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Barrett v. Commonwealth9/15/1995
Opinion BY JUSTICE HENRY H. WHITING
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 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 about to occur," and thus violated Barrett's Fourth Amendment right not to be subjected to unreasonable searches and seizures. Overruling this motion and 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' 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 a
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