COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Baker, Benton, Coleman, 

 Willis, Elder, Bray, Fitzpatrick, Annunziata and 

 Overton 

Argued at Richmond, Virginia 

ULYSSES LAVANDA THOMAS 

 OPINION BY 

v. Record No. 1291-95-2 JUDGE SAM W. COLEMAN III 

 JANUARY 21, 1997 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 Michael S. Ewing (Rawlings & Wood, on brief), 

for appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 

 The defendant, Ulysses L. Thomas, appeals his convictions 

for driving after having been declared an habitual offender, Code 

§ 46.2-357, and refusing to submit to a blood or breath test, 

Code § 18.2-268.2. A panel of this Court reversed the conviction 

for driving after having been declared an habitual offender and 

transferred the refusal appeal to the Supreme Court. Thomas v. 

Commonwealth, 22 Va. App. 735, 473 S.E.2d 87 (1996). We granted 

the Commonwealth a rehearing en banc. 

 Upon rehearing en banc, we hold that the trial court did not 

err in refusing to require the Commonwealth to prove that the DUI 

roadblock had been established in accordance with the 

constitutional requirements set forth in Delaware v. Prouse, 440 
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U.S. 648 (1979). Because the defendant was not stopped or 

arrested at the roadblock, the validity of the roadblock was 

immaterial to the legality of his seizure. Furthermore, because 

the police officer had reason to suspect that the defendant was 

unlicensed, the officer had the duty to investigate, which led to 

the discovery that the defendant was an habitual offender. Thus, 

the trial court did not err in refusing to suppress the evidence 

obtained as a result of the temporary detention, which led to the 

habitual offender charge. Accordingly, we uphold the ruling of 

the trial court and affirm the conviction for driving after 

having been declared an habitual offender. 

 As to the appeal from the conviction for refusing to submit 

to a blood or breath test, because that matter is civil we 

transfer it to the Supreme Court of Virginia pursuant to Code 

§ 8.01-677.1. 

BACKGROUND

 The evidence proved that on the night of November 19, 1994, 

police officers of the Henrico County Police Department 

established a roadblock where the exit ramp of Interstate 64 

joins Nine Mile Road. Four or five police vehicles were 

stationed at the roadblock with their lights flashing. Some 

vehicles were parked on Nine Mile Road and others were located on 

the right side of the exit ramp where it intersects Nine Mile 

Road. The officers were standing at the stop sign at the top of 

the exit ramp and approaching drivers as they came to the stop 
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sign. 

 At approximately 11:17 p.m., Sergeant Marjorie Tussing 

observed a small pickup truck proceed up the exit ramp and stop 

on the shoulder of the exit ramp approximately thirty yards 

before the roadblock. She testified that the roadblock was 

visible from where the truck stopped. After the truck stopped, 

Tussing approached the vehicle on foot. She observed a short, 

stocky man, Thomas, exit the driver's side door and walk around 

to the passenger's side of the truck. Then, a taller, thin man 

exited from the passenger's side door and stood beside the 

shorter man. 

 When Tussing approached Thomas and stated, "You were 

driving," Thomas responded, "I was not." Tussing then asked 

Thomas for his name and "other DMV information." She checked the 

information on a computer and learned that Thomas' status was 

"suspended habitual offender, notice received." 

 During their conversation, Tussing noticed a strong odor of 

alcohol coming from Thomas and noticed that his eyes were 

bloodshot. She then required Thomas to perform several field 

sobriety tests. When Thomas refused to take "the field breath 

test," Tussing placed Thomas under arrest for driving while 

intoxicated and thereafter read him the implied consent law. 

Thomas refused to submit to a blood or breath test. 

 On this evidence, the trial judge held that the arrest was 

not illegal and overruled Thomas' motion to suppress the 
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evidence. The trial judge found Thomas guilty of driving after 

having been adjudicated an habitual offender and of violating the 

implied consent law. The trial judge found Thomas not guilty of 

driving under the influence of alcohol. 

 ANALYSIS

 The Fourth Amendment protects people from unreasonable 

searches and seizures by law enforcement officers. Katz v. 

United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 

L. Ed. 2d 576, 582 (1967). Evidence obtained in violation of the 

Fourth Amendment is inadmissible in a criminal prosecution for a 

charged criminal violation pertaining to the seized evidence. 

Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691-92, 6 

L. Ed. 2d 1081, 1090 (1961). In 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. California v. 

Hodari D., 499 U.S. 621, 628, 111 S. Ct. 1547, 1551, 113 

L. Ed. 2d 690, 698-99 (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), cert. denied, 475 U.S. 1084 

(1986). Here, Thomas was neither stopped nor physically 

restrained at the roadblock and he did not submit to the show of 

police authority. To the contrary, of his own volition, Thomas 

stopped the truck on the shoulder of the exit ramp thirty yards 
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before reaching the roadblock and took evasive action to avoid 

being stopped at the roadblock while he was operating the 

vehicle. Thomas 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. 

 As we said in Stroud v. Commonwealth, 6 Va. App. 633, 636, 

370 S.E.2d 721, 723 (1988), where the defendant "was not stopped 

at the roadblock, its constitutionality is immaterial to [the 

defendant's] detention or arrest." Stroud made a U-turn within 

100 to 150 feet of the roadblock in order to avoid being stopped 

at it. Id. at 634-35, 370 S.E.2d at 722. Based on the police 

officer's prior experience, Stroud's evasive action caused the 

police officer reasonably to suspect that the driver was 

unlicensed or otherwise in violation of the law. However, 

because Stroud was not physically stopped or restrained at the 

roadblock and did not submit to the roadblock, no seizure had 

occurred. Id. at 636, 370 S.E.2d at 723. 

 We reject the argument that Thomas was seized when he 

entered the line of traffic on the exit ramp. Thomas contends 

that when he entered the exit ramp, he was within the "zone" of 

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

Thomas stopped, he was thirty yards from the roadblock and had 

not yielded to the show of authority of the roadblock. The fact 

that Thomas was in close proximity to the roadblock when he 

stopped and took action to evade it does not alter the fact that 
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he was not stopped at the roadblock checkpoint. Although Thomas' 

options and freedom of movement may have been limited by the fact 

that the roadblock was placed at the end of the exit ramp, 

Thomas' freedom of movement had not been "terminated" by 

governmental action. For 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 a 

governmental termination of freedom of movement through means 

intentionally applied." Brower v. Inyo County, 489 U.S. 593, 

597, 109 S. Ct. 1378, 1381, 103 L. Ed. 2d 628, 635 (1989). Thus, 

because appellant was not seized, the trial court did not err in 

ruling that the Commonwealth was not required to establish the 

constitutionality of the roadblock. 

 Although Thomas was not seized for purposes of the Fourth 

Amendment when he stopped before reaching the roadblock, we 

assume, for purposes of this opinion, that Thomas was seized when 

Officer Tussing approached him and inquired about his having 

driven the truck. See Brown v. Commonwealth, 17 Va. App. 694, 

695, 440 S.E.2d 619, 620 (1994). However, at that time Officer 

Tussing had reason to suspect that Thomas was either unlicensed 

or otherwise in violation of the law. See Prouse, 440 U.S. at 

663; Stroud, 6 Va. App. at 636, 370 S.E.2d at 723. But see

Murphy v. Commonwealth, 9 Va. App. 139, 384 S.E.2d 125 (1989) 

(holding that making a lawful turn 350 feet before a roadblock 

does not give rise to a reasonable suspicion of criminal activity 
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unless coupled with other articulable facts). Thus, Tussing had 

an articulable and reasonable suspicion that Thomas was engaged 

in wrongdoing and had the right to briefly detain Thomas while 

she investigated. Thus, the DMV information that Tussing 

subsequently obtained about Thomas being a "suspended habitual 

offender" and her observations that he had bloodshot eyes and a 

strong odor of alcohol about him were not the result of an 

illegal seizure or detention. Accordingly, we uphold the trial 

court's ruling refusing to suppress the evidence, and we affirm 

the conviction for driving after having been declared an habitual 

offender. 

 This Court does not have jurisdiction over an appeal from a 

conviction of refusal to take a blood or breath test. See

Commonwealth v. Rafferty, 241 Va. 319, 402 S.E.2d 17 (1991). 

Therefore, the portion of the appeal challenging the conviction 

under Code § 18.2-268.3 is transferred to the Supreme Court of 

Virginia pursuant to Code § 8.01-677.1. 

 Affirmed in part and 

transferred in part.
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Benton, Willis, and Elder, J.J., dissenting. 

 For the reasons stated in the panel decision, see Thomas v. 

Commonwealth, 22 Va. App. 735, 473 S.E.2d 87 (1996), we would 

reverse Thomas' conviction for driving after having been declared 

an habitual offender. We concur in the decision transferring to 

the Supreme Court the appeal from the conviction of refusal to 

take a blood or breath test. See id. at 740, 473 S.E.2d at 90.