Commonwealth v. Eaves , 13 Va. App. 162 ( 1991 )

Koontz, C.J.,

dissenting.

I respectfully dissent. I agree with the majority that our decision in Murphy v. Commonwealth, 9 Va. App. 139, 384 S.E.2d 125 (1989), did not overrule our decision in Stroud v. Commonwealth, 6 Va. App. 633, 370 S.E.2d 72 (1988), and that these decisions may be reconciled based upon the “subtle” factual differences between them. In my view, the trial judge correctly determined from the totality of the circumstances that Trooper Findley did not have an articulable reasonable suspicion to justify an investigatory stop of Eaves’ motor vehicle.

In Murphy, we held that “a legal turn into an existing roadway prior to reaching a checkpoint, standing alone, does not warrant reasonable suspicion that the operator is involved in criminal activity.” 9 Va. App. at 145-46, 384 S.E.2d at 129 (emphasis added). In Murphy, we acknowledged that such a turn by a driver may justify a “hunch” by an experienced police officer [such as Trooper Findley] that the driver might be in violation of the traffic laws or might be involved in criminal activity, but that a “hunch” will not support an investigatory stop. Id.

In the present case, Eaves made a legal turn from the proper lane at a crossover of a four lane highway, which was designated to allow such turns. The crossover, according to one version of Trooper Findley’s testimony, was approximately 528 feet prior to the checkpoint. It is not disputed that the crossover was the proper place to turn for a motorist to reach houses located across the highway at that point. While not required to do so, Eaves gave a signal of his intention to make the turn. He accomplished the turn without erratic driving, such as unusual braking. These facts, as determined by the trial judge, are not distinguishable from those in Murphy. Even “subtle” factors cannot establish a difference between the two cases.

The majority implicitly finds a “subtle” distinction between the totality of these facts from those in Murphy based primarily upon Trooper Findley’s description of Eaves’ turn as “abrupt,” “immediate” and “quick.” The trial judge, however, was not pursuaded that this description of Eaves’ turn was meaningful when balanced against all of the remaining facts which established that Eaves made a legal turn without any erratic driving. Moreover, the officer’s description of the turn supports no more than a “hunch” by an experienced officer that Eaves made the turn to avoid the checkpoint. Such a hunch does not constitute an articulable reasonable suspicion of criminal activity to justify an investigatory stop.

For these reasons, in my view, the trial judge correctly determined that Murphy was controlling. Accordingly, I would affirm that determination.