COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judge Elder and
Senior Judge Duff
Argued at Alexandria, Virginia
BEVERLY ENGLISH CROUCH
OPINION BY
v. Record No. 1917-96-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 23, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
H. Selwyn Smith, Judge Designate
Roger A. Inger (Massie, Inger & Iden, P.C.,
on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Beverly English Crouch (appellant) was convicted in a bench
trial of driving while under the influence of alcohol in
violation of Code § 18.2-266. On appeal, he argues that the
trial court erred in denying his motion to suppress the results
of his breath analysis because the traffic checkpoint at which he
was stopped was improperly established. Finding no error, we
affirm the trial court.
State Trooper Michael Hodges established the disputed
checkpoint on October 6, 1995, in response to an assignment he
received the "beginning of his work week" requiring him to
conduct a traffic checking detail some time during that "work
week." Hodges' supervisor directed him to set up the detail at
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
the intersection of Routes 29 and 211. The assignment did not
specify a date or time for the detail within the week, nor did it
indicate whether the checkpoint should stop eastbound or
westbound traffic.
The State Police Traffic Checking Plan provides guidelines
for establishing a checkpoint. Under the plan, field officers
must obtain pre-approval from a supervisor before beginning a
detail. The plan also provides that vehicles "will not be
stopped on a discretionary basis," and limits the duration of a
traffic checking roadblock to between thirty minutes and two
hours. The plan contains additional provisions, including
requirements for record keeping and site selection for
roadblocks. The intersection of Routes 29 and 211 was one of
about twenty Fauquier County sites approved under these
requirements.
Just before 7:00 p.m. on October 6, 1995, Trooper Hodges
determined that "weather conditions were appropriate and that
Trooper Downs was available to assist" him with the checkpoint.
He called his dispatcher and obtained the required approval to
begin the assigned roadblock. The traffic checking detail
paperwork indicates that Sergeant Reynolds gave "verbal
permission" to proceed. At approximately 7:00 p.m., Troopers
Hodges and Downs established the traffic checkpoint on the
eastbound side of Route 211. At about 7:15 p.m., appellant
stopped his vehicle at the checkpoint. After observing the odor
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of alcohol "emanating from the defendant," Trooper Hodges asked
him to perform a series of "field sobriety tests." Based upon
the results of those tests and a preliminary breath analysis, the
defendant was arrested for driving under the influence of
alcohol. A subsequent breath analysis revealed a blood alcohol
concentration of 0.12 grams/210 liters.
We evaluate the constitutionality of a traffic checking
roadblock according to established principles. "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." Delaware v. Prouse, 440 U.S.
648, 663 (1979). However, "[t]his holding does not preclude [a
state] from developing methods for spot checks that . . . do not
involve the unconstrained exercise of discretion. Questioning of
all oncoming traffic at roadblock-type stops is one possible
alternative." Id.
In Virginia it is well settled that
"[t]o ensure that an individual's expectation
of privacy is not subjected to arbitrary
invasion solely at the unfettered discretion
of police officers in the field, seizures at
roadblocks must be carried out pursuant to
plans embodying explicit, neutral limitations
on the conduct of the individual officer."
Brown v. Commonwealth, 20 Va. App. 21, 24, 454 S.E.2d 758, 759
(1995) (quoting Hall v. Commonwealth, 12 Va. App. 972, 973, 406
S.E.2d 674, 675 (1991)). See Simmons v. Commonwealth, 238 Va.
200, 202, 380 S.E.2d 656, 657 (1989) (traffic checking roadblock
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established "without any prior direction from . . . superiors and
without an existing plan" held unconstitutional); Thomas v.
Commonwealth, 22 Va. App. 735, 739, 473 S.E.2d 87, 89 (1996)
(roadblock held unconstitutional because Commonwealth failed to
present "evidence that the officers were using an objective,
nondiscretionary procedure").
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
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the discretion of the operating officers. See Raymond v.
Commonwealth, 17 Va. App. 64, 435 S.E.2d 151 (1993) (sobriety
checkpoint established according to a formal plan at a
pre-arranged time and location which stopped all vehicles without
discretion was valid); Crandol v. City of Newport News, 238 Va.
697, 701, 386 S.E.2d 113, 115 (1989) (roadblock found
constitutional based on "proof of advance decisions by superior
officers as to the time and location [and that the field
officers] conducted the roadblock [according to] explicitly
neutral criteria"); Lowe v. Commonwealth, 230 Va. 346, 352, 337
S.E.2d 273, 277 (1985) (sobriety checkpoint held constitutional
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Deviations by field officers from checkpoint guidelines may
constitute sufficient discretion to invalidate the roadblock.
See Brown v. Commonwealth, 20 Va. App. 21, 454 S.E.2d 758 (1995)
(roadblock was held unconstitutional because troopers moved the
checkpoint to the designated alternate location for unauthorized
reasons).
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where officer followed plan which "is safe and objective in its
operation, employs neutral criteria, and does not involve
standardless, unbridled discretion by the police officer in the
field").
The issue before us is whether a field officer's control
over the timing of the checkpoint constitutes unbridled
discretion sufficient to render the checkpoint unconstitutional.
In Hall v. Commonwealth, 12 Va. App. 972, 974, 406 S.E.2d 674,
676 (1991), the field officer had discretion to decide both the
location and the timing for a roadblock. He "had the authority
to select his checking detail from fifty-four pre-approved sites,
and to decide exactly when to conduct the detail during the week
his superiors had ordered him to do so." Id. He also was
required to obtain his supervisor's approval, but not until after
he completed the detail. Id. at 974, 406 S.E.2d at 675. "While
his discretion may not have been totally [unbridled], the plan
unnecessarily left the individual trooper with such broad
discretion that it was subject to abuse," particularly because
"Accomack County is not so large that fifty-four checkpoint stops
constitute a significant limitation." Id. at 975, 406 S.E.2d at
676. We concluded that, as written, "the guidelines did not
properly limit the officer's discretion" and that the seizure was
unconstitutional. Id. at 973, 406 S.E.2d at 675.
The instant case differs from Hall in several respects.
Although Trooper Hodges was allowed to designate the timing of
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the traffic checking detail, he had no discretion to decide the
location of the assigned roadblock, 2 and he was required to
obtain approval from a supervisor before he began stopping
vehicles. The Commonwealth argues that Hodges' 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. Hodges complied with the restrictions, which
limited any potential for abuse. His supervisor determined the
site of the roadblock in advance. Hodges could not stop any
individuals who did not pass the intersection of Routes 29 and
211. Also, Hodges checked "[a]ll vehicles, regardless of type,"
according to the guidelines. Additionally, the checkpoint was
operated for one hour, which was within the State Police
Guideline limiting the duration of a checkpoint to between
one-half hour and two hours. Finally, Hodges was required to
gain pre-approval of the roadblock from a supervisor who was not
part of the detail. Under these facts, we hold that the traffic
checkpoint was properly established; the trooper exercised
limited, supervised discretion under explicitly neutral
guidelines. For the foregoing reasons, the trial court is
affirmed.
2
We reject appellant's argument that Trooper Hodges' ability
to choose which direction of traffic to stop gave him excessive
discretion. The designation of a specific pre-approved site for
the detail was sufficient guidance with respect to location.
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Affirmed.
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