                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Richmond, Virginia


JAMES DALE ARCHER
                                         MEMORANDUM OPINION * BY
v.   Record No. 0327-02-2            JUDGE RUDOLPH BUMGARDNER, III
                                            DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                       Gary A. Hicks, Judge

          John H. Click, Jr. (Blackburn, Conte,
          Schilling & Click, P.C., on brief), for
          appellant.

          Leah A. Darron, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     James Dale Archer appeals his conviction of driving under

the influence, Code § 18.2-266.   He contends the police

improperly administered the sobriety checkpoint, which rendered

his initial seizure unlawful.   We conclude the checkpoint was

constitutional and affirm the conviction.

     The Virginia State Police planned to operate a sobriety

checkpoint at the intersection of Nuckols Road and I-295.   State

Police Sergeant Kerry L. Stiles filed a written DUI Sobriety

Checkpoint Operational Plan in accordance with the Department of

State Police Traffic Checking Detail, Memo - 1997 - No. 15.    The


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
operational plan provided that the officers would screen every

vehicle "unless . . . vehicles back up more than 500 feet from

the designated checking point.   The first alternate method will

be to check every 5th vehicle.   The second alternate method will

be to check every 10th vehicle."   If the backups continued, the

operations would be ceased until the distance between vehicles

exceeded the stopping distance for that speed zone.   The

Division Supervisor approved the plan.

     The checkpoint was set up at night from 8:00 - 11:00 p.m.

while a concert was being held at Innsbrook at the Pavilion.

Sergeant Stiles was the on-site supervisor for the checkpoint.

He ensured that the roadblock was conducted safely for the

public and the field officers operating it, and he decided when

"to start and stop traffic checking at the detail."   Flares and

signs for the checkpoint were posted 500 feet from the

checkpoint to assist Sergeant Stiles in measuring the traffic

backup.

     The traffic became extremely heavy when the concert ended.

Sudden rushes from traffic lights caused the traffic to back up

much farther than 500 feet.   When the rushes created such a

backup, Sergeant Stiles would order the checkpoint to shut down.

He ordered the officers to cease checking cars three times when

traffic backed up more than 500 feet.

     Sergeant Stiles had "given the go-ahead" to resume

operating the checkpoint when Trooper Lail stopped the
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defendant.   Trooper Lail was one of the troopers actually

stopping vehicles.   When he stopped the defendant, the troopers

"were checking every vehicle."   As a result of the stop, Trooper

Lail charged the defendant with driving under the influence.

     Sergeant Stiles did not proceed in sequence through the

alternative methods of checking every fifth car and then every

tenth car before ceasing operation of the checkpoint.   He

explained, "based on my experience, I know [those methods] would

not have worked."    Sergeant Stiles ordered resumption of the

checkpoint when "it was safe for us to start checking . . .

every vehicle, without having to back up more than 500 feet."

The defendant concedes the checkpoint was suspended for safety

reasons but maintains that Sergeant Stiles unlawfully deviated

from the approved plan by not employing the alternative methods

for clearing traffic. 1

     Sobriety checkpoints are constitutional.    Simmons v.

Commonwealth, 238 Va. 200, 203, 380 S.E.2d 656, 658 (1989);

Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 455

(1990).   "To ensure that an individual's expectation of privacy

is not subjected to arbitrary invasion solely at the unfettered

discretion of police officers in the field, seizures at

roadblocks must be carried out pursuant to plans embodying



     1
       The Traffic Checking Detail Memo provides that officers
"shall immediately change to the designated alternate screening
method . . . once a traffic back-up occurs . . . ."
                             - 3 -
explicit, neutral limitations on the conduct of the individual

officer."     Hall v. Commonwealth, 12 Va. App. 972, 972, 406

S.E.2d 674, 675 (1991).    "The validity of a checkpoint depends

upon the amount of discretion remaining with the field officers

operating the roadblock."     Crouch v. Commonwealth, 26 Va. App.

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

     At the time Trooper Lail stopped the defendant, the

troopers were checking all cars.    They exercised no discretion

in selecting whom to stop, and they were in strict compliance

with the plan.    Even if their supervisor had earlier deviated

from the plan, that would not render the stop of the defendant

unlawful.   At the time of stopping the defendant, the roadblock

was being operated with the literal compliance that the

defendant demands.

     Sergeant Stiles's deviation from the plan did not render

the stop impermissible.    Temporarily halting the checkpoint

operation was an approved method to clear traffic.    When traffic

backed up beyond 500 feet, an approved safety criterion,

Sergeant Stiles ordered the troopers to cease screening all

vehicles, an approved method.    Sergeant Stiles skipped

intermediate methods of screening and stopped operations

completely; the one method he knew would work to clear the

congestion.    Sergeant Stiles exercised discretion expressly




                                - 4 -
granted in the plan and the training manual. 2      His decision was

reasonable and necessary given the volume of traffic and the

need to ensure officer and public safety.

        Sheppard v. Commonwealth, 25 Va. App. 527, 532, 489 S.E.2d

714, 717 (1997), aff'd en banc, 27 Va. App. 319, 498 S.E.2d 464

(1998), approved the operation of a checkpoint even though the

supervising officer chose a site not listed in the approved

plan.       That officer did not participate in conducting the

checkpoint.      He was the supervisor, and the field officers had

no discretion in conducting the checkpoint.       The deviation by

the supervising officer was not "of sufficient significance to

render the checkpoint unreasonable and unconstitutionally

impermissible."       Id.   "[O]ur focus is on the actions of the

specific trooper who stopped appellant . . . [who] did not

exercise his discretion" in doing so.        Raymond v. Commonwealth,

17 Va. App. 64, 66, 435 S.E.2d 151, 153 (1993) (presence of

supervisor, who chose site and time, at checkpoint "does not

render the entire checkpoint operation invalid").        See also

Burns v. Commonwealth, 261 Va. 307, 323, 541 S.E.2d 872, 883,

cert. denied, 534 U.S. 1043 (2001) (roadblock carried out

pursuant to plan with neutral criteria is constitutional if it

"limits the discretion and conduct of the . . . officers


        2
       The Traffic Checking Detail Memo specifically provides,
"Occasional traffic back-ups may be handled by allowing all
stopped vehicles to pass through the checkpoint to prevent a
traffic hazard, then resuming the specified screening method."
                             - 5 -
actually stopping vehicles"); Simmons, 238 Va. at 203, 380

S.E.2d at 658.   Cf. Brown v. Commonwealth, 20 Va. App. 21, 454

S.E.2d 758 (1995) (when troopers involved in operating site

relocate to pre-approved site for unauthorized reason the

seizure is unconstitutional).

     In this case, the trooper who actually stopped the

defendant did not exercise unfettered discretion.    He did not

exercise any discretion. 3   Trooper Lail began and stopped

screening vehicles when Sergeant Stiles ordered him to do so.

When the checkpoint was in operation, he followed orders and

stopped all vehicles.    The danger denounced in Delaware v.

Prouse, 440 U.S. 648, 663 (1979), that field officers would

exercise "unbridled" discretion by randomly stopping vehicles,

did not exist.   Sergeant Stiles was the supervisor of the

troopers actually operating the checkpoint, and he exercised the

discretion in implementing the plan.    The troopers who operated

the checkpoint exercised no discretion, and the presence of

their supervising officer at the site did not render the

operation of the checkpoint invalid.    Raymond, 17 Va. App. at

66, 435 S.E.2d at 153.




     3
       The Traffic Checking Detail Memo provides: "Participating
sworn employees should not deviate from the operational plan.
Vehicles will not be stopped on a discretionary basis."
(Emphasis added).
                             - 6 -
     We conclude the checkpoint was properly planned and

executed.   Accordingly, we affirm.

                                                  Affirmed.




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