COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Agee
Argued at Salem, Virginia
TIMOTHY WAYNE PALMER
OPINION BY
v. Record No. 1416-00-3 JUDGE G. STEVEN AGEE
JULY 10, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PATRICK COUNTY
Martin F. Clark, Jr., Judge
Vikram Kapil, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Timothy Wayne Palmer (the appellant) was convicted in the
Patrick County Circuit Court of forging a public document in
violation of Code § 18.2-168. He was sentenced to serve a term of
ten days incarceration. On appeal, the appellant contends the
trial court erred in finding the traffic checkpoint at which he
was stopped constitutional and permitting the evidence obtained
in the stop to be admitted at trial. For the following reasons,
we affirm the decision of the trial court.
BACKGROUND
The checkpoint at which the appellant was stopped was
established pursuant to a Virginia State Police statewide policy
entitled Memorandum #20, a "guideline that is used by all
members of the Virginia State Police." The checkpoint was
established by Troopers Bowling and Meade on May 29, 1999, from
6:00 p.m. to 6:30 p.m., on Goose Point Road, an access road to
Fairystone State Park in Patrick County. The purpose of the
checkpoint was to stop "each and every vehicle that came through
the site, checking for any violations on the vehicles, such as
driver's license, equipment, [or] inspection."
Trooper Meade's superior directed him to conduct a traffic
checking detail during the week of May 29, 1999. On that date,
Trooper Meade requested "permission from the First Sergeant" to
set up the traffic checkpoint at a site the trooper selected
from an existing list of state police pre-approved sites. Under
Memorandum #20, the requesting field officer must contact a
supervising officer, provide the "site number," and indicate how
many and which officers will participate, the time frame of the
checkpoint and obtain permission to establish it. The decision
then rests with the First Sergeant whether to approve or
disapprove the checkpoint at that particular site and time.
The First Sergeant gave approval to Trooper Meade's request
to conduct the traffic checking detail at the Goose Point site.
The appellant pulled up to the established checkpoint shortly
after it was established. He provided Trooper Bowling with the
name "Danny Lee Palmer" or "Daniel Lee Palmer," the birth date
of December 11, 1964 or 1968, and claimed he had a valid
driver's license but did not have it with him in the car.
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Trooper Bowling issued a summons to the appellant to appear in
court on June 22, 1999, for failing to have an operator's
license. The appellant signed the summons as "Danny Lee
Palmer."
On June 22, 1999, the appellant failed to appear in court,
and the case was continued until July 30, 1999. Trooper Bowling
called "Danny" and informed him of the continuance and explained
that all the appellant had to do was "show his driver's license
to the clerk." On July 30, 1999, the appellant failed to
appear, but an individual named "Daniel Palmer" was present.
Trooper Bowling then went to Palmer Trucking where the appellant
had informed him he worked. There, Trooper Bowling discovered
that the person whom he had stopped on May 29, 1999, and who
signed the summons as "Danny Lee Palmer," was actually Timothy
Wayne Palmer.
Trooper Bowling then went before the Patrick County General
District Court, on September 6, 1999, requesting that an arrest
warrant be issued against the appellant for the forging of a
public record, i.e., the traffic summons. The appellant was
subsequently indicted by a grand jury in Patrick County in
December 1999. Prior to his trial, the appellant filed a motion
to suppress, requesting that any and all evidence resulting from
the stop be suppressed because the checkpoint at which he was
stopped was unconstitutional. After hearing the evidence and
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counsel's arguments, the trial court denied the appellant's
motion, stating:
[The trooper] did have pre-approved sites,
which [the trooper] did utilize . . . . [He
did] not [have] complete discretion . . . .
[H]e doesn't have the absolute choice. He
doesn't have unfettered discretion, because
first of all, he has got a narrow list, and
then if his supervising officer says, "You
can't do it there." He does have to get
- he has to have a pre-approved site and
then a post-approval site, after his check.
So there are two safeguards in place there
and written guidelines . . . . I think it
was constitutionally assembled; that it was
in compliance with the guidelines as stated
in Virginia . . . . I am not going to
suppress the evidence.
The trial court subsequently found appellant guilty of forging a
public document in violation of Code § 18.2-168.
ANALYSIS
"In reviewing a trial court's denial of a motion to
suppress, 'the burden is upon [the defendant] to show that the
ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (citation omitted). While we are bound to review de
novo the ultimate questions of reasonable suspicion and probable
cause, we "review findings of historical fact only for clear
error 1 and . . . give due weight to inferences drawn from those
1
"In Virginia, questions of fact are binding on appeal
unless 'plainly wrong.'" McGee, 25 Va. App. at 198 n.1, 487
S.E.2d at 261 n.1 (citations omitted).
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facts by resident judges and local law enforcement officers."
Ornelas v. United States, 517 U.S. 690, 699 (1996) (footnote
added).
The appellant contends the Patrick County checkpoint was
constitutionally deficient under the Fourth Amendment based on
the general precedent of seminal cases regarding roadblocks.
Appellant cites the United States Supreme Court's decision in
Brown v. Texas, 443 U.S. 47 (1979), and the Supreme Court of
Virginia's decision in Lowe v. Commonwealth, 230 Va. 346, 337
S.E.2d 273 (1985), cert. denied, 475 U.S. 1084 (1986). He does
not contest the trooper's actual conduct of the checkpoint, but
only the decision to implement it. Specifically, the appellant
argues that the establishment of the checkpoint was
unconstitutional under our decision in Hall v. Commonwealth, 12
Va. App. 972, 406 S.E.2d 674 (1991). His rationale is that (1)
the field officers (Troopers Meade and Bowling) failed to give
their supervisor an independent, site specific law enforcement
reason for conducting the checkpoint and (2) the supervisor's
(the First Sergeant's) approval of the checkpoint request was
"rubber stamping" or "remote control supervision," thereby
rendering his supervisory approval illusory. We disagree and
find the procedure used in this case by the state police to be
constitutionally valid and supported by our decision in Crouch
v. Commonwealth, 26 Va. App. 214, 494 S.E.2d 144 (1997).
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It is indisputable that the stopping of a motor vehicle
during a traffic checking detail constitutes a seizure within
the meaning of the Fourth Amendment. See Lowe, 230 Va. at 349,
337 S.E.2d at 275. The stop must, therefore, be reasonable so
as to minimize intrusion into an individual's privacy. As such,
the United States Supreme Court has held that "the Fourth
Amendment requires that a seizure must be based on specific,
objective facts indicating that society's legitimate interests
require the seizure of the particular individual, or that the
seizure must be carried out pursuant to a plan embodying
explicit, neutral limitations on the conduct of individual
officers." Brown, 443 U.S. at 51. Law enforcement officers may
not stop motorists in a wholly random and discretionary manner.
However, the United States Supreme Court has stated in dicta, in
Delaware v. Prouse, 440 U.S. 648 (1979), that a state is not
precluded
from developing methods for spot checks that
involve less intrusion or that do not
involve the unconstrained exercise of
discretion. Questioning of all oncoming
traffic at roadblock-type stops is one
possible alternative.
Id. at 663. When the field officers' discretion is limited and
the checkpoint is established pursuant to an explicit plan, a
checkpoint to ensure and improve traffic safety is lawful. See
Indianapolis v. Edmond, 531 U.S. 32 (2000).
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"The validity of a checkpoint depends upon the amount of
discretion remaining with the field officers operating the
roadblock. Clearly, roadblocks are constitutional when
conducted according to explicitly neutral plans which completely
eliminate the discretion of the operating officers." Crouch, 26
Va. App. at 218, 494 S.E.2d at 146. In Crouch, we upheld the
constitutionality of a checkpoint where it was established in
response to an assignment given to a state trooper to conduct a
traffic checking detail at a specific location in Fauquier
County some time during the work week. The trooper selected the
day and time, and the trooper received "verbal permission" to
proceed.
The Commonwealth argues that [the officer's]
limited authority to determine the specific
time of the roadblock during the designated
work week does not constitute unbridled
discretion. We agree. The need to evaluate
weather conditions and determine the
availability of other officers provides a
reasonable basis for this procedure. [The
officer] complied with the restrictions,
which limited any potential abuse. His
supervisor determined the site of the
roadblock in advance.
Id. at 219-20, 494 S.E.2d at 146-47.
The primary distinction between Crouch and the case at bar
is that Trooper Meade chose the site of the checkpoint from the
list of pre-approved sites, as opposed to being directed to a
specific site by his supervisor. This distinction does not
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invalidate the checkpoint, because it does not create "unbridled
discretion" in the field officer.
In Hall, 12 Va. App. at 975-76, 406 S.E.2d at 676, we found
a checkpoint unconstitutional where the field officer alone
chose the time and which of fifty-four pre-approved locations in
a rural county at which to conduct a checkpoint. Our holding
was based on the fact that the checkpoint was established
without seeking and obtaining prior approval from a supervisor.
The procedure in place at the time required the field officer to
submit a post-checkpoint report "[u]pon completing the 'detail'
. . . giving the place, time and duration of the 'checking
detail,' the number of vehicles stopped, the number of warnings
or summonses issued, and the number of arrests made and the
reasons therefor." Id. at 974, 406 S.E.2d at 676. A supervisor
then approved the post-checkpoint form. See id. We
acknowledged that a "field officer may have a better idea which
of the [several pre-approved locations] might be the best to set
up the road checks and when they should be activated." Id. at
975, 406 S.E.2d at 676. However, because the plan required no
prior approval, we held "that the plan unnecessarily left the
individual trooper with such broad discretion that it was
subject to abuse" and, thus, exceeded "the limitations permitted
by law." Id. We further stated that if the trooper had
communicated his plan to a supervisor "with the supervisor
making the ultimate selection of the site and time[, t]his
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procedure would ensure that officers would not have the
unbridled authority to activate a particular check point to stop
a particular individual." Id. at 975-76, 406 S.E.2d at 676.
By seeking pre-checkpoint approval from his First Sergeant
as to the time and location, "the ultimate selection of the site
and time" was determined by Trooper Meade's supervisor, not
Trooper Meade. Coupled with the restriction of possible
checkpoint sites to those only on the pre-approved list, the
establishment of the checkpoint under "explicit neutral
limitations on the conduct of individual officers" is achieved.
Under these circumstances, the checkpoint was validly
implemented. Cf. Simmons v. Commonwealth, 238 Va. 200, 380
S.E.2d 656 (1989); Lowe, 230 Va. 346, 337 S.E.2d 273. See also,
LaFontaine v. State, 497 S.E.2d 367 (Ga. 1998) (where the
determination as to the location of the roadblock was made by
the field officers, but the decision to implement was made by a
supervisor, the roadblock was constitutionally permissible as
the field officers' discretion was minimal).
We find no merit to appellant's argument that the
Commonwealth must demonstrate to the court independent site and
time specific law enforcement reasons why this particular
traffic checkpoint was established. There is no authority for
this argument, and we have never required such a showing where
the neutral criteria and limitation of discretion factors are
reflected. See e.g., Crouch, 26 Va. App. at 217, 494 S.E.2d at
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145 (nothing disclosed as to why the checkpoint was
established). The United States Supreme Court has stated that
the judiciary's review role in Fourth Amendment cases involving
checkpoints was "not meant to transfer from politically
accountable officials to the courts the decision as to which
among reasonable alternative law enforcement techniques should
be employed to deal with a serious public danger. . . . [F]or
purposes of Fourth Amendment analysis, the choice among such
reasonable alternatives remains with the governmental officials
who have a unique understanding of, and responsibility for,
limited public resources, including a finite number of police
officers." Michigan Dept. of State Police v. Sitz, 496 U.S.
444, 453-54 (1990). Absent strong evidence of abuse or other
similar good cause, which is absent in this record, we will not
venture into law enforcement choices which properly reside with
the law enforcement officers and their politically accountable
superiors in the executive branch of government.
The constitutionality of a checkpoint hinges on the
evaluation of the field officer's discretion in establishing the
checkpoint and whether or not the execution of the checkpoint
"involves standardless, unbridled discretion by the police
officer in the field." Lowe, 230 Va. at 352, 337 S.E.2d at 277.
If the field officers' discretion is limited, and the field
officers employ neutral criteria in stopping vehicles, the
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checkpoint is constitutionally permissible, and we so hold in
this case.
In Sitz, the United States Supreme Court upheld the use of
a sobriety checkpoint procedure, and in the process rejected the
respondents' argument "that there must be a showing of some
special governmental need 'beyond the normal need' for criminal
law enforcement . . . .'" 496 U.S. at 450. As previously
stated, checkpoints to ensure and improve traffic safety are
lawful, and by making a selection from the pre-approved site
list, the state police checkpoint at which the appellant was
stopped was already designated as a site where the objective of
traffic safety could be fostered.
Accordingly, the trial court did not err in finding the
checkpoint constitutionally permissible and the evidence
gathered admissible. The appellant's conviction is affirmed.
Affirmed.
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