Tuesday 5th
May, 1998.
Elvin William Sheppard, Appellant,
against Record No. 1335-96-3
Circuit Court Nos. CR95000976 and CR95000977
Commonwealth of Virginia, Appellee.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman,
Willis, Elder, Bray, Annunziata, Overton and Bumgardner
Wayne T. Baucino, Assistant Public Defender
(Vikram Kapil, Assistant Public Defender, on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Richard Cullen, Attorney General, on
brief), for appellee.
A divided panel of this Court affirmed the judgment of the
trial court. See Sheppard v. Commonwealth, 25 Va. App. 527, 489
S.E.2d 714 (1997). We stayed the mandate of that decision and granted
rehearing en banc.
Upon rehearing en banc, the judgment of the trial court is
affirmed without opinion by an evenly divided Court.
The Commonwealth shall recover of the appellant the costs in
this Court, which costs shall also include an additional fee of $200
for services rendered by attorneys of the Public Defender's office on
the rehearing portion of this appeal, in addition to counsel's
necessary direct out-of-pocket expenses.
This order shall be published and certified to the trial
court.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
Tuesday 14th
October, 1997.
Elvin William Sheppard, Appellant,
against Record No. 1335-96-3
Circuit Court Nos. CR95000976 and CR95000977
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On September 22, 1997 came the appellant, by court-appointed
counsel, and filed a petition praying that the Court set aside
the judgment rendered herein on September 9, 1997, and grant a
rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on September 9, 1997 is
stayed pending the decision of the Court en banc, 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 of the appendix
previously filed in this case.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia
ELVIN WILLIAM SHEPPARD
OPINION BY
v. Record No. 1335-96-3 JUDGE JERE M. H. WILLIS, JR.
SEPTEMBER 9, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Charles M. Stone, Judge
Wayne T. Baucino, Assistant Public Defender
(Vikram Kapil, Assistant Public Defender, on
briefs), for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Elvin William Sheppard was a passenger in an automobile that
was stopped by the police at a license checking roadblock. He
was convicted of possession of cocaine and possession of
marijuana discovered by the police upon search of the automobile.
On appeal, he contends that the roadblock was established
unconstitutionally, that the seizures of the automobile and of
his person were therefore unlawful, and that the trial court
erred in refusing to suppress the evidence discovered upon the
search of the automobile. We find no error and affirm the
judgment of the trial court.
Prior to Sheppard's arrest, the Martinsville Police
Department adopted General Order Number 3-31 governing traffic
4
checkpoints "to enforce driver's license and vehicle registration
laws" and to address "all other violations of law coming to the
attention of officers conducting the checking detail." The plan
required that checkpoints should be located at sites set forth on
a list attached to the plan as "Appendix A" and that checkpoints
would be conducted "for no less than [thirty] minutes or for no
more than two hours." The plan set forth rules governing the
number of officers to be present, the officers' attire, emergency
lights and flares to be used, location of emergency vehicles on
the scene, removal of detained vehicles from traffic, and the
number of cars to be stopped.
Charles E. Long testified that at the time of Sheppard's
arrest, he was Lieutenant of Criminal Investigations, Services
Division, of the Martinsville Police Department. He testified
that the police "were receiving numerous complaints about the
Moss Street area involving drugs, speeders, people driving
without driver's license, suspensions . . . ." Lieutenant Long
decided to set up a "roadcheck" on Moss Street and assigned
officers to Moss Street for that purpose. The Moss Street
location was not included in Schedule A of General Order Number
3-31. However, the roadcheck complied with that order in every
other respect. Lieutenant Long did not participate in the
roadcheck personally, but acted only in a supervisory capacity.
Sheppard was a passenger in an automobile that was stopped
at the Moss Street roadcheck. The driver did not have an
5
operator's license and was charged with that offense. He gave
the police permission to search the automobile. The police
discovered cocaine and marijuana, and Sheppard was charged with
possession 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. He argued that because the
establishment of the Moss Street checkpoint deviated from General
Order Number 3-31, the conduct of the checkpoint was an exercise
in unbridled police discretion and was constitutionally
impermissible. The trial court denied the motion, admitted the
evidence, and convicted Sheppard on both counts.
Code § 46.2-103 provides, in pertinent part:
Except as prohibited by § 19.2-59, on his
request or signal, any law-enforcement
officer who is in uniform or displays
his badge or other sign of authority
may:
1. Stop any motor vehicle, trailer, or
semi-trailer to inspect its equipment,
operation, . . . .
Code § 46.2-104 provides, in pertinent part:
The owner or operator of any motor
vehicle, trailer, or semi-trailer shall
stop on the signal of any law-
enforcement officer who is in uniform
or shows his badge or other sign of
authority and shall, on the officer's
request, exhibit his registration card,
driver's license, learner's permit, or
temporary driver's permit . . . .
The statutory right of a law enforcement officer to stop a
6
motor vehicle and the obligation of a motor vehicle operator to
submit to such a stop for a license or registration inspection
are circumscribed by the decision of the United States Supreme
Court in Delaware v. Prouse, 440 U.S. 648 (1979), holding
unconstitutional the random stopping of motor vehicles, other
than upon the basis of probable cause or reasonable suspicion of
criminal conduct. The Court ruled that a person "operating or
traveling in an automobile does not lose all reasonable
expectation of privacy simply because the automobile and its use
are subject to government regulation." Id. at 662. However, the
Court went on to say:
This holding does not preclude the States
from developing methods for stopchecks
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. We
hold only that persons in automobiles
on public roadways may not for that
reason alone have their travel and
privacy interfered with at the
unbridled discretion of police
officers.
Id. at 663.
In Brown v. Texas, 443 U.S. 47 (1979), the United States
Supreme Court set forth a balancing test for determining the
validity of traffic stops not based upon probable cause or
reasonable suspicion of criminal activity. The test involves
three criteria: (1) the gravity of the public concerns served by
the seizure, (2) the degree to which the seizure advances the
7
public interest, and (3) the severity of the interference with
individual liberty. Id. at 50-51. Noting the central
constitutional concern that "an individual's reasonable
expectation of privacy is not subject to arbitrary invasions
solely at the unfettered discretion of officers in the field,"
the Court said, "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." Id. at 51. See Lowe v.
Commonwealth, 230 Va. 346, 350, 337 S.E.2d 273, 275-76 (1985).
Lowe involved an arrest made at a license and sobriety
checkpoint conducted pursuant to Charlottesville's checkpoint
plan. Analyzing the components of the plan under the criteria
set forth in Brown, the Supreme Court held:
Balancing the State's strong interest in
protecting the public from the grave
risk presented by drunk drivers,
against the minimal inconvenience
caused motorists approaching the
roadblock, we hold that the action of
the police in this case was not an
impermissible infringement upon
defendant's reasonable expectation of
privacy. The Charlottesville system is
safe and objective in its operation,
employs neutral criteria, and does not
involve standardless, unbridled
discretion by the police officer in the
field, which was condemned in Prouse.
Lowe, 230 Va. at 352, 337 S.E.2d at 277.
8
In Simmons v. Commonwealth, 238 Va. 200, 380 S.E.2d 656
(1989), the Supreme Court considered a license and registration
checkpoint established and conducted by two state troopers on
their own initiative. The troopers stopped and inspected every
vehicle passing through the checkpoint. Holding the checkpoint
to be constitutionally impermissible, the Supreme Court said:
We do not read Prouse to stand for the
proposition that stopping all traffic
at a roadblock constitutes sufficient
restraint on the exercise of discretion
by police officers to transform the
stop into a constitutionally valid
roadblock. While this approach may
eliminate the constitutional vice
inherent in a random spot check or stop
and therefore be a preferred practice,
. . . the roadblock also must be
undertaken pursuant to an explicit plan
or practice which uses neutral criteria
and limits the discretion of the
officers conducting the roadblock. The
evidence in this case establishes that
the decision to establish the roadblock
as well as its location and duration
was solely within the discretion of the
troopers. No advance approval or
authorization from any supervisor or
superior officer was required to set up
the roadblock.
Id. at 203-04, 380 S.E.2d at 658-59 (footnote omitted).
The seizure of the vehicle in which Sheppard was riding did
not derive from a random stop forbidden by Prouse. The
Martinsville plan satisfied the criteria set forth in Brown,
conformed to the standards approved in Lowe, and satisfied the
requirement of Simmons. The officers conducting the Moss Street
checkpoint complied with the Martinsville plan in every respect.
9
The issue before us is whether the sole deviation from that
plan, the selection by Lieutenant Long of a checkpoint site not
included in Schedule A, was of sufficient significance to render
the checkpoint unreasonable and constitutionally impermissible.
We hold that it did not.
Although Lieutenant Long selected the site, he did not
participate in conducting the checkpoint. He was not an officer
in the field. His involvement was altogether in a supervisory or
administrative capacity. Thus, in no respect, was the
establishment or conduct of the checkpoint left to the unbridled
discretion of field officers.
Nothing in the record suggests that Lieutenant Long's
decision to establish the checkpoint involved, in any way, an
effort to target a specific person or a specific group of people.
His decision was based on citizen complaints of unlawful
activity at the Moss Street location. His decision addressed the
unlawful situation, not any person or group of people. His
purpose was to quell unlawful activity and to control a trouble
spot, employing neutral criteria. The location of the checkpoint
on Moss Street imposed no greater intrusion on the privacy of the
general traveling public than would have been imposed had the
checkpoint been located at a Schedule A site. Thus, we hold that
the mere fact that the Moss Street location was not included in
Schedule A, effected a minor, insubstantial deviation from
compliance with the Martinsville plan, and did not render the
10
checkpoint constitutionally impermissible.
The judgment of the trial court is affirmed.
Affirmed.
11
Coleman, J., dissenting.
In my opinion, the traffic checking roadblock that the
Martinsville police set up on Moss Street significantly deviated
from the city's roadblock plan. The roadblock was not conducted
at a pre-approved location as specified in General Order 3-31,
the plan did not authorize a supervisor to designate an alternate
site based upon public safety concerns, and the roadblock was
established for general crime detection purposes and not for
legitimate operator licensing and vehicle registration checking
purposes. Moreover, the roadblock at the Moss Street site was
not based on objective criteria; rather, it was established on an
ad hoc basis in response to citizen complaints about illegal
activity in the area. For these reasons, I would hold that the
roadblock did not satisfy the reasonableness requirements of the
Fourth Amendment. The manner in which the roadblock was
established did not remove the officers' unfettered discretion as
to who could be stopped. Accordingly, because the roadblock did
not, in my opinion, satisfy Fourth Amendment requirements, the
stop of the vehicle in which the defendant was a passenger and
the seizure of drugs from him was unlawful. Accordingly, I
respectfully dissent from the majority opinion.
I.
The site for the roadblock was selected by Lieutenant Long,
who was the officer in charge of the Criminal Investigations
Services Division. Long testified that he had received numerous
12
complaints, from one citizen in particular, regarding drugs,
speeding, and people driving in the Moss Street area without
licenses or on suspended licenses. Long testified:
[A]t that time, [Moss Street] was a pretty
hot area. We were doing reversal,
sting reversals, the vice unit was . .
. [investigating] drugs and like I said
there was a lot of traffic in that
area. There were complaints of traffic
in that area being very heavy and
people speeding, people driving around
with no driver's license . . . . [The
roadblock] was one of the procedures
that I chose to try to [quell] some of
the trouble we were having on Moss
Street.
Thus, the purpose for conducting the roadblock at Moss Street
deviated from the city's stated purpose in General Order 3-31 of
enforcing driver's license and vehicle registration laws.
Furthermore, no evidence established that a roadblock is an
effective or legitimate enforcement measure which can be used or
is designed to detect the crimes that were being reported at Moss
Street. See Department of State Police v. Sitz, 496 U.S. 444,
454 (1990). Although Lieutenant Long mentioned "citizen
concerns" about "people driving without licenses or on suspended
licenses," he testified that he authorized the Moss Street
roadblock in response to citizen complaints about drugs,
speeders, and traffic congestion associated with the drug
traffic. The record contains no evidence establishing how
officers at a properly conducted roadblock checking licensing and
registration can legitimately detect drugs, speeders, or reduce
13
traffic congestion. Long ordered that the roadblock be
established on Moss Street in order to show a police presence in
the area and to deter criminal conduct, reduce traffic flow,
control speeding drivers, and identify unlicensed drivers.
Long's admitted primary concern was "anyone . . . violating any
laws." None of these purposes are articulated in the city's plan
as reasons for conducting a roadblock.
The balancing test announced in Brown v. Texas and confirmed
in Sitz requires that a reviewing court look at the public or
governmental interest being addressed by a checkpoint or
roadblock and "the degree to which the seizure advances the
public interest." 443 U.S. 47, 51 (1979). Roadblocks or
checkpoints, such as the one here, that are established in whole
or in part for purposes of combatting drug-related crimes,
reducing traffic flow and controlling speeding drivers are not
reasonable measures, in my opinion, to detect these types of
offenses. A roadblock may discourage such conduct in the area by
providing a general police presence that serves as a deterrent;
however, when balanced against the intrusion on individual Fourth
Amendment rights, these purposes do not justify the roadblock.
See United States v. Morales-Zamora, 974 F.2d 149, 151-52 (10th
Cir. 1992) (holding that traffic checking detail was an
impermissible pretextual stop to search for drugs); Taylor v.
United States, 595 A.2d 1007, 1009 (D.C.App. 1991) (finding that
alleviation of traffic congestion is not a purpose shown to be
14
furthered by a roadblock); Galberth v. United States, 590 A.2d
990, 997-98 (D.C.App. 1991) (holding that government's general
deterrence interest does not outweigh seized individual's liberty
interest when primary purpose of roadblock is general law
enforcement); Meeks v. State, 692 S.W.2d 504, 508 (Tex. Crim.
App. 1985) (holding roadblock detention illegal when purpose was
to "enforce all the laws"); cf. United States v. McFayden, 865
F.2d 1306, 1312 (D.C.Cir. 1989) (acknowledging that if a
roadblock's principal purpose is the detection of crimes
unrelated to licensing, it could be a violation of the Fourth
Amendment). But see State v. Damask, 936 S.W.2d 565, 571
(Mo. 1996) (en banc) (holding that state may validly conduct a
checkpoint to apprehend drug traffickers); State v. Everson, 474
N.W.2d 695, 701 (N.D. 1991) (same).
Here, the Commonwealth failed to establish the required
nexus between the public concerns about speeding and drug-related
crimes and the use of a roadblock and its effectiveness to combat
those problems. Although a roadblock necessarily slows traffic,
it is not a practice that will, when lawfully executed,
effectively and objectively detect and apprehend speeders.
Similarly, the public's concern about drug trafficking at Moss
Street is not furthered by a roadblock that permits the state, in
the exercise of its police powers, to check for licensing and
registration violations. Without the authority to search the
vehicle or its occupants, a roadblock is not an effective measure
15
to combat drug-related crimes.
II.
We previously have held that when the police have adopted a
plan for conducting a roadblock, an officer in the field does not
have the discretion to deviate from the plan. See Brown v.
Commonwealth, 20 Va. App. 21, 25, 454 S.E.2d 758, 759 (1995).
"To allow the [police] to do anything short of complying in full
with [their] own guidelines would inject an element of discretion
into the [checkpoint] procedures and thus undercut the very
foundation upon which the [checkpoint] seizure is
constitutionally justified." Id. (quoting Commonwealth v.
Anderson, 547 N.E.2d 1134, 1137-38 (1989)). Objective guidelines
provide the safeguards that ensure the "reasonableness" of
roadblock seizures. Without objective guidelines, the seizures
would "'lack the usual probable cause or individualized suspicion
requirements [that] ordinarily safeguard citizens from arbitrary
government intrusion." Id. at 25-26, 454 S.E.2d at 760. For
this reason, "the [safest] course is to require the Commonwealth
to follow its own rules.'" Id. at 25-26, 454 S.E.2d at 760.
The majority ignores Brown v. Commonwealth and holds that
the deviation from the objective guidelines adopted in General
Order 3-31 was not an error of constitutional proportion.
However, in my opinion, the deviation from General Order 3-31,
even though not done at the discretion of an officer in the
field, renders the roadblock conducted on Moss Street
16
constitutionally impermissible. The Moss Street location was not
a pre-approved site in the plan. Furthermore, the plan contained
no provision or procedure whereby a supervisor, under given
conditions, such as traffic safety, could authorize a traffic
checking roadblock at an alternate location or a site not
pre-approved in the plan. 1 Thus, the Martinsville police did not
follow their own guidelines for establishing a traffic checking
roadblock.
Preventing an officer in the field from making random stops
or exercising unfettered discretion in seizing citizens without
probable cause at a roadblock is the primary safeguard that must
be assured before the government can be permitted to infringe
upon the citizen's right to privacy, even to a limited degree and
in limited circumstances. 2 See Galberth, 590 A.2d at 996
("Subjecting every occupant of a motor vehicle to a seizure at
the 'unbridled discretion of law enforcement officials'
involve[s] the 'kind of standardless and unconstrained discretion
[which] is the evil the Court had discerned when in previous
cases it has insisted that the discretion of the official in the
field be circumscribed, at least to some extent.'") (quoting
1
Although General Order 3-31 grants the police supervisors
discretion to choose an alternate location for DUI/sobriety
checkpoints for safety considerations, it does not give the
supervisors any discretion in site selection for traffic checking
details.
2
The field officer's conduct in such cases would not be
valid simply because the stops were authorized by a supervisor.
17
Delaware v. Prouse, 440 U.S. 648, 661 (1979)). One of the
safeguards that protects the public from law enforcement officers
indiscriminately utilizing a checkpoint or roadblock to target
one or more persons to be stopped without reasonable suspicion or
probable cause or for general law enforcement purposes is the
requirement that the policing authorities delineate a plan
composed of neutral criteria that utilizes objective,
nondiscretionary procedures. See Simmons v. Commonwealth, 238
Va. 200, 203, 380 S.E.2d 656, 659 (1989).
Allowing the Martinsville police to locate a traffic
checking roadblock at an unapproved site on an ad hoc basis in
response to individual complaints or a particular problem
constitutes the very "unfettered discretion" that a plan is
intended to avoid. The protection that will normally be afforded
by a supervisor approving a deviation from a plan, rather than
allowing a field officer to exercise such discretion, is to
assure that the plan continues to be based on objective, neutral
criteria. Here, the supervisor's decision did not protect
against an abuse of discretion in deciding where to locate the
roadblock. Contrary to the majority's assertion, the evidence
proved that a supervisory officer in charge of criminal
investigations, rather than a field officer, exercised his
unfettered discretion to deviate from the plan and to locate the
roadblock on Moss Street in response to a citizen's complaints
regarding drug trafficking, speeding, and individuals driving
18
without licenses. The roadblock that Long authorized on Moss
Street was designed to target individuals observed by one or
several citizens when the officers had no articulable, reasonable
suspicion or probable cause to stop those individuals. The
supervision that Long exercised did not give the assurance that
the location or purpose of the roadblock was based on objective
criteria or that the roadblock furthered a legitimate
governmental interest. I see no meaningful distinction between a
supervisor exercising his unfettered discretion to relocate a
roadblock based, not upon neutral and objective criteria, but
upon complaints targeting certain individuals, and a field
officer doing the same. 3 This type of "standardless and
unconstrained discretion," exercised either by the supervisor or
the field officer, in my view, violates the Fourth Amendment
protections against stopping and detaining private citizens
without probable cause or reasonable suspicion of criminal
activity.
3
I do not suggest that a modification of a locality's plan
to add pre-approved sites based upon citizen complaints is
impermissible as long as appropriate procedures are used to amend
the plan and the amendment of the plan is motivated by the public
interest and not by a desire to stop and detain a certain
individual or group of individuals without probable cause or
reasonable suspicion.
19