                                               Tuesday        5th

          May, 1998.



Elvin William Sheppard,                                       Appellant,

against        Record No. 1335-96-3
               Circuit Court Nos. CR95000976 and CR95000977

Commonwealth of Virginia,                                     Appellee.


                          Upon a Rehearing En Banc

    Before Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman,
        Willis, Elder, Bray, Annunziata, Overton and Bumgardner

               Wayne T. Baucino, Assistant Public Defender
               (Vikram Kapil, Assistant Public Defender, on
               brief), for appellant.

               Leah A. Darron, Assistant Attorney General
               (Richard Cullen, Attorney General, on
               brief), for appellee.



          A divided panel of this Court affirmed the judgment of the

trial court.    See Sheppard v. Commonwealth, 25 Va. App. 527, 489

S.E.2d 714 (1997).   We stayed the mandate of that decision and granted

rehearing en banc.
          Upon rehearing en banc, the judgment of the trial court is

affirmed without opinion by an evenly divided Court.

          The Commonwealth shall recover of the appellant the costs in

this Court, which costs shall also include an additional fee of $200

for services rendered by attorneys of the Public Defender's office on

the rehearing portion of this appeal, in addition to counsel's

necessary direct out-of-pocket expenses.
         This order shall be published and certified to the trial

court.

                         A Copy,

                              Teste:

                                        Cynthia L. McCoy, Clerk

                              By:

                                        Deputy Clerk
                                          Tuesday              14th

          October, 1997.



Elvin William Sheppard,                                        Appellant,

against          Record No. 1335-96-3
            Circuit Court Nos. CR95000976 and CR95000977

Commonwealth of Virginia,                                      Appellee.


                Upon a Petition for Rehearing En Banc

                           Before the Full Court


     On September 22, 1997 came the appellant, by court-appointed

counsel, and filed a petition praying that the Court set aside

the judgment rendered herein on September 9, 1997, and grant a

rehearing en banc thereof.

     On consideration whereof, the petition for rehearing en banc

is granted, the mandate entered herein on September 9, 1997 is

stayed pending the decision of the Court en banc, and the appeal

is reinstated on the docket of this Court.

     The parties shall file briefs in compliance with Rule 5A:35.

It is further ordered that the appellant shall file with the

clerk of this Court ten additional copies of the appendix

previously filed in this case.

                               A Copy,

                                    Teste:

                                                Cynthia L. McCoy, Clerk

                                    By:
                                                Deputy Clerk
                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia


ELVIN WILLIAM SHEPPARD
                                              OPINION BY
v.        Record No. 1335-96-3        JUDGE JERE M. H. WILLIS, JR.
                                           SEPTEMBER 9, 1997
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
                     Charles M. Stone, Judge
          Wayne T. Baucino, Assistant Public Defender
          (Vikram Kapil, Assistant Public Defender, on
          briefs), for appellant.

          Leah A. Darron, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Elvin William Sheppard was a passenger in an automobile that

was stopped by the police at a license checking roadblock.    He

was convicted of possession of cocaine and possession of

marijuana discovered by the police upon search of the automobile.

On appeal, he contends that the roadblock was established

unconstitutionally, that the seizures of the automobile and of

his person were therefore unlawful, and that the trial court

erred in refusing to suppress the evidence discovered upon the

search of the automobile.   We find no error and affirm the

judgment of the trial court.

     Prior to Sheppard's arrest, the Martinsville Police

Department adopted General Order Number 3-31 governing traffic




                                 4
checkpoints "to enforce driver's license and vehicle registration

laws" and to address "all other violations of law coming to the

attention of officers conducting the checking detail."    The plan

required that checkpoints should be located at sites set forth on

a list attached to the plan as "Appendix A" and that checkpoints

would be conducted "for no less than [thirty] minutes or for no

more than two hours."    The plan set forth rules governing the

number of officers to be present, the officers' attire, emergency

lights and flares to be used, location of emergency vehicles on

the scene, removal of detained vehicles from traffic, and the

number of cars to be stopped.
        Charles E. Long testified that at the time of Sheppard's

arrest, he was Lieutenant of Criminal Investigations, Services

Division, of the Martinsville Police Department.    He testified

that the police "were receiving numerous complaints about the

Moss Street area involving drugs, speeders, people driving

without driver's license, suspensions . . . ."    Lieutenant Long

decided to set up a "roadcheck" on Moss Street and assigned

officers to Moss Street for that purpose.    The Moss Street

location was not included in Schedule A of General Order Number

3-31.    However, the roadcheck complied with that order in every

other respect.    Lieutenant Long did not participate in the

roadcheck personally, but acted only in a supervisory capacity.

        Sheppard was a passenger in an automobile that was stopped

at the Moss Street roadcheck.    The driver did not have an




                                   5
operator's license and was charged with that offense.   He gave

the police permission to search the automobile.    The police

discovered cocaine and marijuana, and Sheppard was charged with

possession of those substances.

     Sheppard moved the trial court to suppress the cocaine and

marijuana on the ground that their discovery resulted from an

unconstitutional search and seizure.   He argued that because the

establishment of the Moss Street checkpoint deviated from General

Order Number 3-31, the conduct of the checkpoint was an exercise

in unbridled police discretion and was constitutionally

impermissible.   The trial court denied the motion, admitted the

evidence, and convicted Sheppard on both counts.
     Code § 46.2-103 provides, in pertinent part:
          Except as prohibited by § 19.2-59, on his
             request or signal, any law-enforcement
             officer who is in uniform or displays
             his badge or other sign of authority
             may:

          1.    Stop any motor vehicle, trailer, or
               semi-trailer to inspect its equipment,
               operation, . . . .

     Code § 46.2-104 provides, in pertinent part:

          The owner or operator of any motor
             vehicle, trailer, or semi-trailer shall
             stop on the signal of any law-
             enforcement officer who is in uniform
             or shows his badge or other sign of
             authority and shall, on the officer's
             request, exhibit his registration card,
             driver's license, learner's permit, or
             temporary driver's permit . . . .


     The statutory right of a law enforcement officer to stop a




                                  6
motor vehicle and the obligation of a motor vehicle operator to

submit to such a stop for a license or registration inspection

are circumscribed by the decision of the United States Supreme

Court in Delaware v. Prouse, 440 U.S. 648 (1979), holding

unconstitutional the random stopping of motor vehicles, other

than upon the basis of probable cause or reasonable suspicion of

criminal conduct.   The Court ruled that a person "operating or

traveling in an automobile does not lose all reasonable

expectation of privacy simply because the automobile and its use

are subject to government regulation."   Id. at 662.   However, the

Court went on to say:
          This holding does not preclude the States
             from developing methods for stopchecks
             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 traffic stops not based upon probable cause or

reasonable suspicion of criminal activity.   The test involves

three criteria:   (1) the gravity of the public concerns served by

the seizure, (2) the degree to which the seizure advances the




                                 7
public interest, and (3) the severity of the interference with

individual liberty.     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 the

conduct of individual officers."        Id. at 51.   See Lowe v.

Commonwealth, 230 Va. 346, 350, 337 S.E.2d 273, 275-76 (1985).

        Lowe involved an arrest made at a license and sobriety

checkpoint conducted pursuant to Charlottesville's checkpoint

plan.    Analyzing the components of the plan under the criteria

set forth in Brown, the 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.




                                   8
     In Simmons v. Commonwealth, 238 Va. 200, 380 S.E.2d 656

(1989), the 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 Supreme 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 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 seizure of the vehicle in which Sheppard was riding did

not derive from a random stop forbidden by Prouse.   The

Martinsville plan satisfied the criteria set forth in Brown,

conformed to the standards approved in Lowe, and satisfied the

requirement of Simmons.   The officers conducting the Moss Street

checkpoint complied with the Martinsville plan in every respect.



                                 9
The issue before us is whether the sole deviation from that

plan, the selection by Lieutenant Long of a checkpoint site not

included in Schedule A, was of sufficient significance to render

the checkpoint unreasonable and constitutionally impermissible.

We hold that it did not.

     Although Lieutenant Long selected the site, he did not

participate in conducting the checkpoint.   He was not an officer

in the field.   His involvement was altogether in a supervisory or

administrative capacity.   Thus, in no respect, was the

establishment or conduct of the checkpoint left to the unbridled

discretion of field officers.
     Nothing in the record suggests that Lieutenant Long's

decision to establish the checkpoint involved, in any way, an

effort to target a specific person or a specific group of people.

His decision was based on citizen complaints of unlawful

activity at the Moss Street location.   His decision addressed the

unlawful situation, not any person or group of people.    His

purpose was to quell unlawful activity and to control a trouble

spot, employing neutral criteria.    The location of the checkpoint

on Moss Street imposed no greater intrusion on the privacy of the

general traveling public than would have been imposed had the

checkpoint been located at a Schedule A site.   Thus, we hold that

the mere fact that the Moss Street location was not included in

Schedule A, effected a minor, insubstantial deviation from

compliance with the Martinsville plan, and did not render the




                                10
checkpoint constitutionally impermissible.

     The judgment of the trial court is affirmed.

                                                    Affirmed.




                               11
Coleman, J., dissenting.



     In my opinion, the traffic checking roadblock that the

Martinsville police set up on Moss Street significantly deviated

from the city's roadblock plan.    The roadblock was not conducted

at a pre-approved location as specified in General Order 3-31,

the plan did not authorize a supervisor to designate an alternate

site based upon public safety concerns, and the roadblock was

established for general crime detection purposes and not for

legitimate operator licensing and vehicle registration checking

purposes.   Moreover, the roadblock at the Moss Street site was

not based on objective criteria; rather, it was established on an

ad hoc basis in response to citizen complaints about illegal

activity in the area.   For these reasons, I would hold that the

roadblock did not satisfy the reasonableness requirements of the

Fourth Amendment.    The manner in which the roadblock was

established did not remove the officers' unfettered discretion as

to who could be stopped.   Accordingly, because the roadblock did

not, in my opinion, satisfy Fourth Amendment requirements, the

stop of the vehicle in which the defendant was a passenger and

the seizure of drugs from him was unlawful.   Accordingly, I

respectfully dissent from the majority opinion.

                                  I.

     The site for the roadblock was selected by Lieutenant Long,

who was the officer in charge of the Criminal Investigations

Services Division.   Long testified that he had received numerous


                                  12
complaints, from one citizen in particular, regarding drugs,

speeding, and people driving in the Moss Street area without

licenses or on suspended licenses. Long testified:
          [A]t that time, [Moss Street] was a pretty
             hot area. We were doing reversal,
             sting reversals, the vice unit was . .
             . [investigating] drugs and like I said
             there was a lot of traffic in that
             area. There were complaints of traffic
             in that area being very heavy and
             people speeding, people driving around
             with no driver's license . . . . [The
             roadblock] was one of the procedures
             that I chose to try to [quell] some of
             the trouble we were having on Moss
             Street.

Thus, the purpose for conducting the roadblock at Moss Street

deviated from the city's stated purpose in General Order 3-31 of

enforcing driver's license and vehicle registration laws.

     Furthermore, no evidence established that a roadblock is an

effective or legitimate enforcement measure which can be used or

is designed to detect the crimes that were being reported at Moss

Street.    See Department of State Police v. Sitz, 496 U.S. 444,

454 (1990).   Although Lieutenant Long mentioned "citizen

concerns" about "people driving without licenses or on suspended

licenses," he testified that he authorized the Moss Street

roadblock in response to citizen complaints about drugs,

speeders, and traffic congestion associated with the drug

traffic.   The record contains no evidence establishing how

officers at a properly conducted roadblock checking licensing and

registration can legitimately detect drugs, speeders, or reduce



                                 13
traffic congestion.   Long ordered that the roadblock be

established on Moss Street in order to show a police presence in

the area and to deter criminal conduct, reduce traffic flow,

control speeding drivers, and identify unlicensed drivers.

Long's admitted primary concern was "anyone . . . violating any

laws."   None of these purposes are articulated in the city's plan

as reasons for conducting a roadblock.

     The balancing test announced in Brown v. Texas and confirmed

in Sitz requires that a reviewing court look at the public or
governmental interest being addressed by a checkpoint or

roadblock and "the degree to which the seizure advances the

public interest."   443 U.S. 47, 51 (1979).   Roadblocks or

checkpoints, such as the one here, that are established in whole

or in part for purposes of combatting drug-related crimes,

reducing traffic flow and controlling speeding drivers are not

reasonable measures, in my opinion, to detect these types of

offenses.   A roadblock may discourage such conduct in the area by

providing a general police presence that serves as a deterrent;

however, when balanced against the intrusion on individual Fourth

Amendment rights, these purposes do not justify the roadblock.
See United States v. Morales-Zamora, 974 F.2d 149, 151-52 (10th

Cir. 1992) (holding that traffic checking detail was an

impermissible pretextual stop to search for drugs); Taylor v.

United States, 595 A.2d 1007, 1009 (D.C.App. 1991) (finding that

alleviation of traffic congestion is not a purpose shown to be



                                14
furthered by a roadblock); Galberth v. United States, 590 A.2d

990, 997-98 (D.C.App. 1991) (holding that government's general

deterrence interest does not outweigh seized individual's liberty

interest when primary purpose of roadblock is general law

enforcement); Meeks v. State, 692 S.W.2d 504, 508 (Tex. Crim.

App. 1985) (holding roadblock detention illegal when purpose was

to "enforce all the laws"); cf. United States v. McFayden, 865

F.2d 1306, 1312 (D.C.Cir. 1989) (acknowledging that if a

roadblock's principal purpose is the detection of crimes

unrelated to licensing, it could be a violation of the Fourth

Amendment).   But see State v. Damask, 936 S.W.2d 565, 571

(Mo. 1996) (en banc) (holding that state may validly conduct a

checkpoint to apprehend drug traffickers); State v. Everson, 474

N.W.2d 695, 701 (N.D. 1991) (same).

     Here, the Commonwealth failed to establish the required

nexus between the public concerns about speeding and drug-related

crimes and the use of a roadblock and its effectiveness to combat

those problems.   Although a roadblock necessarily slows traffic,

it is not a practice that will, when lawfully executed,

effectively and objectively detect and apprehend speeders.

Similarly, the public's concern about drug trafficking at Moss

Street is not furthered by a roadblock that permits the state, in

the exercise of its police powers, to check for licensing and

registration violations.   Without the authority to search the

vehicle or its occupants, a roadblock is not an effective measure



                                15
to combat drug-related crimes.

                                  II.

     We previously have held that when the police have adopted a

plan for conducting a roadblock, an officer in the field does not

have the discretion to deviate from the plan.     See Brown v.

Commonwealth, 20 Va. App. 21, 25, 454 S.E.2d 758, 759 (1995).

"To allow the [police] to do anything short of complying in full

with [their] own guidelines would inject an element of discretion

into the [checkpoint] procedures and thus undercut the very

foundation upon which the [checkpoint] seizure is

constitutionally justified."     Id. (quoting Commonwealth v.

Anderson, 547 N.E.2d 1134, 1137-38 (1989)).     Objective guidelines

provide the safeguards that ensure the "reasonableness" of

roadblock seizures.   Without objective guidelines, the seizures

would "'lack the usual probable cause or individualized suspicion

requirements [that] ordinarily safeguard citizens from arbitrary

government intrusion."   Id. at 25-26, 454 S.E.2d at 760.    For

this reason, "the [safest] course is to require the Commonwealth

to follow its own rules.'"     Id. at 25-26, 454 S.E.2d at 760.

     The majority ignores Brown v. Commonwealth and holds that

the deviation from the objective guidelines adopted in General

Order 3-31 was not an error of constitutional proportion.

However, in my opinion, the deviation from General Order 3-31,

even though not done at the discretion of an officer in the

field, renders the roadblock conducted on Moss Street




                                  16
constitutionally impermissible.    The Moss Street location was not

a pre-approved site in the plan.       Furthermore, the plan contained

no provision or procedure whereby a supervisor, under given

conditions, such as traffic safety, could authorize a traffic

checking roadblock at an alternate location or a site not

pre-approved in the plan. 1   Thus, the Martinsville police did not

follow their own guidelines for establishing a traffic checking

roadblock.
     Preventing an officer in the field from making random stops

or exercising unfettered discretion in seizing citizens without

probable cause at a roadblock is the primary safeguard that must

be assured before the government can be permitted to infringe

upon the citizen's right to privacy, even to a limited degree and

in limited circumstances. 2   See Galberth, 590 A.2d at 996

("Subjecting every occupant of a motor vehicle to a seizure at

the 'unbridled discretion of law enforcement officials'

involve[s] the 'kind of standardless and unconstrained discretion

[which] is the evil the Court had discerned when in previous

cases it has insisted that the discretion of the official in the

field be circumscribed, at least to some extent.'") (quoting

     1
      Although General Order 3-31 grants the police supervisors
discretion to choose an alternate location for DUI/sobriety
checkpoints for safety considerations, it does not give the
supervisors any discretion in site selection for traffic checking
details.
     2
      The field officer's conduct in such cases would not be
valid simply because the stops were authorized by a supervisor.




                                  17
Delaware v. Prouse, 440 U.S. 648, 661 (1979)).    One of the

safeguards that protects the public from law enforcement officers

indiscriminately utilizing a checkpoint or roadblock to target

one or more persons to be stopped without reasonable suspicion or

probable cause or for general law enforcement purposes is the

requirement that the policing authorities delineate a plan

composed of neutral criteria that utilizes objective,

nondiscretionary procedures.    See Simmons v. Commonwealth, 238

Va. 200, 203, 380 S.E.2d 656, 659 (1989).
     Allowing the Martinsville police to locate a traffic

checking roadblock at an unapproved site on an ad hoc basis in

response to individual complaints or a particular problem

constitutes the very "unfettered discretion" that a plan is

intended to avoid.   The protection that will normally be afforded

by a supervisor approving a deviation from a plan, rather than

allowing a field officer to exercise such discretion, is to

assure that the plan continues to be based on objective, neutral

criteria.    Here, the supervisor's decision did not protect

against an abuse of discretion in deciding where to locate the

roadblock.   Contrary to the majority's assertion, the evidence

proved that a supervisory officer in charge of criminal

investigations, rather than a field officer, exercised his

unfettered discretion to deviate from the plan and to locate the

roadblock on Moss Street in response to a citizen's complaints

regarding drug trafficking, speeding, and individuals driving



                                 18
without licenses.   The roadblock that Long authorized on Moss

Street was designed to target individuals observed by one or

several citizens when the officers had no articulable, reasonable

suspicion or probable cause to stop those individuals.        The

supervision that Long exercised did not give the assurance that

the location or purpose of the roadblock was based on objective

criteria or that the roadblock furthered a legitimate

governmental interest.      I see no meaningful distinction between a

supervisor exercising his unfettered discretion to relocate a

roadblock based, not upon neutral and objective criteria, but

upon complaints targeting certain individuals, and a field

officer doing the same. 3    This type of "standardless and

unconstrained discretion," exercised either by the supervisor or

the field officer, in my view, violates the Fourth Amendment

protections against stopping and detaining private citizens

without probable cause or reasonable suspicion of criminal

activity.




     3
      I do not suggest that a modification of a locality's plan
to add pre-approved sites based upon citizen complaints is
impermissible as long as appropriate procedures are used to amend
the plan and the amendment of the plan is motivated by the public
interest and not by a desire to stop and detain a certain
individual or group of individuals without probable cause or
reasonable suspicion.




                                   19
