William Wilkins, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 17, 2001
• Docket: 2758992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Humphreys Argued at Richmond, Virginia

WILLIAM WILKINS, JR. MEMORANDUM OPINION * BY v. Record No. 2758-99-2 JUDGE ROBERT J. HUMPHREYS APRIL 17, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG James F. D'Alton, Jr., Judge

Charles R. Watson for appellant.

Thomas M. McKenna, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

William Wilkins, Jr. appeals his conviction for possession of

cocaine with intent to distribute, following a conditional guilty

plea. Wilkins contends that the trial court erred in failing to

suppress evidence obtained as a result of the search of his

vehicle, which occurred after he was stopped at a traffic

checkpoint.

When we review a trial court's denial of a suppression motion, "[w]e review the evidence in a light most favorable to . . . the prevailing party below, and we grant all reasonable inferences fairly deducible from that evidence." In our review, "we are bound by the trial court's findings of historical fact unless 'plainly wrong' or without evidence to support them." However,

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. we consider de novo whether those facts implicate the Fourth Amendment and, if so, whether the officers unlawfully infringed upon an area protected by the Fourth Amendment.

Harris v. Commonwealth, 33 Va. App. 325, 330-31, 533 S.E.2d 18,

20 (2000) (citations omitted).

On February 10, 1999, Wilkins, who was driving his mother's

vehicle, was stopped at a traffic checkpoint located at the

corner of Harding and Ross Court Streets in the City of

Petersburg, Virginia. Officer Chris Greenwell approached the

driver's side window and asked Wilkins for his license and

registration. Wilkins told Greenwell that he did not have a

license. At that point, Greenwell recognized Wilkins and knew

that his driver's license had been suspended. Greenwell asked

Wilkins if the license was still suspended and Wilkins replied,

"Yes."

Greenwell then noticed that the passenger in the car was

making suspicious motions. He was sitting with his arms

crossed, with his right hand under "his left armpit." When he

reached for the glove box to look for the car registration, he

kept his right hand in the same position, as if he was

"concealing something." After a brief consent search in which a

pill bottle containing cocaine was found under the driver's

seat, Wilkins was arrested and charged with possession of a

controlled substance with intent to distribute.

- 2 - Prior to trial, Wilkins filed a motion to suppress the

evidence seized from his vehicle, arguing that the stop and

subsequent search of his vehicle were "without probable cause"

and that the stop violated his Fourth Amendment rights because

the roadblock was not undertaken pursuant to an "explicit plan

or practice which limited the discretion of the officers

conducting the roadblock."

The suppression hearing was held on August 16, 1999. 1 The

evidence presented established that the traffic checkpoint was

scheduled by Sergeant Delores Randolph, supervisor of the

Community Policing Unit and the Weed & Seed program of the

Petersburg Police Department, pursuant to the City of Petersburg

Bureau of Police Traffic & Sobriety Checkpoint Plan. Although

it was the "Weed & Seed" community policing unit that carried

out the checkpoint, the Checkpoint Plan states the purpose of

all traffic checkpoints conducted through the department as the

following:

[T]o enforce the operator license and vehicle registration laws, and to take appropriate action to all other violations of law. Also for the purpose of inspecting the motor vehicle, as to its equipment and safe operation.

In accordance with the Checkpoint Plan, Randolph determined

the time and location of the operation, as well as the number of

1 The hearing on the motion to suppress was heard by Judge Oliver A. Pollard, Jr.

- 3 - officers assigned to work the checkpoint, on the first day of

February 1999, as she schedules the time and location of each of

the traffic checkpoints that are to be held in a given month. 2

This particular checkpoint was scheduled for February 10, 1999,

at 7:00 p.m., at the location of Harding and Ross Court Streets.

Randolph assigned several officers to work the checkpoint, and

assigned Officer Ricardo Williams, the senior officer, as the

"overseer" of the checkpoint. 3 In addition, the on-duty sergeant

at the police station acted as a "remote supervisor" and was to

be contacted and informed of the commencement of the checkpoint.

Once Sergeant Randolph made these determinations, Officer

Kevin Johnson, the Traffic Specialist for the Weed & Seed unit,

completed an Operations Report/Order that informed the assigned

officers of the location of the checkpoint, as well as the

manner in which it was to be conducted. The Operations Report

did not contain the time at which the checkpoint was to begin.

As directed by the Operations Report and the schedule

created by Sergeant Randolph, on the date of the checkpoint at

approximately 7:00 p.m., the officers traveled to the site,

placed orange traffic cones in the street to direct traffic

2 The Commonwealth attempted to question Sergeant Randolph as to why that particular location was chosen. However, Wilkins objected to the question as irrelevant. The Commonwealth then withdrew the question. 3 Randolph does not attend the checkpoints and is only contacted by the "overseer" of the operation if there are difficulties or problems.

- 4 - through the check site, and placed a sign just before the

checkpoint to alert motorists. The officers then stopped every

car that passed through the checkpoint site and "request[ed] [a]

drivers [sic] license and registration" of each driver.

At the conclusion of the operation at approximately

9:00 p.m. to 9:30 p.m., the team of officers had issued four

seat belt summonses, made two felony non-drug arrests, and four

drug arrests, including the arrest of Wilkins. Officer Williams

provided these statistics to Sergeant Randolph, who then

completed the Selective Enforcement Form, which is utilized to

confirm that the various checkpoints comply with the Checkpoint

Plan. Although not a specific requirement under the Plan,

neither the Operations Report/Order, nor the Selective

Enforcement Form, was signed by the officers who prepared them

and/or the officers who reviewed them to ensure compliance with

the Checkpoint Plan.

At the conclusion of the evidence presented during the

hearing on the motion to suppress, Wilkins argued that the stop

was not conducted in accordance with the department plan "in

that one person had absolute discretion of when [it was] going

to be held" and that this "unconstrained exercise of discretion"

violated the Fourth Amendment. Wilkins also argued that the

on-site supervisor had complete discretion as to the time to

hold the checkpoint. The Commonwealth responded that the

Checkpoint Plan met constitutional requirements and that it was

- 5 - appropriately followed by the police department. The trial

court found "that the plan for stops that the department had was

adequate . . . [and] that the plan was substantially followed in

this particular case."

At the trial of the matter, before a different judge,

Wilkins entered a plea of guilty, conditioned upon his right to

appeal the issue of the propriety of the checkpoint. Before

making the plea, Wilkins renewed his motion to suppress, arguing

for the first time that the "case law does not support

implementation of road blocks to catch drug offenders." The

Commonwealth responded that the trial court had already heard

evidence on this matter and ruled that the department's

Checkpoint Plan was adequate and that it had been complied with.

Without the benefit of hearing the evidence that had been

presented during the suppression hearing, the trial court

responded as follows:

All right. I have no reason -- I think that's the criteria for the stops as long as they are not arbitrarily [sic] and they are set up pursuant to plan. Then I will overrule the motion and concur with the prior ruling.

* * * * * * *

. . . [T]he suppression hearing will be incorporated as a part of this record. Objections are noted, and the Court will continue to sustain the ruling of the earlier hearing and deny the motion to suppress.

- 6 - Wilkins then entered his conditional plea of guilty. The plea

agreement, signed by both parties and accepted by the court,

states the following concerning the issue preserved for appeal:

This plea is subject to defendant preserving his motions and argument made on August 16, 1999 for appeal to the Virginia Court of Appeals and any subsequent Court.

Accordingly, Wilkins was convicted and sentenced to an active

term of seven years in the penitentiary.

Wilkins' sole argument on appeal is that the trial court

erred in failing to suppress the evidence because it was seized

as a result of the Petersburg Police Department's alleged

unconstitutional roadblock program "designed to snare drug

offenders." However, Wilkins failed to properly preserve this

issue for appeal.

"'A plea of guilty, accepted and entered by the court, is a

conviction or the equivalent of a conviction of the offense to

which it is directed, the effect of which is to authorize the

imposition of the punishment prescribed by law on a verdict of

guilty of the offense admitted. . . . It waives all defenses

other than that no offense is charged.'" Peyton v. King, 210

Va. 194, 196, 169 S.E.2d 569, 571 (1969) (quoting Crutchfield v.

Commonwealth, 187 Va. 291, 296, 46 S.E.2d 340, 342 (1948)).

Nevertheless, Code § 19.2-254 allows for "conditional" pleas of

guilty in certain cases. That section provides the following

with regard to such pleas:

- 7 - With the approval of the court and the consent of the Commonwealth, a defendant may enter a conditional plea of guilty in a felony case, reserving the right, on appeal from the judgment, to a review of the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

Code § 19.2-254 (emphasis added).

Here, although Wilkins renewed his previous objection and

argument on the motion to suppress, and raised a new argument

concerning the nature of the checkpoint just before entering his

plea at trial, he failed to preserve this new argument in his

conditional guilty plea. As set forth above, the plea agreement

specifically preserves only the pretrial motions and argument

made on August 16, 1999. Wilkins raised no issue of the

validity of the alleged "drug" checkpoint at that time.

Accordingly, Wilkins has waived this issue on appeal. See Ohree

v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488

(1998) (the Court of Appeals will not consider an argument on

appeal which was not presented to the trial court; Rule 5A:18

applies to bar even constitutional claims).

Although Wilkins has not directly raised the arguments made

during the August 16, 1999 suppression hearing on appeal, we

find those arguments also without merit.

[T]he legitimacy of a roadblock is determined by weighing the state's interests in establishing the roadblock against the potential intrusions on personal privacy. To avoid constitutionally impermissible

- 8 - 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."

Simmons v. Commonwealth, 238 Va. 200, 202-03, 380 S.E.2d 656,

658 (1989) (citations omitted) (emphasis added). Thus, "[t]he

validity of a checkpoint depends upon the amount of discretion

remaining with the field officers operating the roadblock.

Clearly, roadblocks are constitutional when conducted according

to explicitly neutral plans which completely eliminate the

discretion of the operating officers." Crouch v. Commonwealth,

26 Va. App. 214, 218, 494 S.E.2d 144, 146 (1997).

These officers were working in accordance with an

explicitly neutral plan, which they followed. The Checkpoint

Plan, which applied to the entire Petersburg Police Department,

provided very specific guidelines pertaining to establishing

roadblocks, including criteria for choosing locations, the

mandated duration of the roadblocks, and the procedure to be

followed during the roadblocks. The Checkpoint Plan also

required supervisors to establish the sites within the Plan

criteria. The officers were assigned to carry out the

checkpoint at a location and time chosen by their supervisor

and were provided with clear directions, by way of the

Operations Report, as to how the checkpoint was to be conducted.

- 9 - Contrary to Wilkins' argument, the fact that the Report did

not contain the time of the operation does not establish that

Officer Williams had "complete discretion" to choose the time of

the operation. First, neither the Checkpoint Plan nor the

decisional case law on this issue requires the time to be stated

on the Operations Report. Furthermore, Williams testified that

he was informed of the time for the operation by way of the

monthly schedule prepared by Sergeant Randolph. Sergeant

Randolph testified that stating the time of the operation on the

monthly schedule was her standard practice. Thus, there is no

evidence that Officer Williams had discretion to choose the time

to begin this particular checkpoint.

Next, Wilkins' argument that Sergeant Randolph possessed

unfettered discretion in establishing the location and time of

the checkpoint is also without merit. The Checkpoint Plan,

which applies to the entire department, established specific

criteria for Sergeant Randolph to follow. Moreover, even if it

had not, the constitutional safeguards in this arena are placed

upon the discretion of the field officers undertaking the

checkpoint. Sergeant Randolph was the supervisor in charge of

scheduling the checkpoints; she was not present during the

operations, nor did she actively participate in them.

Finally, during the pendency of this appeal, the United

States Supreme Court issued a decision holding that checkpoint

programs with a primary purpose of interdicting illegal

- 10 - narcotics violate Fourth Amendment protections against

unreasonable search and seizure. City of Indianapolis v.

Edmond, 121 S. Ct. 447, 457-58 (2000). The appellant, on brief,

suggests that this case is dispositive of this appeal. However,

the only way we may consider his argument in this regard is

under the ends of justice exception to Rule 5A:18. We decline

to do so because given this record, the appellant's argument is

of no consequence. In determining whether a checkpoint program

is barred under the theory appellant advances, Edmond requires

courts to conduct an inquiry into the programmatic intent behind

any challenged program. Here, the trial court considered the

Checkpoint Plan and found that it was "adequate." Likewise, we

find no evidence, either in the Checkpoint Plan or its

implementation, of a programmatic purpose to interdict illegal

drugs. Nor do we find in this record support for the

proposition advanced in oral argument by Wilkins that the Weed &

Seed program is a "drug enforcement" arm of the Petersburg

Police Department.

Thus, for the reasons stated above, we affirm the ruling of

the trial court.

Affirmed.

- 11 -