Lowe v. Com., No. 841618

Docket NºNo. 841618
Citation230 Va. 346, 337 S.E.2d 273
Case DateNovember 27, 1985
CourtSupreme Court of Virginia

Page 273

337 S.E.2d 273
230 Va. 346
Jimmy Dale LOWE
v.
COMMONWEALTH of Virginia.
Record No. 841618.
Supreme Court of Virginia.
Nov. 27, 1985.

Page 274

[230 Va. 347] Robert H. Blodinger, Charlottesville (Craig G. Van de Castle, Crozet, on brief), for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

[230 Va. 346] Present: All the Justices.

[230 Va. 347] COMPTON, Justice.

The question for decision in this criminal case is the legality of a roadblock established for the purpose of checking the sobriety of motor vehicle operators.

On Saturday, January 28, 1984, at 1:55 a.m., defendant Jimmy Dale Lowe was operating a motor vehicle south on Avon Street across a bridge in the City of Charlottesville. The city police had established a roadblock at the south end of the bridge about three hours earlier. The roadblock was announced to motorists by a sign, stating "License and Sobriety Checkpoint, Prepare to Stop," located on the crest of the bridge facing southbound traffic.

After crossing the bridge, defendant proceeded into the roadblock and stopped where city police patrolman Lawrence B. Brown was standing. Brown had not observed defendant drive erratically nor was there any other indication that defendant was driving while intoxicated. Brown asked for defendant's operator's license, which defendant handed to Brown. While talking to defendant to verify his address, the officer noticed defendant's eyes "were very red" and Brown smelled the odor of alcohol about defendant's person. The officer directed defendant to drive his vehicle "around the corner off of the bridge" to enable other vehicles [230 Va. 348] to come to the checkpoint. The officer next asked defendant to step out of his vehicle and to perform three dexterity tests, which defendant failed. Defendant then was arrested for driving under the influence of alcohol (DUI). See Code § 18.2-266. He elected to have his breath analyzed. A police van was located at the scene for the purpose of administering such tests. The test showed that defendant's blood alcohol content was .17, an amount which raises a presumption of intoxication. See Code § 18.2-269.

Defendant was convicted of the charge in the general district court and he appealed to the circuit court. Prior to trial in the circuit court, defendant filed a motion to suppress all evidence derived from the stopping of his vehicle on the ground that his constitutionally protected right against unreasonable seizures was violated. Sitting without a jury, the circuit court heard the evidence on the motion together with evidence on the merits of the case. The court denied the motion and found defendant guilty as charged, giving rise to this appeal.

Specifically, the issue before us is whether the seizure of defendant under the circumstances of this roadblock was unreasonable under the Fourth and Fourteenth Amendments to the United States Constitution, and art. I, § 10 of the Constitution of Virginia. 1

Page 275

[230 Va. 349] The applicable constitutional provisions protect, of course, only expectations of privacy that are reasonable. Katz v. United States, 389 U.S. 347, 351-53, 88 S.Ct. 507, 511-512, 19 L.Ed.2d 576 (1967). Nevertheless, 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." Delaware v. Prouse, 440 U.S. 648, 662, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979). And stopping a motor vehicle and detaining the operator constitute a "seizure" within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention is quite brief. Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982), citing Prouse, 440 U.S. at 653, 99 S.Ct. at 1395. Therefore, the pertinent inquiry here is whether defendant's detention, when he was stopped at the initial checkpoint at the south end of the bridge, was constitutionally unreasonable.

During the last decade, the Supreme Court of the United States has decided four cases which impact the constitutional validity of roadblock stops of vehicles. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (random stops of vehicles near Mexican border to detect entry of illegal aliens ruled invalid); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (permanent checkpoint stops to stem flow of illegal alien traffic from Mexico approved); Delaware v. Prouse, supra; and Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Although the Court has not ruled directly on the validity of roadblock seizures employed to detect drunk drivers, it has fixed definite limitations on the right of police to maintain roadblocks under the Fourth Amendment. Basically, law enforcement personnel may not stop motorists in a wholly random and discretionary manner unless there is, at least, articulable and reasonable suspicion either that the operator is unlicensed, the vehicle is unregistered, or the operator or other occupant is subject to seizure for violation of law. The Court in Prouse, however, in striking down a random, discretionary stop made to check license and registration, said in dicta:

"This holding does not preclude the ... States from developing methods for spot checks 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 [230 Va. 350] alone have their travel and privacy interfered with at the unbridled discretion of police officers." 440 U.S. at 663, 99 S.Ct. at 1401.

Cf. Virginia Code § 46.1-7(c) (requiring operators of vehicles to stop upon command of a police officer to exhibit...

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63 practice notes
  • Welshman v. Com., Record No. 0818-96-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • July 21, 1998
    ...that the balancing test requires either individualized suspicion or other safeguards to limit discretion); Lowe v. Commonwealth, 230 Va. 346, 350, 337 S.E.2d 273, 276 (1985) (citing Brown, 443 U.S. at 50-51, 99 S.Ct. 2637) (explaining Brown Applying this standard, the Supreme Court of the U......
  • Richard T., In re
    • United States
    • California Court of Appeals
    • September 19, 1986
    ...drunk driving roadblocks, at least in principle, under similar, although sometimes less extensive, analyses. (Lowe v. Commonwealth (1985) 230 Va. 346, 337 S.E.2d 273, cert. den. sub nom. Lowe v. Virginia (1986) --- U.S. ----, 106 S.Ct. 1464, 89 L.Ed.2d 720; Commonwealth v. Trumble (1985) 39......
  • People v. Banks, No. S030479
    • United States
    • United States State Supreme Court (California)
    • December 23, 1993
    ...v. Garcia (Ind.1986) 500 N.E.2d 158; Commonwealth v. Trumble, supra, 396 Mass. 81, 483 N.E.2d 1102, 1107-1108; Lowe v. Commonwealth (1985) 230 Va. 346, 337 S.E.2d 273; Little v. State, supra, 479 A.2d 903; State v. Deskins (1983) 234 Kan. 529, 673 P.2d 1174. Cf. State v. McMahon (Me.1989) 5......
  • People v. Rister, No. 89SC212
    • United States
    • Colorado Supreme Court of Colorado
    • December 10, 1990
    ...575, 583, 427 A.2d 131, 135 (1980); People v. Torres, 125 Misc.2d 78, 79, 81-82, 478 N.Y.S.2d 771, 772, 774 (1984); Lowe v. Commonwealth, 230 Va. 346, 337 S.E.2d 273, 275 n. 1, 276 (1985), cert. denied, 475 U.S. 1084, 106 S.Ct. 1464, 89 L.Ed.2d 720 (1986), and the federal Constitution, see,......
  • Request a trial to view additional results
63 cases
  • Welshman v. Com., Record No. 0818-96-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • July 21, 1998
    ...that the balancing test requires either individualized suspicion or other safeguards to limit discretion); Lowe v. Commonwealth, 230 Va. 346, 350, 337 S.E.2d 273, 276 (1985) (citing Brown, 443 U.S. at 50-51, 99 S.Ct. 2637) (explaining Brown Applying this standard, the Supreme Court of the U......
  • Richard T., In re
    • United States
    • California Court of Appeals
    • September 19, 1986
    ...drunk driving roadblocks, at least in principle, under similar, although sometimes less extensive, analyses. (Lowe v. Commonwealth (1985) 230 Va. 346, 337 S.E.2d 273, cert. den. sub nom. Lowe v. Virginia (1986) --- U.S. ----, 106 S.Ct. 1464, 89 L.Ed.2d 720; Commonwealth v. Trumble (1985) 39......
  • People v. Banks, No. S030479
    • United States
    • United States State Supreme Court (California)
    • December 23, 1993
    ...v. Garcia (Ind.1986) 500 N.E.2d 158; Commonwealth v. Trumble, supra, 396 Mass. 81, 483 N.E.2d 1102, 1107-1108; Lowe v. Commonwealth (1985) 230 Va. 346, 337 S.E.2d 273; Little v. State, supra, 479 A.2d 903; State v. Deskins (1983) 234 Kan. 529, 673 P.2d 1174. Cf. State v. McMahon (Me.1989) 5......
  • People v. Rister, No. 89SC212
    • United States
    • Colorado Supreme Court of Colorado
    • December 10, 1990
    ...575, 583, 427 A.2d 131, 135 (1980); People v. Torres, 125 Misc.2d 78, 79, 81-82, 478 N.Y.S.2d 771, 772, 774 (1984); Lowe v. Commonwealth, 230 Va. 346, 337 S.E.2d 273, 275 n. 1, 276 (1985), cert. denied, 475 U.S. 1084, 106 S.Ct. 1464, 89 L.Ed.2d 720 (1986), and the federal Constitution, see,......
  • Request a trial to view additional results

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