*1
Salem. Sept. 1997. Rehearing En Banc Granted Oct. 1997. Wayne Baucino, (Vikram T. Assistant Public Defender Ka- pil, Defender, Assistant briefs), Public on for appellant. Darron,
Leah (James A. Assistant Attorney General S. Gilmore, III, General, Attorney brief), for appellee. WILLIS, MOON, C.J., and COLEMAN and JJ.
Present: WILLIS, Judge. was a an automobile Sheppard passenger
Elvin William *2 checking at a license stopped police that was of and of possession possession He was convicted of cocaine automo- marijuana police upon discovered search he contends that the roadblock was estab- appeal, bile. On that the seizures of the automobile unconstitutionally, lished unlawful, that the trial person and of his were therefore in discovered refusing suppress court erred evidence of the automobile. We find no error and search affirm the of the trial court. judgment arrest, Sheppard’s Depart-
Prior to the Martinsville Police governing 3-31 adopted ment General Order Number registra- “to enforce driver’s license and vehicle checkpoints coming tion laws” and to address “all other violations of law conducting checking the attention of officers detail.” The located at sites set plan required checkpoints that should be A” “Appendix forth on a list attached to the and that [thirty] no than checkpoints would be conducted “for less minutes or for no more than two hours.” The set forth governing present, rules the number of officers be attire, used, emergency lights officers’ and flares to be location scene, emergency vehicles on the removal of detained traffic, stopped. and the number of cars to be vehicles Long Sheppard’s E. testified that at the time of Charles arrest, Investigations, Services he was Lieutenant Criminal Division, He testified Department. of the Martinsville Police receiving complaints “were numerous about the driving involving drugs, speeders, people Moss area Street license, suspensions____” Long Lieutenant without driver’s assigned up decided to set a “roadcheck” on Moss Street The Moss Street purpose. officers to Moss Street in A of General Order location included Schedule was However, with that complied 3-31. the roadcheck Number Long partic- did not every respect. order other Lieutenant ipate the roadcheck personally, only but acted in a supervi- sory capacity.
Sheppard was a passenger automobile stopped at the Moss Street roadcheck. The driver did not have an operator’s license and was charged with that offense. gave He the police permission to search the automobile. The police discovered marijuana, cocaine and and Sheppard was charged possession with of those substances.
Sheppard moved the trial court to suppress the cocaine and marijuana on the ground that their discovery resulted from an unconstitutional search and seizure. argued He that because the establishment of the Moss Street checkpoint deviated from General 8-31, Order Number the conduct of the checkpoint anwas exercise in unbridled police discretion and was consti- tutionally impermissible. The trial court motion, denied the evidence, admitted the and convicted Sheppard on both counts. *3 §
Code provides, 46.2-103 in pertinent part: Except as prohibited by 19.2-59, § on his request signal, or any law-enforcement officer who inis uniform displays or badge his or other sign authority of may: 1. Stop any vehicle, trailer, motor or semi-trailer to inspect its equipment, operation,____ §
Code 46.2-104 provides, in pertinent part: operator owner or any vehicle, of trailer, motor or semi- trailer shall signal the any of law-enforcement officer who is in uniform or shows his badge or other sign of authority shall, on the officer’s request, exhibit his registration card, license, driver’s permit, learner’s or tem- porary permit____ driver’s
The statutory right of a law enforcement officer to stop a motor vehicle and the obligation of a motor operator vehicle to submit to such a stop for a registration license or inspection are circumscribed the decision of the United States Su- preme Prouse, Court in Delaware v. 648, 440 U.S. 99 S.Ct. 1391, (1979), 59 L.Ed.2d 660 holding unconstitutional the vehicles, the motor other than basis of stopping
random of criminal conduct. suspicion reasonable of cause or probable traveling in an person “operating that a The Court ruled expectation privacy of not lose all reasonable automobile does subject its use are the automobile simply because at 1400. Howev- at 99 S.Ct. regulation.” Id. government er, say: on to the Court went developing holding preclude does not States
This that do intrusion or that involve less stopchecks methods for Ques- of discretion. unconstrained exercise not involve the is one roadblock-type stops at oncoming of all tioning in automo- only persons hold alternative. We possible alone have not for that reason roadways may on public biles at the unbridled interfered with privacy their travel and officers. discretion of 663, 99 at 1401.
Id. at S.Ct. Texas, 61 L.Ed.2d 443 U.S. 99 S.Ct. In Brown v. (1979), set forth Supreme Court the United States stops of traffic determining validity balancing test for criminal suspicion cause or reasonable upon probable based (1) gravity three criteria: activity. The test involves (2) seizure, degree served public concerns (3) interest, and the seizure advances which liberty. Id. at 50- with individual severity of the interference constitutional Noting the central at 2640-41. S.Ct. expectation privacy concern that “an individual’s reasonable at the unfettered arbitrary solely invasions subject is not said, field,” “the Fourth the Court of officers in the on specific, must be that a seizure based requires Amendment interests society’s legitimate indicating objective facts *4 individual, or that the particular the of the require seizure embodying to a pursuant carried out must be seizure offi- conduct of individual limitations on the neutral explicit, v. 51, at 2640. See Lowe Common- at 99 S.Ct. cers.” Id. (1985). 273, 275-76 wealth, S.E.2d 230 337 Va. sobriety at a license and an arrest made Lowe involved checkpoint to Charlottesville’s pursuant conducted checkpoint plan. Analyzing componente of the under the criteria Broum, forth Supreme set in Court held: Balancing the strong protecting pub- State’s interest in drivers, lic grave presented from the risk by against drunk the minimal caused approaching inconvenience motorists roadblock, we hold that the action of this case was not an impermissible infringement upon defendant’s reasonable expectation privacy. The sys- Charlottesville tem is safe objective and its operation, employs neutral criteria, standardless, and does not involve unbridled discre- tion by field, police officer was which condemned in Prouse.
Lowe,
atVa.
In
Commonwealth,
Simmons
238 Va.
We do not read Prouse to stand for the proposition that stopping all traffic at a roadblock constitutes sufficient restraint on the exercise of by police discretion officers to transform the into stop constitutionally valid roadblock. While this approach may eliminate the constitutional vice inherent in a spot random check or stop therefore abe preferred practice, ... the roadblock must be also under- pursuant taken explicit plan or which practice uses neutral criteria limits the the officers conducting the in this roadblock. evidence case estab- lishes that the decision to establish the roadblock as well as its location and solely duration was within the discretion of the troopers. No advance approval or authorization from any supervisor officer superior required up was set 203-04, (footnote omitted). at Id. at 658-59 S.E.2d The seizure of the in which riding vehicle did Sheppard not derive from a random forbidden Prouse. The *5 Brown, in criteria set forth satisfied the plan
Martinsville Lowe, in and satisfied approved standards conformed to the conducting the The officers of Simmons. requirement in with the Martinsville checkpoint complied Moss Street us is whether the sole The issue before every respect. Long Lieutenant from that the selection plan, deviation A, ofwas sufficient site not included in Schedule checkpoint a consti- checkpoint to render the unreasonable and significance hold that it did not. tutionally impermissible. We site, he did not Long selected the Although Lieutenant not an checkpoint. He was conducting in participate in altogether a field. His involvement was officer Thus, in no capacity. respect, or administrative supervisory checkpoint of the left to or conduct was the establishment of field officers. unbridled discretion Long’s that Lieutenant suggests in the record Nothing involved, way, any checkpoint to establish the decision specific group people. or a target specific person a effort citizen of unlawful complaints was His decision based location. His decision addressed at the Moss Street activity situation, His any person group people. the unlawful and to control a trouble activity unlawful purpose quell was check- criteria. The location of the neutral spot, employing intrusion on imposed greater no on Moss Street point have been traveling public than would general of the privacy A at a Schedule site. checkpoint had the been located imposed location Thus, mere fact that the Moss Street we hold that the A, minor, a insubstantial effected was not included Schedule and did plan, the Martinsville compliance with deviation constitutionally impermissible. checkpoint not render the court is affirmed. of the trial judgment Affirmed.
COLEMAN, Judge, dissenting. checking roadblock the traffic my opinion,
In deviated significantly up set on Moss Street Martinsville was not con- The roadblock plan. city’s from the specified ducted at location in General pre-approved 3-31, supervisor desig- Order not authorize did concerns, safety nate an alternate site based detection *6 general roadblock established crime not purposes legitimate operator licensing and for and vehicle Moreover, registration checking purposes. the roadblock at criteria; objective Street site on Moss was based rather, an ad hoc basis in on response it was established citizen complaints illegal activity about the area. For these reasons, satisfy I would hold that the did not roadblock requirements reasonableness of the Fourth Amendment. The manner in which the roadblock was established did not remove the officers’ unfettered discretion who stopped. as to could be not, Accordingly, because the roadblock in my opinion, did satisfy Fourth requirements, Amendment of the vehicle in which the a passenger defendant was and the drugs seizure of him from was unlawful. Accordingly, I respectfully dissent the majority opinion. from
I. The site for the roadblock was selected Long, Lieutenant who was the officer in charge of the Criminal Investigations Services Division. Long testified he had received numer- ous complaints, particular, from one citizen in regarding drugs, speeding, people and in the driving Moss area Street without suspended licenses or on licenses. Long testified: time,
[A]t that pretty [Moss was a Street] hot area. We doing reversal, sting reversals, were the vice was ... unit [investigating] drugs and like I said there was a lot of traffic in that area. There complaints were traffic in that area very being heavy and people speeding, people driving license____ around with no driver’s [The roadblock] one of the procedures that I try [quell] chose to some of having we were on trouble Moss Street. Thus, purpose conducting the roadblock at Moss Street deviated the city’s stated purpose General Order 3-31 enforcing driver’s registration license and vehicle laws. 534
Furthermore, no a roadblock is evidence established that can be used legitimate enforcement measure which effective at being reported to detect the crimes were designed or is Sitz, 496 U.S. Moss Street. See State Police Department of (1990). Al- S.Ct. L.Ed.2d concerns” about though Long Lieutenant mentioned “citizen licenses,” he driving or on “people suspended without licenses testified that he authorized the Moss Street complaints drugs, speeders, to citizen about response record congestion traffic. The drug associated with establishing how at a properly contains no evidence officers licensing can checking registration conducted roadblock conges- detect or reduce traffic legitimately drugs, speeders, Moss Long ordered the roadblock be tion. established in order to in the area and police presence Street show conduct, flow, speeding criminal reduce traffic control deter drivers, and admitted identify Long’s unlicensed drivers. ... None “anyone violating any concern was laws.” *7 primary in the reasons city’s plan of articulated purposes these are conducting a for roadblock. and con- balancing test announced Brown v. Texas at the requires reviewing in Sitz that a court look
firmed
being
interest
a check-
public
governmental
addressed
degree to
the seizure
point or roadblock and “the
which
2637,
47, 51,
public
443 U.S.
99 S.Ct.
advances
interest.”
(1979).
2640,
such
checkpoints,
Here, the Commonwealth failed to establish the required nexus between concerns speeding about and drug- related use crimes and the of a its roadblock and effectiveness to combat problems. those a Although roadblock necessarily traffic, will, slows it not a practice is lawfully when executed, effectively objectively and apprehend detect speeders. Similarly, public’s drug concern about traffick- ing at Moss is not Street aby furthered roadblock that state, permits the in the powers, exercise of police its to check licensing for registration violations. Without authori- ty to search the vehicle or its occupants, a roadblock is not an effective measure to combat drug-related crimes.
II. We held previously have that when have adopted roadblock, conducting an officer in the field does not have the plan. deviate from the See Brown Commonwealth, 21, 25, 20 Va.App. S.E.2d (1995). “To [police] allow the *8 anything do short of comply- ing in full with own guidelines inject [their] an would element of discretion into [checkpoint] procedures the and thus under- cut the very [checkpoint] foundation which the seizure is constitutionally justified.” Id. (quoting Commonwealth v. Anderson, (1989)). 406 Mass. 547 N.E.2d 1137-38 Objective guidelines provide safeguards the that ensure the “reasonableness” of objective roadblock seizures. Without “ guidelines, the probable seizures would ‘lack the usual cause or individualized suspicion requirements ordinarily safe- [that] ” at intrusion.’ Id. arbitrary government citizens from
guard reason, this ‘“the 25-26, [safest] at 760. For 454 S.E.2d its own to follow the Commonwealth require course is ” 25-26, at 760. 454 S.E.2d rules.’ Id. at and holds majority ignores Brown Commonwealth in adopted objective guidelines from the the deviation propor- of constitutional was not error General Order 3-31 However, from General in the deviation my opinion, tion. discretion of an 3-31, not done at the though even Order on Moss field, renders the roadblock conducted officer in the loca- The Moss Street constitutionally impermissible. Street Furthermore, in the pre-approved plan. not a site tion was whereby a procedure or provision contained no conditions, safety, could such as traffic given under supervisor, at an alternate location checking authorize traffic Thus, in the the Martinsville plan.1 or a not pre-approved site establishing a guidelines not follow their own police did checking traffic stops making random an officer the field
Preventing
seizing
citizens without
exercising
unfettered discretion
safeguard
is the primary
cause at a roadblock
probable
permitted
can be
government
must be assured before
to a limited
right
privacy,
even
infringe upon the citizen’s
Galberth, 590 A.2d
See
and in limited circumstances.2
degree
vehicle to a
every
of a motor
(“Subjecting
occupant
at
offi-
of law enforcement
at the ‘unbridled discretion
seizure
unconstrained
‘kind of standardless and
cials’
involve[s]
when
had discerned
is the evil
Court
[which]
discretion
official
that the discretion of the
it has insisted
previous cases
”)
circumscribed,
to some extent.’
at least
in the field be
Prouse,
648, 661,
99 S.Ct.
Delaware v.
U.S.
(quoting
(1979)).
safeguards
of the
UPON A PETITION FOR REHEARING EN BANC THE
BEFORE FULL COURT September On appellant, by 1997 came the court-ap- counsel, pointed and filed a petition praying the Court set judgment 9, 1997, aside the September rendered herein on grant rehearing en banc thereof. whereof, On petition consideration for rehearing en banc is granted, the mandate entered herein on September is stayed pending banc, the decision of the Court en and the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35. It is further ordered that the appellant shall file with the clerk of this Court ten additional copies appendix previously filed this case.
489S.E.2d720 PAVLICK, Thomas Matthew Jr. Virginia.
COMMONWEALTHof Record No. 2478-95-1. Appeals Virginia, Court
Norfolk. Sept. 1997. Rehearing En Banc Granted Oct. 1997. appropriate procedures are used to amend the and the amend- ment of the is motivated interest desire group and detain a certain individual or of individuals without probable suspicion. cause reasonable