Opinion
Record No. 0034-93-3
Decided: June 21, 1994
FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY, Duncan M. Byrd, Jr., Judge
Affirmed.
Russell W. Updike (William T. Wilson Associates, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Coleman, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Oral G. Clarkson appeals his conviction for driving after having been declared an habitual offender in violation of Code Sec. 46.2-357. Clarkson's status as an habitual offender was discovered after he abruptly stopped his vehicle about 200 yards from a roadblock, partially on the highway, and changed positions with the passenger, which aroused the suspicions of the officers conducting the roadblock. On appeal, Clarkson contends that the trial court erred in denying his motion to suppress the evidence that he was an habitual offender because the roadblock near which he was stopped constituted an impermissible seizure and because the officer conducting the stop lacked the reasonable and articulable suspicion to believe that appellant was engaged in illegal activity. For the reasons that follow, we affirm appellant's conviction.
On appeal, the burden is on appellant to show, considering the evidence in the light most favorable to the Commonwealth, that the denial of the motion to suppress constituted reversible error. See Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980).
We conclude first, based on our holding in Stroud v. Commonwealth, 6 Va. App. 633, 370 S.E.2d 721 (1988), that the constitutionality of the roadblock "is immaterial to [appellant's] detention or arrest." Id. at 636, 370 S.E.2d at 723. Here, as in Stroud, appellant "stopped the [vehicle] of his own volition" before reaching the roadblock and in this case denied having seen the roadblock prior to the trooper's approach. Id.
Appellant contends, in essence, that his voluntary stop was linked to the roadblock because Trooper Olinger, who was assisting with the roadblock, saw appellant's car pull to the side of the road. Appellant cites our decision in Murphy v. Commonwealth, 9 Va. App. 139, 143 n. 2, 384 S.E.2d 125, 128 n. 2 (1989), as establishing "a nexus between the stop itself and the constitutionality of the roadblock notwithstanding the fact that the vehicle . . . turned some 350 feet before reaching it." However, the footnote in Murphy is dicta and was contained in a footnote and was not dispositive of the outcome in that case.
In Murphy, Judge Coleman wrote the following:
While the initial stop of Murphy's vehicle was a direct result of a police roadblock, he does not challenge the constitutionality of the roadblock on appeal. Murphy advances no argument that because the roadblock was the direct cause of his action which led to the stop that the constitutionality of the roadblock is implicated.
9 Va. App. at 143 n. 2, 384 S.E.2d at 128 n. 2 (emphasis added).
Therefore, we do not consider the constitutionality of the roadblock.
Trooper Olinger's request for identification constituted a seizure for Fourth Amendment purposes. Brown v. Commonwealth, ___ Va. App. ___ ___, 440 S.E.2d 619, 621 (1994). Although Olinger's approach of appellant's stationary vehicle was not a seizure, his request that appellant produce a driver's license changed the nature of the encounter. Under Code Sec. 46.2-104, appellant was required to comply with Olinger's request and was implicitly no longer free to leave. As this Court held in Brown, "the exercise of police power pursuant to Code Sec. 46.2-104, . . . requiring a person who has been operating a motor vehicle upon the public highways to produce a driver's license, is a restraint upon the individual's freedom of movement and constitutes a seizure of the person."___ Va. App. at ___, 440 S.E.2d at 621.
We hold that the record supports the trial court's finding that the seizure was constitutional. Here, as in Brown, Olinger had reasonable and articulable suspicion to conclude "that [the] motorist [was] unlicensed or that the automobile [was] not registered, or that either the vehicle or an occupant [was] otherwise subject to seizure for violation of the law," as required under Delaware v. Prouse, 440 U.S. 648, 663 (1979). See Brown, ___ Va. App. at ___, 440 S.E.2d at 621-22.
The officer testified that he focused on appellant's vehicle because it stopped suddenly within view of the roadblock. This sudden stop, along with the fact that the vehicle stopped "half on and half off" the road and appellant changed seats with the passenger, led Olinger to believe that there was "something wrong with that vehicle, . . . or an unlicensed driver."
Viewing the evidence objectively, as is required under the Fourth Amendment, e.g., Bosworth v. Commonwealth, 7 Va. App. 567, 570, 375 S.E.2d 756, 758 (1989), Olinger, an experienced officer, had reasonable and articulable suspicion to conclude that appellant's stop indicated an attempt to avoid the roadblock because appellant was unlicensed or otherwise in violation of the law. See Brown, ___ Va. App. at ___, 440 S.E.2d at 622 (citing Stroud, 6 Va. App. at 636, 370 S.E.2d at 723).
For these reasons, we hold that the trial court did not err in denying appellant's motion to suppress, and we affirm appellant's conviction.
Affirmed.