COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Baker
Argued at Norfolk, Virginia
ANDRA S. WILSON
OPINION BY
v. Record No. 1166-97-1 JUDGE JOSEPH E. BAKER
JANUARY 26, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
E. Everett Bagnell, Judge
Timothy E. Miller, Public Defender (Patricia A.
Cannon, Senior Assistant Public Defender;
Office of the Public Defender, on brief), for
appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Andra S. Wilson (appellant) appeals from his bench trial
conviction by the Circuit Court of the City of Suffolk (trial
court) for driving while intoxicated in violation of Code
§ 18.2-266. Appellant contends the trial court erred when it
denied his motion to suppress evidence. We agree and reverse the
conviction.
On an appeal from a trial court's ruling on a motion to
suppress
[w]e view the evidence in the light most
favorable to the prevailing party, granting
to it all reasonable inferences fairly
deducible therefrom. We review the trial
court's findings of historical fact only for
"clear error," 1 but we review de novo the
1
"'Clear error' is a term of art derived from Rule 52(a) of
the Federal Rules of Civil Procedure, and applies when reviewing
questions of fact" in the federal system. Ornelas V. United
States, 517 U.S. 690, 694 n.3 (1996). In Virginia, questions of
trial court's application of defined legal
standards to the particular facts of a case.
Harris v. Commonwealth, 27 Va. App. 554, 561, 500 S.E.2d 257, 260
(1998).
So viewed, the evidence proved that on December 8, 1996,
Officer Sayas was instructed by his lieutenant to establish a
"security" checkpoint at the Hoffler Apartment Complex (Hoffler),
which was owned by the Suffolk Public Housing Authority (the
Authority). The Authority requested police assistance in
response to resident complaints about trespassers and drug
dealers on the premises. Sayas testified that he had patrolled
Hoffler previously but that this was the first time he conducted
a checkpoint there.
Sayas and another officer established the checkpoint just
inside the entrance to Hoffler. They were told to stop all
persons, whether traveling in a vehicle or on foot, entering the
complex between midnight and 2:00 a.m. The officers were to
ascertain the identity of each person entering the complex and
that person's purpose for being there. Appellant, who was
driving an automobile, was stopped at the checkpoint at
approximately 1:35 a.m. Sayas arrested appellant after
determining that appellant was intoxicated. Appellant stipulated
at trial that the evidence was sufficient to convict him of
fact are binding on appeal unless "plainly wrong." Quantum Dev.
Co. v. Luckett, 242 Va. 159, 161, 409 S.E.2d 121, 122 (1991);
Naulty v. Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542
(1986).
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driving while intoxicated.
"[S]topping a motor vehicle and detaining its operator at a
roadblock [or checkpoint] constitutes a 'seizure' within the
meaning of the Fourth Amendment." Crandol v. City of Newport
News, 238 Va. 697, 700, 386 S.E.2d 113, 114 (1989). If the stop
is made without probable cause or reasonable suspicion of
criminal activity, then "the seizure must be carried out pursuant
to a plan embodying explicit, neutral limitations on the conduct
of individual officers." Brown v. Texas, 443 U.S. 47, 51 (1979).
To determine whether a checkpoint stop is constitutionally
valid, we apply the balancing test established in Brown. See
Lowe v. Commonwealth, 230 Va. 346, 350, 337 S.E.2d 273, 276
(1985). The Brown test involves a weighing of three criteria:
"(1) the gravity of the public concerns served by the seizure,
(2) the degree to which the seizure advances the public interest,
and (3) the severity of the interference with individual
liberty." Id. "[A] 'central concern' in balancing the foregoing
competing considerations has been to make certain that 'an
individual's reasonable expectation of privacy is not subject to
arbitrary invasions solely at the unfettered discretion of
officers in the field.'" Id. (quoting Brown, 443 U.S. at 51).
Applying this test, the Supreme Court of Virginia in Lowe
upheld the constitutionality of a Charlottesville roadblock
designed to combat drunk driving. See id. at 352-53, 337 S.E.2d
at 277. The Court noted that the police had "analyzed the
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locations within the city where there had been drunk-driving
arrests and alcohol-related accidents in order to determine the
places where the checkpoints should be established." Id. at 351,
337 S.E.2d at 276 (emphasis added). In Sheppard v. Commonwealth,
25 Va. App. 527, 489 S.E.2d 714 (1997), aff'd on reh'g en banc,
27 Va. App. 319, 498 S.E.2d 464 (1998), 2 the officer who selected
the roadcheck site testified that the police were actively
engaged fighting drug trafficking in the area where the roadblock
was established. See id. at 533, 489 S.E.2d at 717-18 (Coleman,
J., dissenting).
The United States Supreme Court has stated that the second
prong of the Brown test
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). Nevertheless, the Commonwealth must present some
evidence establishing that the method employed will be an
effective tool for addressing the public concern involved. See
Galberth v. United States, 590 A.2d 990, 999 (D.C. App. 1991)
2
The conviction was affirmed without opinion by an evenly
divided court.
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(holding that the challenged roadblock was unconstitutional, in
part, because "there [was] no empirical evidence that the
roadblock technique itself effectively promoted the government's
interest in deterring drug crimes"); Nieto v. State, 857 S.W.2d
149, 152-53 (Tex. App. 1993) (finding that a checkpoint at a
subdivision entrance was unconstitutional where there was no
evidence that targeted persons would be entering the
subdivision); Shankle v. Texas City, 885 F. Supp. 996, 1002 (S.D.
Tex. 1995) ("Prior to implementing such intrusive methods of law
enforcement, [authorities] should attempt to gather some
empirical evidence that such methods will, in fact, be
effective."). Cf. Maxwell v. City of New York, 102 F.3d 664, 667
(2d Cir. 1996) (noting that "checkpoints similar to the one here
had been effectively used in the past by the New York City
Police"), cert. denied, 118 S. Ct. 57 (1997); State v. Damask,
936 S.W.2d 565, 573 (Mo. 1996) (en banc) (finding that the
checkpoint satisfied the second prong of Brown where it was
modeled after a successful checkpoint employed in another
jurisdiction, and where the highway on which the checkpoint was
established was "known as a popular route for the transport of
narcotics").
Assuming that combatting drug dealing satisfies the "gravity
of the public concerns served" prong of the Brown balancing test,
the Commonwealth presented insufficient evidence proving that the
security checkpoint at Hoffler effectively addressed this
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concern. The only evidence presented regarding the circumstances
leading to the checkpoint's establishment was that Hoffler
residents had complained to the Authority about trespassers and
drug dealers on the property. The Commonwealth, however,
presented no empirical evidence that there was a problem with
drug dealers at Hoffler. Cf. Lowe, 230 Va. at 351, 337 S.E.2d at
276. There was no evidence that any drug-related arrests were
made as a result of the checkpoint that night. Cf. Sitz, 496
U.S. at 454-55 (noting the number of drunk drivers arrested as a
result of the challenged roadblock). Although Sayas testified
that he had previously patrolled at Hoffler, there was no
evidence that he had ever made any arrests there for drug
dealing. There was also no evidence that security checkpoints
like this one are an effective tool in combatting drug dealing.
In the absence of sufficient evidence to satisfy the second
prong of the Brown test, we hold that the interference with
individual liberty inherent in this checkpoint outweighed the
3
public interest in establishing it. Accordingly, the judgment
of the trial court is reversed and the case is remanded for
retrial, if the Commonwealth be so advised.
Reversed and remanded.
3
Because appellant's detention at the checkpoint was
unlawful, the trial court should have suppressed all evidence
seized as a result of the stop. See Simmons v. Commonwealth, 238
Va. 200, 204, 380 S.E.2d 656, 659 (1989).
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