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SHEPPARD v. COMMONWEALTH OF VA


SHEPPARD v. COMMONWEALTH
OF VA


Tuesday, May 5th, 1998
Record No. 1335-96-3

Elvin William Sheppard, Appellant,

against

Circuit Court Nos. CR95000976 and CR95000977

Commonwealth of Virginia, Appellee.

Upon a Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman,

Willis, Elder, Bray, Annunziata, Overton and Bumgardner

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

Leah A. Darron, Assistant Attorney General (Richard Cullen,
Attorney General, on brief), for appellee.

A divided panel of this Court affirmed the judgment of the
trial court. See Sheppard v. Commonwealth, 25 Va.
App. 527, 489 S.E.2d 714 (1997). We stayed the mandate of that
decision and granted rehearing en banc.

Upon rehearing en banc, the judgment of the
trial court is affirmed without opinion by an evenly divided
Court.

The Commonwealth shall recover of the appellant the costs in
this Court, which costs shall also include an additional fee of
$200 for services rendered by attorneys of the Public Defender’s
office on the rehearing portion of this appeal, in addition to
counsel’s necessary direct out?of?pocket expenses.

This order shall be published and certified to the trial
court.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk


Tuesday October 14th, 1997
Record No. 1335-96-3

Elvin William Sheppard, Appellant,

against

Circuit Court Nos. CR95000976 and CR95000977

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

On September 22, 1997 came the appellant, by court-appointed
counsel, and filed a petition praying that the Court set aside
the judgment rendered herein on September 9, 1997, and grant a
rehearing en banc thereof.

On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on September 9, 1997 is
stayed pending the decision of the Court en banc, and the appeal
is reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule 5A:35.
It is further ordered that the appellant shall file with the
clerk of this Court ten additional copies of the appendix
previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk


SEPTEMBER 9, 1997
Record No. 1335-96-3

ELVIN WILLIAM SHEPPARD

v.

COMMONWEALTH OF VIRGINIA

OPINION BY JUDGE JERE M. H. WILLIS, JR.
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE

Charles M. Stone, Judge
Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia

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.


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 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 Sect. 46.2-103 provides, in pertinent part:

Except as prohibited by Sect. 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 Sect. 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 (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.
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.

In Brown v. Texas, 443 U.S. 47 (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. 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. 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
neutral criteria. The location of the checkpoint on Moss Street
imposed no greater intrusion on the privacy of the general
traveling public than would have been imposed had the checkpoint
been located at a Schedule A site. Thus, we hold that the mere
fact that the Moss Street location was not included in Schedule
A, effected a minor, insubstantial deviation from compliance with
the Martinsville plan, and did not render the checkpoint
constitutionally impermissible.

The judgment of the trial court is affirmed.

Affirmed.

 

Coleman, J., 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 conducted
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.
Furthermore, 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 (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 (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 government’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
, 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 safeguard 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 (1979)). One of the safeguards that protects the public from
law enforcement officers indiscriminately 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 Amendment protections
against stopping and detaining private citizens without probable
cause or reasonable suspicion of criminal activity.

 

 

 

 

FOOTNOTES:

[1] 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.

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

[3] I
do not suggest that a modification of a locality’s plan to add
pre-approved sites based upon citizen complaints is impermissible
as long as 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.

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