Christian Michael Larsen vCommonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Agee
Argued at Salem, Virginia
CHRISTIAN MICHAEL LARSEN
MEMORANDUM OPINION * BY
v. Record No. 1096-00-3 JUDGE G. STEVEN AGEE
MARCH 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on brief), for
appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Christian Michael Larsen (Larsen) was convicted and
sentenced in a bench trial in the Circuit Court of the City of
Danville for driving after having been declared a habitual
offender, second or subsequent offense, in violation of Code
§ 46.2-357(B)(3). He appeals the conviction averring that the
roadblock employed to check his license and vehicle registration
violated the Fourth Amendment of the United States Constitution.
Therefore, Larsen argues, the trial court should have suppressed
the evidence gathered as an illegal search and seizure. For the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
reasons set forth below, we affirm the trial court's denial of
the motion to suppress.
I.
Background
On December 2, 1999, Lt. J.W. Smith of the City of Danville
Police Department supervised a traffic checkpoint at the
intersection of Stratford Place and Westhampton Avenue from
9:00 p.m. to 10:00 p.m. The purpose of the checkpoint was to
check and verify motorists' licenses and registrations and act
upon any other violations which became apparent during the
checkpoint.
The checkpoint was established and conducted pursuant to a
plan designed by Lt. Smith and approved by his supervisor,
Assistant Chief of Police Major Elliott, on November 24, 1999.
The police department found the checkpoint necessary because the
city had experienced citywide problems with people driving
without a license. Lt. Smith chose the particular location
because it was (1) a fairly wide street, (2) well lit, (3) well
traveled and (4) a good location for the safety of his officers.
As provided by the plan, Officers Chaney, Crews, Brooks and
Dalton set up the roadblock just prior to 9:00 p.m., using their
marked police cars, orange cones and flares to notify motorists
of the checkpoint. The plan provided that "in the event traffic
becomes congested, it will be allowed to flow until clear. Then
the checkpoint will resume." During the operation, however,
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Lt. Smith never perceived the traffic to be congested, so the
officers stopped all passing cars.
Just prior to 10:00 p.m., Officer Chaney stopped Larsen's
vehicle at the checkpoint. Officer Chaney asked Larsen for his
driver's license, whereupon Larsen informed the officer that he
did not have a license. The officer then obtained Larsen's
social security number and learned from the dispatcher that
Larsen was a habitual offender. Officer Chaney then arrested
Larsen for driving after having been declared a habitual
offender. The charge was amended to a felony for a subsequent
offense when it was determined Larsen had a prior conviction for
the same offense.
At trial, Larsen made a motion to suppress all evidence
derived from the stopping of his vehicle on the ground that his
constitutionally protected right against unreasonable seizures
was violated. The court denied the motion and found Larsen
guilty as charged, giving rise to this appeal.
II.
Analysis
The stopping of a motor vehicle and detaining its operator
at a roadblock or a checkpoint constitutes a seizure within the
meaning of the Fourth Amendment, "even though the purpose of the
stop is limited and the resulting detention quite brief."
Delaware v. Prouse, 440 U.S. 648, 653 (1979); United States v.
Martinez-Fuerte, 428 U.S. 543, 556 (1976); Crandol v. City of
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Newport News, 238 Va. 697, 700, 386 S.E.2d 113, 114 (1989).
Therefore, when reviewing the constitutionality of a checkpoint,
an inquiry must be made into whether the checkpoint in question
was a permissible invasion of the motorists' reasonable
expectation of privacy. We evaluate the constitutionality of a
traffic checkpoint according to established principles.
"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." Prouse, 440 U.S.
at 663. However, a state is "not preclude[d] from developing
methods for spot checks that . . . do not involve the
unconstrained exercise of discretion. Questioning of all
oncoming traffic at roadblock-type stops is one possible
alternative." Id.
The issue before us is whether the seizure of Larsen under
the circumstances of this checkpoint was unreasonable under the
Fourth Amendment. Larsen contends the seizure was unreasonable
due to its failure to meet the standards set forth in Brown v.
Texas, 443 U.S. 47 (1979). We disagree.
The Supreme Court of the United States in Brown stated that
the reasonableness of a checkpoint seizure depends on a
balancing test in which the validity of such a seizure should be
gauged. There must be a weighing of (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
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of the interference with individual liberty and the individual's
expectation of privacy. Upon considering these factors in this
case, it is clear that the seizure was reasonable.
First, the checkpoint seizure was performed in the public
interest as Danville had experienced a citywide problem with
unlicensed drivers traveling on its roads. Proper licensure is
a recognized vital interest of the public. In Simmons v.
Commonwealth, 238 Va. 200, 203, 380 S.E.2d 656, 658 (1989), the
Supreme Court of Virginia held "it is clear that the state has a
vital interest in enforcing its motor vehicle laws regarding
licensure and equipment." This holding that a grave public
interest is advanced by a licensure checkpoint is supported by
Prouse, 440 U.S. 648. There the U.S. Supreme Court stated
[s]tates have a vital interest in ensuring
that only those qualified to do so are
permitted to operate motor vehicles, that
these vehicles are fit for safe operation,
and hence that licensing, registration and
vehicle inspection requirements are being
observed.
Id. at 658-59.
Finding the checkpoint's purpose to be permissible, we are
now required to determine whether this particular checkpoint was
a constitutionally impermissible invasion of Larsen's reasonable
expectation of privacy. Simmons, 238 Va. at 202, 380 S.E.2d at
658.
To avoid constitutionally impermissible
infringements on privacy, the roadblock must
be carried out pursuant to a plan or
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practice which is explicit, contains neutral
criteria, and limits the conduct of the
officers undertaking the roadblock. Such a
plan serves to insure that one's "reasonable
expectation of privacy is not subject to
arbitrary invasions solely at the unfettered
discretion of officers in the field."
Id. at 202-03, 380 S.E.2d at 658 (citation omitted). We find
the checkpoint in question did not impermissibly infringe on a
reasonable expectation of privacy.
The December 2, 1999 checkpoint in Danville was executed in
compliance with a pre-approved plan and based on objective
criteria. The checkpoint was designated by marked police cars,
orange cones and flares; it was clearly visible to oncoming
motorists. The field officers, assigned to the pre-arranged
time and location, had no discretion concerning the particulars
of the checkpoint, and were required to stop every passing car.
The site of the operation was selected because it was a fairly
wide street, well lit, well traveled and a good location for the
safety of the field officers.
This operation was carried out pursuant to a plan which was
explicit, contained neutral criteria and limited the conduct of
the field officers. The fact that the creator of the plan,
Lt. Smith, was present as a supervisor during the checkpoint
operation does not render the checkpoint operation invalid. See
Raymond v. Commonwealth, 17 Va. App. 64, 435 S.E.2d 151 (1993).
The focus of the analysis is on the actions of Officer Chaney,
who stopped Larsen, and as previously stated he and his fellow
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field officers exerted no discretion in the planning or
execution of the operation.
Accordingly, we hold that the Danville checkpoint did not
violate Larsen's Fourth Amendment rights and the trial judge
correctly denied the motion to suppress. Larsen's conviction is
affirmed.
Affirmed.
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