Sheppard v. Com., 1335-96-3

• Decision Date: 09 September 1997
• Docket Number: No. 1335-96-3,1335-96-3
• Citation: 25 Va.App. 527,489 S.E.2d 714
• Court: Virginia Court of Appeals
• Parties: Elvin William SHEPPARD v. COMMONWEALTH of Virginia. Record

Page 714

489 S.E.2d 714

25 Va.App. 527

Elvin William SHEPPARD v. COMMONWEALTH of Virginia.

Record No. 1335-96-3.

Court of Appeals of Virginia Salem.

Sept. 9, 1997.

Rehearing En Banc Granted Oct. 14, 1997.

Wayne T. Baucino, Assistant Public Defender (Vikram Kapil, Assistant Public Defender, on briefs), for appellant.

Leah A. Darron, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: MOON, C.J., and COLEMAN and WILLIS, JJ.

WILLIS, Judge.

Elvin William Sheppard was a passenger in an automobile that was stopped by the police at a license checking roadblock. He was convicted of possession of cocaine and possession of marijuana discovered by the police upon search of the automobile. On appeal, he contends that the roadblock was established unconstitutionally, that the seizures of the automobile and of his person were therefore unlawful, and that the trial court erred in refusing to suppress the evidence discovered upon the search of the automobile. We find no error and affirm the judgment of the trial court.

Prior to Sheppard's arrest, the Martinsville Police Department adopted General Order Number 3-31 governing traffic checkpoints "to enforce driver's license and vehicle registration laws" and to address "all other violations of law coming to the attention of officers conducting the checking detail." The plan required that checkpoints should be located at sites set forth on a list attached to the plan as "Appendix A" and that checkpoints would be conducted "for no less than [thirty] minutes or for no more than two hours." The plan set forth rules governing the number of officers to be present, the officers' attire, emergency lights and flares to be used, location of emergency vehicles on the scene, removal of detained vehicles from traffic, and the number of cars to be stopped.

Charles E. Long testified that at the time of Sheppard's arrest, he was Lieutenant of Criminal Investigations, Services Division, of the Martinsville Police Department. He testified that the police "were receiving numerous complaints about the Moss Street area involving drugs, speeders, people driving without driver's license, suspensions...." Lieutenant Long decided to set up a "roadcheck" on Moss Street and assigned officers to Moss Street for that purpose. The Moss Street location was not included in Schedule A of General Order Number 3-31. However, the roadcheck complied with that order in every other respect. Lieutenant Long did not participate 529 in the roadcheck personally, but acted only in a supervisory capacity.

Sheppard was a passenger in an automobile that was stopped at the Moss Street roadcheck. The driver did not have an operator's license and was charged with that offense. He gave the police permission to search the automobile. The police discovered cocaine and marijuana, and Sheppard was charged with possession of those substances.

Sheppard moved the trial court to suppress the cocaine and marijuana on the ground that their discovery resulted from an unconstitutional search and seizure. He argued that because the establishment of the Moss Street checkpoint deviated from General Order Number 3-31, the conduct of the checkpoint was an exercise in unbridled police discretion and was constitutionally impermissible. The trial court denied the motion, admitted the evidence, and convicted Sheppard on both counts.

Code § 46.2-103 provides, in pertinent part:

Except as prohibited by § 19.2-59, on his request or signal, any law-enforcement officer who is in uniform or displays his badge or other sign of authority may:

1. Stop any motor vehicle, trailer, or semi-trailer to inspect its equipment, operation,....

Code § 46.2-104 provides, in pertinent part:

The owner or operator of any motor vehicle, trailer, or semi-trailer shall stop on the signal of any law-enforcement officer who is in uniform or shows his badge or other sign of authority and shall, on the officer's request, exhibit his registration card, driver's license, learner's permit, or temporary driver's permit....

The statutory right of a law enforcement officer to stop a motor vehicle and the obligation of a motor vehicle operator to submit to such a stop for a license or registration inspection are circumscribed by the decision of the United States Supreme Court in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), holding unconstitutional the random stopping of motor vehicles, other than upon the basis of probable cause or reasonable suspicion of criminal conduct. The Court ruled that 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." Id. at 662, 99 S.Ct. at 1400. However, the Court went on to say:

This holding does not preclude the States from developing methods for stopchecks 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 alone have their travel and privacy interfered with at the unbridled discretion of police officers.

Id. at 663, 99 S.Ct. at 1401.

In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the United States Supreme Court set forth a balancing test for determining the validity of traffic stops not based upon probable cause or reasonable suspicion of criminal activity. The test involves three criteria: (1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty. Id. at 50-51, 99 S.Ct. at 2640-41. Noting the central constitutional concern that "an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field," the Court said, "the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." Id. at 51, 99 S.Ct. at 2640. See Lowe v. Commonwealth, 230 Va. 346, 350, 337 S.E.2d 273, 275-76 (1985).

Lowe involved an arrest made at a license and sobriety checkpoint conducted pursuant to Charlottesville's checkpoint plan. Analyzing the components of the plan under the criteria set forth in Brown, the Supreme Court held:

Balancing the State's strong interest in protecting the public from the grave risk presented by drunk drivers, against the minimal inconvenience caused motorists approaching the roadblock, we hold that the action of the police in this case was not an impermissible infringement upon defendant's reasonable expectation of privacy. The Charlottesville system is safe and objective in its operation, employs neutral criteria, and does not involve standardless, unbridled discretion by the police officer in the field, which was condemned in Prouse.

Lowe, 230 Va. at 352, 337 S.E.2d at 277.

In Simmons v. Commonwealth, 238 Va. 200, 380 S.E.2d 656 (1989), the Supreme Court considered a license and registration checkpoint established and conducted by two state troopers on their own initiative. The troopers stopped and inspected every vehicle passing through the checkpoint. Holding the checkpoint to be constitutionally impermissible, the Supreme Court said:

We do not read Prouse to stand for the proposition that stopping all traffic at a roadblock constitutes sufficient restraint on the exercise of discretion by police officers to transform the stop into a constitutionally valid roadblock. While this approach may eliminate the constitutional vice inherent in a random spot check or stop and therefore be a preferred practice, ... the roadblock also must be undertaken pursuant to an explicit plan or practice which uses neutral criteria and limits the discretion of the officers conducting the roadblock. The evidence in this case establishes that the decision to establish the roadblock 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 roadblock.

Id. at 203-04, 380 S.E.2d at 658-59 (footnote omitted).

The seizure of the vehicle in which Sheppard was riding did not derive from a random stop forbidden by Prouse. The Martinsville plan satisfied the criteria set forth in Brown, conformed to the standards approved in Lowe, and satisfied the requirement of Simmons. The officers conducting the Moss Street checkpoint complied with the Martinsville plan in every respect. The issue before us is whether the sole deviation from that plan, the selection by Lieutenant Long of a checkpoint site not included in Schedule A, was of sufficient significance to render the checkpoint unreasonable and constitutionally impermissible. We hold that it did not.

Although Lieutenant Long selected the site, he did not participate in conducting the checkpoint. He was not an officer in the field. His involvement was altogether in a supervisory or administrative capacity. Thus, in no respect, was the establishment or conduct of the checkpoint left to the unbridled discretion of field officers.

Nothing in the record suggests that Lieutenant Long's decision to establish the checkpoint involved, in any way, an effort to target a specific person or a specific group of people. His decision was based on citizen complaints of unlawful activity at the Moss Street location. His decision addressed the unlawful situation, not any person or group of people. His purpose was to quell unlawful activity and to control a trouble spot, employing...