Commonwealth v. Hall, Record No. 0144-09-3 (Va. App. 6/16/2009), Record No. 0144-09-3.
| Decision Date | 16 June 2009 |
| Docket Number | Record No. 0144-09-3. |
| Court | Virginia Court of Appeals |
| Parties | COMMONWEALTH OF VIRGINIA, v. THOMAS JERAY HALL. |
Appeal from the Circuit Court of Floyd County, Ray W. Grubbs, Judge.
Craig W. Stallard, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellant.
Richard W. Davis, Jr. (Davis, Davis & Davis, on brief), for appellee.
Present: Chief Judge Felton, Judge Frank and Senior Judge Bumgardner.
After being stopped at a traffic checkpoint, Thomas Hall was charged with driving under the influence, third offense, Code § 18.2-266. The trial court ruled the checkpoint was improperly established and suppressed all evidence obtained during the stop. The Commonwealth appeals.
We view the evidence in the light most favorable to the defendant. Commonwealth v. Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992). The Floyd County Sheriff's Office conducted two traffic checkpoints between 6:00 p.m. and 10:00 p.m. on December 21, 2007. The defendant was arrested at one of the checkpoints. Officers conducted checkpoints pursuant to General Order No. 78, which the Sheriff, Shannon Zeman, had approved in June 2006. That order defines the procedures for conducting traffic checkpoints. Officers conduct the checkpoints at sites selected from an approved list of sites provided to the sheriff by the state police. The sheriff approves the proposed site before checking begins.
In this case, the patrol supervisor conducting the checkpoints, Tim Dulaney, selected the date and time for the checkpoints. He did that because he was responsible for assigning personnel and would be able to select a date and time when sufficient officers were available. Initially, he planned to operate the checkpoints on December 22, 2007 from 4:00 a.m. to 8:00 a.m. The sheriff disapproved that plan because he did not think the checkpoints would be effective that early in the morning. The patrol supervisor then rescheduled the checkpoints for 6:00 p.m. to 10:00 p.m. on December 21, 2007, and the chief deputy approved the change.
The chief deputy, Bruce Turner, next selected the precise locations for the checkpoints from the list of pre-approved sites. The sheriff approved the sites selected the day before the checkpoints began. The chief deputy noted the sheriff's approval on the operational plan, and he told the patrol supervisor the locations for the checkpoints one to two hours before the checkpoints opened. The patrol supervisor reported these locations to the officers who actually conducted the checkpoints during their briefing just before establishing the checkpoints. Neither the sheriff nor the chief deputy participated in the checkpoints.
The trial court found the patrol supervisor selected the date and time for the checkpoint after the chief deputy selected the site and based its conclusion that the patrol supervisor had unbridled discretion on that finding. The trial court erred in finding that the patrol supervisor selected the date and time for the checkpoint after the chief deputy selected the site, and the defendant concedes that error though argues it was harmless.
"To 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." Hall v. Commonwealth, 12 Va. App. 972, 973, 406 S.E.2d 674, 675 (1991). "When the field officers' discretion is limited and the checkpoint is established pursuant to an explicit plan, a checkpoint to ensure and improve traffic safety is lawful." Palmer v. Commonwealth, 36 Va. App. 169, 175, 549 S.E.2d 29, 32 (2001). In Hall, this Court held that a checkpoint was unconstitutional where a trooper in his sole discretion could choose a checkpoint site from a...
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