                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Senior Judge Hodges
Argued by Teleconference


COMMONWEALTH OF VIRGINIA
                                            MEMORANDUM OPINION * BY
v.       Record No. 0906-97-1               JUDGE WILLIAM H. HODGES
                                               OCTOBER 14, 1997
TONY MAURICE DAVIS


            FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                       Junius P. Fulton, Judge
            Marla Graff Decker, Assistant Attorney
            General (Richard Cullen, Attorney General;
            John K. Byrum, Jr., Assistant Attorney
            General, on brief), for appellant.

            Michael E. Grey (Gary P. Arsenault; Grey &
            Arsenault, P.C., on brief), for appellee.



     In this appeal, taken pursuant to Code § 19.2-398, the

Commonwealth contends that the trial judge erroneously suppressed

evidence, finding that the police exceeded their authority in

implementing a traffic checking roadblock.    The Commonwealth

argues that Davis never fell subject to the traffic check and its

validity was, therefore, immaterial to Davis' seizure.      We agree

and reverse the order of suppression.

                                  I.

     On August 7, 1996, Norfolk police officers established a

traffic checkpoint on Lexington Street between O'Keefe Street and

Amelia Street.   Lexington Street is a one-way street.    Officer

Rychen was assigned to a "chase car," located on Proescher
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Street. 1   The task of the chase car was to stop vehicles that

backed up, turned around, or otherwise attempted to avoid the

roadblock.

     Rychen saw a car driven by Davis pass him on Lexington

Street heading towards the checkpoint.    Rychen received a radio

message concerning the vehicle, pulled onto Lexington Street, and

observed the car moving backward on the one-way street away from

the checkpoint and toward Rychen's car.    Rychen activated his

emergency lights.    As the vehicle backed in the wrong direction

along Lexington Street, a passenger with a pistol in his

waistband jumped from the car and ran between houses along the

street.     When Rychen exited his car and began to chase the

passenger, Davis, the driver, also jumped from the car and began

"yelling."    Rychen testified at the suppression hearing that he

stopped Davis because he observed him commit a traffic infraction

and attempt to avoid the checkpoint.
     Rychen, who did not know whether Davis was also armed, was,

therefore, concerned for his safety and the safety of others and

instructed Davis to lie on the ground.    When assistance arrived,

Rychen looked into the car Davis had been driving and observed an

exposed handgun between front seat cushions.

                                  II.

     Davis moved the trial court to suppress both the weapon and

oral statements made by him to the police.    He argued that Rychen
     1
      Proescher Street is one block away from O'Keefe Street.




                                  -2-
lacked reasonable suspicion to make the stop and that the traffic

checkpoint, as implemented, was unconstitutional.   He argued that

the roadblock deviated from the plan authorized by the police and

that his arrest occurred after the period for which the checking

detail had been authorized.

     The Commonwealth argued, inter alia, that Rychen had a

reasonable, articulable suspicion to seize Davis and that because

Davis was not stopped at the checkpoint, its constitutionality

was not implicated in the stop.
     The trial judge held that at the point at which Rychen

stopped Davis, "the officer certainly had a right to stop him and

to investigate, which is what happened, so I don't have a problem

with that part."   The judge, however, granted the motion to

suppress, holding:
          The problem I have with this case is that, in
          effect, this roadblock extended beyond the
          authority that was given to these officers by
          their superiors. So the extent to which the
          police operated this roadblock is such that
          it would affect people who should be caught
          and probably will be caught again if they
          continue to do what they were doing on that
          day and will also affect me, you, and anybody
          else who happens to be driving down Lexington
          Street on that particular day and find
          yourself in the position where I've got to go
          through a roadblock, even if I want to turn
          on O'Keefe or not.

              And I tend to believe the defendant that
          he could not turn on O'Keefe because he could
          have just turned there and not driven in
          reverse, if in fact, O'Keefe wasn't blocked
          off.


                               III.


                                  -3-
     For purposes of Fourth Amendment analysis, "[i]n order for a

seizure to occur, an individual must be under some physical

restraint by an officer or have submitted to the show of police

authority."    Thomas v. Commonwealth, 24 Va. App. 49, 54, 480

S.E.2d 135, 137 (1997) (en banc).      See California v. Hodari D.,

499 U.S. 621, 628 (1991).   "[S]topping a motor vehicle and

detaining the operator [at a roadblock] constitute a 'seizure'

within the meaning of the Fourth Amendment . . . . "      Lowe v.
Commonwealth, 230 Va. 346, 349, 337 S.E.2d 273, 275 (1985).

     Here, Davis never reached the roadblock.     He stopped his car

after backing it, the wrong way on a one-way street, away from

the checkpoint.   "[Davis] did not submit to the authority of the

police officers at the roadblock nor was he seized by proceeding

to and going through the roadblock."      Thomas, 24 Va. App. at 54,

480 S.E.2d at 138.

     In Thomas, the driver, Thomas, stopped his truck on the

shoulder of an exit ramp, thirty yards before reaching the

roadblock.    He and a passenger exited the truck and Thomas walked

to the passenger's side of the truck, standing next to the

passenger.    An officer approached and accused Thomas of being the

driver, which he denied.

     We rejected Thomas' argument that he was seized when he

entered traffic on the exit ramp because he was in the "zone" of

the roadblock and could not legally avoid going through it.         Id.

at 55, 480 S.E.2d at 138.   Although we recognized that Thomas'



                                 -4-
"options and freedom of movement may have been limited" due to

the placement of the roadblock at the end of the exit ramp, we

held that "[f]or a seizure to occur, there must be more than an

impending threat that a person's freedom of movement may be

restricted or limited; a seizure occurs 'only when there is

governmental termination of freedom of movement through means

intentionally applied.'"   Id. (quoting Brower v. Inyo County, 489

U.S. 593, 597 (1989)).
     Thus, unless a citizen is actually stopped at the roadblock,

its constitutionality is immaterial to the seizure.     Id.   Here,

Davis, like Thomas, was not stopped at the roadblock, therefore,

the constitutionality of the roadblock is immaterial.

     Thus, we turn to the question of whether, as the trial court

found, Rychen had the necessary level of suspicion of criminal

activity to justify an investigatory seizure.   "We view the

evidence in a light most favorable to [Davis], the prevailing

party below, and we grant all reasonable inferences fairly

deducible from that evidence."    Commonwealth v. Grimstead, 12 Va.

App. 1066, 1067, 407 S.E.2d 47, 48 (1991).   We are bound to

review de novo the ultimate questions of reasonable suspicion and

probable cause.   See Ornelas v. United States, 116 S. Ct. 1657,

1663 (1996).

     A valid investigatory stop requires a reasonable and

articulable suspicion of criminal activity, based upon the

totality of the circumstances.    See Beckner v. Commonwealth, 15




                                 -5-
Va. App. 533, 539, 425 S.E.2d 530, 534 (1993).    The quantum of

suspicion required for such a stop is less demanding than the

standard for probable cause.     See Richards v. Commonwealth, 8 Va.

App. 612, 616, 383 S.E.2d 268, 270 (1989).    "Actual proof that

criminal activity is afoot is not necessary; the record need only

show that it may be afoot."     Harmon v. Commonwealth, 15 Va. App.

440, 444, 425 S.E.2d 77, 79 (1992).

     Here, prior to the seizure, Rychen observed Davis driving

backward, the wrong way on a one-way street, away from the
traffic checkpoint.   Rychen saw an armed passenger jump from the

car while it still was moving.    Davis stopped the car, exited,

and began yelling.    These factors combined to provide Rychen with

reasonable suspicion that criminal activity may be afoot,

properly justifying the stop.     See Thomas, 24 Va. App. at 56, 480

S.E.2d at 138; Commonwealth v. Eaves, 13 Va. App. 162, 165-66,

408 S.E.2d 925, 927 (1991) (abrupt, but legal u-turn 100 to 500

feet before checkpoint, at last possible crossover before

checkpoint, where signal activated at last moment before turn

executed, provided reasonable suspicion to officer that driver

took evasive action because he was operating vehicle in violation

of law).

     Accordingly, the trial judge erroneously granted the motion

to suppress, the attendant order is reversed, and the case

remanded for further proceedings consistent with this opinion.




                                 -6-
                  Reversed and

remanded.




            -7-
Benton, J., dissenting.


     Because the traffic safety checkpoint, as implemented, was

constitutionally defective and because the officer had no

reasonable basis to stop and detain Tony Maurice Davis for

backing his automobile along the street, I would affirm the

ruling of the trial judge.

                                I.

     Pursuant to a plan prepared by Officer M.J. Johansen and

approved by Lieutenant W.D. Creekmore, the Norfolk police

established a motor vehicle safety checkpoint on Lexington Street

in the City of Norfolk.   The plan stated that the checkpoint

would be located at the "800 block of Lexington" Street and

operated from 11:00 a.m. to 1:00 p.m.   Officer Johansen testified

that this plan authorized chase cars on O'Keefe Street and Amelia

Street.
     The evidence, viewed in the light most favorable to Davis,

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991), proved that the checkpoint deviated in several ways

from the plan approved by Lieutenant Creekmore.   First, although

the plan authorized a roadblock at the 800 block of Lexington

Street, the roadblock was actually at the 700 block of Lexington

Street.   Second, while the plan did not authorize the police

officers to block O'Keefe Street, the deviation in the

checkpoint's location effectively blocked traffic traveling on

Lexington Street from entering O'Keefe Street.    Thus, if a car



                                -8-
entered Lexington Street, a one-way street, at any place after

Proescher Street, it was in the roadblock.   Third, the plan only

authorized chase cars on Amelia Street and O'Keefe Street.

However, Officer M.D. Rychen testified that he was operating a

chase car on Proescher Street.   Fourth, the checkpoint did not

begin at the scheduled time of 11:00 a.m.    Rather, it began an

hour and a half later at 12:30 p.m.    Fifth, although the

checkpoint was scheduled to end at 1:00 p.m., the officers did

not terminate the checkpoint until 1:45 p.m.
     No evidence proved that the changed location had been

approved.   Officer Johansen testified that the time change was

orally approved by Lieutenant Creekmore.    However, the report

submitted after completion of the checkpoint did not indicate

that the time change had been approved.    Davis was apprehended at

1:05 p.m., five minutes after the time authorized for termination

of the checkpoint.

                                 II.

     The Fourth Amendment requires that a roadblock "be

undertaken pursuant to an explicit plan or practice which uses

neutral criteria and limits the discretion of the officers

conducting the roadblock."   Simmons v. Commonwealth, 238 Va. 200,

203-04, 380 S.E.2d 656, 658-59 (1989).    To be constitutional, a

roadblock must be "safe and objective in its operation,

employ[ing] neutral criteria, and . . . not involv[ing]

standardless, unbridled discretion by the police officer in the




                                 -9-
field."   Lowe v. Commonwealth, 230 Va. 346, 352, 337 S.E.2d 273,

277 (1985).   Thus, when the police have adopted a roadblock plan,

the officers in the field do not have discretion to deviate from

that plan.    See Brown v. Commonwealth, 20 Va. App. 21, 25, 454

S.E.2d 758, 759 (1995).   "'To allow the [police] to do anything

short of complying in full with [their] own guidelines would

inject an element of discretion into the [checkpoint] procedures

and thus undercut the very foundation upon which the [checkpoint]

seizure is constitutionally justified.'"    Id. (citation omitted).

     By moving the roadblock to the 700 block of Lexington

Street, extending the time of the roadblock beyond that

authorized in the plan, and stopping Davis after the roadblock

was scheduled to be terminated, the officers exercised "the type

of 'unconstrained exercise of discretion' that violates the

Fourth Amendment guarantees against stopping and detaining

private citizens without probable cause or reasonable suspicion

of criminal activity or other justifiable reasons."    Id.

(citation omitted); see Delaware v. Prouse, 440 U.S. 648, 663
(1979).   Even small deviations from the authorized plan render a

roadblock unconstitutional.    See Brown, 20 Va. App. at 25, 454

S.E.2d at 759 (citing Commonwealth v. Anderson, 547 N.E.2d 1134,

1137-38 (Mass. 1989) (stopping a driver fifteen minutes after the

scheduled termination of the roadblock is unconstitutional)).

     Thus, I would affirm the trial judge's finding that "this

roadblock extended beyond the authority that was given to these




                                -10-
officers by their superiors."   Because the checkpoint did not

conform to the authorized limits contained in the plan and was,

therefore, invalid, I would hold that the warrantless stop of

Davis contravened the protections of the Fourth Amendment.

Accordingly, the trial judge correctly ruled that the stop was an

illegal seizure and suppressed the evidence.

                                III.

     The majority holds that because Davis was not stopped at the

roadblock, the constitutionality of the roadblock is immaterial.

However, when we view the evidence in the light most favorable

to Davis, the roadblock encompassed Lexington Street from Amelia

to Proescher Streets, blocking O'Keefe Street.   Thus, Davis was

effectively within the zone of the roadblock as soon as he

entered Lexington Street and passed the chase car on Proescher

Street.   Even assuming that Davis was not seized simply by

traveling in this area, see Thomas v. Commonwealth, 24 Va. App.

49, 55, 480 S.E.2d 135, 138 (1997) (en banc), he was seized when

he was detained by Officer Rychen's chase car.

     Officer Rychen testified that the reason he stopped Davis'

vehicle was because he received a radio message from another

officer at the roadblock indicating that a vehicle was attempting

to avoid the roadblock.   In response to this radio message,

Officer Rychen pulled onto Lexington Street and observed Davis'

vehicle moving backward on the street.   Officer Rychen testified

that the purpose of a chase car is to stop vehicles that back up,



                                -11-
turn around, or otherwise attempt to avoid the roadblock.

Although the evidence proved that Lexington Street is residential

with on-street parking permitted, Officer Rychen intended to stop

any vehicle that backed on the street.    Therefore, when Davis was

stopped for avoidance of a roadblock by the roadblock chase car

whose specific purpose was to stop vehicles that back up, Davis

was seized within the meaning of the Fourth Amendment.

"[S]topping a motor vehicle and detaining the operator [because

of a roadblock] constitute a 'seizure' within the meaning of the

Fourth Amendment."     Lowe, 230 Va. at 349, 337 S.E.2d at 275.

Accordingly, I would hold that the constitutionality of the

roadblock is material.

                                  IV.

     I would also hold that Officer Rychen did not have a

reasonable, articulable suspicion to stop Davis and that,

therefore, the seizure violated the Fourth Amendment.

     To stop and detain a vehicle for investigatory purposes,

"[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) (citation omitted).    Thus, the

detaining officer must have at least an articulable and

reasonable suspicion that the motorist is unlicensed, the vehicle

is unregistered, or the motorist or vehicle is otherwise subject

to seizure for violation of the law.     See Prouse, 440 U.S. at




                                 -12-
663; Waugh v. Commonwealth, 12 Va. App. 620, 621, 405 S.E.2d 429,

429 (1991).

     Officer Rychen admitted that he "did not move [his] vehicle

onto Lexington Street because of anything [he] observed about the

defendant's driving."   He testified that "the only reason that

[he] moved [his] vehicle onto Lexington Street was because [he]

received a message from another officer."   Officer Rychen stated

that when he entered Lexington Street to stop Davis' vehicle, he

"stopped [Davis] because he was doing a traffic violation and

also trying to avoid the traffic safety checkpoint."
     Even if I accept the majority premise that Davis was not

stopped by the roadblock, backing a vehicle in the vicinity of a

traffic checkpoint does not in itself raise the necessary

suspicion of criminal activity justifying an investigatory stop.

 See Murphy v. Commonwealth, 9 Va. App. 139, 384 S.E.2d 125

(1989).   A driver is permitted to avoid a roadblock by making a

lawful driving maneuver before reaching the roadblock.   Id. at

145, 384 S.E.2d at 128-29.   Because the mere backing up in the

vicinity of a traffic checkpoint is not sufficient to justify

Officer Rychen's stop of Davis, the record must show that the

officer had some other articulable, reasonable suspicion that

Davis was unlicensed, his vehicle unregistered, or that he was

otherwise engaged in criminal activity.

     The only other reason articulated by Officer Rychen for his

stop of the vehicle was that he observed Davis committing a



                               -13-
traffic violation.   However, backing one's automobile on a public

street is not a violation of the traffic laws.    Only when a

driver, while backing a vehicle on a public street, operates a

vehicle in an unsafe manner does a violation occur.   The manner

of backing must constitute reckless or improper driving.    Code

§§ 46.2-852 and 46.2-869. 2

     Indeed, statutes that govern the rules of the road recognize

that backing a vehicle is a necessary part of driving.   They

require only that a driver look first to determine whether the

maneuver can be made safely and, when appropriate, to signal the

maneuver.   For example, a violation of Code § 46.2-848 occurs

only where a driver who intends to back a motor vehicle does not

"first see that such movement can be made safely and, whenever

the operation of any other vehicle may be affected by such

movement, [does not] give the signals required . . . plainly

visible to the driver of such other vehicle, of his intention to

make such movement."   This statute does not make backing a

vehicle on a public street a traffic violation.   The majority

cites to no statute that does.
     Backing a vehicle is a common maneuver performed by every

driver.   Unless that maneuver is performed unsafely or without

the appropriate signals, it does not constitute a traffic
     2
      Code § 46.2-852 provides that "any person who drives a
vehicle on any highway recklessly . . . or in a manner so as to
endanger the life, limb, or property of another shall be guilty
of reckless driving." Code § 46.2-869 is the lesser included
offense of improper driving.



                                 -14-
violation.    No evidence in the record indicates that Davis was

operating his vehicle in an unsafe manner.    Indeed, Officer

Rychen never issued Davis a citation for reckless driving or any

other traffic violation.    Furthermore, the evidence does not

exclude the reasonable hypothesis, consistent with Davis'

testimony, that Davis was backing to a parking space to visit his

aunt.    Under these circumstances, Davis was conducting a lawful

traffic maneuver.
        Because Officer Rychen was without reasonable cause to stop

Davis' vehicle, I would affirm the trial judge's order

suppressing the evidence.




                                 -15-
