Commonwealth of Virginia v. Thomas Jeray Hall ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Frank and Senior Judge Bumgardner
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0144-09-3 JUDGE RUDOLPH BUMGARDNER, III
JUNE 16, 2009
THOMAS JERAY HALL
FROM THE CIRCUIT COURT OF FLOYD COUNTY
Ray W. Grubbs, Judge
Craig W. Stallard, Assistant Attorney General (William C. Mims,
Attorney General, on brief), for appellant.
Richard W. Davis, Jr. (Davis, Davis & Davis, on brief), for appellee.
After being stopped at a traffic checkpoint, Thomas Hall was charged with driving under
the influence, third offense, Code § 18.2-266. The trial court ruled the checkpoint was
improperly established and suppressed all evidence obtained during the stop. The
Commonwealth appeals.
We view the evidence in the light most favorable to the defendant. Commonwealth v.
Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992). The Floyd County Sheriff’s Office
conducted two traffic checkpoints between 6:00 p.m. and 10:00 p.m. on December 21, 2007.
The defendant was arrested at one of the checkpoints. Officers conducted checkpoints pursuant
to General Order No. 78, which the Sheriff, Shannon Zeman, had approved in June 2006. That
order defines the procedures for conducting traffic checkpoints. Officers conduct the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
checkpoints at sites selected from an approved list of sites provided to the sheriff by the state
police. The sheriff approves the proposed site before checking begins.
In this case, the patrol supervisor conducting the checkpoints, Tim Dulaney, selected the
date and time for the checkpoints. He did that because he was responsible for assigning
personnel and would be able to select a date and time when sufficient officers were available.
Initially, he planned to operate the checkpoints on December 22, 2007 from 4:00 a.m. to
8:00 a.m. The sheriff disapproved that plan because he did not think the checkpoints would be
effective that early in the morning. The patrol supervisor then rescheduled the checkpoints for
6:00 p.m. to 10:00 p.m. on December 21, 2007, and the chief deputy approved the change.
The chief deputy, Bruce Turner, next selected the precise locations for the checkpoints
from the list of pre-approved sites. The sheriff approved the sites selected the day before the
checkpoints began. The chief deputy noted the sheriff’s approval on the operational plan, and he
told the patrol supervisor the locations for the checkpoints one to two hours before the
checkpoints opened. The patrol supervisor reported these locations to the officers who actually
conducted the checkpoints during their briefing just before establishing the checkpoints. Neither
the sheriff nor the chief deputy participated in the checkpoints.
The trial court found the patrol supervisor selected the date and time for the checkpoint
after the chief deputy selected the site and based its conclusion that the patrol supervisor had
unbridled discretion on that finding. The trial court erred in finding that the patrol supervisor
selected the date and time for the checkpoint after the chief deputy selected the site, and the
defendant concedes that error though argues it was harmless.
“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 explicit, neutral limitations on the conduct of
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the individual officer.” Hall v. Commonwealth, 12 Va. App. 972, 973, 406 S.E.2d 674, 675
(1991). “When the field officers’ discretion is limited and the checkpoint is established pursuant
to an explicit plan, a checkpoint to ensure and improve traffic safety is lawful.” Palmer v.
Commonwealth, 36 Va. App. 169, 175, 549 S.E.2d 29, 32 (2001). In Hall, this Court held that a
checkpoint was unconstitutional where a trooper in his sole discretion could choose a checkpoint
site from a pre-selected list of fifty-four sites in Accomack County at any time during a specified
week because the plan “unnecessarily left the individual trooper with such broad discretion that it
was subject to abuse.” Hall, 12 Va. App. at 975, 406 S.E.2d at 676.
In Crouch v. Commonwealth, 26 Va. App. 214, 494 S.E.2d 144 (1997), the supervisor
told a state trooper to set up a checking detail some time during the workweek at a certain
location. Based upon weather conditions and the fact that another officer was available to assist
him, the trooper decided the time to set up the checking detail. The trooper then called the
dispatcher and received verbal permission to begin the assigned roadblock. Id. at 217, 494
S.E.2d at 145. This Court ruled the checking detail was constitutional and distinguished Hall.
“Although [the trooper] was allowed to designate the timing of the traffic checking detail, he had
no discretion to decide the location of the assigned roadblock, and he was required to obtain
approval from a supervisor before he began stopping vehicles.” Id. at 219-20, 494 S.E.2d at
146-47.
In this case, the patrol supervisor first selected the date and time for the checkpoint to
ensure the availability of adequate personnel to operate it. He did not know the locations of the
checkpoints and could not have targeted a specific person or a specific group of people. The
patrol supervisor submitted his decision to the sheriff for approval. The fact that the sheriff
disapproved the initial plan and that the chief deputy approved the revised time and date reflects
strict limitation on the patrol supervisor’s discretion.
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After the date and time were selected and approved, the chief deputy chose the sites from
the pre-approved list. The sheriff reviewed and approved that decision. The patrol supervisor
had no role in selecting the locations for the checkpoints. The patrol supervisor and the other
officers conducting the checkpoints only learned of the locations shortly before they began
operating them. The officers conducting the checkpoints had appropriately limited discretion
that prevented abuse in the conduct of the checkpoints.
As in Crouch, the officer conducting the checking detail selected the timing but had no
role in deciding the location. The traffic checkpoint was proper because the patrol supervisor
and the officers conducting the stops had limited, supervised discretion. The trial court erred in
concluding the patrol supervisor had too much discretion. Accordingly, we reverse the decision
to suppress and remand for trial on the merits.
Reversed and remanded.
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