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. 
 -2- 

 

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 

 1Proescher Street is one block away from O'Keefe Street. 
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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. 
 -4- 

 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' 
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"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 
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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. 

 
 -7- 

 

 Reversed and 

remanded. 
 -8- 

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 
 -9- 

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 
 -10- 

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 
 -11- 

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, 
 -12- 

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 
 -13- 

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 
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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 

 

 2Code § 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. 
 -15- 

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.