                   COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Moon *
Argued at Salem, Virginia


RALPH JUNIOR GILPIN A/K/A
 RALPH J. LONG
                                             OPINION BY
v.   Record No. 2637-96-3            JUDGE JAMES W. BENTON, JR.
                                          DECEMBER 2, 1997
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                        Ray W. Grubbs, Judge
           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.
      *
      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.
                                 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




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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




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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




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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



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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



                               - 6 -
(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



                                 - 7 -
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.



                                - 8 -
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




                                 - 9 -
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.




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