                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and McClanahan
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                           MEMORANDUM OPINION∗ BY
v.     Record No. 1869-06-3                             JUDGE ELIZABETH A. McCLANAHAN
                                                                JANUARY 9, 2007
JEFFREY MAURICE WELLS


                 FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                               Charles J. Strauss, Judge

                 Richard B. Smith, Special Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on briefs), for appellant.

                 Gregory T. Casker for appellee.


       The Commonwealth appeals an order of the trial court granting Jeffrey Maurice Wells’

motion to suppress evidence. The Commonwealth contends that the trial court erred in

concluding that the evidence presented by the Commonwealth at the suppression hearing failed

to establish an investigatory stop based on a reasonable articulable suspicion of the evasion or

avoidance of a roadblock. For the reasons that follow, we affirm the decision of the trial court.

                                        I. BACKGROUND

       In reviewing the trial court’s decision on Wells’ motion to suppress evidence, we

consider the evidence and all reasonable inferences flowing from that evidence in the light most

favorable to Wells, the prevailing party. Jackson v. Commonwealth, 267 Va. 666, 672, 594

S.E.2d 595, 598 (2004).




       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       Virginia State Trooper Christopher L. Brooks was working at a DUI sobriety checkpoint

located on Route 57 at its intersection with Route 750 in Pittsylvania County. There were four

police vehicles present at the checkpoint, one at the beginning of each roadway. The blue lights

on the police cars were activated, and road flares were located on the roadway.

       At 10:45 p.m., Trooper Brooks was on Route 57 checking eastbound traffic when he saw

the headlights of Wells’ vehicle approaching the intersection in the eastbound lane three to four

hundred yards away. Wells’ vehicle “immediately slowed down” and made an “immediate

right-hand turn” into a private driveway. Wells then “immediately did a U-turn and went back

the opposite direction.” According to Trooper Brooks, Wells went just far enough into the

driveway to make the turn. Trooper Brooks did not observe the Wells vehicle give a right-hand

signal when Wells turned into the driveway. “[A]s soon as [he saw] the vehicle turn around,

[Brooks] immediately proceeded to [his] patrol vehicle” to “go after the vehicle.”

       There were no other vehicles on the roadway at the time Trooper Brooks observed Wells

make the turn into the driveway. Although Brooks testified that he observed the “vehicle slow

down rapidly” and “brake real fast,” he testified that he could not tell whether Wells actually

stopped or not because “all [he] could see was the lights” on the Wells vehicle. As soon as

Trooper Brooks was behind the Wells vehicle, Wells pulled onto the roadway at the next

intersection. However, Trooper Brooks could not recall the next intersection from where the

checkpoint was located because it was not visible from where he was standing. When Brooks

stopped Wells, he cited him for violation of Code § 46.2-848 for his failure to use a turn signal

when he made the right-hand turn into the driveway.1 When Trooper Brooks ran a record check,


       1
           Code § 46.2-848 provides that

                [e]very driver who intends to back, stop, turn, or partly turn from a
                direct line shall first see that such movement can be made safely
                and, whenever the operation of any other vehicle may be affected
                                                    -2-
he determined that Wells’ driver’s license had been revoked and that he had been declared an

habitual offender. He later arrested Wells for violation of Code § 46.2-357.2

       Wells filed a motion to suppress the evidence obtained as a result of the traffic stop on

the grounds that it violated the Fourth Amendment. The trial court held that the evidence failed

to establish a reasonable articulable suspicion that Wells was violating Code § 46.2-848 or

attempting to avoid or evade the checkpoint. Therefore, the trial court granted the motion to

suppress. The Commonwealth has appealed only as to the trial court’s ruling that there was not a

reasonable articulable suspicion that Wells was attempting to avoid or evade the checkpoint.

Thus, the issue of whether there was a reasonable articulable suspicion justifying the stop on the

basis of Wells’ failure to give a right-hand signal is not before us.

                                          II. ANALYSIS

       When the police stop a vehicle and detain its occupants, the action constitutes a “seizure”

of the person for Fourth Amendment purposes. Delaware v. Prouse, 440 U.S. 648, 653 (1979).

If an officer has an “articulable and reasonable suspicion that a motorist is unlicensed or that an

automobile is not registered, or that either the vehicle or an occupant is otherwise subject to

seizure for violation of the law,” the officer may conduct an investigatory stop of the vehicle to

ascertain whether the suspicions are accurate. Id. at 663; Murphy v. Commonwealth, 9 Va. App.




               by such movement, shall give the signals required in this article,
               plainly visible to the driver of such other vehicle, of his intention
               to make such movement.
       2
          Code § 46.2-357 provides that it shall be unlawful for any person determined or
adjudicated an habitual offender to drive any motor vehicle or self-propelled machinery or
equipment on the highways of the Commonwealth while the revocation of the person’s driving
privilege remains in effect. Furthermore, if the offense of driving while a determination as an
habitual offender is in effect is a second or subsequent such offense, such person shall be guilty
of a felony.
                                                 -3-
139, 143, 384 S.E.2d 125, 127 (1989). A driver undertaking a lawful driving maneuver which

has the effect of avoiding a checkpoint does not, standing alone and without more, furnish

reasonable suspicion of possible criminal activity. Bass v. Commonwealth, 259 Va. 470, 525

S.E.2d 921 (2000); Lovelace v. Commonwealth, 37 Va. App. 120, 554 S.E.2d 688 (2001);

Murphy, 9 Va. App. 139, 384 S.E.2d 125. “[W]hen a court reviews whether an officer had

reasonable suspicion to make an investigatory stop, it must view the totality of the circumstances

and view those facts objectively through the eyes of a reasonable police officer with the

knowledge, training, and experience of the investigating officer.” Murphy, 9 Va. App. at 144,

384 S.E.2d at 128.

       The trial court found that “the officer’s testimony and evidence fails to establish a

reasonable articulable suspicion of a stop based on the evasion of the roadblock or an avoidance

of the roadblock.” According to the trial court:

                       The officer in this case did not testify he believed the
               defendant was trying to evade the roadblock, nor did he testify that
               in his experience with roadblocks, that he was able to establish an
               opinion as to that belief. He also didn’t testify that he was able to
               even see the vehicle. In this case, what he testified he saw were
               headlights and that’s what he was basing his observations on, were
               the headlights.

       As the trial court found, Trooper Brooks saw Wells’ headlights from “three to four

hundred yards at night” and “saw the movement of the vehicle from the headlights.” The trial

court further found that Trooper Brooks “never saw the driver of the vehicle” and “there was no

indication that the driver was looking . . . or saw the roadblock.” Based on these findings of fact,

the trial court ruled that Trooper Brooks’ testimony did not establish a reasonable articulable

suspicion that Wells was avoiding or evading the checkpoint.

       In reviewing the trial court’s decision on the motion to suppress in this case, “the burden

is upon [the Commonwealth, the losing party below] to show that the ruling, when the evidence

                                                -4-
is considered most favorably to [Wells, the prevailing party below], constituted reversible error.”

Lovelace, 37 Va. App. at 124, 554 S.E.2d at 689 (citation and internal quotation marks omitted).

In performing this review, “we are bound by the trial court’s findings of historical fact unless

plainly wrong or without evidence to support them.” Id. (citation and internal quotation marks

omitted). “We review de novo the trial court’s application of defined legal standards such as

probable cause and reasonable suspicion to the particular facts of the case.” Id. (citation and

internal quotation marks omitted).

       Wells “made a series of legal driving maneuvers, the effect of which was to reverse the

direction in which he was going.” Bass, 259 Va. at 477, 525 S.E.2d at 925. There was no

evidence that Trooper Brooks suspected that Wells was unlicensed, that his vehicle was

unregistered, or that Wells was “involved in some form of criminal or otherwise unlawful

activity.” Id. at 475, 525 S.E.2d at 924. And there was no evidence that Trooper Brooks

suspected that Wells was attempting to avoid or evade the checkpoint.3 In fact, the trooper never

articulated any reason for the stop. “[T]he fourth amendment requires, at a minimum, that the

officer be able to articulate a reasonable suspicion that the person is violating or has violated the

law.” Commonwealth v. Eaves, 13 Va. App. 162, 166, 408 S.E.2d 925, 927 (1991) (citing




       3
         Cf. Lovelace, 37 Va. App. 120, 554 S.E.2d 688 (officer testified that based on his
experience with a checkpoint he believed driver was attempting to avoid the checkpoint); Bailey
v. Commonwealth, 28 Va. App. 724, 508 S.E.2d 889 (1999) (officer testified that driver’s
suspicious behavior and manner in which he made a turn into private driveway, including that
the driver kept looking at the trooper and was hesitant about going into the driveway, led him to
stop driver); Commonwealth v. Eaves, 13 Va. App. 162, 408 S.E.2d 925 (1991) (officer testified
that based on the manner in which driver was operating his vehicle and his own experience that
the driver made a u-turn to evade a checkpoint); Stroud v. Commonwealth, 6 Va. App. 633, 370
S.E.2d 721 (1988) (officer testified that based on his eleven years experience with the state
police, he suspected from the driver’s conduct that he was either unlicensed or otherwise in
violation of the law).
                                                -5-
Prouse, 440 U.S. 648).4 Considering the totality of the circumstances and viewing the evidence

and all reasonable inferences flowing from that evidence in the light most favorable to Wells, we

agree with the trial court’s conclusion that the evidence did not establish a reasonable articulable

suspicion that Wells was attempting to avoid or evade the checkpoint.

       For these reasons, we affirm the judgment of the trial court.

                                                                                     Affirmed.




       4
          The Commonwealth argues that “regardless of an officer’s subjective reason for
stopping a vehicle, the stop is legal provided there is an objectively reasonable basis for the stop”
in reliance on Whren v. United States, 517 U.S. 806 (1996). The decision in Whren does not
support the Commonwealth’s position. In Whren, the petitioners argued that the Fourth
Amendment test for traffic stops should not be whether probable cause existed to justify the stop,
but whether a police officer, acting reasonably, would have made the stop for the reason given.
The Court rejected the notion that an officer’s ulterior motives could invalidate police conduct
that is justifiable on the basis of probable cause to believe a violation has occurred. In doing so,
the Court reaffirmed the analysis set forth in Prouse.
                                                 -6-
