3.2 Stops

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2020 Ed.)

3.2 STOPS

3.201 Detention of a Citizen by a Police Officer. For the most part, any detention by a police officer of a citizen constitutes a seizure for Fourth Amendment purposes. A "stop" is a detention that is limited in scope. A police officer may, in appropriate circumstances and in an appropriate manner, approach a person for the purpose of investigating possible criminal

[Page 116]

behavior even though there is no probable cause to make an arrest. A driver in Virginia is obligated to stop upon the signal of any police officer and, upon request, show the officer the vehicle's registration card and his or her driver's license. ² But the officer must have some "'reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.' . . . 'In the absence of any basis for suspecting [the citizen] of misconduct, the balance between the public interest and [the citizen's] right to personal security and privacy tilts in favor of freedom from police interference.'" ³

Determining whether there is a reasonable articulable suspicion involves consideration of the following: (i) the characteristics of the area where the stop occurred, (ii) the time of the stop, (iii) suspicious conduct of the person, (iv) proximity to the scene of the recently committed crime, and (v) racial identity. ⁴ The Supreme Court of Virginia has defined a reasonable articulable suspicion as "something 'more than an inchoate and unparticularized suspicion or "hunch"' of criminal activity" but "something less than probable cause." ⁵ Reasonable suspicion for an investigative stop need not rule out the possibility of innocent conduct. ⁶ For instance, an officer possesses reasonable suspicion to stop a vehicle after running a vehicle's license plate and learning that the registered owner has a revoked driver's license. An officer may rely upon an inference that the owner of the vehicle was likely the driver and the inference is not made unreasonable because the vehicle's driver is not always its registered owner. ⁷ An officer who already has a reasonable suspicion of drunk driving need not surveil a vehicle at length in order to personally observe suspicious driving before conducting a traffic stop. ⁸ "Once reasonable suspicion of drunk driving arises, '[t]he reasonableness of the officer's decision to stop the driver does not turn on the availability of less intrusive investigatory techniques.'" ⁹ But when individuals

[Page 117]

cross a street in a way that does not violate section 46.2-923, this cannot give rise to reasonable suspicion to stop them based on a pedestrian traffic violation. ¹⁰

3.202 Not All Encounters Are Stops. A consensual encounter between a police officer and a citizen does not implicate the Fourth Amendment. A brief detention for investigative purposes also does not constitute a seizure under the Fourth Amendment. Counsel should evaluate the circumstances of each case to determine whether the initial contact between the police and the client was enough to trigger the constitutional protections. These cases are determined by the facts, and much of the law turns on the reason that the officer first approached the person and on whether a reasonable individual would have believed that he or she was free to walk away from the encounter.

Indicia that a seizure has occurred include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." ¹¹ An approach by an officer in daylight hours in a busy public place with no display of weapons, without contact or touching of the defendant or any harsh or threatening language, combined with the advice that the person is free to leave, illustrates an encounter that is not a seizure for Fourth Amendment purposes. An officer's command to "show me your hands" without physical touching, does not constitute a seizure. ¹² Similarly, an encounter between a police officer and citizen in which the officer merely identifies himself or herself and states that he or she is conducting a narcotics investigation without more remains a "consensual encounter." An officer's request that the defendant speak with him or her, even though the request was shouted, the cruiser's floodlights were flashed on a person, and the officer demanded that the person approach his or her vehicle, does not constitute a seizure. For a seizure to occur, a person must be either physically restrained or must

[Page 118]

submit to a show of police authority. ¹³ A mere approach by a police officer does not constitute a stop. ¹⁴

To elevate a consensual encounter to a stop, there must be more than just an impending threat that a person's freedom of movement may be restricted. A motorist who has voluntarily stopped some distance before a roadblock, having no other means of "escape," is not seized at the roadblock. A seizure occurs only when there is a governmental termination of freedom of movement through means intentionally applied. ¹⁵ Similarly, a request by an officer for identification that is unrelated to observed motor vehicle operation without any show of force or display of authority does not constitute a seizure. ¹⁶

The Fourth Amendment is not implicated where a person voluntarily responds to a police request to produce identification, even if the person's response is later used against him or her in a criminal prosecution. ¹⁷ As long as the police do not convey by word or deed that compliance with their request is mandatory, there is no requirement that it be based on an objective or particularized suspicion with respect to the person approached. ¹⁸ Thus, where an officer asked to see a driver's operator's license, and the driver's compliance was voluntary and not coerced, the Fourth Amendment was not implicated. ¹⁹ The encounter did not involve a display of emergency lights or weapons, the defendant's car was not blocked, and no threatening or coercive tone of voice was used. ²⁰

[Page 119]

"[A] consensual encounter does not require any justification and may be terminated at will by the individual." ²¹ Accordingly, no particularized suspicion is needed to approach and put questions to a citizen if the citizen is willing to listen.

3.203 Stop Includes a Show of Police Authority. In order for a seizure that implicates the Fourth Amendment to occur, an individual must be under some physical restraint by an officer or must have submitted to a show of police authority. ²² Most traffic stops, by their nature, will meet these criteria unless the driver has already stopped for some other reason when police contact begins. Again, the facts surrounding the contact are critical to the analysis: what first attracted the officer's attention to the driver or the vehicle's operation? A defendant may also change the nature of a consensual encounter by actions made in response to the presence of the officers.

A seizure occurred when police officers, at night, stood at both doors of the defendant's vehicle with badges and guns clearly visible and directly informed the defendant that they believed she was delivering drugs. At no time did the officers inform the defendant that she was free to leave or that she could refuse to cooperate, and the defendant would have been unable to drive away in any case because her exit route was blocked by the officers' vehicle. ²³

Likewise, a seizure occurred when the police observed and questioned the defendant for 30 minutes, took the telephone receiver from the motel desk clerk to intercept a call for the defendant, and placed a police cruiser in front of the defendant's car. Significantly, the defendant's subsequent consent to search was invalidated by the unlawful seizure of his person that had already occurred by the officers' combined interception of the phone call and blocking of his vehicle. ²⁴

When an officer orders a passenger back into the vehicle and seizes his or her identification, the passenger is detained in his or her own right and not incident to the traffic stop involving the driver because a reasonable person in those circumstances would not believe that he was free to leave. But an officer's brief detention of the defendant to investigate circumstances

[Page 120]

surrounding the presence of an open container of an alcoholic beverage in a lawfully stopped vehicle in which defendant was a passenger is not where the officer simply asked defendant to return to the passenger seat and the investigative detention lasted only between 15 and 20 seconds before defendant's actions in the vehicle prompted a change in his custody status. ²⁵

Retaining a passenger's identification while running a warrant check after completing a traffic stop with the driver can be a seizure without reasonable articulable suspicion of criminal activity. A reasonable person would not have believed that he or she could terminate such an encounter. When an officer merely requests a defendant's identification, it may be only a consensual encounter, but when the officer walks away and retains the identification to run a warrant check, the stop becomes a seizure because it is the officer's own actions that require the defendant to stay. The defendant in these circumstances is seized under the Fourth Amendment, and the officer must have reasonable articulable suspicion to support the seizure. ²⁶ Especially when this is combined with a significant police presence when the defendant was stopped and asked to present identification, the fact that the defendant would have had to leave the scene without his or her identification card clearly characterizes this encounter as a detention. ²⁷

Even if the defendant is already stopped when the encounter with the police officer begins, there still can be a seizure. For example, a driver was seized under the Fourth Amendment even though he had stopped his car...