Simmons v. Commonwealth

Justice Thomas,

with whom Justice Whiting joins, dissenting.

In this case, two Virginia State Troopers aided by at least two State Park Police officers set up a checking detail for licenses and registrations ** at the intersection of two state highways in Dinwiddie County. The roadblock was established in the daylight hours of July 10, 1986. Flags were set out in the road to warn the *205 motorists of the roadblock. All cars were stopped. In setting up the roadblock and in stopping all cars, the Troopers were following what were described as “normal procedures.” Despite these facts, the majority concludes that the roadblock violated Simmons’ constitutional rights. I disagree.

The majority rests its decision largely upon Lowe v. Common wealth, 230 Va. 346 , 337 S.E.2d 273 , cert, denied, 475 U.S. 1084 (1986). Lowe was an effort to determine whether the roadblock under review comported with Federal constitutional requirements. We said it did. But that was all we said. Lowe was not based upon State law. Instead, it was based on Federal law. 230 Va. at 348 n.1, 337 S.E.2d at 274 n.1. Today, based on Lowe , which, again, was based on Federal law, the majority declares unconstitutional a roadblock which, in my opinion, fully comports with Federal constitutional requirements.

In Delaware v. Prouse, 440 U.S. 648, 663 (1979), Justice White, writing for a majority of seven of the justices stated explicitly that “[questioning of all oncoming traffic at roadblock-type stops” was one possible alternative method of checking automobiles for safety violations and drivers for license violations — rather than conducting random spot checks of individual drivers — because roadblock-type checks involved “less intrusion” and did not involve “the unconstrained exercise of discretion” by police officers. Further, Justice Blackmun wrote a concurring opinion in which Justice Powell joined. They agreed that roadblock-type stops were constitutionally permissible but, they went further to state that they would not even require that all cars be stopped. They espoused the view that “other not purely random stops,” such as stopping every 10th car, would satisfy the Constitution. Id. at 664 (Blackmun, J., concurring).

Inexplicably, a majority of this Court states that it, in effect, does not believe what the Supreme Court said. The majority dismisses the foregoing quoted language by simply stating “[w]e 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.” Ante at__I do not see how the Supreme Court’s language could be read any other way.

An analysis of Prouse illustrates why stopping all cars at a roadblock satisfies the Supreme Court’s concerns regarding limitations on intrusive police conduct and restraints on police discre *206 tion. Prouse involved a police officer on routine patrol who decided, for no particular reason, to stop one car to check the driver’s license and registration. The State of Delaware argued that because of the state’s interest in ensuring the safety of its roadways, there should be no constraints on police officers in deciding to stop any particular car. In rejecting that argument, Justice White first pointed out that when the stop was made the police officer “was not acting pursuant to any standards, guideline's, or procedures pertaining to document spot checks, promulgated by either his department or the State Attorney General.” 440 U.S. at 650 . Here, the Trooper who testified said he was acting in accordance with “normal” department procedures.

In Prouse , the Supreme Court agreed, even in the absence of evidence on the issue, that “the States 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 . But, because even a brief stop for a limited purpose is a seizure, Prouse said further that the permissibility of a stop turns on a balancing test between the “intrusion” on the one hand and the “promotion of legitimate governmental interests” on the other. Id. at 654 . Then, based on United States v. Martinez-Fuerte, 428 U.S. 543 (1976), Prouse stated that a stop at a border patrol checkpoint is less intrusive than a random stop by a roving patrol. Prouse quoted from MartinezFuerte as follows: “ ‘We view checkpoint stops in a different light because the subjective intrusion — the generating of concern or even fright on the part of lawful travelers — is appreciably less in a case of a checkpoint stop.’ ” 440 U.S. at 656 (Martinez-Fuerte, 428 U.S. at 558 ).

Prouse expressed concern about the “possibly unsettling show of authority” involved when a police officer directs one car to pull over. But, it said that by contrast, “ ‘[a]t traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.’ ” 440 U.S. at 657 (United States v. Ortiz, 422 U.S. 891, 894-95 (1975)). Thus, Prouse made clear that as a basic proposition, roadblock-type checks are less intrusive than individual stops.

Prouse also made clear the dimensions of the unconstrained discretion on the part of a police officer which gave the Court con *207 cern. The majority here suggests that the concern should be with who ordered the roadblock, who picked the site of the roadblock, who decided the time of the roadblock. Prouse , however, makes clear that in discussing unbridled discretion, the Court did not focus on any of the foregoing factors. Here is what the Supreme Court said on the point:

When there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations — or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered — we cannot conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. This kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.

440 U.S. at 661 (emphasis added) (footnote omitted). I take this language to mean that the Supreme Court was concerned about an individual field officer “willy-nilly” picking one car out of hundreds to stop. The Supreme Court, in my view, was not concerned with whether a police officer had a direct order to establish a roadblock at a particular time or place.

The discussion in Prouse concerning intrusion and police discretion suggests to me that the Court was serious when it wrote that “ [t]his holding does not preclude the State of Delaware or other States from developing methods for spot checks 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.” Id. at 663 (emphasis added). What happened in the instant appeal is in full compliance with what the Supreme Court said in Prouse ; I would not require more.

Nor is my view altered by Brown v. Texas, 443 U.S. 47 (1979), a case cited in Lowe and by the present majority. Brown was not a roadblock case; it did not even involve stopping a car. Brown concerned stopping a man who was walking in an alley and was asked *208 by police to identify himself. Brown is factually inapposite. Prouse is on point; I would follow Prouse .

In my view, Lowe was correctly decided. But in Lowe , this Court said only that the particular roadblock under review passed muster under the Federal Constitution. Today we say, in effect, that unless the factors which were present in Lowe are present with regard to every roadblock, those roadblocks will violate the Federal Constitution. We reach this conclusion even though the United States Supreme Court has said that a roadblock in which all cars are stopped for a license and registration check does not violate the Federal Constitution. By this opinion, the Court throws into disarray the law concerning roadblock-type checks and simultaneously creates the possibility that henceforth every roadblock will be challenged to determine who ordered it and the motivation for its use. In my view, the Court of Appeals correctly decided this case. I think further that what the majority of this Court has done is unnecessary and unwise. Therefore, I dissent.

Code §§ 46.1-7 and 46.1-8, then in effect, authorized uniformed peace officers to stop vehicles to check licenses, registrations, and compliance with safety regulations.