3.2 STOPS

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2026 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 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. ⁶³³ 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.'" ⁶³⁴

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. ⁶³⁵ 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." ⁶³⁶ Reasonable suspicion for an investigative stop need not rule out the possibility of innocent conduct. ⁶³⁷ However, officers must consider the totality of the circumstances to determine whether a stop is justified and, in doing so, must not overlook facts that tend to dispel reasonable suspicion. ⁶³⁸ 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. ⁶³⁹ 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." ⁶⁴⁰ "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.'" ⁶⁴¹ But when individuals 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. ⁶⁴² Nor does an officer's contact with a person who had stopped his vehicle by the side of the road with the hood of the car open support a finding of suspected criminal activity sufficient to support an investigatory stop. ⁶⁴³ Changing lanes over a single, solid white line as the road approached an intersection, where that conduct did not violate any statute, did not create reasonable suspicion to stop the driver. ⁶⁴⁴

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.

Fourth Amendment seizures can be effectuated by force or by acquisition of control that in some way restrains a person's liberty, which can occur when a person submits to a show of authority or when police terminate a person's freedom of movement. A person's submission to a show of authority need not be explicit but can take the form of passive acquiescence. ⁶⁴⁵

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." ⁶⁴⁶ 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. ⁶⁴⁷ 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 submit to a show of police authority. ⁶⁴⁸ A mere approach by a police officer does not constitute a stop. ⁶⁴⁹

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. ⁶⁵⁰ 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. ⁶⁵¹

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. ⁶⁵² 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. ⁶⁵³ 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. ⁶⁵⁴ 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. ⁶⁵⁵

"[A] consensual encounter does not require any justification and may be terminated at will by the individual." ⁶⁵⁶ Accordingly, no particularized suspicion is needed to approach and put questions to a citizen if the citizen is willing to listen. Where officers are lawfully present in a home or on the curtilage through a consensual encounter, they do not need an arrest warrant if they have probable cause for an arrest. ⁶⁵⁷

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. ⁶⁵⁸ 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. ⁶⁵⁹

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. ⁶⁶⁰ In Torres v. Madrid, ⁶⁶¹ the United States Supreme Court held that seizures occur either by acquiring control or by force. By shooting a suspect, police seized that person by applying physical force. ⁶⁶²

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 or she was free to leave. But an officer's brief detention of the defendant to investigate circumstances surrounding the presence of an open container of an alcoholic beverage in a lawfully stopped vehicle in which the defendant was a passenger is not unreasonable where the officer simply asked defendant to return to the passenger seat and the investigative detention lasted...