Present: Carrico, C.J., Compton, Stephenson, Whiting,1

 Lacy, 

Hassell, and Keenan, JJ. 

JETER RAY BARRETT 

v. Record No. 941711 OPINION BY JUSTICE HENRY H. WHITING 

 September 15, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 Jeter Ray Barrett appeals his conviction for operating a 

motor vehicle while under the influence of intoxicants (DUI). 

The dispositive issue is the admissibility of evidence of 

Barrett's intoxication discovered during a brief police stop to 

investigate whether Barrett's vehicle was malfunctioning. 

 State Trooper J.R. Lyons testified that while he was 

travelling west on Route 360 in Northumberland County at 9:20 

p.m. on October 2, 1991, he noticed a pickup truck occupied by a 

driver and two passengers stopped in a yard off the east lane of 

the highway. After continuing west for about one-half mile, 

Lyons turned around and went back to investigate whether the 

pickup truck had broken down. 

 Upon returning to the scene, Lyons observed the pickup truck 

moving with its wheels partially on the shoulder of the road and 

partially in the private yard, which "seemed odd" to Lyons since 

the driver could have "pulled onto the roadway." As Lyons 

approached the rear of the pickup truck, he activated the 

 

 1Justice Whiting prepared the opinion in this case prior to the 

effective date of his retirement on August 12, 1995, and the Court 

subsequently adopted the opinion. 
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cruiser's flashing lights to stop the pickup truck "only to see 

whether there was a problem." 

 Both vehicles stopped. As Lyons walked up to the pickup 

truck, he smelled a strong odor of alcohol "on or about the 

person of Barrett," who was driving the pickup truck. Barrett 

admitted that he had been drinking. After Barrett performed 

three field sobriety tests "very poorly," and a roadside 

breathalizer test indicated that Barrett was intoxicated, Lyons 

arrested him on a DUI charge. Shortly thereafter, a blood test 

was administered to Barrett, which indicated that he had a blood 

alcohol content of 0.12% by weight by volume. 

 Later ascertaining that Barrett had two prior DUI 

convictions in the ten years preceding his arrest on this charge, 

the Commonwealth amended the arrest warrant to reflect that fact. 

 Code § 18.2-270. Upon his conviction by the general district 

court, Barrett appealed to the circuit court. 

 During his bench trial in the circuit court, Barrett moved 

to suppress Lyons's testimony since the trooper's investigative 

stop was not supported by "a reasonable, articulable suspicion 

that a crime was occurring or [was] about to occur," and thus 

violated Barrett's Fourth Amendment right not to be subjected to 

unreasonable searches and seizures.2

 Overruling this motion and 

 2The Fourth Amendment to the United States Constitution 

provides in pertinent part that "[t]he right of the people to be 

secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be violated." 
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Barrett's subsequent motion to strike the Commonwealth's 

evidence, the trial court reasoned that "due to the unusual 

situation which Lyons was confronted with[,] he was required to 

investigate [and that] it was natural for Lyons'[s] curiosity to 

be aroused, since this was a situation that was not seen very 

often." Following Lyons's testimony, proof of Barrett's blood 

test and two prior DUI convictions, and testimony adduced by 

Barrett of his good character, the trial court convicted and 

sentenced Barrett. 

 Barrett appealed to the Court of Appeals. Concluding that 

Lyons's action in stopping Barrett was a seizure in violation of 

Barrett's Fourth Amendment rights, a panel of that court reversed 

the judgment of the trial court. Barrett v. Commonwealth, 17 Va. 

App. 196, 435 S.E.2d 902 (1993). However, after a rehearing en

banc, the Court of Appeals affirmed the trial court's judgment. 

Barrett v. Commonwealth, 18 Va. App. 773, 447 S.E.2d 243 (1994). 

 Barrett appeals to this Court. 

 The Commonwealth concedes that Lyons's stop and detention of 

Barrett was a "seizure" for Fourth Amendment purposes and that it 

was not based on an investigation of any crime, motor vehicle 

violation, or equipment violation. Hence, the admissibility of 

the evidence of Barrett's intoxication depends upon whether Lyons 

had the right to stop Barrett to investigate whether he was 

experiencing mechanical difficulties with his vehicle. 

 Barrett contends that this stop can be justified only if 
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Lyons reasonably believed that Barrett was engaged in criminal 

activity at the time he was seized. On the other hand, the 

Commonwealth claims that Lyons had the right to make the stop in 

the exercise of the so-called "community caretaking functions" 

doctrine articulated in the following language in Cady v. 

Dombrowski, 413 U.S. 433 (1973): 

 Because of the extensive regulation of motor vehicles 

and traffic, and also because of the frequency with 

which a vehicle can become disabled or involved in an 

accident on public highways, the extent of 

police-citizen contact involving automobiles will be 

substantially greater than police-citizen contact in a 

home or office. Some such contacts will occur because 

the officer may believe the operator has violated a 

criminal statute, but many more will not be of that 

nature. Local police officers . . . frequently 

investigate vehicle accidents in which there is no 

claim of criminal liability and engage in what, for 

want of a better term, may be described as community 

caretaking functions, totally divorced from the 

detection, investigation, or acquisition of evidence 

relating to the violation of a criminal statute. . . . 

 [O]ften [that] noncriminal contact with automobiles 

will bring . . . officials in "plain view" of evidence, 

fruits, or instrumentalities of a crime, or contraband. 

413 U.S. at 441-42 (emphasis added). 

 However, neither Cady nor the two subsequent Supreme Court 

cases applying the so-called "community caretaking functions" 

doctrine involved investigative stops and "seizures"; they 

involved the admissibility of incriminating evidence discovered 

during a standard police procedure of inventorying property that 

had properly been taken into custody. Cady, 413 U.S. at 443; 

South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976); Colorado 

v. Bertine, 479 U.S. 367, 375-76 (1987). Here, the Commonwealth 
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urges us to extend this doctrine to validate investigative stops 

and detention of persons not evidently engaged in criminal 

activity, but who apparently need some police assistance. 

 Before we can decide whether this doctrine will be applied 

in Virginia, we must first consider whether the evidence in this 

case is sufficient to indicate that Barrett apparently needed 

police assistance. Lyons testified that he stopped Barrett "to 

see whether there was a problem" because it "seemed odd" that he 

would drive partially upon the shoulder of the road and partially 

on the adjoining yard and not enter the highway. 

Zimmerman v. Commonwealth, 234 Va. 609, 363 S.E.2d 708 

(1988), not cited by either party, is instructive. There, a 

police officer observed the defendant driving a vehicle very 

slowly on a military base. When the police officer "pulled" his 

vehicle "up behind" the defendant's vehicle, the defendant drove 

from the travelled portion of the street onto the grass and 

stopped. Her husband left the passenger's seat and asked for 

directions to a building on the base. After the police officer 

gave these directions, the husband returned to the vehicle, the 

defendant slid over to the passenger's seat, and the husband 

drove the vehicle beyond the point at which he should have turned 

had he followed the police officer's directions. The police 

officer then stopped the vehicle because he noticed that "they 

had switched operators and that attracted [his] attention." Id.

at 611, 363 S.E.2d at 709. 
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 Even though these actions may have seemed unusual to the 

officer, we held the investigative stop unlawful, concluding that 

these actions were insufficient to justify a reasonable suspicion 

of criminal activity. Id. at 612, 363 S.E.2d at 709. We also 

noted that the detention would have been justified if the police 

officer had "a reasonable suspicion, based on objective facts, 

that the individual is involved in criminal activity." Id. at 

611, 363 S.E.2d at 709 (quoting Leeth v. Commonwealth, 223 Va. 

335, 340, 288 S.E.2d 475, 478 (1982) (emphasis added)). 

 As previously indicated, the only justification offered for 

Barrett's "seizure" is Lyons's testimony that he stopped Barrett 

merely "to see whether there was a problem" because it "seemed 

odd" that he would drive partially upon the shoulder of the road 

and partially on the adjoining yard and not enter the highway. 

Just as the actions in Zimmerman were insufficient to justify a 

reasonable suspicion of criminal activity, we conclude that 

Barrett's "odd" conduct, without more, did not give rise to "a 

reasonable suspicion, based on objective facts," that he needed 

police assistance. Thus, we need not decide whether the socalled "community caretaking functions" doctrine will be applied 

in Virginia when the evidence is sufficient to show that the 

detained person required police assistance. 

 Accordingly, the Court of Appeals erred in affirming the 

trial court's judgment. The judgment of conviction will be 

vacated and the order appealed from will be reversed. And the 
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warrant will be dismissed, since without the evidence acquired 

during Lyons's illegal stop, there was no evidence to support his 

conviction. 

Reversed and dismissed.