Opinion
Record No. 0189-92-1
November 9, 1993
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE RUSSELL I. TOWNSEND, JR., JUDGE.
Gerard T. Schafer for appellant.
Margaret Ann B. Walker, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Baker and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In this appeal from his bench trial conviction by the Circuit Court of the City of Chesapeake (trial court) for possession of cocaine and interference with a police officer in the discharge of his duties, Victor James Gilmore (appellant) contends that the trial court erroneously failed to suppress evidence of the cocaine obtained by the police from and about his person. Appellant asserts that discovery of that evidence followed an illegal detention or seizure in violation of the Fourth Amendment to the United States Constitution. Finding no error, we affirm the judgment of the trial court.
Upon familiar principles, the judgment of the trial court is presumed to be correct and the burden is upon appellant to show by the record that the trial court has committed reversible error. Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991).
In an appeal from a suppression hearing, we view the evidence in the light most favorable to the party that prevailed below.Commonwealth v. Eaves, 13 Va. App. 162, 164, 408 S.E.2d 925, 926 (1991). As the Commonwealth prevailed below, we must grant to it all reasonable inferences fairly deducible from that evidence.Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
The significant facts that support the trial court's judgment are that on June 16, 1990, several Chesapeake police officers, using marked police cars, were conducting a checkpoint roadblock of traffic traveling north and south on a narrow portion of Bainbridge Boulevard. Appellant was first sighted as he drove a red and white vehicle toward the checkpoint and suddenly turned left in a portion of the road that was so narrow he could not complete a U-turn, away from the roadblock, without backing up in the lane designed for oncoming traffic. At that point, there was neither a driveway nor a street crossing or leading onto Bainbridge Boulevard.
Appellant was first observed by Officer Warren who called to Officer Eaker, "[w]e have a red and white vehicle turning around." Eaker, who also saw appellant, was in a "chase car" approximately thirty yards from Warren and closer to appellant, who was approximately one hundred and seventy yards (one-tenth of a mile) from Warren.
Eaker activated his blue lights and siren and proceeded to follow appellant, who disregarded the warning until he was stopped "about a mile" from where he had made the U-turn away from the checkpoint. During the chase, Eaker observed appellant's vehicle go "over into the left-hand turn lane, [speed] past the rest of the vehicles," and make an illegal pass "as if it was trying to get away."
After appellant was required to get out of his vehicle, the police found him to be in possession of cocaine. During an attempt to search him for weapons, appellant began "struggling and resisting." In addition to the cocaine, the officers found in appellant's car a straw cut in a manner consistent with cocaine use and a plastic container in which there was a spoon and strainer.
Prior to trial, appellant moved to suppress the drug evidence, asserting that he had been seized without a warrant in violation of the Fourth Amendment when the police required him to stop his vehicle. In his brief, appellant describes the issue as follows: "The question in this case is whether at the time that the Officer activated his lights and siren did there exist the articulable and reasonable suspicion required for an investigatory stop of the vehicle?" We find sufficient evidence in this record to support the warrantless stop of appellant's vehicle and the judgment of the trial court. We are not required to find that making a U-turn approximately one-tenth of a mile from a checkpoint establishes justification for an investigatory stop. Under the total circumstances of this case, the precise distance from the checkpoint was not relevant.See Eaves, 1 Va. App. at 165 n. 3,, 408 S.E.2d at 927 n. 3. What is relevant that when appellant arrived in view of the checkpoint he suddenly made a U-turn away from the roadblock where there was no driveway, cross street or street leading onto Bainbridge Boulevard and made the U-turn at a point on the boulevard that was so narrow that to complete the turn he had to back into the roadway designed for oncoming traffic.
Appellant denied that he made a U-turn as described by the officers and testified that he entered the boulevard from a driveway. The evidence, when viewed in the light most favorable to the Commonwealth, does not support appellant's contention.
The officers testified that appellant's actions appeared to be an attempt to evade the roadblock. "Evasive action is a factor that can support an inference" that the reason for the U-turn was to avoid the roadblock and discloses a "consciousness of guilt" that creates the suspicion requisite to making an investigatory stop. See id. at 166, 408 S.E.2d at 927. It is well settled that the police may make an investigatory stop if they have an "articulable and reasonable suspicion" that a vehicle has turned from a legitimately established roadblock for the purpose of avoiding the block. See Delaware v. Prouse, 440 U.S. 648, 663 (1979); Eaves, 13 Va. App. at 166, 408 S.E.2d at 927; Stroud v. Commonwealth, 6 Va. App. 633, 636, 370 S.E.2d 721, 723 (1988).
Appellant relies on Murphy v. Commonwealth, 9 Va. App. 139, 384 S.E.2d 125 (1989). The facts of that case disclose that, in view of the roadblock, Murphy made a legal right turn onto a dead end street. No other suspicious facts were shown. This Court held that "[i]n determining whether an 'articulable and reasonable suspicion' justifying an investigatory stop of the vehicle exists, courts must consider 'the totality of the circumstances — the whole picture.'" Id. at 144, 384 S.E.2d at 128 (quotingUnited States v. Sokolow, 490 U.S. 1, 8 (1989)). Murphy is clearly distinguishable from the case before us.
Judging the police conduct in light of the circumstances shown by the record before us, we find that the police articulated reasonable suspicion that justified the investigatory stop. Accordingly, the judgment of the trial court is affirmed.
Affirmed.