S.E.2d 11, 12 (2000).
We assume, without deciding, that appellant was detained by the deputy. Our analysis is, therefore, limited to whether the deputy had reasonable suspicion to detain appellant.
Appellant argues the police did not have probable cause to stop and detain him. Appellant misstates the standard for detention, which is a reasonable, articulable suspicion. Terry, 392 U.S. at 30.
Under well established Fourth Amendment principles, "[t]he police can 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 afoot.'" United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968)). "Actual proof that criminal activity is afoot is not necessary. . . ." Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d 77, 79 (1992). A police officer may conduct an investigatory stop of a motor vehicle if he has at least "articulable and reasonable suspicion" that the operator is unlicensed, the vehicle is unregistered, or the vehicle or an occupant is otherwise subject to seizure for violating the law. See Murphy v. Commonwealth, 9 Va. App. 139, 143, 384 S.E.2d 125, 127 (1989) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979)). "There are no bright line rules to follow when determining whether a reasonable and articulable suspicion exists to justify an investigatory stop. Instead, the courts must consider 'the totality of the circumstances — the whole picture.'" Hoye v. Commonwealth, 18 Va. App. 132, 135, 442 S.E.2d 404, 406 (1994) (quoting Sokolow, 490 U.S. at 8, 109 S.Ct. at 1585).
Reel v. Commonwealth, 31 Va. App. 262, 265-66, 522 S.E.2d 881, 882-83 (2000).
"'[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 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).
Appellant contends this case is controlled by Murphy, 9 Va. App. 139, 384 S.E.2d 125. In Bailey v. Commonwealth, 28 Va. App. 724, 508 S.E.2d 889 (1999), we rejected Bailey's argument that Murphy controlled, writing:
We held in Murphy that a legal right turn onto a dead-end road with a roadblock in view, without more, did not give police reasonable suspicion to suspect the defendant of criminal misconduct. See id. at 141, 384 S.E.2d at 126. Appellant argues that like the driver in Murphy, his actions in making a right turn into a private driveway 50-75 yards ahead of the roadblock did not give Turner a reasonable suspicion that criminal activity may have occurred or been occurring. We disagree.
In Murphy, the officer observed the defendant make a "normal and legal" right turn onto a dead-end street approximately 350 feet before a checkpoint. Id. (emphasis added). The officer acknowledged that nothing distinguished the operation of the defendant's vehicle from that of any other driver attempting to make a right turn. See id. Unlike the situation in Murphy where no suspicious circumstances existed apart from a lawful turn into an existing roadway, Turner observed factors which "independently raise[d] suspicion of criminal activity" and suggested that appellant made the turn into the private residence to evade the roadblock. Id. at 145, 384 S.E.2d at 128 (emphasis added).
Id. at 728-29, 508 S.E.2d at 891.
In this case, we also reject appellant's reliance on Murphy, and find that this case is factually similar to Bailey, Stroud v. Commonwealth, 6 Va. App. 633, 370 S.E.2d 721 (1988), and Commonwealth v. Eaves, 13 Va. App. 162, 408 S.E.2d 925 (1991).
In Bailey, when Bailey came to the top of a knoll and saw the police roadblock, he stopped suddenly and turned into a 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. Bailey drove slowly into the driveway as if he was hesitant about stopping there and continued to look at the officer. Id. at 725-26, 508 S.E.2d at 990. When Bailey exited 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 he was suspicious of the way Bailey was going through the driveway and kept looking at the roadblock. Id. at 726, 508 S.E.2d at 890. We found the officer had reasonable suspicion to believe Bailey 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 the defendant make a U-turn within 100-150 feet of a police roadblock. See Stroud, 6 Va. App. at 636, 370 S.E.2d at 723. The officer testified that based upon his eleven years of experience with the state police he suspected from the driver's conduct that he 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.
Likewise, in Eaves, the officer observed the defendant make a U-turn approximately 100 feet to 1/10 mile before the traffic checkpoint. The officer testified that the defendant was traveling in the left southbound lane when "all of a sudden" he engaged his turn signal at a deceleration lane, made a U-turn, and headed back in the opposite direction from the roadblock. See Eaves, 13 Va. App. at 165, 408 S.E.2d at 927. The deceleration lane was only about 35-40 feet long. The officer described the turn of the vehicle as "abrupt," "immediate," and "quick." Id. We concluded that the officer's observations gave him a reasonable, articulable suspicion to stop the defendant. See id. at 166, 408 S.E.2d at 927-28.
Id. at 728, 508 S.E.2d at 890-91.
In this case, Deputy Dooms stated appellant's car was "slowing down" and, at the last minute, turned into the driveway twenty to twenty-five yards from the police checkpoint. While Dooms testified there was nothing unusual about appellant's driving, he said it was obvious that the lady on the porch did not know appellant. Further, the conversation between appellant and the lady only lasted two or three minutes.
Deputy Dooms and Sergeant Robinson both testified that, based on their experience, appellant's actions were suspicious. Robinson testified the sheriff's department had conducted "numerous" checkpoints at that location. It was his experience that every time a car pulled into one of the two driveways located near the checkpoint, the driver was either driving on a suspended license or driving under the influence. Dooms testified that "one hundred percent" of the vehicles that turned into one of the two driveways during a checkpoint were cited for traffic offenses.
Furthermore, Bass v. Commonwealth, 259 Va. 470, 525 S.E.2d 921 (2000), does not support appellant's position. In Bass, Bass turned left onto Cogbill Road, the street on which the checkpoint was located, from the northbound lane of Jefferson Davis Highway. Id. at 473, 525 S.E.2d at 922-23. Bass then turned left into the parking lot of a gas station that was located on the corner of Cogbill and Jefferson Davis. Id. Bass drove through the gas station parking lot without stopping and turned onto the southbound lane of Jefferson Davis. Id. at 473, 525 S.E.2d at 923. This occurred approximately 500 yards from the police checkpoint. Id. at 473, 525 S.E.2d at 922-23. The officer testified he believed Bass was attempting to evade the checkpoint because "'[u]nlike any other vehicles that had pulled to the gas station . . ., Mr. Bass did not make any attempt to stop or check to see if the station was open. . . .'" Id. at 473, 525 S.E.2d at 923. The officer testified that, other than evading the checkpoint, he did not observe Bass commit any other violation of the law. Id.
Based on the facts, the Supreme Court found that reasonable suspicion did not exist to warrant stopping Bass' vehicle. Id. at 477-78, 525 S.E.2d at 925. The Commonwealth cited Thomas v. Commonwealth, 24 Va. App. 49, 480 S.E.2d 135 (1997) (en banc), and Stroud in support of its argument and distinguished Murphy on its facts. Id. at 477, 525 S.E.2d at 925. The Supreme Court rejected the Commonwealth's reliance onThomas and Stroud, writing:
We are not persuaded by this contention. Thomas, Stroud and Murphy, while employing the appropriate analysis for the determination of reasonable suspicion to justify an investigative stop, are all necessarily fact specific. Thus, these cases do not control our independent review of the totality of the circumstances in the present case. Indeed, if that were not so, Murphy, which more closely resembles the factual circumstances here, would be more on point than Thomas and Stroud.
Id.
The Court found that the officer gave no articulable, objective factors to support his conclusion Bass was evading the checkpoint. Rather, the Court wrote, "[T]he most that the Commonwealth's evidence established . . . was a 'hunch' that Bass chose to avoid the checkpoint." Id. at 477-78, 525 S.E.2d at 925.
In this case, unlike in Bass, Deputy Dooms gave specific and empirical reasons to support his conclusion that appellant was attempting to avoid the checkpoint, which were based on his experience and observations.
For these reasons we find the officer had a reasonable, articulable suspicion to stop appellant and, thus, the trial court properly denied the motion to suppress. We, therefore, affirm the trial court's judgment.
Affirmed.
I respectfully dissent because I believe that Deputy Dooms did not have a reasonable suspicion justifying his seizure of appellant.
We have previously held that a defendant is seized for Fourth Amendment purposes when a law enforcement officer asks to see the defendant's driver's license. See Brown v. Commonwealth, 17 Va. App. 694, 695, 440 S.E.2d 619, 620 (1994).
In Bass v. Commonwealth, 259 Va. 470, 525 S.E.2d 921 (2000), the Supreme Court held that a police officer did not have a justifiable basis for stopping the defendant 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." Id. at 477, 525 S.E.2d at 925. The fact that the defendant was the only driver who had entered, but not stopped in the gas station parking lot was consistent with making a U-turn and did not give the officer a reasonable suspicion that appellant was engaged in some sort of criminal activity. Id.
In Murphy v. Commonwealth, 9 Va. App. 139, 384 S.E.2d 125 (1989), the defendant made a legal right turn onto a street approximately 350 feet from a police roadblock. The police officer admitted that the defendant's actions were no different than anyone else who intended to turn onto this street. Moreover, there was nothing unusual about the defendant's driving, other than the fact that he turned before reaching the checkpoint. In concluding that the defendant's behavior supported no more than a "hunch" of criminal activity, we found
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.
The present case can be distinguished from Stroud v. Commonwealth, 6 Va. App. 633, 370 S.E.2d 721 (1988), Commonwealth v. Eaves, 13 Va. App. 162, 408 S.E.2d 925 (1991), and Bailey v. Commonwealth, 28 Va. App. 724, 508 S.E.2d 889 (1999), upon which the majority relies. In Stroud and Eaves, the defendants made U-turns and unequivocally avoided the checkpoint. The defendant in Eaves also drove somewhat erratically. Here, although the appellant turned into the driveway before reaching the checkpoint, Dooms stopped appellant before appellant gave any indication whether he was going to head toward or away from the checkpoint upon exiting the driveway. And in Bailey, the defendant made a sudden turn into a private driveway, proceeded down the driveway hesitantly, and kept looking back at the police officer. Appellant, on the other hand, made a normal turn into the driveway and engaged in no suspicious activity other than turning off the road before reaching the checkpoint.
The fact that many other drivers who turned into this driveway and were stopped had coincidentally engaged in some sort of criminal behavior would not, standing alone, justify stopping every person who entered this property. Appellant maintained proper control of his vehicle, committed no traffic infractions, and did not engage in any behavior that independently raised suspicion of criminal activity. Accordingly, I would reverse the judgment of the trial court.
At trial, the property owner testified that, upon exiting the car, appellant asked her whether she owned the vacant lot next to her residence and whether the property was for sale.