                   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.




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     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

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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




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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

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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:

             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

                                 - 6 -
            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.




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