Ralph Junior Gilpin, a/k/a Ralph J. Long v CW

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Moon*
Argued at Salem, Virginia
RALPH JUNIOR GILPIN A/K/A
RALPH J. LONG OPINION BY
v. 	Record No. 2637-96-3 	JUDGE JAMES W. BENTON, JR.
DECEMBER 2, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
John S. Huntington for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
In this appeal we consider whether a prolonged,
investigatory detention of the driver of a vehicle was supported
by reasonable, articulable suspicion that the driver was engaged
in unlawful activity. 	Ralph Junior Gilpin contends that he was
detained at a roadblock in violation of the Fourth and Fourteenth
Amendments to the United States Constitution and that, as a
result, the police unlawfully obtained evidence. 	Gilpin also
argues that the trial judge erred in finding that he
constructively possessed two firearms found in the vehicle.
Because we hold that the prolonged detention of Gilpin was not
supported by reasonable, articulable suspicion, we need not reach
the issue of constructive possession.
*When the case was argued Judge Moon presided. 	Judge
Fitzpatrick was elected Chief Judge effective November 19, 1997.
Judge Moon participated in the hearing and decision of this case
prior to his retirement on November 25, 1997.

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I.
At the hearing on Gilpin's pretrial motion, Trooper Ted
Phipps testified that on July 25, 1995, he was working at a
traffic checkpoint established in Montgomery County checking
drivers' licenses and vehicle registration cards. 	He was also
looking for expired license tags and obvious equipment
violations. 	Phipps testified that "the stop is very momentar[y],
just a matter of seconds."
When a pickup truck stopped at the roadblock at 10:00 a.m.,
Phipps asked the driver for his license. 	The driver gave Phipps
a North Carolina driver's license in the name of Ralph Junior
Gilpin. 	The registration card that Gilpin gave Phipps indicated
that the truck bearing Virginia license plates was registered to
Robin Gale McPherson of Roanoke. 	Phipps testified that both the
driver's license and the vehicle registration card appeared to be
valid.
Phipps asked Gilpin if he still resided in North Carolina.
Gilpin indicated that he did. 	Phipps then asked Gilpin if his
privilege to drive in Virginia had been suspended. 	Gilpin stated
that it had not. 	Phipps asked Gilpin who Robin McPherson was.
Gilpin stated that she was his "girlfriend." 	Phipps testified
that he noticed several articles of clothing and duffel bags in
the cab of the truck and numerous items such as tools in the bed
of the truck.
Phipps directed Gilpin to drive the truck to the shoulder of

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the road and wait while Phipps checked his driving status.
Gilpin complied with Phipps' order. 	Phipps testified that he
detained Gilpin because he suspected that Gilpin "possibly could
be suspended in the State of Virginia." 	When asked to state all
of the circumstances that aroused his suspicions, Phipps
testified as follows:
The fact that he was, had a valid license
from another state, the fact that the vehicle
itself was registered to someone other than
himself with a Roanoke address. 	The fact
that there were numerous items indicating
that . . . Gilpin[] could be either be living
here or working in the area with the stuff in
the pickup [truck] and it's been my
experience that in the past that from time to
time these people will become suspended in
the State of Virginia even though the State
of North Carolina may continue to issue them
a valid license. 	That's about it.
Phipps estimated that only a small number of individuals
with the same characteristics would actually be found to be
driving on a suspended license. 	He also testified that he did
not suspect Gilpin of any other criminal activity.
After considering this evidence and hearing the arguments of
counsel, the trial judge overruled the motion to dismiss. 	The
trial judge, in a letter opinion, ruled "that neither the Fourth
nor the Fourteenth Amendments have been violated in respect to
[Gilpin's] detention by the trooper."
At trial, Phipps again testified about the initial stop of
Gilpin. 	Continuing his description of the events, Phipps
testified that after Gilpin obeyed his order and parked the truck

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beside the highway, Phipps requested the radio dispatcher to
check Gilpin's driving status. 	Phipps continued to check traffic
at the roadblock until the dispatcher informed him that Gilpin
was wanted for a parole violation. 	When Phipps and another
officer walked to Gilpin's truck, Gilpin began to drive away.
Phipps jumped through the window, told Gilpin he was under
arrest, ordered Gilpin to stop the truck, and turned off the
ignition.
Phipps testified that as the truck glided to a stop, Gilpin
ran from the truck and was eventually stopped by two other
officers. 	Phipps testified that he saw a rifle near the
passenger's door and that the rifle would have been visible at
the beginning of the traffic stop if it had not been covered.
Searching the truck, the officers found a revolver inside a
duffle bag on the front seat. 	When the truck was taken into
police custody, Phipps discovered that its serial number did not
correspond to the number displayed on the registration card.
However, Phipps learned that the truck had been retitled and he
released it to the owners.
On this evidence, the trial judge convicted Gilpin of two
counts of possession of a firearm after having been convicted of
a felony and one count of escape.
II.
Gilpin does not contest the validity of the initial
detention at the roadblock. 	Instead, he argues that his

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prolonged detention beside the highway after he was checked at
the roadblock was an unlawful seizure in violation of the Fourth
and Fourteenth Amendments because the officer did not have a
reasonable, articulable suspicion of his involvement in criminal
activity. 	The Commonwealth contends that Gilpin's vehicle was
properly detained for investigatory purposes because the officer
had a reasonable suspicion that Gilpin's license was suspended in
Virginia.
The principle is well established that "[e]ven when the
purpose of a stop is limited and the resulting detention brief,
the fourth and fourteenth amendments of the United States
Constitution apply to stopping [a vehicle] and detaining its
occupants." 	Taylor v. Commonwealth, 6 Va. App. 384, 387, 369
S.E.2d 423, 424 (1988). 	Thus, the detention of a driver for
investigation at a roadblock constitutes a Fourth Amendment
seizure. 	See Simmons v. Commonwealth, 238 Va. 200, 202, 380
S.E.2d 656, 658 (1989). 	We assume for purposes of this decision
that Gilpin was lawfully detained at the roadblock up to the
point where he was ordered to wait by the roadside while Phipps
confirmed the status of Gilpin's license.
We hold that the police may not detain a vehicle at a
roadblock beyond the brief period necessary to perform the
activities authorized in the roadblock plan unless the officers
have at least an articulable and reasonable suspicion that a
motorist is unlicensed, the vehicle is not registered, or the

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motorist or vehicle is otherwise subject to seizure for violation
of the law. 	See Delaware v. Prouse, 440 U.S. 648, 663 (1979);
Waugh v. Commonwealth, 12 Va. App. 620, 621, 405 S.E.2d 429, 429
(1991). When there is not probable cause to believe
that a driver is violating any one of the
multitude of applicable traffic and equipment
regulations - or other articulable basis
amounting to reasonable suspicion that the
driver is unlicensed or his vehicle
unregistered - we cannot conceive of any
legitimate basis upon which a patrolman could
decide that stopping a particular driver for
a spot check would be more productive than
stopping any other driver. 	This kind of
standardless and unconstrained discretion is
the evil the Court has discerned when in
previous cases it has insisted that the
discretion of the official in the field be
circumscribed, at least to some extent.
Prouse, 440 U.S. at 661 (emphasis added) (footnote omitted).
As a reviewing court, we "must determine upon an objective
assessment of the totality of the circumstances 'whether the
officer could have entertained an articulable reasonable
suspicion that the defendant was involved in unlawful activity.'"
Waugh, 12 Va. App. at 622, 405 S.E.2d at 430 (quoting Murphy v.
Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128 (1989)).
When we consider the totality of the circumstances, we must view
the facts objectively through the eyes of a reasonable police
officer and be guided by the principle that "[t]he detaining
officer 'must have a particularized and objective basis for
suspecting the particular person stopped of criminal activity.'"
Zimmerman v. Commonwealth, 234 Va. 609, 612, 363 S.E.2d 708, 709

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(1988) (citations omitted).
Thus, the officer must be able to "'point to specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant'" detaining a driver to
conduct further investigation. 	Taylor, 6 Va. App. at 388, 369
S.E.2d at 424 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).
While an officer "may identify criminal behavior which would
[otherwise] appear innocent to an untrained observer, . . . 'any
such special meaning must be articulated to the courts and its
reasonableness [must be] assessed independently of the
[officer's] subjective assertions.'" 	Taylor, 6 Va. App. at 388,
369 S.E.2d at 425 (citation omitted).
To support its contention that Phipps could infer that
Gilpin was involved in criminal activity, the Commonwealth points
to evidence that Phipps based his suspicions on his twenty-two
years of experience as a police officer. 	He also based his
suspicion on the facts that Gilpin had a North Carolina license,
the vehicle was registered to a third party with a Virginia
address, and numerous items of property were strewn throughout
the cab and bed of the truck. 	Phipps further stated that it had
been his experience that North Carolina will issue driver's
licenses to drivers who have had their licenses suspended in
Virginia.
This evidence, however, does not support a finding that
Phipps had a reasonable suspicion to extend the detention of

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Gilpin. 	Phipps admitted that, based upon his experience, only a
small percentage of persons presenting the circumstances he
relied upon in making his assessment have in fact been driving in
Virginia after the Commonwealth had suspended their licenses.
Indeed, Phipps readily admitted that Gilpin "could have been
working here and driving back to North Carolina weekly." 	In
addition, Phipps' belief that the State of North Carolina will
issue driver's licenses in an unlawful manner is purely
conjecture and unsupported by any valid evidence in the record.
At best, Phipps' suspicion amounts to merely an "'inchoate and
unparticularized suspicion or "hunch" . . . [rather] than a fair
inference in the light of his experience.'" 	Murphy, 9 Va. App.
at 144, 384 S.E.2d at 128 (quoting Reid v. Georgia, 448 U.S. 438,
441 (1980)). 	It "'is simply too slender a reed to support the
seizure.'" 	Id.
Based on an objective assessment of the totality of the
circumstances, we find that the officer could not have
entertained a reasonable suspicion that Gilpin was involved in
unlawful activity. 	Accordingly, there was no justification for
detaining Gilpin at the roadblock for further investigation. 	As
a result of the unlawful detention, the officer learned Gilpin's
name and found a rifle and handgun in the truck. 	As a "fruit" of
the detention that violated the Fourth and Fourteenth Amendments,
the evidence uncovered must be suppressed. 	See Zimmerman, 234
Va. at 613, 363 S.E.2d at 710; Commonwealth v. Ealy, 12 Va. App.

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744, 754, 407 S.E.2d 681, 687-88 (1991); Murphy, 9 Va. App. at
146, 384 S.E.2d at 129. 	Without the evidence acquired in the
illegal detention, the evidence was insufficient to support
Gilpin's conviction.
III.
The Commonwealth also argues that Gilpin's arrest for parole
violation and resistance after the officer told him he was under
arrest for a parole violation justified a further seizure that
resulted in the discovery of the guns. 	We disagree.
"'The exclusionary rule operates . . . against evidence
seized and information acquired during an unlawful search or
seizure . . . [and] against derivative evidence discovered
because of the unlawful act.'" 	Watson v. Commonwealth, 19 Va.
App. 659, 663, 454 S.E.2d 358, 360 (1995) (citation omitted).
Thus, evidence must be suppressed when it is "'come at by
exploitation of [the initial] illegality rather than by means
sufficiently distinguishable to be purged of the primary taint.'"
Hall v. Commonwealth, 22 Va. App. 226, 229, 468 S.E.2d 693, 695
(1996) (citation omitted).
Prior to the original unlawful detention, the police were
unaware that Gilpin was wanted for a parole violation. 	As a
result of the unlawful detention, the officer learned Gilpin's
name and used that necessary information to check Gilpin's
status. 	Without the information obtained as the fruit of the
unlawful detention, the officer would not have had probable cause

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to arrest Gilpin for a parole violation. 	No intervening cause or
event occurred to remove the taint of the illegal detention.
Thus, the evidence acquired during the seizure for the parole
violation was obtained as a result of unlawful means and was not
sufficiently attenuated from the original unlawful detention to
purge the taint of that detention. 	See Ealy, 12 Va. App. at 755,
407 S.E.2d at 688; Walls v. Commonwealth, 2 Va. App. 639, 654-55,
347 S.E.2d 175, 184 (1986).
Accordingly, we reverse the conviction and dismiss the
charges.
Reversed and dismissed.