Simmons v. Commonwealth

371 S.E.2d 7, 6 Va. App. 445, 4 Va. Law Rep. 3208, 57 U.S.L.W. 2042, 1988 Va. App. LEXIS 58

• Court: Court of Appeals of Virginia
• Decided: June 21, 1988
• Docket: Record No. 1356-86-2
• Status: Published

Opinions

Opinion

COLE, J.

— The appellant, Gary Lee Simmons, was convicted in a bench trial of operating a motor vehicle under the influence of alcohol in violation of Code § 18.2-266. Simmons contends that the initial stop of his motor vehicle at a roadblock by a state trooper violated his fourth amendment rights against unreasonable searches and seizures and consequently that all evidence secured as a result of the stop should have been suppressed. We hold that no fourth amendment violation occurred and affirm the conviction.

I.

On July 10, 1986, Troopers Morton and Crowder of the Virginia State Police established a checking detail on Route 601 and Route 776 in Dinwiddie County to inspect drivers’ licenses and to check for equipment violations. They placed flags at each end of the checkpoint to warn motorists. The troopers had one state police car and two state park police cars at the checkpoint. They conducted the checking detail during daylight hours, and according to the testimony of the officers, followed “normal procedure” in stopping all vehicles.

Simmons, who was driving a pickup truck, stopped where Trooper Crowder was checking vehicles. Crowder observed that Simmons’ eyes were “very red,” and he detected a “strong odor of alcohol” on Simmons’ person. Simmons admitted to drinking five beers. Crowder requested Simmons to pull his truck over to the side of the road and step out of the vehicle. Simmons complied. The trooper then administered a variety of field sobriety tests. Upon Simmons’ failure to successfully perform the field sobriety tests, he was arrested for driving under the influence of alcohol. Crowder advised Simmons of the implied consent law and administered a breath test. Simmons’ blood alcohol content was .11 percent.

At trial, the Commonwealth called Trooper Crowder as its only witness. After he testified briefly about the checking detail, the arrival of Simmons at the checkpoint, and the taking of the breath test, the Commonwealth attempted to introduce in evidence the results of the test. Defense counsel stated: “I have no objection to it coming in at that [sic] point in time, subject to my cross-examination of the trooper.” Neither the court nor the Commonwealth’s attorney objected to this condition. Accordingly, defense counsel cross-examined the trooper about the facts and circumstances of the checkpoint. At this point, defense counsel learned that the troopers had not been specifically directed to establish the checkpoint.

After the Commonwealth rested its case, the court took up the question of the admissibility of the breath test result. Counsel for the defendant argued that the stop pursuant to the checking detail was impermissible because it did not comply with the criteria established for roadblocks in Lowe v. Commonwealth, 230 Va. 346, 337 S.E.2d 273 (1985), cert. denied, 475 U.S. 1084 (1986). The Commonwealth’s attorney argued the contrary position. The court took the issue under advisement. No objection was voiced as to this procedure. The court then heard the evidence of the defendant. Later in the day, the trial court overruled the defendant’s motion to suppress the evidence obtained from the stop, holding that since all traffic was stopped and checked, the seizure did not violate his fourth amendment rights. The court subsequently found the defendant guilty of driving under the influence of alcohol. On appeal, Simmons maintains that the checkpoint did not comply with Lowe and therefore his conviction must be reversed.

II.

The Commonwealth first contends that we should dismiss this appeal because Simmons did not make a timely objection concerning a violation of his fourth amendment rights. It argues that challenges to admissibility of evidence, to be timely, must be raised prior to trial or when the evidence is introduced, and because the challenge to admissibility was not timely made, the objection must be deemed waived in this case, citing as authority Woodson v. Commonwealth, 211 Va. 285, 288-89, 176 S.E.2d 818, 821 (1970), cert. denied, 401 U.S. 959 (1971); and Poole v. Commonwealth, 211 Va. 258, 259-60, 176 S.E.2d 821, 822-23 (1970).

Rule 3A:9(b)(2) of the Rules of the Virginia Supreme Court,¹ in effect at the time of Simmons’ trial, provides, in pertinent part:

In addition to the defenses and objections specified in sub-paragraph (b)(1) of this Rule, any defense or objection that is capable of determination without the trial of the general issue may be raised by motion before trial. Failure to present any such defense or objection before the jury returns a verdict or the court finds the defendant guilty shall constitute a waiver thereof.

Rule 3A:9(b)(2) states that defenses and objections that can be determined without trial of the general issue may be raised by motion before trial. In practice, the usual procedure is to raise and determine such issues by a motion in limine prior to trial or on the day of trial. The. rule, however, is permissive and does not preclude counsel from raising defenses and objections any time before the jury returns a verdict or the court finds the defendant guilty. R. Bacigal, Virginia Criminal Procedure § 14-1 (1983). Although the rule provides that no waiver of rights occurs if an objection is made up to the time the jury returns a verdict or the court finds the defendant guilty, a party does not have an absolute right to object at any time.

A number of well established principles regulate the conduct of a trial, and we find that Rule 3A:9(b)(2) does not alter them. “The conduct of a trial is committed to the sound discretion of the trial court.” Cunningham v. Commonwealth, 2 Va. App. 358, 365, 344 S.E.2d 389, 393 (1986) (citing Justus v. Commonwealth, 222 Va. 667, 676, 283 S.E.2d 905, 910 (1981), cert. denied, 445 U.S. 983 (1982)). Unless an objection is stated with reasonable certainty at the time of the ruling, neither the Supreme Court nor the Court of Appeals will consider the question for the first time on appeal. Rules 5:25 and 5A:18. “The purpose of th[is] rule is to give the trial court an opportunity to rule intelligently and to avoid unnecessary appeals, reversals, and mistrials.” Marshall v. Goughnour, 221 Va. 265, 269, 269 S.E.2d 801, 804 (1980).

A general objection is insufficient.

It is the duty of a party, as a rule, when he objects to evidence, to state the grounds of his objection, so that the trial judge may understand the precise question or questions he is called upon to decide. The judge is not required to search for objections which counsel have not discovered, or which they are not willing to disclose. It is also due to the party whose evidence is objected to, that the grounds of objection should be specified, so that he may have an opportunity to remedy the defect pointed out, if possible, and have the case tried upon its merits.

Jackson v. Chesapeake & Ohio Ry. Co., 179 Va. 642, 651, 20 S.E.2d 489, 492-93 (1942) (quoting Warren v. Warren, 93 Va. 73, 74, 24 S.E. 913, 914 (1896)). “In order to be considered on appeal, an objection must be timely made and the grounds stated with specificity.” Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986). “To be timely, an objection must be made when the occasion arises — at the time the evidence is offered or the statement made.” Id.

In some cases the inadmissibility and objectionable nature of the evidence will not be immediately obvious to counsel. In such circumstances, we have said that the objection will be timely if objection is “made as soon as the dangerous drift of the examination becomes apparent.” Weimer v. Commonwealth, 5 Va. App. 47, 57, 360 S.E.2d 381, 386 (1987) (citations omitted).

In applying these well established principles to the facts of this case, we hold that the objection was timely made. Where the issue is a violation of constitutional rights, difficulty exists in determining precisely when the violation manifests itself and when the objection must be made. In this case, the objection was made when the Commonwealth offered the result of the breath test in evidence as its first exhibit. It was admitted in evidence subject to defense counsel’s cross-examination of the trooper. The Commonwealth made no objection to this procedure. After the cross-examination was completed and all of the facts concerning the stop were known, counsel for both parties made their arguments and the trial court took the question under advisement. Under these circumstances, we hold that the fourth amendment objection was timely made and that the fourth amendment issue is properly before us.

III.

Simmons contends that the stop of his car pursuant to the roadblock violated his right to be free from unreasonable searches and seizures guaranteed to him under the fourth amendment and article I, § 10 of the Virginia Constitution.² Simmons argues that the stop in this case was not pursuant to a plan “embodying explicit, neutral limitations on the conduct of individual officers,” Brown v. Texas, 443 U.S. 47, 51 (1979), as required in Delaware v. Prouse, 440 U.S. 648, 663 (1979).

In Prouse, an officer made a random stop of the respondent’s car to check his driver’s license and car registration. The officer had observed neither traffic nor equipment violations. Upon stopping the car, he saw marijuana on the floor board in plain view and arrested the respondent for drug possession. Id. at 650. The respondent maintained that the random stop of his vehicle was violative of the fourth amendment, and the Supreme Court agreed, holding:

[Ejxcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.

Id. at 663.

The Court indicated, however, that not all stops on less than “articulable and reasonable suspicion” were unconstitutional:

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 alone have their travel and privacy interfered with at the unbridled discretion of police officers.

Id.

Then, in Brown, 443 U.S. at 50-51, the Court further explained the circumstances justifying a stop on less than probable cause or “articulable and reasonable suspicion:”

The reasonableness of seizures that are less intrusive than a traditional arrest depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.

A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. To this end, 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.

(citations omitted).

Since Prouse, the Virginia Supreme Court has addressed the constitutionality of a DUI roadblock under the fourth amendment. In Lowe, the defendant was stopped by Charlottesville city police at a roadblock established pursuant to a plan to check drivers’ sobriety and thereby reduce drunk driving. When Lowe was stopped at the roadblock, the officers determined that he was under the influence of intoxicants and arrested him for drunk driving. 230 Va. at 348, 337 S.E.2d at 274. Lowe contended that his fourth amendment rights were infringed when he was stopped at the roadblock.

In Lowe, the Virginia Supreme Court balanced 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” and held that the action of the police did not violate Lowe’s fourth amendment rights. The court concluded that, under the factual situation presented, the Charlottesville system was “safe and objective,” employed “neutral criteria,” and did not involve “standardless, unbridled discretion by the police officer in the field, which was condemned in Prouse.” Id. at 352, 337 S.E.2d at 277. The plan, recommended by representatives of the Virginia Alcohol Safety Program in conjunction with the federal Department of Transportation, was adopted after careful study and consideration of, among other things, the law on the subject, the safety of the police and motorists, and locations within the city where there had been drunk driving arrests and alcohol related accidents. Id. at 351, 337 S.E.2d at 276. Outside experts trained the police officers and prepared an operational manual. The program received extensive publicity. Id. at 351-52, 337 S.E.2d at 276-77. Five uniformed police officers, wearing reflector vests, were assigned to the scene. The officers at the checkpoint had no discretion regarding which vehicles to stop: every southbound vehicle was stopped. Id. at 352, 337 S.E.2d at 277.

Simmons attempts to distinguish his situation from that in Lowe because (1) no written manuals or directives were issued to. the officers telling them where to set up the roadblock, what cars to stop, or what questions to ask the drivers; (2) no procedures were established for safety of the motorists or the officers; (3) no plan was established in the event of a traffic backup; and (4) no guidelines were set concerning the length of the actual stop. However, Lowe does not suggest that the procedure used in the Charlottesville roadblock represented the minimum guidelines for all roadblocks throughout the state. Instead, we read Lowe to hold that the roadblock established under the Charlottesville system under all of the conditions present, did not violate the fourth amendment. Lowe was decided upon the facts and circumstances existing at the particular roadblock in question, and is distinguishable from the facts of this case. Therefore, we must analyze the facts peculiar to the checkpoint in this case to determine whether the checkpoint violated the fourth amendment.

In determining the constitutionality of the checkpoint in this case, we must weigh “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown, 443 U.S. at 50-51. First, we find that the State of Virginia has a substantial interest in protecting its motorists, passengers and pedestrians from unsafe drivers and vehicles.³ Indeed, the United States Supreme Court so found in Prouse: “[T]he States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed.” Prouse, 440 U.S. at 658. Likewise, we find that the stopping of all vehicles at a fixed checkpoint advances this public interest. As one court has put it:

If stopping motorists ... for the good faith purpose of inspecting or asking for the exhibition of a driver’s license were not permitted, the licensing law would break down and become a nullity, and the objective of promoting public safety from irresponsible automobile drivers would be seriously impeded. There would be but few occasions where an officer could otherwise learn that the law was being violated.

Commonwealth v. Mitchell, 355 S.W.2d 686, 688-89 (Ky. 1962); see also Palmore v. United States, 290 A.2d 573, 582 (D.C. 1972), aff'd, 411 U.S. 389 (1973); State v. Holmberg, 194 Neb. 337, 340, 231 N.W.2d 672, 675 (1975). The Supreme Court stated in Prouse that because unlicensed drivers are presumably less safe drivers who are more likely to commit traffic violations, most unlicensed drivers will eventually be discovered without the necessity of spot checks. We refuse, however, to require law enforcement officials to wait until after an actual traffic violation has occurred before they can check for license, registration and equipment violations.

Second, we find that the severity of the interference with individual liberty is slight in this case. In determining the severity of the interference with individual liberty, we must look at both the objective and subjective aspects of the intrusion. The objective aspect refers to the physical intrusion and is measured by factors such as the length of the stop, the nature of the questioning, and whether a search is conducted. See United States v. Martinez-Fuerte, 428 U.S. 543, 558 (1976). The subjective aspect refers to the psychological intrusion and is measured by factors such as adequate warning of the official nature and purpose of the stop and whether motorists are being stopped in a systematic, nonrandom fashion. Id. at 558-59. In this case, both the objective and subjective intrusions were minimal. Objectively, each motorist was stopped for only a few seconds — the length of time required for him or her to produce a driver’s license and registration — and no search of vehicles or their occupants occurred. Subjectively, the checkpoint was clearly marked, the check was conducted during daylight hours by uniformed officers, and every vehicle was stopped. Indeed, the Supreme Court has indicated that a stop at a checkpoint involves a lesser subjective intrusion than that occasioned by a roving patrol stop or random spot check. Id.

In Martinez-Fuerte, 428 U.S. at 558, the Court held: “[W]e view checkpoint stops in a different light [than roving patrol stops] because the subjective intrusion — the generating of concern or even fright on the part of lawful travelers — is appreciably less in the case of a checkpoint stop.” Likewise, in Prouse, 440 U.S. at 657 (quoting United States v. Ortiz, 422 U.S. 891, 894-95 (1975)), the Court said:

For Fourth Amendment purposes, we also see insufficient resemblance between sporadic and random stops of individual vehicles making their way through city traffic and those stops occasioned by roadblocks where all vehicles are brought to a halt or to a near halt, and all are subjected to a show of the police power of the community. “At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.”

Finally, in balancing these competing considerations, “an individual’s reasonable expectation of privacy [must not be] subject to arbitrary invasions solely at the unfettered discretion of officers in the field.” Brown, 443 U.S. at 51. Consequently, for the seizure to be reasonable, it must be based on “specific, objective facts” or it “must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of the officers.” Id.

Clearly, the officers in this case had no reasonable and articulable suspicion to stop Simmons. The reasonableness of the stop, therefore, turns on whether it was carried out pursuant to a “plan embodying explicit, neutral limitations on the conduct of the officers.” We find that it was. The evidence in the record discloses that the state troopers stopped all vehicles according to the normal procedure required by the state police. In Prouse, 440 U.S. at 663, the Supreme Court suggested that state-developed methods of spot checks, such as “[questioning of all oncoming traffic at roadblock-type stops,” do not involve “the unconstrained exercise of discretion.” Therefore, it is of no consequence that the officers in this case were not specifically directed to establish the checkpoint at that particular place and time.

Having weighed all the factors and considerations set forth in Brown, we conclude that the stop, i.e., the roadblock, was reasonable. No unconstrained or unbridled discretion was involved in stopping motorists. The checking detail was conducted during daylight hours, every vehicle was stopped, and motorists were detained only briefly. The checkpoint was marked by appropriate warnings and three police vehicles and two uniformed officers were present to indicate the presence of governmental authority. Therefore, none of the evils of random stops condemned in Prouse were present in this instance.

Accordingly, we affirm the defendant’s conviction.

Affirmed.

Duff, J., concurred.

1 This rule has been amended by passage of Code § 19.2-399, effective January 1, 1988. In pertinent part, it reads:

Defense motions or objections seeking (i) suppression of evidence on the grounds such evidence was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10 or 11 of the Constitution of Virginia proscribing illegal searches and seizures and protecting rights against self-incrimination, or (ii) dismissal of a warrant, information, or indictment or any count or charge thereof on the ground that a statute upon which it was based is unconstitutional shall be raised by motion or objection, in writing, before trial. The motions or objections shall be filed and notice given to opposing counsel tnot later than seven days before trial. A hearing on all such motions or objections shall be held not later than three days prior to trial, unless such period is waived by the accused, as set by the trial judge. The court may, however, for good cause shown and in the interest of justice, permit the motions or objections to be raised at a later time.

2 The protections under the Virginia Constitution are substantially the same as those contained in the fourth amendment. Lowe, 230 Va. at 348 n.1, 337 S.E.2d at 275 n.1. Thus, if the checkpoint survives fourth amendment scrutiny, it is constitutional under article I, § 10 of the Constitution of Virginia.

3 To this end, the General Assembly has enacted much legislation. See, e.g., Code § 46.1-8 (uniformed officer has right to inspect motor vehicles); Code § 46.1-41 (motor vehicle owner must register vehicle before operating); Code § 46.1-64 (illegal to operate unregistered motor vehicle); Code § 46.1-167.3 (illegal to operate uninsured motor vehicle); Code § 46.1-349 (illegal to drive without a driver’s license); Code § 46.1-350 (illegal to drive while license suspended or revoked).