William Wilkins, Jr. v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Humphreys
Argued at Richmond, Virginia
WILLIAM WILKINS, JR.
MEMORANDUM OPINION * BY
v. Record No. 2758-99-2 JUDGE ROBERT J. HUMPHREYS
APRIL 17, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
Charles R. Watson for appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
William Wilkins, Jr. appeals his conviction for possession of
cocaine with intent to distribute, following a conditional guilty
plea. Wilkins contends that the trial court erred in failing to
suppress evidence obtained as a result of the search of his
vehicle, which occurred after he was stopped at a traffic
checkpoint.
When we review a trial court's denial of a
suppression motion, "[w]e review the
evidence in a light most favorable to . . .
the prevailing party below, and we grant all
reasonable inferences fairly deducible from
that evidence." In our review, "we are
bound by the trial court's findings of
historical fact unless 'plainly wrong' or
without evidence to support them." However,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
we consider de novo whether those facts
implicate the Fourth Amendment and, if so,
whether the officers unlawfully infringed
upon an area protected by the Fourth
Amendment.
Harris v. Commonwealth, 33 Va. App. 325, 330-31, 533 S.E.2d 18,
20 (2000) (citations omitted).
On February 10, 1999, Wilkins, who was driving his mother's
vehicle, was stopped at a traffic checkpoint located at the
corner of Harding and Ross Court Streets in the City of
Petersburg, Virginia. Officer Chris Greenwell approached the
driver's side window and asked Wilkins for his license and
registration. Wilkins told Greenwell that he did not have a
license. At that point, Greenwell recognized Wilkins and knew
that his driver's license had been suspended. Greenwell asked
Wilkins if the license was still suspended and Wilkins replied,
"Yes."
Greenwell then noticed that the passenger in the car was
making suspicious motions. He was sitting with his arms
crossed, with his right hand under "his left armpit." When he
reached for the glove box to look for the car registration, he
kept his right hand in the same position, as if he was
"concealing something." After a brief consent search in which a
pill bottle containing cocaine was found under the driver's
seat, Wilkins was arrested and charged with possession of a
controlled substance with intent to distribute.
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Prior to trial, Wilkins filed a motion to suppress the
evidence seized from his vehicle, arguing that the stop and
subsequent search of his vehicle were "without probable cause"
and that the stop violated his Fourth Amendment rights because
the roadblock was not undertaken pursuant to an "explicit plan
or practice which limited the discretion of the officers
conducting the roadblock."
The suppression hearing was held on August 16, 1999. 1 The
evidence presented established that the traffic checkpoint was
scheduled by Sergeant Delores Randolph, supervisor of the
Community Policing Unit and the Weed & Seed program of the
Petersburg Police Department, pursuant to the City of Petersburg
Bureau of Police Traffic & Sobriety Checkpoint Plan. Although
it was the "Weed & Seed" community policing unit that carried
out the checkpoint, the Checkpoint Plan states the purpose of
all traffic checkpoints conducted through the department as the
following:
[T]o enforce the operator license and
vehicle registration laws, and to take
appropriate action to all other violations
of law. Also for the purpose of inspecting
the motor vehicle, as to its equipment and
safe operation.
In accordance with the Checkpoint Plan, Randolph determined
the time and location of the operation, as well as the number of
1
The hearing on the motion to suppress was heard by Judge
Oliver A. Pollard, Jr.
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officers assigned to work the checkpoint, on the first day of
February 1999, as she schedules the time and location of each of
the traffic checkpoints that are to be held in a given month. 2
This particular checkpoint was scheduled for February 10, 1999,
at 7:00 p.m., at the location of Harding and Ross Court Streets.
Randolph assigned several officers to work the checkpoint, and
assigned Officer Ricardo Williams, the senior officer, as the
"overseer" of the checkpoint. 3 In addition, the on-duty sergeant
at the police station acted as a "remote supervisor" and was to
be contacted and informed of the commencement of the checkpoint.
Once Sergeant Randolph made these determinations, Officer
Kevin Johnson, the Traffic Specialist for the Weed & Seed unit,
completed an Operations Report/Order that informed the assigned
officers of the location of the checkpoint, as well as the
manner in which it was to be conducted. The Operations Report
did not contain the time at which the checkpoint was to begin.
As directed by the Operations Report and the schedule
created by Sergeant Randolph, on the date of the checkpoint at
approximately 7:00 p.m., the officers traveled to the site,
placed orange traffic cones in the street to direct traffic
2
The Commonwealth attempted to question Sergeant Randolph
as to why that particular location was chosen. However, Wilkins
objected to the question as irrelevant. The Commonwealth then
withdrew the question.
3
Randolph does not attend the checkpoints and is only
contacted by the "overseer" of the operation if there are
difficulties or problems.
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through the check site, and placed a sign just before the
checkpoint to alert motorists. The officers then stopped every
car that passed through the checkpoint site and "request[ed] [a]
drivers [sic] license and registration" of each driver.
At the conclusion of the operation at approximately
9:00 p.m. to 9:30 p.m., the team of officers had issued four
seat belt summonses, made two felony non-drug arrests, and four
drug arrests, including the arrest of Wilkins. Officer Williams
provided these statistics to Sergeant Randolph, who then
completed the Selective Enforcement Form, which is utilized to
confirm that the various checkpoints comply with the Checkpoint
Plan. Although not a specific requirement under the Plan,
neither the Operations Report/Order, nor the Selective
Enforcement Form, was signed by the officers who prepared them
and/or the officers who reviewed them to ensure compliance with
the Checkpoint Plan.
At the conclusion of the evidence presented during the
hearing on the motion to suppress, Wilkins argued that the stop
was not conducted in accordance with the department plan "in
that one person had absolute discretion of when [it was] going
to be held" and that this "unconstrained exercise of discretion"
violated the Fourth Amendment. Wilkins also argued that the
on-site supervisor had complete discretion as to the time to
hold the checkpoint. The Commonwealth responded that the
Checkpoint Plan met constitutional requirements and that it was
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appropriately followed by the police department. The trial
court found "that the plan for stops that the department had was
adequate . . . [and] that the plan was substantially followed in
this particular case."
At the trial of the matter, before a different judge,
Wilkins entered a plea of guilty, conditioned upon his right to
appeal the issue of the propriety of the checkpoint. Before
making the plea, Wilkins renewed his motion to suppress, arguing
for the first time that the "case law does not support
implementation of road blocks to catch drug offenders." The
Commonwealth responded that the trial court had already heard
evidence on this matter and ruled that the department's
Checkpoint Plan was adequate and that it had been complied with.
Without the benefit of hearing the evidence that had been
presented during the suppression hearing, the trial court
responded as follows:
All right. I have no reason -- I think
that's the criteria for the stops as long as
they are not arbitrarily [sic] and they are
set up pursuant to plan. Then I will
overrule the motion and concur with the
prior ruling.
* * * * * * *
. . . [T]he suppression hearing will be
incorporated as a part of this record.
Objections are noted, and the Court will
continue to sustain the ruling of the
earlier hearing and deny the motion to
suppress.
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Wilkins then entered his conditional plea of guilty. The plea
agreement, signed by both parties and accepted by the court,
states the following concerning the issue preserved for appeal:
This plea is subject to defendant preserving
his motions and argument made on August 16,
1999 for appeal to the Virginia Court of
Appeals and any subsequent Court.
Accordingly, Wilkins was convicted and sentenced to an active
term of seven years in the penitentiary.
Wilkins' sole argument on appeal is that the trial court
erred in failing to suppress the evidence because it was seized
as a result of the Petersburg Police Department's alleged
unconstitutional roadblock program "designed to snare drug
offenders." However, Wilkins failed to properly preserve this
issue for appeal.
"'A plea of guilty, accepted and entered by the court, is a
conviction or the equivalent of a conviction of the offense to
which it is directed, the effect of which is to authorize the
imposition of the punishment prescribed by law on a verdict of
guilty of the offense admitted. . . . It waives all defenses
other than that no offense is charged.'" Peyton v. King, 210
Va. 194, 196, 169 S.E.2d 569, 571 (1969) (quoting Crutchfield v.
Commonwealth, 187 Va. 291, 296, 46 S.E.2d 340, 342 (1948)).
Nevertheless, Code § 19.2-254 allows for "conditional" pleas of
guilty in certain cases. That section provides the following
with regard to such pleas:
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With the approval of the court and the
consent of the Commonwealth, a defendant may
enter a conditional plea of guilty in a
felony case, reserving the right, on appeal
from the judgment, to a review of the
adverse determination of any specified
pretrial motion. If the defendant prevails
on appeal, he shall be allowed to withdraw
his plea.
Code § 19.2-254 (emphasis added).
Here, although Wilkins renewed his previous objection and
argument on the motion to suppress, and raised a new argument
concerning the nature of the checkpoint just before entering his
plea at trial, he failed to preserve this new argument in his
conditional guilty plea. As set forth above, the plea agreement
specifically preserves only the pretrial motions and argument
made on August 16, 1999. Wilkins raised no issue of the
validity of the alleged "drug" checkpoint at that time.
Accordingly, Wilkins has waived this issue on appeal. See Ohree
v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998) (the Court of Appeals will not consider an argument on
appeal which was not presented to the trial court; Rule 5A:18
applies to bar even constitutional claims).
Although Wilkins has not directly raised the arguments made
during the August 16, 1999 suppression hearing on appeal, we
find those arguments also without merit.
[T]he legitimacy of a roadblock is
determined by weighing the state's interests
in establishing the roadblock against the
potential intrusions on personal privacy.
To avoid constitutionally impermissible
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infringements on privacy, the roadblock 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 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."
Simmons v. Commonwealth, 238 Va. 200, 202-03, 380 S.E.2d 656,
658 (1989) (citations omitted) (emphasis added). Thus, "[t]he
validity of a checkpoint depends upon the amount of discretion
remaining with the field officers operating the roadblock.
Clearly, roadblocks are constitutional when conducted according
to explicitly neutral plans which completely eliminate the
discretion of the operating officers." Crouch v. Commonwealth,
26 Va. App. 214, 218, 494 S.E.2d 144, 146 (1997).
These officers were working in accordance with an
explicitly neutral plan, which they followed. The Checkpoint
Plan, which applied to the entire Petersburg Police Department,
provided very specific guidelines pertaining to establishing
roadblocks, including criteria for choosing locations, the
mandated duration of the roadblocks, and the procedure to be
followed during the roadblocks. The Checkpoint Plan also
required supervisors to establish the sites within the Plan
criteria. The officers were assigned to carry out the
checkpoint at a location and time chosen by their supervisor
and were provided with clear directions, by way of the
Operations Report, as to how the checkpoint was to be conducted.
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Contrary to Wilkins' argument, the fact that the Report did
not contain the time of the operation does not establish that
Officer Williams had "complete discretion" to choose the time of
the operation. First, neither the Checkpoint Plan nor the
decisional case law on this issue requires the time to be stated
on the Operations Report. Furthermore, Williams testified that
he was informed of the time for the operation by way of the
monthly schedule prepared by Sergeant Randolph. Sergeant
Randolph testified that stating the time of the operation on the
monthly schedule was her standard practice. Thus, there is no
evidence that Officer Williams had discretion to choose the time
to begin this particular checkpoint.
Next, Wilkins' argument that Sergeant Randolph possessed
unfettered discretion in establishing the location and time of
the checkpoint is also without merit. The Checkpoint Plan,
which applies to the entire department, established specific
criteria for Sergeant Randolph to follow. Moreover, even if it
had not, the constitutional safeguards in this arena are placed
upon the discretion of the field officers undertaking the
checkpoint. Sergeant Randolph was the supervisor in charge of
scheduling the checkpoints; she was not present during the
operations, nor did she actively participate in them.
Finally, during the pendency of this appeal, the United
States Supreme Court issued a decision holding that checkpoint
programs with a primary purpose of interdicting illegal
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narcotics violate Fourth Amendment protections against
unreasonable search and seizure. City of Indianapolis v.
Edmond, 121 S. Ct. 447, 457-58 (2000). The appellant, on brief,
suggests that this case is dispositive of this appeal. However,
the only way we may consider his argument in this regard is
under the ends of justice exception to Rule 5A:18. We decline
to do so because given this record, the appellant's argument is
of no consequence. In determining whether a checkpoint program
is barred under the theory appellant advances, Edmond requires
courts to conduct an inquiry into the programmatic intent behind
any challenged program. Here, the trial court considered the
Checkpoint Plan and found that it was "adequate." Likewise, we
find no evidence, either in the Checkpoint Plan or its
implementation, of a programmatic purpose to interdict illegal
drugs. Nor do we find in this record support for the
proposition advanced in oral argument by Wilkins that the Weed &
Seed program is a "drug enforcement" arm of the Petersburg
Police Department.
Thus, for the reasons stated above, we affirm the ruling of
the trial court.
Affirmed.
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