COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Overton
Argued by teleconference
ELROY LEE TRENT
OPINION BY
v. Record No. 0425-00-3 JUDGE LARRY G. ELDER
APRIL 10, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
David P. Baugh for appellant.
(Mark L. Earley, Attorney General; Thomas M.
McKenna, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
Elroy Lee Trent (appellant) appeals from his bench trial
conviction for possession of cocaine, in violation of Code
§ 18.2-250. On appeal, he contends the trial court erroneously
denied his motion to suppress because the drug roadblock at
which he was apprehended was either unconstitutional per se or
unconstitutional as conducted. We hold the roadblock was
unconstitutional per se, and we reverse and dismiss appellant's
conviction.
At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving the challenged action did
not violate the defendant's constitutional rights. See Simmons
v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989).
On appeal, we view the evidence in the light most favorable to
the prevailing party, here the Commonwealth, granting to its
evidence all reasonable inferences fairly deducible therefrom.
See Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407
S.E.2d 47, 48 (1991). "[W]e are bound by the trial court's
findings of historical fact unless 'plainly wrong' or without
evidence to support them," McGee v. Commonwealth, 25 Va. App.
193, 198, 487 S.E.2d 259, 261 (1997) (en banc), but we review de
novo the trial court's application of defined legal standards to
the particular facts of the case, Ornelas v. United States, 517
U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996).
In City of Indianapolis v. Edmond, 121 S. Ct. 447, 148
L. Ed. 2d 333 (2000), the United States Supreme Court held that
a "checkpoint program" with "the primary purpose of interdicting
illegal narcotics . . . contravenes the Fourth Amendment." Id.
at 453-54. The Court reasoned as follows:
We decline to suspend the usual requirement
of individualized suspicion where the police
seek to employ a checkpoint primarily for
the ordinary enterprise of investigating
crimes. We cannot sanction stops justified
only by the generalized and ever-present
possibility that interrogation and
inspection may reveal that any given
motorist has committed some crime.
Of course, there are circumstances that
may justify a law enforcement checkpoint
where the primary purpose would otherwise,
but for some emergency, relate to ordinary
crime control [such as] . . . an
appropriately tailored roadblock set up to
thwart an imminent terrorist attack or to
catch a dangerous criminal who is likely to
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flee by a particular route. . . . While we
do not limit the purposes that may justify a
checkpoint program to any rigid set of
categories, we decline to approve a program
whose primary purpose is ultimately
indistinguishable from the general interest
in crime control.
Id. at 455; see also id. at 457 n.2 (noting that "[the Court]
express[es] no view on the question whether police may expand
the scope of a license or sobriety checkpoint seizure in order
to detect the presence of drugs in a stopped car").
Here, appellant was stopped at a checkpoint established for
the primary purpose of interdicting illegal drugs. The written
policy pursuant to which the checkpoint was conducted authorized
"the deliberate, temporary stopping of vehicular traffic . . .
for the purpose of selective drug checks for violations of state
code and city ordinance." Although officers were told in a
pre-checkpoint briefing to ask each driver for his license, they
also were told to target drug violations. The officer in charge
of the checkpoint agreed that asking for an operator's driver's
license was "just a tactic to have the conversation" about
drugs. Thus, the checkpoint at which appellant was stopped was
unconstitutional per se under Edmond because it had as its
primary purpose "the ordinary enterprise of investigating
crimes." Id. at 455.
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For these reasons, we hold that the stop of appellant which
yielded the drugs violated his Fourth Amendment rights.
Therefore, we reverse and dismiss appellant's conviction.
Reversed and dismissed.
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