dissenting.
The trial judge upheld the stop in this case relying upon this Court’s decision in Simmons v. Commonwealth, 6 Va. App. 445, 371 S.E.2d 7 (1988). At the time the trial judge ruled in this case, Simmons had been overruled three years earlier by the Supreme Court. See Simmons v. Commonwealth, 238 Va. 200, 380 S.E.2d 656 (1989). All of the reasons that the trial judge relied upon were considered and overruled by the Supreme Court. The majority opinion ignores the patent error by the trial judge and concludes that the trial, judge’s decision can be upheld for other reasons. I disagree with the majority opinion’s conclusion that the rationale of New York v. Burger, 482 U.S. 691 (1987), validates the discretionary, random roadside stop made in this case.
The [Supreme] Court long has recognized that the Fourth Amendment’s prohibition on unreasonable searches and seizures is applicable to commercial premises, as well as to private homes. An owner or operator of a business thus has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable. This expectation exists not only with respect to traditional police searches conducted for the gathering of criminal evidence but also with respect to administrative inspections designed to enforce regulatory statutes.
Id. at 699-700 (citations omitted).
The record does not prove that the State of Virginia has promulgated regulations that allow a state police officer to randomly stop trucks at some arbitrarily chosen place on the roadside for an inspection as was done by the state police officer in this case. The record proved that Virginia has established fixed locations at various parts of the state where trucks are weighed and inspected. Under the guise of furthering an alleged “important government interest,” the majority opin*157ion upholds random, roving, warrantless stops of trucks without reasonable cause to believe that a violation of law has occurred. I dissent.
[T]he legitimacy of a [checkpoint] is determined by weighing the state’s interests in establishing the [checkpoint] against the potential intrusions on personal privacy. To avoid constitutionally impermissible infringements on privacy, [a checkpoint] must be carried out pursuant to a plan or practice which is explicit, contains neutral criteria, and limits the conduct of the officers undertaking the [checkpoint]. Such a plan serves to insure that one’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.
Simmons, 238 Va. at 202-03, 380 S.E.2d at 658 (citations omitted).
State police officer Rogers testified that no truck weigh stations or fixed truck inspection sites are located in the area of the state to which he was assigned. He testified that the State considered locating stations there but decided not to do so. When Rogers was assigned to that area, he decided to implement his own plan for checking trucks, and he personally selected three sites in the county to use. He did not consult any guidelines for selecting sites, and he did not obtain approval from any supervising authority. Moreover, he received no training that would enable him to determine that a given site was more suitable for a truck inspection operation. He conceded that another officer might have selected different sites. The decisions when, where, and how to stop trucks were made within his unbridled discretion.
Rogers testified that on a given day he would proceed to one of the places that he likes to use for stopping trucks and park his vehicle. He described his procedures as follows:
Q: And what is your procedure once you are at an inspection site?
A: I usually walk out to the side of the road and most of my sites — all of my sites is — has enough distance so that I can see the truck coming and when I see it coming, I step out to the shoulder of the road, started motioning for the traffic to slow down, and then usually truck driver will notice me and then I would motion him into my truck site.
Q: And how do you decide which truck you are going to inspect?
*158A: Well, normally from the size, from the distance, and once I get the truck into the inspection site, I usually get the driver to open the door so I can look at the spec plate on the side of the door, and what I’m looking for there is the GVW weight rating, and I’m looking for twenty-six thousand and one.
Q: Which classifies it as—
A: As a commercial motor vehicle.
Q: And how do you — after you are done inspecting that truck, how do you pick the next truck?
A: Well, I—I walk back out to the side of the road, look for another truck coming down the highway and I motion the next one in.
Q: And what do you inspect these trucks for?
A: Normally I inspect them for their driver’s license, registration, medical card, emergency equipment such as fire extinguishers, stopped vehicle warning devices, and then after I check — then I check for their driver of the vehicle inspection report and after I get that information, I start checking the equipment on the vehicle such as steering, brakes, then I also walk around the vehicle to ascertain whether or not the load is — is secure and try to determine whether or not he has the material.
The majority opinion euphemistically states that “Rogers set up his commercial vehicle inspection site ... on East Route 250.” By alluding to “set up his commercial vehicle inspection site,” the majority attempts to bring the officer’s random, unsupervised conduct into the umbrella of “permissib[le] . . . roadside truck weigh stations and inspections check points” mentioned in Delaware v. Prouse, 440 U.S. 648, 663 n.26 (1979). The officer had nothing to “set up.” Simply put, Rogers, acting upon his own discretion, stopped his marked police vehicle at the side of the highway at a place he selected, stood on the highway, and raised his hand to stop trucks that passed by.
New York v. Burger involved the question whether a warrantless search of an automobile junkyard, conducted pursuant to a New York statute that authorized inspections of junkyards, fell “within the exception to the warrant requirement for administrative inspections of pervasively regulated industries.” 482 U.S. at 693. The trial judge did not find that the inspection made in this case was valid because the operation of a truck on the highway is a “pervasively regulated business.” The trial judge merely found that “Rogers was certainly within the law to conduct a traffic checkpoint for violations of the commer*159cial vehicle law in Virginia.” Merely because a business is regulated does not mean that it is “pervasively regulated.” Moreover, even warrantless searches of regulated businesses must have some basis in the regulations.
Relying on the holding in Drive Trans Corp. v. New York City Taxi & Limousine Commission, 513 N.Y.S.2d 920, 921 (N.Y. Sup. Ct. 1987), that the taxicab business is a pervasively regulated business, the majority concludes that any operator of a truck is engaged in a pervasively regulated business. That case does not support such a conclusion. In People v. Escano, 843 P.2d 111 (Colo. Ct. App. 1992), the court did not decide whether the operation of a truck was per se a pervasively regulated business. That case involved the interpretation of a Colorado statute that allowed an inspection when “a tractor-trailer rig [was driven] up to the scales” at a highway weigh station. Id. at 113. An inspection was performed after the truck was determined to be 4000 pounds overweight and the driver had only a learner’s permit. The Escaño court approved the search in that case but stated that random searches, such as the one conducted by the officer in this case, were violative of the Fourth Amendment.
Warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment, but inspections of commercial property may be unreasonable if they are not authorized by law, are unnecessary for the furtherance of governmental interests, or are so random, infrequent, or unpredictable that the owner, for all practical purposes, has no real expectation that his property will be inspected from time to time by government officials.
Id. at 116. The court found no violation in Escaño because the inspection was performed at the weigh station by an officer who had “‘reasonable cause to believe that the vehicle [was] being operated in violation of. . . law.’” Id. at 116 (quoting Colo. Rev. Stat. § 24-33.5-212(1)(b) (1988)).
Furthermore, even if it is assumed, as the majority does, that operating a commercial truck places one within the scope of a “pervasively regulated business,” the predicate for the application of rules announced in Burger, this case does not meet the requirements stated by the Supreme Court. Burger does not sanction random, roving, warrantless stops that are conducted in the absolute, unbridled discretion of the police officer acting without instruction or supervision.
*160This warrantless inspection, however, even in the context of a pervasively regulated business, will be deemed to be reasonable only so long as three criteria are met. First, there must be a “substantial” government interest that informs the regulatory scheme pursuant to which the inspection is made.
Second, the warrantless inspections must be “necessary to further [the] regulatory scheme....”
Finally, “the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.” In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. To perform this first function, the statute must be “sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.” In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be “carefully limited in time, place, and scope.”
Burger, 482 U.S. at 702-03 (citations omitted).
The time, place, and scope of the random, roving inspection made by the officer in this case were determined solely by the officer who made the stop. The officer had complete discretion as to when, where, and how to make stops and to conduct the inspection. The officer performed inspections at a time that was suitable to his schedule. The officer selected the sites. Moreover, nothing in the record establishes that any type of predictable, guided criteria governed the scope of his search. Not all trucks are covered by the inspection regulations. Indeed, the officer’s testimony demonstrated that because he did not have weighing scales at his randomly selected roadside locations, he could not immediately discern which trucks exceeded the 26,000 GVW rating and were subject to inspections. He only determined whether a truck was subject to inspection after he stopped the truck, opened the door of the truck, and read the specification plate on the door panel. Moreover, prior to stopping McCauley’s truck, the officer did not have any evidence of a violation of laws and did not observe improper operation of the truck.
*161The procedure that was implemented “unnecessarily left the individual trooper with such broad discretion that it was subject to abuse.” Hall v. Commonwealth, 12 Va. App. 972, 975, 406 S.E.2d 674, 676 (1991). “This kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.” Prouse, 440 U.S. at 661. As in Simmons, the proof here demonstrated the unreasonableness of the procedure.
The evidence in this case establishes that the decision to establish the [checkpoint] 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 [checkpoint]. A statement that the troopers followed standard operating procedure ... is not sufficient to establish that an explicit plan or practice existed regarding . . . check point procedures.
238 Va. at 204, 380 S.E.2d at 659.
For these reasons, I would hold that the procedure for randomly stopping trucks at arbitrarily selected roadside locations was conceived and operated in the unbridled discretion of this officer and was unreasonable. Accordingly, I would reverse the conviction.