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BASS v. COMMONWEALTH



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BASS

v.

COMMONWEALTH


March 3, 2000

Record No. 990894

ROY BERGER BASS

v.

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Present: Carrico, C.J., Compton,[1]Lacy, Hassell, Keenan, Koontz, and Kinser, JJ.

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.


In this appeal, we consider whether a police
officer’s perception that a legal driving maneuver was made
with the intent to evade a temporary traffic checkpoint is
sufficient to give rise to a reasonable, articulable suspicion
that the driver was involved in criminal wrongdoing, justifying
an investigative stop of the driver’s vehicle.

BACKGROUND

On March 24, 1997, Chesterfield County police
officer William Shane Wickham was assigned to participate along
with other officers in a temporary traffic checkpoint. The
checkpoint was located on Cogbill Road between its intersections
with Remuda and Tyrone Streets. Tyrone Street intersects Cogbill
Road at a distance of approximately 210 feet from the
intersection of Jefferson Davis Highway and Cogbill Road. Remuda
Street intersects Cogbill Road at a distance of approximately 568
feet from Jefferson Davis Highway. A gasoline station is located
on the southwest corner of the intersection of Cogbill Road and
Jefferson Davis Highway. The traffic checkpoint was located
approximately 500 feet from this intersection.
[2]

Officer Wickham was assigned to a "chase
vehicle" with instructions to stop any vehicle that
attempted to evade the checkpoint. From his position on Cogbill
Road, nearer to Tyrone Street than Remuda Street, Officer Wickham
observed a vehicle, subsequently determined to have been operated
by Roy Berger Bass, turn left from the northbound lane of
Jefferson Davis Highway onto Cogbill Road. Officer Wickham
further observed that after making this turn, the vehicle
proceeded toward the traffic checkpoint, turned left into the
parking lot of the gasoline station, traveled through the parking
lot without stopping, and exited the parking lot into the
southbound lane of Jefferson Davis Highway.

After observing these turns, Officer Wickham
decided to stop the vehicle because it was the policy of his
police department to stop any vehicle being driven in a manner so
as to evade a traffic checkpoint. Officer Wickham testified that
he believed that Bass was attempting to evade this particular
traffic checkpoint because "[u]nlike any other vehicles that
had pulled to the gas station [during the one hour that the
checkpoint was in operation], Mr. Bass did not make any attempt
to stop or check to see if the station was open, which, in fact,
it was. He continued to travel through the gas station and travel
southbound [on Jefferson Davis Highway]." Officer Wickham
further testified that "to [his] knowledge, other than
evading the checkpoint" Bass committed "no violation of
any law" that Officer Wickham was able to observe prior to
stopping Bass’ vehicle.

On March 24, 1997, a warrant was issued
charging Bass with a violation of Code ? 18.2-266, driving
a motor vehicle while intoxicated. Ultimately in the trial court,
the Circuit Court of Chesterfield County, Bass filed a motion to
suppress all evidence obtained as a result of the stop of his
vehicle, asserting that Officer Wickham did not have adequate
grounds upon which to stop and detain Bass. On October 22, 1997,
prior to the commencement of trial, the motion to suppress was
heard and denied. At the conclusion of the Commonwealth’s
case at trial, Bass’ motion to strike the evidence was
overruled. Bass then rested without presenting evidence and was
found guilty.

Bass subsequently appealed his conviction to
the Court of Appeals. In an unpublished opinion, Bass v.
Commonwealth
, Record No. 2535-97-2 (February 16, 1999), a
divided panel of the Court of Appeals affirmed the judgment of
the trial court. The majority found that the stop of Bass did not
violate his Fourth Amendment right against unreasonable search
and seizure. The majority reasoned that "[t]he manner in
which Bass made two quick turns, cutting through the parking lot
without stopping at the [gasoline] station, reasonably supported
Officer Wickham’s suspicion that Bass sought to evade the
[checkpoint]. That suspicion legitimated the stop." The
dissent concluded that Bass’ case is controlled by the Court
of Appeals’ decision in Murphy v. Commonwealth, 9 Va.
App. 139, 384 S.E.2d 125 (1989). There, the Court held that
"a driver’s action in making a legal turn within sight
of a [traffic checkpoint] does not give a police officer a
reasonable basis to suspect that the driver is involved in
criminal wrong doing." Id. at 141, 384 S.E.2d at 126.
On March 29, 1999, the Court of Appeals denied Bass’
petition for rehearing. We awarded Bass this appeal.

DISCUSSION

Although we have not previously addressed the
specific issue presented by this appeal, the issue is rooted in
and must be resolved by well-established principles that need not
be recited in detail here. The undisputed facts establish that
Bass was subjected to an investigatory stop, a brief encounter
between a citizen and a police officer, and it is ultimately to
be determined whether that stop was consistent with Bass’
right protected by the Fourth Amendment to the Constitution of
the United States to be free from an unreasonable seizure. A
police officer may constitutionally conduct a brief,
investigatory stop when the officer has a reasonable, articulable
suspicion that criminal activity is afoot. Terry v. Ohio,
392 U.S. 1, 30 (1968). A reasonable suspicion is more than an
"unparticularized suspicion or ‘hunch.’" Id.
at 27. Reasonable suspicion, while requiring less of a showing
than probable cause, requires at least a minimal level of
objective justification for making the stop. United States v.
Sokolow
, 490 U.S. 1, 7 (1989). Accordingly, the stop of an
automobile and the resulting detention of the driver is
unreasonable under the Fourth Amendment absent a reasonable,
articulable suspicion that the driver is unlicensed or that the
automobile is not registered, or that either the vehicle or an
occupant is otherwise subject to seizure for violation of the
law. Delaware v. Prouse, 440 U.S. 648, 663 (1979). The
court must consider the totality of the circumstances in
determining whether a police officer had a particularized and
objective basis for suspecting that a person stopped may be
involved in criminal activity. United States v. Cortez,
449 U.S. 411, 417-18 (1981). Our prior decisions, involving
various factual circumstances, are in accord with these
principles. See, e.g., Ewell v. Commonwealth,
254 Va. 214, 491 S.E.2d 721 (1997); Zimmerman v. Commonwealth,
234 Va. 609, 363 S.E.2d 708 (1988); Leeth v. Commonwealth,
223 Va. 335, 288 S.E.2d 475 (1982).

These well-established standards are to be
applied under equally well-established principles of appellate
review. We consider the evidence and all reasonable inferences
fairly deducible therefrom in the light most favorable to the
Commonwealth, the prevailing party at trial. Reid v.
Commonwealth
, 256 Va. 561, 564, 506 S.E.2d 787, 789 (1998).
We apply the same standard when, as here, we review the trial
court’s denial of the defendant’s motion to suppress
the evidence. Ewell, 254 Va. at 217, 491 S.E.2d at 723.
However, determinations of reasonable suspicion in the context of
a Fourth Amendment challenge involve questions of both law and
fact and consequently are to be reviewed de novo on
appeal. In performing such a review we give deference to the
factual determinations established in the record and
independently determine whether under the established law those
facts satisfy the constitutional standard. Ornelas v. United
States
, 517 U.S. 690, 697-99 (1996).

Bass contends that the totality of the
circumstances in this case, as established by the undisputed
evidence, did not give rise to the requisite reasonable suspicion
that he may have been involved in some form of criminal or
otherwise unlawful activity. He argues that none of his driving
maneuvers in proximity to the checkpoint was unlawful and that,
indeed, the avoidance of a checkpoint is not unlawful. Thus, he
contends that under such circumstances neither Officer Wickham
nor any objectively reasonable police officer would believe that
the pursuit and stop were appropriate.

The Commonwealth responds with several
different contentions. Initially, the Commonwealth argues that
Officer Wickham’s observation of Bass’ driving
maneuvers supports the officer’s reasonable conclusion that
Bass "was evading the traffic checkpoint and, consequently,
was violating the law." Although there is no specific
statutory prohibition against the avoidance or evasion of a
traffic checkpoint, the Commonwealth refers to Code
? 46.2-817, which makes it unlawful for citizens to refuse
to stop their vehicles when commanded to do so by the police, and
contends that a traffic checkpoint is a command by the police for
all those approaching to stop their vehicles. There is no merit
to this contention. Assuming, arguendo, that a checkpoint
would constitute a police signal or command to stop, we are
unwilling to construe this statute so that such command would
extend over a distance of 500 feet and one street intersection
beyond the checkpoint in question.

Next, the Commonwealth contends that even
though Officer Wickham did not recognize that Bass was committing
a traffic offense, the fact that Bass was guilty of such an
offense nevertheless supports the objective reasonableness of the
officer’s actions. The Commonwealth identifies Code
? 46.2-833.1 as the statute that Bass violated. Code
? 46.2-833.1 provides that:

It shall be unlawful for the driver of any
motor vehicle to drive off the roadway and onto or across any
public or private property in order to evade any stop sign, yield
sign, traffic light, or other traffic control device.

The Commonwealth asserts that a traffic
checkpoint falls within the category of "other traffic
control device" in this statute. We disagree. A traffic
checkpoint consists of police vehicles and police officers that
are temporarily located and intended to discover unlawful
activity. To the extent that a checkpoint also
"control[s]" traffic, it does so only for the
previously stated purpose. In contrast stop signs, yield signs,
and traffic lights are intended for traffic safety and are
generally not temporarily located. They are obviously not
intended to discover unlawful activity. Because of this patent
dissimilarity between the specific devices set forth in this
statute and a traffic checkpoint, we conclude that the
legislature did not intend to include traffic checkpoints within
the scope of this statute. In addition, under the doctrine ejusdem
generis
, a traffic checkpoint does not fall under the
statutory definition of "other traffic control device."
See, e.g., Graybeal v. Commonwealth, 228 Va.
736, 740, 324 S.E.2d 698, 700 (1985). Accordingly, Bass’
driving maneuvers did not constitute a violation of Code
? 46.2-833.1, thus allowing the stop of his vehicle.

Finally, the Commonwealth contends that even if
Bass’ driving maneuvers did not constitute a traffic
violation, they provided Officer Wickham with a reasonable,
articulable suspicion that Bass was "either unlicensed or
otherwise in violation of the law." In support of this
contention, the Commonwealth relies upon several cases decided by
the Court of Appeals, giving particular emphasis to Thomas v.
Commonwealth
, 24 Va. App. 49, 480 S.E.2d 135 (1997)(en banc),
and Stroud v. Commonwealth, 6 Va. App. 633, 370 S.E.2d 721
(1988). In addition, the Commonwealth argues that there is a
factual distinction between the present case and Murphy,
the Court of Appeals decision relied upon by the dissenting judge
in the present case. 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.

In the present case, Bass made a series of
legal driving maneuvers the effect of which was to reverse the
direction in which he was going. These maneuvers also resulted in
his not passing through the traffic checkpoint that was
approximately 500 feet away. The fact that Bass did not stop in
the parking lot of the gasoline station is entirely consistent
with a motive to accomplish a "U-turn." The reasons for
which a driver may reverse direction other than to evade a
traffic checkpoint are legion in number and are a matter of
common knowledge and experience. Considering the totality of the
circumstances and viewing the facts in the light most favorable
to the Commonwealth, the most that the Commonwealth’s
evidence established in this case was a "hunch" that
Bass chose to avoid the checkpoint. This was not sufficient to
give Officer Wickham the requisite suspicion needed to seize
Bass.
[3]

CONCLUSION

For these reasons, we hold that Bass was seized
in violation of his Fourth Amendment rights. Consequently, the
trial court erred in failing to suppress the evidence obtained as
a result of that seizure, and the Court of Appeals erred in
affirming the trial court’s judgment.

Accordingly, we will reverse the judgment of
the Court of Appeals and enter final judgment vacating Bass’
conviction and dismissing the warrant.

Reversed and final judgment.

 

FOOTNOTES:

[1] Justice Compton participated in
the hearing and decision of this case prior to the effective date
of his retirement on February 2, 2000.

[2] The record does not pinpoint the
exact distance between the checkpoint and this intersection.
However, the Commonwealth does not challenge Bass’
assertions on appeal that the trial court determined that this
distance was approximately 500 feet.

[3] Contrary to the
Commonwealth’s assertion, the evidence in this case does not
support a reasonable suspicion that Bass’ maneuvers were
conducted in such a manner as to constitute "headlong
flight" from the police conducting the checkpoint.
Accordingly, the recent decision of the United States Supreme
Court in Illinois v. Wardlow, ___ U.S. ___, 120 S.Ct. 673
(2000), is not implicated here.

 

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