Simmons v. Com.

• Decision Date: 09 June 1989
• Docket Number: No. 880954,880954
• Citation: 238 Va. 200,380 S.E.2d 656
• Court: Virginia Supreme Court
• Parties: , 58 USLW 2003 Gary Lee SIMMONS v. COMMONWEALTH of Virginia. Record

Page 656

380 S.E.2d 656

238 Va. 200, 58 USLW 2003

Gary Lee SIMMONS v. COMMONWEALTH of Virginia.

Record No. 880954.

Supreme Court of Virginia.

June 9, 1989.

Linda L. Johnson (Binford, Johnson & Cloninger, on brief), for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: All the Justices.

LACY, Justice.

In this appeal, we examine the constitutionality of a roadblock established for the purpose of checking the equipment and the registration of motor vehicles.

At 8:00 p.m. on July 10, 1986, two Virginia State Troopers set up a checking detail or roadblock at the intersection of Route 601 and Route 776 in Dinwiddie County. The troopers stopped all vehicles entering the checkpoint and inspected drivers' licenses and equipment.

Gary Lee Simmons, who had been fishing that afternoon, was stopped at the checkpoint at 8:55 p.m. One of the officers, Trooper Crowder, observed that Simmons' eyes "were very red," and that Simmons had a strong odor of alcohol on his person. When asked whether he had been drinking, Simmons admitted that he had consumed five beers. Requesting that Simmons pull over and step out of his vehicle, Trooper Crowder administered two dexterity tests, which Simmons failed. Trooper Crowder then arrested Simmons for driving under the influence of alcohol. Simmons elected to have his breath analyzed; his blood alcohol content was .11 percent.

At trial, the Commonwealth called Trooper Crowder as its only witness. Trooper Crowder testified that the two troopers had stopped all the vehicles coming through the checkpoint during the hour prior to stopping Simmons. Trooper Crowder explained that the two troopers had established the checkpoint without any prior direction from their superiors and without an existing plan. Trooper Crowder also testified that the troopers had total discretion regarding where and when they would set up the roadblock.

Because no supervisor specifically had instructed the two troopers to establish the checkpoint, Simmons argued that his stop at the checking detail did not comply with the roadblock criteria established in Lowe v. Commonwealth, 230 Va. 346, 337 S.E.2d 273 (1985), cert. denied, 475 U.S. 1084, 106 S.Ct. 1464, 89 L.Ed.2d 720 (1986). On the premise that the stop was impermissible, Simmons argued that his breath test results were inadmissible. Overruling Simmons' motion to suppress the evidence obtained from the stop, the trial court held that because "all traffic was stopped and checked," the seizure did not violate Simmons' Fourth Amendment rights. On appeal the Court of Appeals affirmed the decision of the trial court. Simmons v. Commonwealth, 6 Va.App. 445, 457, 371 S.E.2d 7, 14 (1988).

Stopping an automobile and detaining the occupants at a roadblock constitutes a seizure under the fourth amendment of the United States Constitution. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 3082, 49 L.Ed.2d 1116 (1976). This Court recently addressed the constitutionality of a drunk driving conviction based on evidence obtained at a roadblock. In Lowe v. Commonwealth, we undertook the analysis required to determine whether a specific roadblock was constitutional under the Fourth and Fourteenth Amendments to the United States Constitution and art. I, § 10 of the Constitution of Virginia. Citing Delaware v. Prouse and Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), we indicated that the legitimacy of a roadblock is determined by weighing the state's interests in establishing the roadblock against the potential intrusions on personal privacy. See Lowe, 230 Va. at 349-50, 337 S.E.2d at 277. To avoid constitutionally impermissible infringements on privacy, the roadblock 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 roadblock. 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." Brown, 443 U.S. at 51, 99 S.Ct. at 2640.

In Lowe, we found "overwhelming" public interest in eliminating drunken drivers from Virginia's highways. 230 Va. at 350 n. 2, 337 S.E.2d at 276 n. 2. In weighing this interest against potential invasions of personal privacy, we reviewed a record replete with evidence showing that the procedure for establishing roadblocks was "safe and objective in its operation, employ[ed] neutral criteria, and [did] not involve standardless, unbridled discretion by the police officer in the field." Id. at 352, 337 S.E.2d at 277. Consequently, we held that the intrusion on the reasonable expectation of personal privacy, as it occurred in Lowe, was permissible.

Applying the first prong of the Lowe analysis to this case, it is clear that the state has a vital interest in enforcing its motor vehicle laws regarding licensure and equipment. See Prouse, 440 U.S. at 658-59, 99 S.Ct. at 1398-99. Turning to the second prong of the analysis, this record is practically devoid of any evidence which reflects the existence of safeguards against an unreasonable intrusion upon personal privacy resulting from the roadblock. The only evidence is Trooper Crowder's statement that "[o]ur normal procedure is to stop all vehicles."

The Commonwealth argues that this evidence is sufficient to establish that Simmons' seizure at the roadblock was reasonable. The constitutional requirements for roadblocks are met in this case, the Commonwealth asserts, because the troopers stopped every car and, therefore, avoided random selection or spot checks of cars. The Commonwealth maintains that, having complied with a "possible alternative" set forth by Prouse, the troopers were not acting with "unbridled discretion." Furthermore, the Commonwealth, recognizing that Lowe requires a "practice embodying neutral criteria," asserts that there "simply cannot be a more 'neutral' criterion for conducting a checkpoint than a requirement that all vehicles will be stopped."

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, as we indicated in Lowe, applying Prouse and Brown, and reaffirm here, 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. A statement that the troopers followed standard operating procedure in stopping every car is not sufficient to establish that an explicit plan or practice existed regarding roadblock or check point procedures.

Under the Fourth Amendment, the Commonwealth has the burden of proving the legitimacy of a warrantless search and seizure. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970). On the basis of this record, we hold that the Commonwealth has not met its burden. Without evidence that the troopers were using an objective, nondiscretionary procedure, we hold that the initial stop of Simmons' automobile violated the Fourth Amendment. Because the initial detention of Simmons was unreasonable, the trial court should have suppressed all of the evidence seized as a result of that stop. Accordingly, the judgment of the Court of Appeals affirming the trial court will be reversed and the prosecution will be dismissed.

Reversed and dismissed.

THOMAS, J., dissents.

WHITING, J., joins in dissent.

THOMAS, Justice, dissenting.

In this case, two Virginia State Troopers aided by at least two State Park Police officers set up a checking detail for licenses and registrations ^* at the intersection of two state highways in Dinwiddie County. The roadblock was established in the daylight hours of July 10, 1986. Flags were set out in the road to warn the motorists of the roadblock. All cars were stopped. In setting up the roadblock and in stopping all cars, the Troopers were following what were described as "normal procedures." Despite these facts, the majority concludes that the roadblock violated Simmons' constitutional rights. I disagree.

The majority rests its decision largely upon Lowe v. Commonwealth, 230 Va. 346, 337 S.E.2d 273 (1985), cert. denied, 475 U.S. 1084, 106 S.Ct. 1464, 89 L.Ed.2d 720 (1986). Lowe was an effort to determine whether the roadblock under review comported with Federal constitutional requirements. We said it did. But that was all we said. Lowe was not based upon State law. Instead, it was based on Federal law. 230 Va. at 348 n. 1, 337 S.E.2d at 274 n. 1. Today, based on Lowe, which, again, was based on Federal law, the majority declares unconstitutional a roadblock which, in my opinion, fully comports with Federal constitutional requirements.

In Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979), Justice White, writing for a majority of seven of the justices stated explicitly that "[q]uestioning of all oncoming traffic at roadblock-type stops" was one possible alternative method of checking automobiles for safety violations and drivers for license violations--rather than conducting random spot checks of individual drivers--because roadblock-type checks involved "less intrusion"...