Petition for Writ of Certiorari — Lowe v. Virginia

85 - 1260 Ir Supreme Cowi, U.S.

FILED

No. ‘th

{ JAN 24 1986

tt Osea RH ORMIOL, JR.

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

JIMMY DALE LOWE,

Petitioner

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

ON APPEAL FROM THE

SUPREME COURT OF VIRGINIA

* Robert H. Blodinger

403 Park Street

Charlottesville, VA. 22901

(804) 293-9183

Francis McQ. Lawrence

416 Park Street

Charlottesville, VA. 22901

(804) 296-7138

Counsel for Petitioner

* Counsel of Record

QUESTION PRESENTED FOR REVIEW

Is it a violation of the Fourth

Amendment for the police to detain and

interrogate a person without any prior

individualized suspicion that such person

is guilty of any crime at a temporary

drunk driving roadblock or "sobriety

checkpoint" where the roadblock is

operated under internal police regulations

and where there is no showing that alter-

native, less-intrusive methods of detect-

ing drunk drivers are ineffective?

TABLE OF CONTENTS

Subject Index

QUESTION PRESENTED .ccccccccccceces

TABLE OF AUTHORITIES wcccccivecsecs

OPINION BELOW eoeeeteereeeeeensteeeeeeeeeee

JURISDICTION eeeeeeseneeeeeeeeeeeeeee

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED 6.00% paiseceesse

FACTS AND STATEMENT OF THE CASE ...

REASONS FOR

CERTIORARI

A. STATE

GRANTING WRIT OF

COURT DECISIONS ARE

IN CONFLICT ON THE CONSTI-

TUTIONALITY OF DRUNK DRIVING

OR "SOBRIETY CHECK" ROAD-

BLOCKS ccccccecceseseencsesese

B. THE DRUNK DRIVING ROADBLOCK

AT ISSUE IN THIS CASE WAS

CARRIED OUT UNDER STRINGENT

POLICE-PROMULGATED REGULA-

TIONS

C. THIS COURT'S DICTA IN

DELAWARE vy, PROUSE ARE BEING

MISAPPLIED BY THE STATE COURT.

CONCLUSION

ii

19

21

26

Appendix A

Appendix B

Appendix C

Decision of the Supreme

Court of Virginia

Letter Opinion of the

Judge of the Circuit

Court of the City of

Charlottesville, dated

June 26, 1984

Judgment Order of the

Circuit Court of the City

of Charlottesville, dated

June 27, 1984

Es%

OE ee eee ee ee CU

TABLE OF AUTHORITIES

CASES

Brown v. Texas, 443 U.S. 47

(1979) ee eeese#ssee#seeeeee#ee#ee#ee#ee¢e«#

Commonwealth v.Trumble, 396

Mass. 8l, 483 N.E.2d

1102 (1985) eeeeeeveee eer eee

Delaware v. Prouse, 440 U.S. 648

(1979) eeeeeee#3srPesnstreeeeeenrteee @

Little yv,State, 300 Md. 485,

479 A.2d 903 (1984) ......

People vy. Bartley, 125 I11.App.

3d 575, 466 N.E.2d 346

(I11.App. 1984), rev'd

Ill. Sup. Ct. 11/20/85,

Ill. N.E.2d

eS Se:

=m §

», 135 I1l.App.

3d 887, 482 N.E.2d 437

(1985) eeee*ee*e32s2eestcs<eestese@*enes#s8ee#28e#8et @

People v. Scott, 473 N.E.2d 1,

63 N.Y.2d 518, 483 N.Y.S.2d

649 (1984) wcccvccccccccece

State v,. Coccomo, 177 N.J. Super.

575, 427 A.2@ 131 (1980) ...

D ins, 234 Kan. 529,

G73 P.2G L176 (1983) wsceces

State v, Garcia, 481 N.E.2d 148

(Ind. App. 1 Dist. 1985) ...

iv

Page

13,17,21

10

9,18

Q , 499 A.2d 977,

37 Cr. L. 2441, New Hamp-

shire Supreme Ct., (8/16/85) 8,11

, 706 P.2d

225 (Wash. Supreme Ct.

1985) cccccsecssecseseeese 9

1 in, 496 A.2d 442

(Vt. 1985) wcccccccccscees 9

, 471 N.E.2d

1125 (Ind. App. 4 Dist.

1984) wecccccccccccccseses 9,13,14

ard, 248 N.W.2d

392 (S.D. 1976) wseeeeeeees 8

nith, 674 P.2d 562

(Okl. Cr. App. 1984) ...... 8,13

State vy, Super, Ct. In & For

of Pima, 143 Ariz.

45, 691 P.2d 1073 (1984) ... 9

(1975) .weceees seeceseceosess 10

United States v,. Martinez-

Fuerte, 428 U.S. 543

(2976) ca ncccccasssaeeassns 21,22

Webb v. State, 695 S.W.2d 676

(Tex. App. 5 Dist. 1985) .. 9

STATUTORY PROVISIONS

U.S. CONST. amend. IV eeccccccces

28 0.8.C. Sec. 1254(1) eoeeeeveeeve

)

TREATISES

"Curbing the Drunk Driver

Under the Fourth Amendment:

the Constitutionality of

Roadblock Seizures," 71 Geo.

beds 2457 (1983) saccesesecssaces

"The Drunk-Driving Roadblock:

Random Seizure or Minimal

Intrusion?" 21 Crim. Law

Bull. 197 (1985S) wccosccsssesseecs

"The Use of Safety Checkpoints

for DWI Enforcement," published

by the U.S. Department of Trans-

portation, National Highway

Traffic Safety Administration,

Office of Alcohol Countermeasures

and Office of Driver and Pedes-

trian Research (September,

1983) eeeoenoenononenve7e2e 8202020202802 80280220808208080 80 @

vi

15

12

16

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

JIMMY DALE LOWE,

Petitioner

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

ON APPEAL FROM THE

SUPREME COURT OF VIRGINIA

Petitioner, Jimmy Dale Lowe, a

resident of Virginia, respectfully prays

that a Writ of Certiorari issue to review

the judgment and opinion of the Supreme

Court of Virginia entered in this pro-

ceeding on November 27, 1985.

LN W

The opinion of the.Supreme Court of

Virginia is reported in 230 Va... ,

1385 and 2 VLR 738, 1985. (Attached as

Appendix A).

JURISDICTION

The Court in this instance is

requested to review the decision of the

Supreme Court of Virginia entered on

November 27, 1985.

This Court's jurisdiction in this

matter is pursuant to 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The question involved in this case

is wnether the Petitioner's rights under

the Fourth Amendment to the United States

Constitution were violated, to-wit:

The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and seiz-

ures, shall not be violated, and

no warrants shall issue, but upon

probable cause, supported by oath

or affirmation, and particularly

describing the place to be

searched, and the persons or

things to be seized. :

FACTS AND STATENENT OF THE CASE

The facts are essentially undispu-

ted. Beginning on the night of December

30, 1983, and continuing on every subse-

quent Friday and Saturday evening between

the hours of 11:00 P.M. and 3:00 A.M.,

through the date of Petitioner's trial in

the Circuit Court on June 21, 1984, the

Charlottesville Police had been conducting

sobriety check roadblocks. These driving

under the influence or DUI roadblocks

were conducted pursuant to a year-long

federal grant from the U.S. Department

of Transportation which will evaluate

the program for its impact on drunk

driving. Prior to Petitioner's arrest

the effectiveness of the roadblocks in

identifying and catching drunk drivers

was unknown.

During the early morning hours of

January 28, 1984, Petitioner was operating

a motor vehicle and was stopped at a road-

biock in the City of Charlottesville which

had been set up py the police ostensibly

as a “License and Sobriety Checkpoint."

Information as to the location of the

roadblock was not available to the public

prior to the event. The roadblock was

designed in such a fashion so as to make

it impossible for a motorist to avoid it

once having been alerted to the impending

+

roadblock from a sign which had been

erected.

Prior to Petitioner's being stopped

no one had observed anything in his driv-

ing or behavior to suggest that he was

a DUI suspect. After the stop, the

officer questioned the Petitioner, noticed

that the Petitioner's eyes were red, and

smelled the odor of alcohol. Petitioner

was then directed to pull off to the side

of the road where he failed three dexteri-

ty tests. At that point he was arrested

on the charge of operating a motor vehicle

on the public highway while under the in-

fluence of alcohol or other self-adminis-

tered intoxicant or drugs. He suosequent-

ly submitted to a breathalyzer test which

was administered in a mobile van police

unit that had been parked on the side of

the road at the scene of the roadblock.

The test showed a blood alcohol content in

excess of the legal limit.

At trial before the General

District Court of the City of Charlottes-

ville on April 3, 1984, Petitioner was

convicted ot DUI. He appealed to the Cir-

cuit Court for the City of Charlottes-

ville.

Prior to the trial de novo in the

Circuit Court, Petitioner was heard ona

two-count motion to suppress all evidence

gathered or derived from the DUI roadblock

seizure. The Circuit Court heard evidence

on the motion to suppress but deferred

ruling on it, and then heard evidence on

the case-in-chief. Thereafter, the court

held Petitioner's Fourth Amendment rights

were not violated by the seizure in

question. (Letter opinion, Appendix B).

Accordingly, Petitioner was found guilty

of the charge and an order was entered to

the same effect on June 27, 1984. (Appen-

dix C). From this conviction Petitioner

appealed to the Supreme Court of Virginia

which affirmed the trial court in an

opinion and judgment entered on November

27, 1985. (Appendix A).

The federal constitutional ques-

tion raised in this appeal was raised in

the trial court and throughout the trial,

and was again raised in the Petition for ‘

Appeal, briefed, and argued in the highest

court in the Commonwealth of Virginia.

The court in each instance failed to rule

that the seizure at issue violated the

Petitioner's rights under the Fourth

Amendment to the Unitea States Consti-

tution, the Virginia Supreme Court hold-

ing “balancing the State's strong interest

in protecting the public from the grave

risk presented by drunk drivers, against

the minimal inconvenience caused motorists

approaching the roadblock, we hold that

the action of the police in this case was

not an impermissible infringement upon

defendant's reasonable expectation of

privacy." See App. A, pp. 18-19.

REASONS FOR GRANTING WRIT OF CERTIORARI

A. STATE COURT DECISIONS ARE IN

CONFLICT ON THE CONSTITUTION-

ALITY OF DRUNK DRIVING OR

"SOBRIETY CHECK" ROADBLOCKS,

The decisions of state courts that

have considered "sobriety check" road-

Dlocks are not in accord. A number of

recent decisions have held such roadblocks

illegal. State v, Koppel, 499 A.24d 977,

3? Ce.i. 266%, New Hampshire Supreme Ct.,

(8/16/85); State y, Smith, 674 P.2d 562,

(Okla. Crim. App. 1984); State Vv, Olgaard,

248 N.W.2d 392 (S.D. 1976); Webb v,. State,

695 S.W.2d 676 (Tex. App. 5 Dist.1985);

Marc qd, 706 P.2d 225 (Wash. Su-

preme Ct. 1985); State vy. McLaughlin, 471

N.E.2d 1125 (Ind. App. 4 Dist. 1984).

Other state courts, however, have

incorrectly relied on this Court's dicta

in Delaware v. Prouse, 440 U.S. 648

(1979), to uphold sobriety roadblocks.

State v,Super,Ct, In & For County of Pima,

143 Ariz. 45, 691 P.2d 1073 (1984);

People v.Conway, 135 Ill. App.3d 887,

482 N.E.2d 437 (1985); State v. Garcia,

481 N.E.2d 148 (Ind. App. 1 Dist. 1985);

State v. Deskins, 234 Kan. 529, 673 P.2d

1174 (1983); Little v. State, 300 Md. 485,

479 A.2d 903 (1984); Commonwea 4

Trumble, 396 Mass. 81, 483 N.E.2d 1102

(1985); State v. Coccomo, 177 N.J. Super.

575, 427 A.2d 131 (1980); People v. Scott,

473 N.E.2d 1, 63 N.Y.2d 518, 483 N.Y.S.2d

649 (1984); State v, Martin, 496 A.2d 442

9

|

|

|

|

(Vt. 1985); People v, Bartley, 125

Ill. App.3d 575, 466 N.E.2d 346 (Ill.

App. 1984) rev'd lll. Sup. Ct. 11/20/85,

saa . N.E.2d sae Cr.

In Prouse, this Court suggested

that its holding did not preclude states

"from developing methods for spot checks

hat 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." 440 U.S. at 663.

Petitioner submits that the better

reasoned opinions have distinguished

border and license checkpoint stops, where

there is an "absence of practical alterna-

tives" for enforcement available (United

states v. Brignoni-Ponce, 422 U.S. at

881), from DUI roadblocks, and have held

that the state has failed to prove as a

matter of law that the seizure advances

10

the public interest more effectively than

traditional methods of observing and

apprehending drunken drivers.

To justify the search or

seizure of a motor vehicle, absent

probable cause or even a reason-

able suspicion that a criminal

offense is being committed, the

State must prove that its conduct

significantly advances the public

interest in a manner that out-

weighs the accompanying intrusion

on individual rights. It must

further prove that no less intru-

Sive means are available to ac-

complish the State's goal. ...

»- « « "({I]n cases where the

Supreme Court has either expressly

Or impliedly sanctioned checkpoint

stops, the criminal activity

targeted was of such a nature that

there was no other less intrusive

but ecually effective means of

detecting violators. Transporters

of illegal aliens and violators of

license and safety equipment laws

can rarely be detected by observ-

ing traffic. In contrast, the

foremost method of detecting drunk

drivers has been by observing

driving behavior." (citation

omitted).

State v. Koppel, 499 A.2d at ee & |

Cet. Bt 2442.

11

Te) ae Sy

ee

eee nn - —

<1 ln Si Naar IC tg i aa palit

eae

As this Court noted in Prou 9

"[t]he foremost method of enforcing

traffic and vehicle safety regulations,

it must be recalled, is acting upon

observed violations." 440 U.S. at 659.

Petitioner submits that some state

courts, including the Virginia Supreme

Court in the instant case, are establish-

ing precedents which would permit the use

of roadblocks for whatever purpose which

happens to suit the climate at a particu-

lar time. As one author noted, "The

specter of roadblocks becoming a common

feature of everyday life is not Simply

another trite Orwellian prophecy." "The

Drunk-Driving Roadblock: Random Seizure

Or Minimal Intrusion?" 2i Crim. Law

Bull. 197 at 215 (1985). A concern for

this prompted the court in State y,. Smith,

674 P.2d 562, at 564, to observe:

The Court finds such activities

by law enforcement authorities,

while commendable in their ulti-

mate goal of removing DUI offend-

ers from the public highways, draw

dangerously close to what may be

referred to as a police state.

- « e The Court is not so naive to

think that criminal conduct does

not occur regularly in the form of

DUI offenders. Yet, a basic tenet

of American jurisprudence is that

the government cannot assume crim-

inal conduct in effectuating a

stop such as the one presented

herein.

Thus, in State vy. McLaughlin, 471

N.E.2d 1125 (Ind. App. 4 Dist. 1984),

after an extensive survey of state and

this Court's decisions on roadblock

seizure cases, the court held, under the

three-part analysis of Brown v,. Texas, 443

U.S. 47, 50-51 (1979), that although the

State had met the standards of the first

element by demonstrating a "grave public

concern," it had failed to adequately

13

ks a Oe eS

demonstrate that the method used "advanced

the public interest" Sufficiently to

outweigh the "severity of interference

with individual liberties."

In summary of the government

interest side of the Brown

balancing test, we find that,

although the Gravity of the pub-

lic interest served by the road-

block seizure -- identifying and

apprehending drunk drivers -- is

enormous, the state presented no

evidence that the roadblock pro-

cedure advanced this public

interest to any degree greater

than would have been accomplished

by more traditional, less intru-

Sive methods based on individual-

ized suspicion.

471 N.E.2d at 1138,

One means by which the balancing

scales of the Brown test might be weighted

in favor of the governmental interest is

for the state legislature to enact a bill

on the subject at issue. A more conclu-

Sive instance of a compelling state

interest cannot be Given. This has not

14

been done in Virginia. Thus, police offi-

cers and other local public officials,

‘under the guise of a statutory right to

stop for driver licensing checks, are

the only ones who are asserting that there

is a governmental interest at stake here.

Information relating to the effec-

tiveness of the roadblock method is essen-

tial to assessing the reasonableness of

the intrusion created by the DUI road-

block, "Curbing the Drunk Driver Under

the Fourth Amendment: The Constitution-

ality of Roadblock Seizures," 71 Geo. L.J.

1457, 1470-1471. As shown above, several

courts have struck down sobriety check-

points aS unreasonable intrusions into the

citizen's reasonable expectations of pri-

vacy where the state could not demonstrate

that the effectiveness of the method ade-

quately compensated for the Fourth Amend-

ment intrusions it created. In the case

15

at bar there was no such demonstration by

the state. When questioned about the

impact Of DUI roadblocks on drunk driv-

ing, Chief Bowen of the Charlottesville

Police testified, "I haven't seen anything

that says you identify more this way Or

that you identify less." When asked what

the impact of the roadblocks has been on

identifying and catching drunk drivers,

Chief Bowen replied, "I don't know."

Similarly, the Department of

Transportation has stated that "[Slatety

checkpoints limitations are that they have

not proven cost effective when used solely

for producing DWI arrests ... the effec-

tiveness of different Screening techniques

in detecting impaired drivers and influ-

encing their perception of the risk of

being detected is unknown." "The Use of

Safety Checkpoints for DwI Enforcement,"

published by the U.S. Department of

16

|

Transportation, Nationai Highway Traffic

Safety Administration, Office of Alcohol

Countermeasures and Office of Driver and

Pedestrian Research (September, 1983)

D. 2.

Petitioner submits that this

failure to satisfy the standards for the

second part of the three-part analysis

formulated in Brown, in itself provides

sufficient grounds to invalidate the

roadblock on Fourth Amendment grounds.

While there is little doubt that

the concerns raised and problems posed by

drunk driving roadblocks are properly the

concern and responsibility ot the state

legislature and not a local police

officer, the state court decisions do not

adequately address this issue. Absent a

State-wide, uniform solution to the

problem, the citizens of this Commonwealth

are left to the unfettered discretion of

17

a

the local police, which may or may not be

exercised properly. For example, motor-

ists in Virginia under the present

scenario are potentially subject to

numerous seizures at multiple roadblocks

both intra-and inter-city without having

ever been suspected of committing the

slightest infraction. Even the Deskins

Court concluded that "it might well be

advisable that minimum uniform standards

for the operation of vehicular roadblocks

oe adopted and established by the legisla-

ture or attorney general, rather than

leave the determination thereof to local

officials." State v, Deskins, 673 P.2d

at 1185.

Because cof the conflict and con-

fusion among the various states in

applying this Court's holding in a drunk

driving roadblock situation, this Court's

guidance is urgently needed.

18

B. THE DRUNK DRIVING ROADBLOCK AT

ISSUE IN THIS CASE WAS CARRIED

OUT UNDER STRINGENT POLICE-

PROMULGATED REGULATIONS.

The Charlottesville roadblock was

effected without specific statutory auth-

Orization. Thus, the state legislature

had not enacted legislation prescribing

the manner in which the roadblock was

conducted. However, as the Virginia

Supreme Court noted, the Charlottesville

plan was adopted after "extensive re-

search" and resulted in an elaborate

manual of procedures and extensive

training of police officers who were to

man the roadblock. (App. A, p.- 13-14).

Both the manual and the training were

developed in conjunction with the Federal

Department of Transportation. The Char-

lottesville roadblock was intended to be,

and arguably was, a model of how such a

roadblock should be conducted in an

19

es

attempt to minimize both subjective and

objective intrusion to the individual.

The result prompted the Virginia Supreme

Court to state that "the Charlottesville

system is safe and objective in its

Operation, employs neutral criteria, and

does not involve the standardless,

unbridled discretion by the police officer

in the field, which was condemned in

Prouge.” (App. A, p. 19).

Because tnis roadblock wes intended

as a model, it is particularly appropriate

for this Court to review and reverse the

decision holding that Petitioner's Fourth

Amendment rights were not violated. Even

a "model" roadblock which permits police

officers to detain and interrogate indi-

viduals in the absence of any "individual-

ized suspicion" to detect criminal acti-

vity which can be detected by other means

is a violation of the Fourth Amendment.

20

———————

C. THIS COURT'S DICTA IN DELAWARE

v. PROUSE ARE BEING MIESAPPLIED

BY THE STATE COURT.

As discussed above, Petitioner sub-

mits that the instent case provides the

Court with the appropriate fact situation

to apply the Brown analysis to a roadblock

which seeks to detect crime which is un-

related to state licensing and registra-

tion laws. Thus, this Court can clarify

and limit the Prouse dicta that "gues-

tioning of all oncoming traffic at road-

block stops is one possible alternative."

440 U.S. at 663.

Petitioner submits that this Court

meant its statement in United States v,

Martinez-Fuerte, 428 U.S. 543 (1976), that

the requirement of "some guantum of indi-

vidualized suspicion" is ordinarily a pre-

requisite to a constitutional search or

seizure. Id. at 561. The Court found the

Hi

fixed citizenship roadblock in Martinez-

Fuerte constitutional as an instance of

where the “individualized suspicion"

requirement could not be applied.

Martinez-Fuerte is an example of

where "questioning of all oncoming traf-

fic at roadblock stops" is appropriate.

There are no alternative means of detec-

ting illegal aliens. Similarly, the

"questioning of all oncoming traffic at

roadblock stops" may be necessary to en-

force licensing and registration laws.

Pecitianas submits that the intru-

sion involved in both of these types of

stops (citizenship and license/registra-

tion) is truly minimal. In theory, com-

pliance with the officer's request can be

had by the individual handing his or her

license, registration, or evidence of

citizenship to the government agent

through the automobile vent window.

22

In contrast, DUI or "Sobriety

check" roadblocks involve an intimate

examination of the person. They are the

essence of intrusion. State courts up-

holding the DUI roadblock (and those

finding it unconstitutional) have failed

to focus on the fact that the object of

the detention and interrogation is to

determine the contents of an indivi-

dual's insides.

Petitioner submits that "individu-

alized suspicion" cuts with two edges

against conduct injurious to an indivi-

dual's rights. First, it precludes dis-

crimination or an opportunity for discrim-

ination. Second, it assures law-abiding

citizens of freedom from intrusion, of any

kind, by government agents.

Thus, the requirement of "individu-

alized suspicion" should only be dispensed

23

with when the opportunity for discrimina-

tion is neutralized and when there is no

alternative consistent with the law-abid-

ing citizen's right to be left alone.

Petitioner submits that to sustain an

intrusion which is more than de minimis,

there must be a showing that there is no

less-intrusive method.

In the border situation, illegal

aliens, unchecked, can result in the

destruction of our society. And, there is

no alternative to an ID check to identify

illegal aliens. In the license situation,

there is no alternative to an ID check to

icentify the unlicensed drivers and un-

registered vehicles. Furthermore, the

intrusion is truly minimal. It is pos-

sible to comply with a license and regl-

stration check with no personal intrusion.

Petitioner submits that compliance with a

license/registration check could involve

24

handing a card to the officer:

I am exercising my rights under

the Fourth and Fifth Amendments to

the United States Constitution. I

will not answer any questions. I

will not roll my window down. Upon

your request, I will hand my

license and registration through

the window. Upon your request, I

will sign my name to compare with

the signature on the license and

registration.

In marked contrast, it is not an

ID, license, registration, or other papers

permitting travel that interests the gov-

ernment agent at the DUI roadblock. It is

the person -- indeed, the person's

insides. The police officer wants to

examine and poke and prod and interrogate

the driver to find out what he or she is

about, and what he or she has been doing.

The object of such roadblock is, fundamen-

tally, intrusive and, Petitioner submits,

not intended to be sanctioned by this

Court's dicta in Delaware y,. Prouse.

25

CONCLUSION

For the aforesaid reasons, a Writ

Of Certiorari Should issue to review and

reverse the judgment and Opinion of the

Supreme Court of Virginia.

Respectfully Submitted,

Kiberk Lf. | 3 a

Ropert H, Blodinge

403 Park Street

Charlottesville, VA. 22901

7. Me Kgute__

Francis McQ. Lawrence

416 Park Street

Charlottesville, VA. 22901

Counsel for Petitioner

26

APPENDIX A

Present: All the Justices

JIMMY DALE LOWE

OPINION BY

JUSTICE A. CHRISTIAN COMPTON

November 27, 1985

v. Record No. 841618

COMMONWEALTH OF VIRGINIA :

FROM THE

CIRCUIT COURT OF THE CITY

OF CHARLOTTESVILLE

Herbert A. Pickford, Judge

The question for decision in

this criminal case is the legality of a

roadblock established for the purpose of

checking the sobriety of motor vehicle

operators.

On Saturday, January 28, 1984,

at 1:55 a.m., defendant Jimmy Dale Lowe

was operating a motor vehicle south on

Avon Street across a bridge in the City

of Charlottesville. The city police had

established a roadblock at the south end

of the bridge about three hours earlier.

The roadblock was announced to motorists

by a sign, stating "License and Sobriety

Checkpoint, Prepare to Stop," located on

the crest of the bridge facing

southbound traffic.

After crossing the bridge,

defendant proceeded into the roadblock

and stopped where city police patrolman

Lawrence B. Brown was standina. Brown

had not observed defendant drive

erratically nor was there any other

indication that defendant was driving

while intoxicated, Brown asked for

defendant's operator's license, which

cefendant handed to Brown. While

talking to defendant to verify his

address, the officer noticed defencant's

eyes "were very rec" and Brown smelled

the odor of alcohol about defendant's

person. The officer directed defendant

to drive his vehicle "around the corner

off of the bridge" to enable other

vehicles to come to the checkpoint. The

officer next asked defendant to step out

of his vehicle and to perform three

dexterity tests, which defendant failed.

Defendant then was arrested for driving

under the influence of alcohol (DUI).

See Code § 18.2-266. He elected to have

his breath analyzed. A police van was

located at the scene for the purpose of

administering such tests, The test

showed that defendant's blood alcohol

content was .17, an amount which raises

a presumption of intoxication. See Code

§ 18.2-269.

Defendant was convicted of the

charge in the general district court and

he appealed to the circuit court. Prior

to trial in the circuit court, defendant

filed 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, Sitting without

a jury, the circuit court heard the

evidence on the motion together with

evicence on the merits of the case. The

court denied the motion and found

defendant guilty as charged, Giving rise

to this appeal.

Specifically, the issue before

uS is whether the seizure of defendant

under the circumstances of this

roadblock was unreasonable under the

Fourth and Fourteenth Amendments to the

United States Constitution, and art. I,

§ 10 of the Constitution of Virginia.

The applicable provisions

protect, of course, only expectations of

privacy that are reasonable. Katz Vv.

United States, 389 U.S. 347, 331<33

(1967). Nevertheless, a person

lmhe Fourth Amendment provices:

"The right of the people to be

secure in their persons,

houses, papers, and effects,

against unreasonable searches

and seizures, shall not be

violated, and no warrants shall

issue, but upon probable cause,

supported by oath Or

affirmation, ana particularly

describing the place to be

searched, and the persons OF

things to be seized."

Local law enforcement personnel are

subject to the requirements of the

Fourth Amendment under the due process

clause of the Fourteenth Amendment.

Mapp v. Qhio, 367 U.S. 643, 655 (1961).

"Operating or traveling in an automobile

does not lose all reasonable expectation

of privacy simply because the automobile

and its use are subject to government

regulation.” Delaware v. Prouse, 440

U.S. 648, 662 (1979). And stopping a

Article I, § 10 of the Virginia

Constitution provides:

"That general warrants, whereby

an officer or messenger may be

commanded to search suspected

places without evidence of a

fact committed, or to seize any

person or persons not named, or

whose offense is not

particularly described and

Supported by evidence, are

grievous and oppressive, and

ought not to be granted."

The Virgin:a requirements, under our

constitution and the statutes

implementing the constitutional

provision, are "substantially the same

as those contained in the Fourth

Amendment.” A. Howard, I Commentaries

on the Constitution of Virginia 182

(1974). See Tri-Pharmacy, Inc. v.

United States, 203 Va. 723, 728, 127

motor vehicle and detaining the operator

constitute a "seizure" within the

meaning of the Fourth Amendment, even

though the purpose of the stop is

limited and the resulting detention is

quite brief. Leeth v. Commonwealth, 223

Va. 335, 340, 288 S.E.2d 475, 478

(1982), citing Prouse, 440 U.S. at 653.

Therefore, the pertinent inquiry here is

whether defendant's detention, when he

was stopped at the initial checkpoint at

the south end of the bridge, was

constitutionally unreasonable.

S.E.2d 89, 92 (1962), cert, denied, 371

U.S. 962 (1963); Zimmerman v. Town of

Bedford, 134 Va. 787, 801-02, 115 S.E.

362, 366 (1922). The Fourth Amendment

is but declaratory of the common law on

the subject. McClannan v. Chaplain, 136

Va. 1, 14, 116 S.E. 495, 498-500 (1928).

Thus, we will focus on the Fourth

Amendment in discussion of the issue

presented.

During the last decade, the

Supreme Court of the United States has

decided four cases which impact the

constitutional validity of roadblock

stops of vehicles, United States v.

Brignoni-Ponce, 422 U.S. 873 (1975)

(random stops of vehicles near Mexican

border to detect entry of illegal aliens

ruled invalid); United States v.

Martinez-Fuerte, 428 U.S. 543 (1976)

(permanent checkpoint stops to stem flow

of illegal alien traffic from Mexico

approved); Delaware v. Prouse, supra;

and Brown v. Texas, 443 U.S. 47 (1979).

Althouch the Court has not ruled

directly on the validity of roadblock

seizures employed to detect drunk

drivers, it has fixed definite

limitations of the right of police to

maintain roadblocks under the Fourth

Amendment. Basically, law enforcement

personnel may not stop motorists in a

wholly random and discretionary manner

unless there is, at least, articulable

and reasonable suspicion either that the

operator is unlicensed, the vehicle is

unregistered, or the operator or other

occupant is subject to seizure for

violation of law. The Court in EFrouse,

however, in striking down a random,

discretionary stop made to check license

and registraticn, said in dicta:

"This holding does not preclude the. .

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. We

hold only that 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." 440

U.S. at 663.

Cf. Virginia Code § 46.1-7(c) (requiring

Operators of vehicles to stop upon

command of a police officer to exhibit

drivers' licenses).

Subsequently, the Court in

Brown v. Texas, supra, stated that the

reasonableness of seizures, less

intrusive than traditional arrests,

depends on a balancing test. In

declaring the application of a Texas

stop-and-icentify statute unconstitu-

tional, the Court set forth three

Criteria by which the validity of such

seizures should be gauged. There must

be a weighing of (1) the gravity of the

public concerns served by the seizure,

(2) the Gegree to which the seizure

advances the public interest, and (3)

the severity of the interference with

individual liberty. 443 U.S. at 50-51.

The Court, in Brown, noted that a

"Central concern" in balancing the

foregoing competing considerations has

10

been to make certain that "an

individual's reasonable expectation of

privacy is not subject to arbitrary

invasions solely at the unfettered

discretion of officers in the field,"

Id, at 51. Thus, the Court said, "the

Fourth Amendment requires that a seizure

must be basea on specific, objective

facts indicating that society's

legitimate interests require the seizure

of the particular individual, or that

the seizure must be carried out pursuant

to a plan embodying explicit, neutral

limitations on the conduct of the

individual officers." Jd,

The evidence in this case

shows that defendant was not stopped

because the police suspected that a

crime had been, was being, or was about

to be committed. Consequently, we must

11

Sed ae rr ee ee

examine the city's plan for maintaining

this DUI roadblock to determine whether

defendant was stopped pursuant to a

practice embodying nzéutral criteria.

According to the evidence, the

first roadblock under the Charlottes-

ville pian was set up on December 30,

1983, about a month before defendant's

arrest. The city was asked to establish

such a plan by representatives of the

2 The public interest in eliminating

the drunken driver from the highways is

overwhelming. "The carnage caused by

drunk drivers is well documented and

needs no detailed recitation here."

south Dakota v. Neville, 459 U.S. 553,

3798 (i963). But a number of state

courts have determined that roadblocks

used by police to detect drunk drivers

run afoul of the Fourth Amendment, while

other jurisdictions have found that such

roadblocks do not offend the

constitutional provisions.

For state cases finding such

roadblocks invalid, see Jones v. State,

459 So.2d 1068 (Fla. Dist. Ct. App.

1984); State v. McLaughlin, 471 N.E. 2d

12

Virginia Alcohol Safety Program, working

in conjunction with the federal Depart-

ment of Transportation. The Charlottes-

ville plan was adopted after extensive

research. The police officials

consicered, among other things, the law

on the subject, the safety of the

police, and the safety of motorists. In

Dame came. Ct. App. 1984); State v.

Koppel, _.... A.2d ____ (N.H. 1985); State

v. Smith, 674 P.2d 562 (Okla. Crim. App.

1984); State v. Olgaard, 248 N.W.2d 392

(S.D. 1976); Webb v. te, 695 S.W.2d

676 (Tex. Ct. App. 1985).

For state cases approving DUI

roadblocks, see State v. Super, Ct, In &

For County of Pima, 691 P.2d 1073 (Ariz.

ayee)? Reeple v. Conway, —... Ill.

Ape.3G .., 482 N.E.20d 437 (1985);

State v. Garcia, 481 N.E. 2d 148 (Ind.

Ct. App. 1985); State v. Deskins, 673

P.2d 1174 (Kan. 1983); Little v. State,

300 Md. 485, 479 A.2d 903 (1984);

Commonwealth v. Trumble, __._ Mass.

, 483 N.E.20 1102 (1985); State v.

Coccomo, 177 N.J. Super. 575, 427 A.2d

131 (1980); People v. Scott, 473 N.E.2d

1, 63 N.¥.2d 518, 483 N.Y.S.2d 649

(1984); State v. Martin, 496 A.2c 442

(Vt. 1985).

13

kl ee ey es

RS Sa ea ct a cle ~~

— Bs of aati

addition, the police department analyzed

the locations within the city where

there had been drunk-driving arrests and

alcohol-related accidents in order to

determine the places where the check-

points should be established.

The police officers to be

assigned to the roadblocks were given 24

hours of training by outside experts and

a manual of procedures was prepared

entitled "Charlottesville Driver's

License & Sobriety Checkpoint Program."

The manual's preface, over the Signature

of the Chief of Police, states that the

project was intended "to reduce the

number of alcohol-related motor vehicle

accidents" by using "license and

sobriety checkpoints to aid in the

detection and apprehension of drivers

who are intoxicated or driving when not

14

properly licensed," The project,

according to the manual, "is expected to

increase public perception that drunk

drivers will be caught and arrested, and

will serve as a deterrent to the

potential drunk driver."

Topics covered in the

procedural manual include criteria for

selection of a particular area for

designation as a checkpoint site;

provisions that a high-ranking police

officer make the daily assignment of a

previously designated site for operation

of a roadblock and that such officer

assign the personnel to work a

particular roadblock; specific provis-

ions for the manner in which a roadblock

site should be manned and equipped; and

detailed routine for bringing traffic to

a stop, interviewing motorists, and

io

evaluation of an operator suspected of

driving under the influence,

Testimony showed that exten-

Sive media publicity about the project

took place before the first roadblock

was set up on December 30th and that the

few roadblocks that followed were widely

publicized before the instant case

arose, No publicity was given to the

Specific location of a checkpoint before

it was established, The police were

aware, however, that such information

was shortly possessed by proprietors of

local bars and restaurants who passed it

to their customers,

At the time of defendant's

arrest, five uniformed police officers,

wearing reflector vests, were assigned

16

to the scene. The area and the warning

sign were well-lighted. There were two

marked police vehicles present with red

lights flashing. The geography of the

site permitted adequate space for the

momentary initial detention to check

licenses and to afford space for

vehicles, whose operators required

further evaluation, to pull aside. The

officers at the checkpoint had no

discretion regarding which vehicles to

stop; every southbound vehicle was

halted. If congestion occurred,

vehicles were permitted to move through

the checkpoint until the congestion

cleared. The police endeavored to

detain a motorist no more than 30

seconds for the license check.

During the brief time the plan

had been in effect prior to trial, the

17

police noted favorable results of the

roadblock procedure. More motorists

were being identified who had license

Violations and other traffic infractions

than had been detectee uSing traditional

patrol procedures, [n addition, drunk

drivers were being detected at lower

blooc alcohol content levels than had

previously been identified uSing routine

patrol methods,

We conclude that the trial

court correctly ruled that the seizure

of defendant upon the initial stop at

the checkpoint in question was

constitutionally valid, Balancing the

State's strong interest in protecting

the public from the Grave risk presented

by drunk drivers, against the minimal

inconvenience caused motorists approach-

ing the roadblock, we hold that the

18

action of the police in this case was

not an impermissible infringement upon

Gefendant's reasonable expectation of

privacy. The Charlottesville system is

safe and objective in its operation,

employs neutral criteria, and does not

involve standardless, unbridled discre-

tion by the police officer in the field,

which was condemned in Prouse.

Even though DUI roadblocks had

been in operation only for a brie

[onal

period, tangible results appearec that

were not evicent under traditional

methods of detection, Moreover, the

deterrent effect of such a highl

we,

‘

95)

publicized program is obvious; such

visible project is bound to increase the

perceived risk of arrest in the minds of

those drunk drivers who are never

arrested,

4° r= ae ee

Accordingly, the defendant's

conviction will be

ied

20

APPENDIX B

Herbert A. Pickford, Judge

City Courthouse

315 E. High Street

Charlottesville, Virginia 22901

804-293-5859

David F. Berry, Judge

Madison, Virginia

E. Gerald Tremblay, Judge

Charlottesville, Virginia

F. Ward Harkrader, Jr., Judge

Louisa, Virginia

SIXTEENTH JUDICIAL CIRCUIT

Cigceui¢t Ceurcte ef tne City of

Charlottesville and the Counties of

Albemarle, Culpeper, Fluvanna, Greene,

Goochland, Louisa, Madison and Orange

June 26, 1984

Richard H. Barrick, Esq.

Commonwealth's Attorney

P. O. Box 911

Charlottesville, Virginia 22902

Robert H. Blodinger, Esq.

Attorney at Law

403 Park Street

Charlottesville, Virginia 22901

Re: Commonwealth v. Jimmy Dale Lowe

Gentlemen:

Defendant's motion to suppress

places in issue (1) the constitution-

ality of the procedure by which he was

stoppec and detained by the Charlottes-

ville Police early January 28, 1984, and

(2) the admissibility of the certificate

of analysis relative to his blood alco-

hol content at the time.

Dealing with the certificate first,

the results of the defendant's breath-

alyzer test are crucial to a conviction,

Defendant's eyes were "very red," and

there was an odor of alcohol on his

breath according to Officer Larry Brown.

Furthermore, the defendant failed three

dexterity tests. The evidence did not

tell us what those tests were.

Defendant told the officer he had had a

"couple of beers after getting off from

work," We do not know when that

occurred. Other than the test result,

this is the sum total of the evidence

concerning defendant's intoxication.

With the test result, the evidence con-

victs. Without it, it does not. The

accuracy of the Smith and Wesson Breath-

alyzer Model 900A machine usea to test

the defendant is a matter of substance,

The testing of the machine for accuracy

is not classified as a matter of

procedure in Code § 18.2-268(s). It

fits into the same substantive catecory

as do the test operator's qualifica-

tions, See Brooks vj City of Newport

News, 224 Va. 311, where the operator's

possession of a valid license was held

to be a matter of substance.

The breath test certificate raises

"a reasonable inference" that the test

MN si dita a Deas"

performed upon a person was properly

conducted in accorc with the matters it

represents to be true. It is incumbent

upon the defendant to offer evidence to

dispute this. See Calfee vy, Common-

wealth, 215 Va. 253 at page 255. Mr.

Lowe contends that his test was not

conducted in accord with the manufactur-

er's specifications in violsétion of Code

§ 18.2-268(r1l). In support of this, he

introduced as defendant's exhibit no, 2

the instruction manual for the breath-

alyzer in question and the September 10,

1982 Smith and Wesson Consumer Advisory

setting out guidelines for testing of

possible radio frequency interference on

said machine (see defendant's exhibit

no. 3). Defendant's exhibits indicate

that a safe operating radius for the

machine is that it be at least twenty-

five yards from a hand held radio trans-

mitter. The evidence indicated the

officer accompanying the defendant into

the testing van may have had a trans-

mitter with him, however there is no

evidence it was being used for

transmissions at the time. Defendant's

exhibits further indicated the breath-

alyzer should be retested for accuracy

if moved from one location to another.

The evidence is that the breathalyzer is

moved to the scene of each roadblock.

In view of the defendant's evi-

dence, was the accuracy of the breath-

alyzer seriously placed in question?

The answer is in the negative because

Elwood Shiffiett, operator of the

machine, checked its accuracy before and

a a ker at

after the test with the use of a

Simulator. His description of his use

of the simulator for that purpose

conforms with Smith and Wesson's

Instruction Manual (defendant's exhibit

no. 2) at page 14, It says the

Simulator "provides a predictable

alcohol reading, with which calibration

and certification procedures may be

performed." Kis calibration procedure

showed a .10 reading which, according to

the manual, indicates proper operation

of the machine. Furthermore, the April

29, 1983 notification of the Department

of General Services, Division of

Consolidated Laboratory Services

(defendant's exhibit no. 4) reported

that any racio frequency signal

interference with the breath test

results on the Model 990A Breathalyzer

"is readily detectable by the breath

test operator through unexplained

movement of the needle of the

instrument's null meter....” Operator

Shifflett testified he could so detect

such interference had there been any

during defendant's breath test, and

there was none.

As to the constitutionality of the

Stoppine of Mr. Lowe, the Charlottes-

ville Police Department employed the

guise of an operator's license and

registration check to afford its offic-

ers the opportunity to observe the

appearance and behavior of the operators

of automobiles they stopped the night of

January 28, 1984, as they proceeded

south from the Belmont Bridge. Their

acknowledged purpose in this is to

apprehend drunk drivers and to make the

public less likely to mix Grinking and

driving, The United States Supreme

Court in Delaware v. Prouse, 440 US

648(1979), suggested roadblock detention

@as a possible alternative to the random

Stopping of vehicles which it found to

be unconstitutionally intrusive into the

Fourth Amendment rights of motorists.

Virginia has accorded police the right

to stop motorists under certain circun-

stances, In particular is Code § 46.1-

7(c) which requires motorists to stop

upon Signal of a police official for the

purpose of responding to his request for

the operator to exhibit his registration

Card and/or operator's license. In

discussing Virginia Code §§ 46.1-6,

46.1-7, 46.1-8 and 46.1-9, the Virginia

Supreme Court, in its opinion of Shirley

v. Commonwealth, 218 Va. 49, recognized

the legitimacy of such stops. At page

52 it stated, “It is routine for law

enforcement officers to stop cars and to

inspect automobile registration papers

as well as operators’ licenses. Viewing

such papers is an accepted part of the

regulatory system." While the Delaware

vy. Prouse case invalidates random stops

for such purposes, Virginia's police are

clearly authorized to conduct license

and registration checks, and such

authority is not negated by the fact

that they simultaneously make observa-

tions of the operator for signs of

inebriacy.

If the officer detects bloodshot

eyes, slurred speech, or an odor of

alcohol upon the operator's breath, such

is sufficient basis for an articulable

Suspicion that will justify a more

intrusive detention for the conduct of

sobriety tests. Failing them gives the

officer probable cause for an arrest,

following which the implied consent

law's blood alcohol content tests are to

be administered, In Leeth vy, Common-

wealth, 223 Va. 334 (1982), Virginia's

Supreme Court indicated its acceptance

of something less than probable cause as

being adequate justification for the

sobriety test phase of a motorist's

cetention.

Does Charlottesville's roadblock

procedure, as applied in Mr. Lowe's

case, afford the safeguards that the

Constitutions of the United States and

Virginia require? The measuring criter-

ia that have evolved from numerous court

10

decisions are ably discussed in

1€

b

Georgetown Law Journal, Volume 71 at

page 1457 in an article titled "Curbing

the Drunk Driver Under the Fourth Amend-

ment: The Constitutionality of Roa

——— a

block Seizures," anc also in S$tate of

Kansas v. Deskins, (Kan. 1983) 673 P.2d

1174. They indicate that Mr. Lowe was

lawfully seized.

The principle criteria, as dis-

cussed in The Georgetown Law Journal

article, arer (1) Site selection.

Charlottesville's selection of its sites

for roadblocks was based upon its empir-

ical data adduced from the records of

its police department and the

experiences of its individual officers

which pointed out areas high in alcohol

reletee ceci-ents. fCafety of the motor-

}-4

Peer re as Te A eee el. ee re

vy

ist anc the officer is also of Prime

consideration in site selection; (2)

Elimination of the individual officer's

discretion. Charlottesville's manual

(defendant's exhibit no.]l) governing the

roadblock procedure forbids arbitrary

invasions of the Privacy of motorists by

individual officers in the exercise of

their own discretion. Control of the

operation is exercised by administrative

personnel at headquarters. Execution of

the procedure is conducted at the scene

under the supervision of one officer,

leaving to the individual policeman the

Sole discretion as to whether the motor-

ist evidences sufficient Signs of

inebriacy to warrant further detention

for sobriety testing and arrest if the

officer finds probable cause as a result

thereof; (3) Concern for the fright and

12

annoyance of the motorist. The physical

characteristics of the roadblock make

clear to the motorist that he is not

being singled out by the police and that

the roadblock is being conducted by the

police. The prominent sign, properly

iliuminated so as to advise the motorist

of the impending stop and the purpose

therefor, as well as the uniformed

officers and their vehicles with flash-

ing lights evidence this; (4) Prior

judicial approval of the temporary road-

block procedure. None is given for

Charlottesville's procedure. I do not

deem such essential to its validity; (5)

Minimal detention. Less than thirty

seconds is involved unless the officer

requires sobriety testing. Ample

evidence in the instant case warranted

such test of Mr. Lowe; (6) Probable

a2

cause necessary for the breathalyzer

test, since this is the most intrusive

of the sobriety tests. Probable cause

existed justifying such test; and (7)

Provision for heavy flow of traffic. It

is permissible to allow a line of cars

to pass through to alleviate a long

tieup in traffic. This also lessens any

annoyance to a motorist that may be

incident to a roadblock. Once the traf-

fic jam is gone, the stopping procedure

is resumed. Discretion in the exercise

of this lies with the supervising

officer on the scene and is guiced by

the previous designation of certain

geocraphical points at each site. i

cars are backed up to that point, Chief

Bowen testified that the supervising

officer is to then permit the traffic so

backed up to pass through.

14

Having concluded that the Common-

wealth has met its burden of proof in

this case, I find the defendant guilty

as charged. The punishment will be the

same as that imposed by the General

District Court, plus costs.

Very truly yours,

S/

Herbert A. Pickford

HAP: jr

APPENDIX C

VIRGINIA: - AT A CIRCUIT COURT OF THE

CITY OF CHARLOTTESVILLE, ON TEE LAW SIDE

THEKEOF, HELD ON WEDNESDAY, JUNE 27TH,

1984.

Present:-Honorable HERBERT A. PICKFORD,

Judge

COMMONWEALTH OF VIRGINIA Plaintiff

V. Appeal No. 84-43-1 - Operate a

Motor Vehicle

While Under the

Influence of

Alcohol or

Other Self-

Administered

Intoxicants

Or Drugs

(2nd Offense

Within 5

Years)

JIMMY DALE LOWE Defendant

Date of Birth: 4/2/51

This matter having been

taken under advisement on June 21, 1984,

the Court, by letter opinion dated June

26, 1984, a copy of which i158

incorporated into, and mace a part of,

this Order, denied the Motion to

Suppress filed on behalf of the

defendant on June 1Z, 1984.

The Court finds the

defendant guilty of the charge as set

forth in the warrant and set punishment

at a fine of $400.00, a jail sentence of

‘

thirty days, payment of court costs, and

suspension of his driver's license for

three years, with the fine and twenty-

eight days of the jail term suspended

and a restricted license to be issued

for the purpose of the defendant's

attending Virginia Alcohol Safety Action

Program (VASAP) meetings.

The transcript is hereby

made a part of the record.

The Court sets the appeal

bond in the amount of $1,000.00 cash or

corporate surety, or $2,000.00 property.

The defendant shall

report to the Albemarle-Charlottesville

Joint Security Complex by Noon on July

28, 1984 should he fail to post an

appeal bond.

The defendant shall

forthwith surrender his operator's

license in accordance with Section 46.l-

425 of the Code of Virginia, 1950, as

amended.

Pursuant to Rule 1:13 of the

Rules of the Supreme Court of Virginia,

counsel for the defendant objects to the

ruling of the Court on the grounds that

the decision of the Court is contrary to

the law and to the evidence with respect

to the grounds set forth in the

Defendant's Motion to Suppress, the

additional grounds set forth in opening

argument that even if the seizure was

not in contravention of the State and

Federal Constitutions, it was

nevertheless in contravention of

Virginia statutory and common law, there

being no enabling statute permitting

such seizure, and such other objections

and exceptions as are set forth in the

transcript.

Enter:

S/ HERBERT A. PICKFORD, Judge

S/ Richard H. Barrick

Commonwealth's Attorney

Objected to

S/ Robert EF. Blodinger

Counsel for Defendant