Sheppard v. Commonwealth

COLEMAN, Judge,

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 con*533ducted 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 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.

*534Furthermore, 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, 110 S.Ct. 2481, 2487, 110 L.Ed.2d 412 (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 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, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (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 furthered by a roadblock); Galberth v. United States, 590 A.2d 990, 997-98 (D.C.App.1991) (holding that *535government’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 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, 406 Mass. 343, 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 safe*536guard 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 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 Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979)). One of the safeguards that protects the public from law enforcement officers indiscrimi*537nately 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 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 Amend*538ment protections against stopping and detaining private citizens without probable cause or reasonable suspicion of criminal activity.

. 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.

. The field officer's conduct in such cases would not be valid simply because the stops were authorized by a supervisor.

. I do not suggest that a modification of a locality’s plan to add preapproved sites based upon citizen complaints is impermissible as long *538as 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.