Brown v. Com.

• Decision Date: 15 February 1994
• Docket Number: No. 1348-92-1,1348-92-1
• Citation: 440 S.E.2d 619,17 Va.App. 694
• Parties: Arthur Lee BROWN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 619

440 S.E.2d 619

17 Va.App. 694

Arthur Lee BROWN v. COMMONWEALTH of Virginia.

Record No. 1348-92-1.

Court of Appeals of Virginia.

Feb. 15, 1994.

Thomas L. Northam, Accomac, for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: BAKER, COLEMAN and BRAY, JJ.

COLEMAN, Judge.

Arthur Lee Brown appeals his conviction for driving with a suspended operator's license. He contends that he was illegally stopped and seized without the police officer's having a reasonable suspicion that he was committing a traffic infraction or involved in criminal activity. The Commonwealth argues that no seizure occurred prior to the officer's determining that Brown had no operator's license; therefore, no Fourth Amendment privacy right was violated when the officer approached Brown and engaged him in conversation.

We hold that when the police officer asked Brown for his operator's license, he was "seized" within the protection provided by the Fourth Amendment. We also hold, however, that the seizure was lawful because the officer reasonably suspected that Brown was committing a traffic or criminal offense. The officer had observed Brown stop his automobile 450 feet from a police traffic checkpoint, switch drivers, make a U-turn, and ride away in the same direction from which he had approached the checkpoint. This conduct reasonably caused the officer to suspect that Brown was evading the checkpoint because he was driving in violation of the law. Accordingly, we affirm Brown's conviction.

Virginia State Trooper R.A. Gladden was working a "traffic checking detail" in Northampton County on Route 13, which is a north-south, two-lane highway. At the checkpoint, Route 13 is straight and narrow with businesses and residences on the west side. The checkpoint site was on the east side with three marked and one unmarked police vehicles.

Gladden observed a southbound vehicle stop 450 feet from the checkpoint. After the vehicle stopped, Gladden saw the driver leave the driver's seat and change places with a passenger from the back seat. The driver was later identified as Arthur Lee Brown, the defendant, and the passenger with whom he changed places was his mother. Gladden observed the vehicle turn around, briefly head north, and then turn into a diner parking lot, which was "a very short distance from ... where Brown initially stopped the car." Gladden drove to the parking lot, approached Brown, learned his identity and asked for his driver's license. Gladden ran a license check and learned that Brown's license was suspended.

Gladden testified that in his experience as a state trooper, "people who try to avoid traffic checking details probably have license violations such as suspended operator's license or habitual offender status."

I.

Whether a person has been seized for purposes of the Fourth Amendment depends upon whether "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1876-1877, 64 L.Ed.2d 497 (1980). A reasonable belief by a person that he is not free to leave is a "necessary, but not a sufficient, condition ... [for a] seizure effected through a show of authority" to have occurred. California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991). In order for a seizure to have occurred, the individual, in addition to harboring a reasonable belief that he is not free to leave, must, in fact, be under some physical restraint or actually have submitted to the show of police authority. Id. While stopping a motor vehicle and detaining its occupants constitutes a seizure, "even though the purpose of the stop is limited and the [resulting] detention [is quite] brief," Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982), Trooper Gladden did not stop the vehicle occupied by Brown. Thus, whether a seizure occurred depends upon the nature of the confrontation when Trooper Gladden approached Brown.

The Commonwealth, relying primarily upon the holding in Baldwin v. Commonwealth, 243 Va. 191, 413 S.E.2d 645 (1992), asserts that no seizure took place. [N]ot all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may [the reviewing court] conclude that a "seizure" has occurred.

* * * * * *

As long as [a] person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.

Id. at 195-96, 413 S.E.2d at 647 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1878 n. 16, 20 L.Ed.2d 889 (1968)).

Trooper Gladden was in uniform and armed when he approached Brown. Brown did not attempt to leave but, instead, submitted to Trooper Gladden's show of authority. Although no restraint had been placed upon Brown until that point, and while a reasonable person well may have felt free to leave until then, when Trooper Gladden asked Brown for his operator's license, Brown was no longer free to leave. See Code § 46.2-104 (requiring operator on officer's request to exhibit license); Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979) (detention for purpose of requiring identification under state statute held to be a seizure). We hold that the exercise of police power pursuant to Code § 46.2-104, the act of requiring a person who has been operating a motor vehicle upon the public highways to produce an operator's license, is a restraint upon the individual's freedom of movement and constitutes a seizure of the person.

Unlike the situation in Baldwin, where Baldwin and a companion were free to leave even though a police officer had ordered them to...