Darnell Anthony Wesley v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia
DARNELL ANTHONY WESLEY
OPINION BY
v. 	Record No. 2246-00-3 	JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AMHERST COUNTY
J. Michael Gamble, Judge
Lisa W. Vogel for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his bench trial conviction of driving while
under the influence of alcohol, in violation of Code § 18.2-266,
Darnell Anthony Wesley contends that the trial court erred in
denying his motion to suppress the evidence derived from
stopping his vehicle. 	He argues that the traffic checkpoint at
which he was stopped was established unconstitutionally.
Finding no error, we affirm the judgment of the trial court.
I. 	BACKGROUND
On April 23, 2000, the Virginia State Police established
the questioned checkpoint on Route 60 in Amherst County. 	State
Trooper J.W. Ratliff testified that he was assigned to the

checkpoint with two other officers and that the location was
established at the direction of Sergeant R.J. Shupe. 	Ratliff
testified that this was done pursuant to state police guidelines
and a "site plan" approved by a supervisor.
The State Police Traffic Checking Detail/DUI Sobriety
Checkpoint Plan (State Plan), which provides guidelines for
establishing checkpoints in Virginia, was admitted into
evidence. 	The purpose of the State Plan is "to enforce driver's
license and vehicle registration laws" and to address "all other
violations of the law coming to the attention of our sworn
employees." 	Under the State Plan, field officers must obtain
pre-approval from a supervisor before instituting a checking
detail. 	The plan provides that vehicles "will not be stopped on
a discretionary basis." 	It limits the duration of checkpoints
to "no less than 30 minutes and no more than two hours." 	It
provides that the number of employees should be "in proportion
to the volume of traffic." 	It provides that the site location
should have adequate visibility for safety, have adequate
off-pavement parking, and should not have hazardous
characteristics or include highways where speed or traffic
conditions would pose a safety threat. 	Trooper Ratliff
testified that the Route 60 site was one of the Amherst County
sites approved in accordance with these requirements.
- 2 -

The Amherst County Checking Detail Site Plan (Amherst Plan)
was admitted into evidence. 	It provides, in pertinent part:
All vehicles will be screened unless a
back-up of (1) more than 20 vehicles occurs
in any lane of travel or (2) vehicles
back-up more than 400 feet from the
designated checking point. 	The first
alternate method will be to check every 2nd
vehicle. 	The second alternate method will
be to check every 4th vehicle. 	If back-ups
continue, the operation will be ceased. 	The
method used will be noted on Form SP-99.
The Amherst Plan requires a minimum of two officers to conduct a
checkpoint.
Form SP-99 (the Activity Sheet) was admitted into evidence.
It states that Sergeant Shupe gave "verbal" approval for a
checkpoint at the Route 60 site on April 23, 2000. 	It further
states that the three troopers, Trooper Ratliff, Trooper J.D.
Scott, and Trooper G.S. Cash, began the checkpoint at 7:00 p.m.
and ended it at 8:30 p.m. 	They checked all ninety-five vehicles
that passed through the checkpoint that evening.
At approximately 7:20 p.m., Wesley stopped his vehicle at
the checkpoint. 	Upon detecting "an odor of alcoholic beverage
coming from the vehicle," Trooper Ratliff asked Wesley to
perform a series of "field sobriety tests." 	Based upon the
results of his efforts, Wesley was arrested for driving under
the influence of alcohol. 	An analysis of his breath revealed a
blood alcohol concentration of .09 grams/210 liters.
Wesley moved to suppress all evidence derived from the
stopping of his vehicle. 	He argued that the State Plan gave
- 3 -

unbridled discretion to the field officers to terminate the
checkpoint at any time between thirty minutes and two hours and
did not adequately define "back-ups," thus giving them unbridled
discretion in determining whom to stop. 	He further argued that
the checkpoint location provided inadequate parking and that an
insufficient number of officers manned the checkpoint.
The trial court denied the motion, admitted the evidence,
and convicted Wesley.
II. 	CONSTITUTIONALITY OF THE STATE PLAN
Wesley first contends that the State Plan and the Amherst
Plan, as written, are unconstitutional because they vest
unbridled discretion in the field officers.
The statutory right of a law enforcement officer to stop a
motor vehicle and the obligation of a motor vehicle operator to
stop at a traffic checkpoint are circumscribed by Delaware v.
Prouse, 440 U.S. 648 (1979). 	In Prouse, the United States
Supreme Court held unconstitutional the random stopping of motor
vehicles, other than upon the basis of probable cause or
reasonable suspicion of criminal activity. 	See id. at 662. 	The
Court ruled that a person "operating or traveling in an
automobile does not lose all reasonable expectation of privacy
- 4 -

simply because the automobile and its use are subject to
government regulation." 	Id. 	However, the Court went on to say:
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. 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 a traffic stop based on less than probable cause or
"articulable and reasonable suspicion" of criminal activity.
The test involves weighing (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. 	See 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
- 5 -

the conduct of individual officers." 	Id. at 51. 	See also Lowe
v. Commonwealth, 230 Va. 346, 337 S.E.2d 273 (1985).
Lowe involved an arrest made at a license and sobriety
checkpoint conducted pursuant to Charlottesville's checkpoint
plan. 	Analyzing the plan under the criteria set forth in Brown,
the Virginia 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 Virginia 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 Court
said:
- 6 -
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 requirements of the State Plan and the Amherst Plan
satisfied the criteria set forth in Brown, the standards
approved in Lowe, and the requirement of Simmons. 	The only
element left to the field officers' judgment was the duration of
the checkpoint. 	The State Plan provides that checkpoints will
last not less than thirty minutes nor more than two hours. 	This
flexibility is necessary to accommodate weather, general traffic
conditions, the availability of personnel and the performance of
other necessary police functions. 	The plan does not afford the
field officers the "unbridled discretion" forbidden by Brown,
Lowe, and Simmons. 	While not deciding the specific point, we
have heretofore approved the State Plan containing that element
of discretion. 	See Crouch v. Commonwealth, 26 Va. App. 214, 494
S.E.2d 144 (1997). 	Thus, in no respect was the establishment of
the checkpoint left to the unbridled discretion of the field
officers. 	Therefore, we hold that establishment of the
checkpoint pursuant to the State Plan and the Amherst Plan was
- 7 -

constitutional and that the discretion afforded the officers to
conduct the checkpoint for not less than thirty minutes nor more
than two hours did not render the activity unconstitutional.
III. 	IMPLEMENTATION OF CHECKPOINT
Wesley next contends that the field officers deviated from
the State Plan and the Amherst Plan, rendering the checkpoint
unreasonable and constitutionally impermissible.
We have held previously that when the police have adopted a
plan for conducting a traffic checkpoint, the field officers
have no discretion to deviate from the plan. 	See Brown v.
Commonwealth, 20 Va. App. 21, 25, 454 S.E.2d 758, 759 (1995).
It is in this light that we view Wesley's challenges to the
operation of the checkpoint.
A. 	MINIMUM PERSONNEL
Wesley first contends that the checkpoint was operated by
an insufficient number of officers.
The State Plan requires that the number of employees
assigned to a checkpoint should be "in proportion to the volume
of traffic." 	The Amherst Plan requires a minimum of two
officers. 	Trooper Ratliff testified that three officers were at
the checkpoint until he left with Wesley. 	When he left, two
officers remained. 	This satisfied both the State Plan and the
Amherst Plan.
- 8 -

B. 	SAFE LOCATION
Wesley next contends that the checkpoint was not operated
safely because it lacked adequate parking for the police and any
violators. 	The record does not support this contention.
The Amherst Plan established that visibility was "good" at
the location and that the site involved no hazardous
characteristics. 	Nothing in the record suggests that the
checkpoint itself was unsafe or that it was conducted unsafely.
C. 	STARTING TIME
Finally, Wesley contends that the checkpoint did not begin
at 7:00 p.m., the time approved by the state police supervisor.
He states correctly that the videotape of Trooper Ratliff's
contact with him shows the time to be just after 6:00 p.m.,
which would have been before the checkpoint was authorized to
begin. 	Trooper Ratliff, however, testified that the "time was
in fact 7:10 [p.m.]." 	He further testified that the videotape
"may not have been" adjusted for daylight savings time. 	The
resolution of this disparity lay within the judgment of the
trial court. 	The evidence supports its conclusion that the stop
occurred within the authorized time frame of the checkpoint.
IV. 	CONCLUSION
Because the State Plan and the Amherst Plan passed
constitutional muster and because the officers conducted the
checkpoint in compliance with those plans, Wesley's seizure did
not contravene the protections of the Fourth Amendment.
- 9 -

Accordingly, the trial court did not err in denying Wesley's
motion to suppress. 	The judgment of the trial court is
affirmed.
Affirmed.
- 10 -