Sheppard v. Commonwealth

489 S.E.2d 714, 25 Va. App. 527
CourtCourt of Appeals of Virginia
DecidedOctober 14, 1997
DocketRecord 1335-96-3
StatusPublished
Cited by10 cases

This text of 489 S.E.2d 714 (Sheppard v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sheppard v. Commonwealth, 489 S.E.2d 714, 25 Va. App. 527 (Va. Ct. App. 1997).

Opinions

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 partic[529]*529ipate 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 8-31, 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 semitrailer 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 [530]*530random 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 [531]*531plan. Analyzing the componente of the plan under the criteria set forth in Broum, 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Desposito v. Commonwealth
726 S.E.2d 354 (Court of Appeals of Virginia, 2012)
Commonwealth of Virginia v. Derrick Antoine Hunt
Court of Appeals of Virginia, 2008
Commonwealth v. Pearson
64 Va. Cir. 488 (Albemarle County Circuit Court, 2004)
James Dale Archer v. Commonwealth
Court of Appeals of Virginia, 2002
Commonwealth v. Spencer
54 Va. Cir. 189 (Norfolk County Circuit Court, 2000)
Commonwealth v. Morris
48 Va. Cir. 179 (Charlottesville County Circuit Court, 1999)
Wilson v. Commonwealth
509 S.E.2d 540 (Court of Appeals of Virginia, 1999)
Elvin William Sheppard v. Commonwealth of Virginia
Court of Appeals of Virginia, 1998
Sheppard v. Commonwealth
489 S.E.2d 714 (Court of Appeals of Virginia, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
489 S.E.2d 714, 25 Va. App. 527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheppard-v-commonwealth-vactapp-1997.