                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia


STACEY JAY BROWN
                                   MEMORANDUM OPINION * BY
v.   Record No. 2512-94-3        JUDGE ROSEMARIE ANNUNZIATA
                                      AUGUST 27, 1996
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF BUENA VISTA
                        Thomas H. Wood, Judge
            W. T. Robey, III, for appellant.

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



      Stacey Jay Brown appeals his conviction for driving under

the influence of alcohol.   He contends that he was stopped at a

police roadblock in violation of his Fourth Amendment rights.     We

affirm his conviction.

      According to the statement of facts, see Rule 5A:8(c), on

August 19, 1994, Officer A. J. Panebianco stopped Brown at a

roadblock on Route 501 in the City of Buena Vista.   Panebianco

noticed that Brown exhibited evidence of alcohol consumption and

arrested him after he failed several field sobriety tests.

Brown's blood alcohol concentration registered .11% on a

breathalyzer.

      The statement of facts also recited that on August 8, 1994,

the police chief informed Panebianco in writing that he would be
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
required to operate a checkpoint to look for intoxicated drivers

"on Rt. 501 in the City of Buena Vista."   Panebianco testified

that the roadblock had been established pursuant to the Buena

Vista Police Department manual on traffic stops.   Section I-B of

the manual requires that all checkpoint locations be selected

from a list of approved sites.    Section I-C requires a primary

and secondary site be designated for each day/night of the

scheduled checkpoint.
     Panebianco did not receive written or oral instructions

which expressly stated where the primary or secondary checkpoint

was to be situated that evening.    However, Panebianco testified

that there were only two approved checkpoints in the City of

Buena Vista.   All officers knew that the "Route 501" location

referred to a site located near the old Blue Bird plant.    The

second checkpoint, known as the "Route 60" location, was in front

of the Mormon church near the western limits of the city.

     The manual also states as follows:
          Systematic vehicle stops are acceptable if
          every car is stopped. Also accepted are spot
          checks with some degree of uniformity; for
          example, every fo[u]rth car is stopped. The
          frequency of vehicles stopped will be decided
          by the supervisor; for example, every third
          car, or as the situation dictates.


In the present case all vehicles were stopped.

     In Virginia "roadblock[s] 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




                                 - 2 -
roadblock."   Simmons v. Commonwealth, 238 Va. 200, 202-03, 380

S.E.2d 656, 658 (1989).   These requirements "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."   Hall v. Commonwealth, 12 Va. App. 972, 973, 406

S.E.2d 674, 675 (1991).   Prior cases concerning roadblocks have

focused upon the degree of discretion granted an officer in

determining the validity of the stop.   In Simmons, the Virginia

Supreme Court found a roadblock violated the Fourth Amendment

because the officers had total discretion over the establishment,

location, and duration of the roadblock.   238 Va. at 204, 380

S.E.2d at 659.   The Court ruled that officers on the scene may

not establish the system for stopping vehicles.   See also Lowe v.

Commonwealth, 230 Va. 346, 352, 337 S.E.2d 273, 277 (1985), cert.

denied, 475 U.S. 1084 (1986); Hall, 12 Va. App. at 975-76, 406

S.E.2d at 676; Brown v. Commonwealth, 20 Va. App. 21, 25-26, 454

S.E.2d 758, 759-60 (1995).   Brown contends the checkpoint

violated the Fourth Amendment because officers at the scene had

discretion as to where to place the checkpoint and as to which

vehicles would be stopped.

     Viewed in the light most favorable to the Commonwealth,
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991), the evidence proved that the chief of police's

directive to establish a site "on Rt. 501 in the City of Buena

Vista" referred to only one location.   Panebianco did not have




                               - 3 -
discretion to establish a checkpoint anywhere along Route 501

because the old Blue Bird site was the only permissible site.

The only other approved location, the "Route 60" site, was

precluded when the chief of police directed the checkpoint be

placed at the Route 501 site.

       When considered with the police manual and Panebianco's

personal knowledge of the police department's established

practice, the written instructions at issue are not ambiguous or

vague.   They directed the officer to place a checkpoint at a

specific site near the old Blue Bird plant.     Unlike the officers

in Simmons, Panebianco did not have discretion to determine the

location of the checkpoint.     See 238 Va. at 204, 380 S.E.2d at

659.   Moreover, the failure to identify a secondary site, as

required by the police department manual, did not effectively

make the location of the checkpoint a matter of discretion to be

decided by the police officer in the field.

       Finally, according to the police manual, the supervisor in

Buena Vista decided the "frequency of vehicles checked."     The

manual approves a system under which every car is stopped.

Lieutenant B. D. Smith, the on-the-scene supervisor of the

checkpoint, complied with these police department procedures and

directed that every car be stopped.      In considering the method of

roadblock checks which could meet constitutional requirements,

the United States Supreme Court recognized that "[q]uestioning of

all incoming traffic at roadblock-type stops is one possible



                                 - 4 -
alternative."   Delaware v. Prouse, 440 U.S. 648, 663 (1979).

     The record establishes that the stop in this case was

reasonable, was in accord with the established plan, and, thus,

comported with the provisions of the Fourth Amendment.

Accordingly, we affirm the conviction.

                                                   Affirmed.




                               - 5 -
Benton, J., dissenting.



     "Stopping an automobile and detaining the occupants at a

roadblock constitutes a seizure under the fourth amendment of the

United States Constitution."   Simmons v. Commonwealth, 238 Va.

200, 202, 380 S.E.2d 656, 658 (1989).   Because the record reveals

that the officers were not "using an objective, nondiscretionary

procedure" for determining the location of the roadblock and who

would be stopped, I would reverse the conviction.   Id. at 204,

380 S.E.2d at 659.
     Route 501 travels through the City of Buena Vista for at

least three miles.   In a written memorandum the chief of police

directed Officer Panebianco to establish a sobriety checkpoint

"on Rt. 501 in the City of Buena Vista."   Neither the memorandum

nor any other writing established a specific location.

Panebianco's testimony that all officers understood that "Route

501" referred to a particular location near the old Blue Bird

plant did not prove constitutionally sound criteria.

     This Court and the Supreme Court have upheld sobriety

checkpoints as constitutional provided they are properly

established.   "[I]n order to ensure that 'an individual's

reasonable expectation of privacy is not subject to arbitrary

invasions solely at the unfettered discretion of officers in the

field . . . [seizures at roadblocks] must be carried out pursuant

to a plan embodying explicit, neutral limitations on the conduct

of individual officers.'"   Crandol v. Newport News, 238 Va. 697,



                               - 6 -
700, 386 S.E.2d 113, 114 (1989) (quoting Lowe v. Commonwealth,

230 Va. 346, 350, 337 S.E.2d 273, 276 (1985), cert. denied, 475

U.S. 1084 (1986)).

     In Simmons, two police officers established a sobriety

checkpoint without any direction or an existing plan.    The

officers exercised discretion as to where and when to establish

the checkpoint.   They decided to stop every vehicle.   "Without

evidence that the troopers were using an objective,

nondiscretionary procedure, [the Supreme Court] h[e]ld that the

. . . stop [of the defendant at the checkpoint] violated the

Fourth Amendment."   Simmons, 238 Va. at 204, 380 S.E.2d at 659.

     Neither the police chief's memorandum nor Panebianco's

testimony proved that the officers on duty could not exercise

their own discretion as to the location of the checkpoint.     On

its face, the chief of police's memorandum allowed a roadblock

anywhere along Route 501.   A general understanding among officers

does not transform the memorandum into an "explicit plan or

practice" for fourth amendment purposes.   Id. at 204, 380 S.E.2d

at 658.   The Commonwealth failed to prove that the officers

established the checkpoint on Route 501 according to an existing

plan or specific instructions from the proper authority.      Indeed,

the manual requires that "[a]ll check point sites . . . will be

selected from a list of approved check point sites."    The

evidence proved that no such list existed or was used.

     This Court has recognized that discretion need not be




                               - 7 -
totally "unbridled" or "unfettered" to constitute a fourth

amendment violation.    Hall v Commonwealth, 12 Va. App. 972, 975,

406 S.E.2d 674, 676 (1991).   Even though officers may receive

some instructions regarding the establishment of a checkpoint,

they may still exercise discretion in violation of the fourth

amendment.    Without documented evidence of specific, designated

checkpoint locations, the evidence failed to prove that the

officers relied on an "objective, nondiscretionary procedure" in

deciding where to establish the checkpoint.     Simmons, 238 Va. at

204, 380 S.E.2d at 659.

     Furthermore, the evidence proved that the plan as denoted in

the chief of police's memorandum did not conform with the

manual's requirement that a primary and secondary checkpoint be

identified.   According to the manual, "[f]or each day/night that

the check point is scheduled, there will be a primary and

secondary site chosen."   The police department did not choose a

secondary site and no specific location on Route 501 was ever

labeled the primary site.

     According to the manual the "frequency of vehicles checked

will be decided by the supervisor."     The manual does not state

whether the supervisor must be an officer assigned to the

checkpoint or someone back at the stationhouse.    The evidence

proved that at the scene, the officer in charge of the roadblock

exercised his discretion by electing the frequency by which to

stop the vehicles.   This on-the-scene decision-making is just the



                                - 8 -
type prohibited by Simmons.     "A statement that the [officers]

followed standing operating procedure in stopping every car is

not sufficient to establish that an explicit plan or practice

existed regarding roadblock or check point procedures."    238 Va.

at 204, 380 S.E.2d at 659.    Nothing prevented the supervisor from

ordering that every third car be stopped and then switching to

some other frequency of stop.

     Because the Commonwealth's evidence proved that the Buena

Vista officers were never directed as to where on Route 501 to

locate the checkpoint or where the primary and secondary sites

were to be established, or which vehicles to stop.    I would "hold

that the plan unnecessarily left the [police officers] with such

broad discretion that it was subject to abuse."     Hall, 12 Va.

App. at 975, 406 S.E.2d at 676.    Accordingly, under these

circumstances, I believe that the procedure invaded the public's

fourth amendment right, and, therefore, I would reverse the

conviction.




                                 - 9 -
