*1 Gаry Lee Simmons Virginia Commonwealth Record No. 880954 9, 1989 June Present: the Justices All *2 Linda L. Johnson (Binford, Johnson & Cloninger, on for brief), appellant.
Marla Lynn Graff, Assistant Attorney General (Mary Sue Terry, General, Attorney on brief), for appellee.
Justice Lacy delivered the opinion of the Court.
In this appeal, examine the constitutionality established for the purpose checking the and the re- equipment gistration of motor vehicles.
At 8:00 p.m. July two set Virginia State Troopers up checking detail roadblock at the intersection of Route 601 and Route 776 in Dinwiddie County. The all ve- troopers stopped hicles entering drivers’ and checkpoint inspected licenses equipment. Simmons,
Gary afternoon, Lee who had fishing been that officers, at the stopped checkpoint Trooper at 8:55 One of the p.m. Crowder, red,” observed and that Simmons’ “were eyes very Simmons had a strong odor of his When asked alcohol on person. whether he had been that he had drinking, Simmons admitted consumed five beers. Requesting that Simmons over pull step vehicle, dexterity administered two out of his Crowder Trooper tests, then arrested Sim- which failed. Crowder Trooper Simmons Simmons elected the influence of alcohol. mons under driving content was .11 to have his his blood alcohol breath analyzed; percent. trial, Crowder as its only
At
the Commonwealth called Trooper
two
had
troopers
witness.
tеstified that
Trooper Crowder
vehicles,
during the
coming through
checkpoint
all the
stopped
explained
hour
Simmons.
Crowder
prior
Trooper
two
without any prior
established the
troopers
checkpoint
had
existing
direction from their
and without an
plan.
superiors
had total discre-
troopers
Crowder also testified that the
Trooper
they
tion
where
when
would set
the roadblock.
the two troop
Because no
had instructed
supervisor specifically
ers to
Simmons
that his
establish the checkpoint,
criteria es
did not
with the roadblock
checking
detail
comply
Commonwealth,
Va.
S.E.2d
tablished in Lowe
*3
denied,
273,
475
the
thаt the
(1986).
premise
cert.
U.S. 1084
On
test re
was
Simmons
that his breath
impermissible,
sults were
Simmons’ motion to
Overruling
suppress
inadmissible.
be
the evidence
from the
the trial court held that
stop,
obtained
checked,”
did
cause “all traffic
the seizure
not
was stopped
violate
On
the Court
rights.
Simmons’ Fourth Amendment
appeal,
v.
of
Simmons
affirmed the decision of the trial court.
Appeals
457,
7,
Commonwealth,
445,
(1988).
6 Va.
371 S.E.2d
14
App.
at
detaining
occupants
an automobile and
Stopping
of the
roadblock constitutes a seizure under the fourth amendment
Prouse,
v.
440 U.S.
United States
Delaware
Constitution.
Martinez-Fuerte,
556
(1979);
653
States
United
v.
of a
constitutionality
(1976). This Court
recently addressеd
at a road
drunk
conviction based on evidence obtained
driving
Commonwealth,
re
v.
we
the analysis
block. In Lowe
undertook
constitu
to
quired
determine whether a specific roadblock
tional
to the
under the
Amendments
Fourth
Fourteenth
I,
of
United States
and art.
of the Constitution
,10
Constitution
§
Texas, 443
Delaware v. Prouse and Brown
Virginia. Citing
is
legitimacy
U.S. 47
that the
indicated
establishing
determined
interests in
by weighing the state’s
See
against
privacy.
intrusions on
potential
personal
349-50,
constitu
Lowe,
avoid
230
at
S.E.2d at 277. To
Va.
tionally
impermissible infringements
privacy,
must be
ex-
carried out
which is
plan
practice
criteria,
plicit, contains neutral
and limits the conduct of the of-
undertaking
ficers
the roadblock.
serves to insure that
plan
Such
one’s
expectation
subject
arbitrary
“reasonable
is not
privacy
invasions
at
of officers in the
solely
unfettered discretion
Brown,
field.”
nating drunken drivers
Virginia’s
from
U.S. at 658-59. Turning the second of the prong analysis, this record is devoid of practically any evidence which reflects the exis tence of safeguards against an unreasonable intrusion upon per sonal privacy resulting from the roadblock. The evidence is Trooper Crowder’s statement that normal is to procedure “[o]ur all vehicles.”
The Commоnwealth argues that this es- evidence sufficient to tablish that Simmons’ seizure at the roadblock was reasonable. The constitutional requirements for are in this roadblocks met case, the asserts, Commonwealth because the troopers stopped and, therefore, every car avoided random selection or *4 of cars. that, The Commonwealth maintains with having complied a “possible alternative” set forth the were not troopers acting Furthermore, with “unbridled discretion.” the Common- wealth, recognizing that Lowe requires embodying “practice criteria,” neutral asserts that there cannot be a more “simply ‘nеutral’ criterion for conducting than checkpoint requirement that all vehicles will be stopped.”
We do not read Prouse to stand the proposition stopping all traffic at a roadblock restraint on constitutes sufficient the exercise of discretion officers to transform the by police stop intо a constitutionally valid may roadblock. While this approach check vice inherent a random eliminate the constitutional as we indicated in or and therefore be a stop preferred practice, here, Lowe, Brown, reaffirm the road Prouse and and applying an or explicit plan block also must be undertaken of the and limits the discretion which uses neutral criteria practice es The evidence in this case officers the roadblock.* conducting its establish the roadblock as well as tablishes that the decision to the discretion of the troop location and duration was within solely from оr any supervisor ers. No or authorization approval advance the A statement officer was set superior required in stop followed standard troopers operating procedure or explicit plan car is not to establish that an ping every sufficient practice procedures. existеd roadblock or check point Amendment, Commonwealth has the
Under the Fourth burden of of a warrantless search legitimacy proving v. New 403 U.S. 454-55 Coolidge Hampshire, seizure. Louisiana, the basis (1971); (1970). Vale v. On record, has not met its of this we hold that the Commonwealth an using objec burden. Without evidence that the were troopers tive, nondiscretionary hold that initial procedure, Because Simmons’ automobile violated the Fourth Amendment. unreasonable, the trial court the initial detention of Simmons was as a should have all of the evidence seized result suppressed af of the Court stop. Accordingly, judgment Appeals will be firming prosecution trial court will be reversed and dismissed. and dismissed.
Reversed Thomas, joins, dissenting. Justice Whiting with whom Justice case, least two In this aided Virginia Troopers two State for licenses checking State Park Police officers detail set up Din highways of two state registrations** at the intersection in the daylight widdie The was established County. road to warn hours of in the 1986. were set out July Flags * establishing without Emergencies exigent may justify circumstances higher prior authority. from a authorization ** 46.1-8, peace officers uniformed Code 46.1-7 and then authorized §§ licenses, safety regulations. compliance registrations, vehicles to check
205
motorists of the
All
setting
cars were
stopped.
cars,
all
stopping
were follow-
Troopers
ing what were described as “normal
these
procedures.” Despite
facts, the majority concludes that
Sim-
roadblock violated
rights.
mons’
I disagree.
constitutional
The majority rests its decision
Lowe v.
largely
Common
upon
cert,
wealth,
denied,
230 Vа.
337 S.E.2d
In Delaware Justice White, writing for majority of seven of the justices stated explic- itly that of all “[questioning oncoming traffic at roadblock-type stops” one alternative possible method of checking auto- — mobiles for violations and safety drivers for license violations rather than conducting random of individual drivers — because roadblock-type checks involved “less intrusion” and did not involve “the unconstrained exercise of discretion” by po- Further, lice officers. Justice Blackmun a concurring wrote opin- ion in which Justice joined. Powell agreed that roadblock- They but, were type stops constitutionally further permissible they went to state that they would not even that all require cars stopped. They espoused view that “other not random purely stops,” car, such as 10th stopping every satisfy would the Constitution. J., Id. (Blackmun, concurring).
Inexplicably, it, majority this Court states that does not believe what the said. Supreme Court The dis- misses the foregoing quoted language do stating simply “[w]e not read Prouse to stand for the all traf- proposition fic at a roadblock constitutes sufficient restraint on the exercise of discretion by police officers transform the into a constitu- at__I tionally valid roadblock.” Ante the Su- do not see how preme Court’s language could be read other any way.
An
analysis of
illustrates
all cars at a
why stopping
roadblock satisfies the
Court’s concerns
limita-
Supreme
tions on
police
intrusive
conduct and restraints on
discre-
police
de-
officer on routine patrol
a Prouse involved
tion.
reason,
cided,
one car to check
to for no The State
Delaware
registration.
driver’s license and
of its
ensuring
the safety
of the state’s interest
that because
*6
de-
on
officers in
be no constraints
police
there should
roadways,
Jus-
argument,
car. In
that
ciding
rеjecting
stop any
to
was made the po-
out that when the stop
tice White first pointed
standards, guideline's,
to
acting
any
officer
not
lice
“was
checks,
by
promulgated
or
to document
procedures pertaining
General.” 440 U.S. at
Attorney
either his
or the State
department
in accor-
Here,
acting
said he was
650.
who testified
Trooper
procedures.
dance with “normal” department
of
Court
even in the absence
agreed,
the Supreme
issue,
en-
have a vital interest in
evidence on the
that “the States
operate
are
suring
permitted
that
those
to do so
qualified
vehicles,
for safe operation,
motor
that these vehicles are fit
inspection require-
hence that
and vehicle
licensing, registration,
But,
even a brief
Id. at 658.
because
ments are
observed.”
being
seizure,
further that the
Prouse said
for a limited
is a
stop
purpose
between the “in-
balancing
a
on a
test
of
turns
permissibility
legitimate govern-
of
trusion” оn the one hand and the “promotion
Then, based on United
Id. at 654.
mental interests” on the other.
Martinez-Fuerte,
Prouse stated
v.
of involved when a authority” police “ But, contrast, checkpoints over. it said that traffic ‘[a]t see he can are being stopped, motorist can see that other vehicles less likely and he is much signs visible of the officers’ authority, ” at 657 the intrusion.’ frightened or annoyed Thus, Ortiz, (1975)). 894-95 (United States U.S. roadblock-type proposition, Prouse made that as basic clear stops. checks are less intrusive than individual dis- of the unconstrained the dimensions Prouse also made clear con- Court gave which cretion on the of a officer part cern. The here the concern suggests should be with roadblock, roadblock, who ordered the site picked Prouse, however, who decided the time of the makes discretion, clear that unbridled discussing the Court did not fo- any cus on of the foregoing factors. Here is what the Supreme Court said on the point:
When
there
not
cause
probable
to believe that a driver is
violating any one of the
multitude
traffic and
applicable
—
equipment rеgulations
or other articulable basis amount-
ing
reasonable
suspicion
the driver is unlicensed or his
—
unregistered
vehicle
we cannot conceive of any legitimate
basis
which a
upon
patrolman could decide that
particular driver for a spot check would be more productive
than stopрing
other
This
any
driver.
kind
standardless
and unconstrained discretion is the evil the Court has dis-
cerned when in
cases it has
previous
insisted that the discre-
*7
circumscribed,
tion
in the
at least to
official
field
some extent.
The discussion in Prouse concerning intrusion and discre- tion suggests tо me that the Court was serious it when wrote that “ holding does not preclude the State of Delaware or other [t]his States from methods developing that involve less intrusion or do not involve the unconstrained of dis- exercise cretion. Questioning all at oncoming roadblock-type traffic stops one possible added). alternative.” Id. 663 (emphasis What happened the instant is in full with appeal compliance what the Prouse; Supreme Court said I would not require more. Texas,
Nor is my view altered Brown v. 47 (1979), U.S. a case cited in Lowe and was not a present Brown majority. case; roadblock it did not even Brown con- involve car. stopping cerned a man who was in an and was asked walking alley factually inapposite. Brown is himself. by police identify I would follow Prouse. is on point; Lowe, this But in view, correctly decided. Lowe my under review passed
Court said Today say, the Federal Constitution. muster under in Lowe are present which were present that unless the factors roadblock, will violate those roadblocks regard every though conclusion even We reach this Federal Constitution. in which said that a roadblock Court has United States Supreme check does not and registration for a license stopped all cars are the Court throws Constitution. this By оpinion, violate the Federal simul- checks and disarray concerning roadblock-type into the law henceforth every creates the taneously possibility motivation it will be to determine ordered challenged view, decided correctly Court of Appeals for its use. In my Court has what the of this this case. I think further that Therefore, I dissent. done is and unwise. unnecessary