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LONG v. COMMONWEALTH OF VIRGINIA


LONG v. COMMONWEALTH OF
VIRGINIA


DECEMBER 2, 1997
Record No. 2637-96-3

RALPH JUNIOR GILPIN A/K/A
RALPH J. LONG

v.

COMMONWEALTH OF VIRGINIA

OPINION BY JUDGE JAMES W. BENTON, JR.
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY

Ray W. Grubbs, Judge
Present: Judges Benton, Coleman and Moon[1]
Argued at Salem, Virginia

John S. Huntington for appellant.

Steven A. Witmer, Assistant Attorney General (James S. Gilmore,
III, Attorney General, on brief), for appellee.


In this appeal we consider whether a prolonged, investigatory
detention of the driver of a vehicle was supported by reasonable,
articulable suspicion that the driver was engaged in unlawful
activity. Ralph Junior Gilpin contends that he was detained at a
roadblock in violation of the Fourth and Fourteenth Amendments to
the United States Constitution and that, as a result, the police
unlawfully obtained evidence. Gilpin also argues that the trial
judge erred in finding that he constructively possessed two
firearms found in the vehicle. Because we hold that the prolonged
detention of Gilpin was not supported by reasonable, articulable
suspicion, we need not reach the issue of constructive
possession.

I.

At the hearing on Gilpin’s pretrial motion, Trooper Ted Phipps
testified that on July 25, 1995, he was working at a traffic
checkpoint established in Montgomery County checking drivers’
licenses and vehicle registration cards. He was also looking for
expired license tags and obvious equipment violations. Phipps
testified that "the stop is very momentar[y], just a matter
of seconds."

When a pickup truck stopped at the roadblock at 10:00 a.m.,
Phipps asked the driver for his license. The driver gave Phipps a
North Carolina driver’s license in the name of Ralph Junior
Gilpin. The registration card that Gilpin gave Phipps indicated
that the truck bearing Virginia license plates was registered to
Robin Gale McPherson of Roanoke. Phipps testified that both the
driver’s license and the vehicle registration card appeared to be
valid.

Phipps asked Gilpin if he still resided in North Carolina.
Gilpin indicated that he did. Phipps then asked Gilpin if his
privilege to drive in Virginia had been suspended. Gilpin stated
that it had not. Phipps asked Gilpin who Robin McPherson was.
Gilpin stated that she was his "girlfriend." Phipps
testified that he noticed several articles of clothing and duffel
bags in the cab of the truck and numerous items such as tools in
the bed of the truck.

Phipps directed Gilpin to drive the truck to the shoulder of
the road and wait while Phipps checked his driving status. Gilpin
complied with Phipps’ order. Phipps testified that he detained
Gilpin because he suspected that Gilpin "possibly could be
suspended in the State of Virginia." When asked to state all
of the circumstances that aroused his suspicions, Phipps
testified as follows:

The fact that he was, had a valid license from another state,
the fact that the vehicle itself was registered to someone other
than himself with a Roanoke address. The fact that there were
numerous items indicating that . . . Gilpin[] could be either be
living here or working in the area with the stuff in the pickup
[truck] and it’s been my experience that in the past that from
time to time these people will become suspended in the State of
Virginia even though the State of North Carolina may continue to
issue them a valid license. That’s about it.

Phipps estimated that only a small number of individuals with
the same characteristics would actually be found to be driving on
a suspended license. He also testified that he did not suspect
Gilpin of any other criminal activity.

After considering this evidence and hearing the arguments of
counsel, the trial judge overruled the motion to dismiss. The
trial judge, in a letter opinion, ruled "that neither the
Fourth nor the Fourteenth Amendments have been violated in
respect to [Gilpin's] detention by the trooper."

At trial, Phipps again testified about the initial stop of
Gilpin. Continuing his description of the events, Phipps
testified that after Gilpin obeyed his order and parked the truck
beside the highway, Phipps requested the radio dispatcher to
check Gilpin’s driving status. Phipps continued to check traffic
at the roadblock until the dispatcher informed him that Gilpin
was wanted for a parole violation. When Phipps and another
officer walked to Gilpin’s truck, Gilpin began to drive away.
Phipps jumped through the window, told Gilpin he was under
arrest, ordered Gilpin to stop the truck, and turned off the
ignition.

Phipps testified that as the truck glided to a stop, Gilpin
ran from the truck and was eventually stopped by two other
officers. Phipps testified that he saw a rifle near the
passenger’s door and that the rifle would have been visible at
the beginning of the traffic stop if it had not been covered.
Searching the truck, the officers found a revolver inside a
duffle bag on the front seat. When the truck was taken into
police custody, Phipps discovered that its serial number did not
correspond to the number displayed on the registration card.
However, Phipps learned that the truck had been retitled and he
released it to the owners.

On this evidence, the trial judge convicted Gilpin of two
counts of possession of a firearm after having been convicted of
a felony and one count of escape.

II.

Gilpin does not contest the validity of the initial detention
at the roadblock. Instead, he argues that his prolonged detention
beside the highway after he was checked at the roadblock was an
unlawful seizure in violation of the Fourth and Fourteenth
Amendments because the officer did not have a reasonable,
articulable suspicion of his involvement in criminal activity.
The Commonwealth contends that Gilpin’s vehicle was properly
detained for investigatory purposes because the officer had a
reasonable suspicion that Gilpin’s license was suspended in
Virginia.

The principle is well established that "[e]ven when the
purpose of a stop is limited and the resulting detention brief,
the fourth and fourteenth amendments of the United States
Constitution apply to stopping [a vehicle] and detaining its
occupants." Taylor v. Commonwealth, 6 Va. App. 384,
387, 369 S.E.2d 423, 424 (1988). Thus, the detention of a driver
for investigation at a roadblock constitutes a Fourth Amendment
seizure. See Simmons v. Commonwealth, 238 Va. 200,
202, 380 S.E.2d 656, 658 (1989). We assume for purposes of this
decision that Gilpin was lawfully detained at the roadblock up to
the point where he was ordered to wait by the roadside while
Phipps confirmed the status of Gilpin’s license.

We hold that the police may not detain a vehicle at a
roadblock beyond the brief period necessary to perform the
activities authorized in the roadblock plan unless the officers
have at least an articulable and reasonable suspicion that a
motorist is unlicensed, the vehicle is not registered, or the
motorist or vehicle is otherwise subject to seizure for violation
of the law. See Delaware v. Prouse, 440 U.S. 648,
663 (1979); Waugh v. Commonwealth, 12 Va. App. 620, 621,
405 S.E.2d 429, 429 (1991).

When there is not probable cause to believe that a driver is
violating any one of the multitude of applicable traffic and
equipment regulations – or other articulable basis amounting to
reasonable suspicion that the driver is unlicensed or his vehicle
unregistered – we cannot conceive of any legitimate basis upon
which a patrolman could decide that stopping a particular driver
for a spot check would be more productive than stopping any other
driver. This kind of standardless and unconstrained discretion
is the evil the Court has discerned when in previous cases it has
insisted that the discretion of the official in the field be
circumscribed, at least to some extent.

Prouse, 440 U.S. at 661 (emphasis added) (footnote
omitted).

As a reviewing court, we "must determine upon an
objective assessment of the totality of the circumstances
‘whether the officer could have entertained an articulable
reasonable suspicion that the defendant was involved in unlawful
activity.’" Waugh, 12 Va. App. at 622, 405 S.E.2d at
430 (quoting Murphy v. Commonwealth, 9 Va. App. 139, 144,
384 S.E.2d 125, 128 (1989)). When we consider the totality of the
circumstances, we must view the facts objectively through the
eyes of a reasonable police officer and be guided by the
principle that "[t]he detaining officer ‘must have a
particularized and objective basis for suspecting the particular
person stopped of criminal activity.’" Zimmerman v.
Commonwealth
, 234 Va. 609, 612, 363 S.E.2d 708, 709 (1988)
(citations omitted).

Thus, the officer must be able to "’point to specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant’" detaining a driver to
conduct further investigation. Taylor, 6 Va. App. at 388,
369 S.E.2d at 424 (quoting Terry v. Ohio, 392 U.S. 1, 21
(1968)). While an officer "may identify criminal behavior
which would [otherwise] appear innocent to an untrained observer,
. . . ‘any such special meaning must be articulated to the courts
and its reasonableness [must be] assessed independently of the
[officer's] subjective assertions.’" Taylor, 6 Va.
App. at 388, 369 S.E.2d at 425 (citation omitted).

To support its contention that Phipps could infer that Gilpin
was involved in criminal activity, the Commonwealth points to
evidence that Phipps based his suspicions on his twenty-two years
of experience as a police officer. He also based his suspicion on
the facts that Gilpin had a North Carolina license, the vehicle
was registered to a third party with a Virginia address, and
numerous items of property were strewn throughout the cab and bed
of the truck. Phipps further stated that it had been his
experience that North Carolina will issue driver’s licenses to
drivers who have had their licenses suspended in Virginia.

This evidence, however, does not support a finding that Phipps
had a reasonable suspicion to extend the detention of Gilpin.
Phipps admitted that, based upon his experience, only a small
percentage of persons presenting the circumstances he relied upon
in making his assessment have in fact been driving in Virginia
after the Commonwealth had suspended their licenses. Indeed,
Phipps readily admitted that Gilpin "could have been working
here and driving back to North Carolina weekly." In
addition, Phipps’ belief that the State of North Carolina will
issue driver’s licenses in an unlawful manner is purely
conjecture and unsupported by any valid evidence in the record.
At best, Phipps’ suspicion amounts to merely an "’inchoate
and unparticularized suspicion or "hunch" . . .
[rather] than a fair inference in the light of his
experience.’" Murphy, 9 Va. App. at 144, 384 S.E.2d
at 128 (quoting Reid v. Georgia, 448 U.S. 438, 441
(1980)). It "’is simply too slender a reed to support the
seizure.’" Id.

Based on an objective assessment of the totality of the
circumstances, we find that the officer could not have
entertained a reasonable suspicion that Gilpin was involved in
unlawful activity. Accordingly, there was no justification for
detaining Gilpin at the roadblock for further investigation. As a
result of the unlawful detention, the officer learned Gilpin’s
name and found a rifle and handgun in the truck. As a
"fruit" of the detention that violated the Fourth and
Fourteenth Amendments, the evidence uncovered must be suppressed.
See Zimmerman, 234 Va. at 613, 363 S.E.2d at 710; Commonwealth
v. Ealy
, 12 Va. App. 744, 754, 407 S.E.2d 681, 687-88 (1991);
Murphy, 9 Va. App. at 146, 384 S.E.2d at 129. Without the
evidence acquired in the illegal detention, the evidence was
insufficient to support Gilpin’s conviction.

III.

The Commonwealth also argues that Gilpin’s arrest for parole
violation and resistance after the officer told him he was under
arrest for a parole violation justified a further seizure that
resulted in the discovery of the guns. We disagree.

"’The exclusionary rule operates . . . against evidence
seized and information acquired during an unlawful search or
seizure . . . [and] against derivative evidence discovered
because of the unlawful act.’" Watson v. Commonwealth,
19 Va. App. 659, 663, 454 S.E.2d 358, 360 (1995) (citation
omitted). Thus, evidence must be suppressed when it is
"’come at by exploitation of [the initial] illegality rather
than by means sufficiently distinguishable to be purged of the
primary taint.’" Hall v. Commonwealth, 22 Va. App.
226, 229, 468 S.E.2d 693, 695 (1996) (citation omitted).

Prior to the original unlawful detention, the police were
unaware that Gilpin was wanted for a parole violation. As a
result of the unlawful detention, the officer learned Gilpin’s
name and used that necessary information to check Gilpin’s
status. Without the information obtained as the fruit of the
unlawful detention, the officer would not have had probable cause
to arrest Gilpin for a parole violation. No intervening cause or
event occurred to remove the taint of the illegal detention.
Thus, the evidence acquired during the seizure for the parole
violation was obtained as a result of unlawful means and was not
sufficiently attenuated from the original unlawful detention to
purge the taint of that detention. See Ealy, 12 Va.
App. at 755, 407 S.E.2d at 688; Walls v. Commonwealth, 2
Va. App. 639, 654-55, 347 S.E.2d 175, 184 (1986).

Accordingly, we reverse the conviction and dismiss the
charges.

Reversed and dismissed.

 

 

 

FOOTNOTES:

[1] When the case was argued Judge
Moon presided. Judge Fitzpatrick was elected Chief Judge
effective November 19, 1997. Judge Moon participated in the
hearing and decision of this case prior to his retirement on
November 25, 1997.

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