Fairfax Police DUI DWI Checkpoints Are Illegal Unless They Follow A Strict Checkpoint Plan
Fairfax Police Use DWI Roadblocks to Trap Drivers Who Have Been Drinking Even if they Are Driving OK. Here is an incredible photo of the Fairfax and State Police detaining and checking every driver coming into Springfield. http://www.fairfaxcounty.gov/police/news-releases/2008/img/overviewofdwicheckpoint.jpg According to the 4th Amendment, Police are prohibited from conducting unreasonable seizures. Originally, roadblocks designed to stop innocent people were illegal. Gradually, the Courts have allowed DWI roadblocks under certain conditions. Here is a brief overview of the caselaw governing Roadblocks in the USA and Virginia, assembled by Fairfax DWI Attorney Paul McGlone: **
Brown v. Commonwealth, 20 Va. App. 21, 454 S.E.2d 758 (1995)
Wilson v. Commonwealth, 29 Va. App. 63 (1999)
The statutory right of a law enforcement officer to stop a motor vehicle and the obligation of a motor vehicle operator to stop at a traffic checkpoint are circumscribed by Delaware v. Prouse, 444 US 648 (1979), in Prouse, the United States Supreme Court held unconstitutional the random stopping of motor vehicles, other than upon the basis of probable cause or reasonable suspicion of criminal activity. See Id at 662. The court ruled that a person "operating or traveling in an automobile does not lose all expectation of privacy simply because the automobile and its use are subject to government regulations." Id. However, the court went on to say:
"This holding does not preclude the … states from developing methods for spot checks that involve less intrusion or do not involve the unconstrained exercise of discretion. Questioning
of all oncoming traffic at all roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public highways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. Id at 663.
In Brown v. Texas, 443 U.S. 47 (1979), the United States Supreme Court set forth a balancing test for determining the validity of a traffic stop based on less than probable cause, or "articulable and reasonable suspicion" of criminal activity. The test involves weighing (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 of the interference with the individual liberty. See Id at 50-51. Noting the central constitutional concern that "an individual’s reasonable expectation of privacy is not subject to arbitrary invasion solely at the unfretted discretion of officers in the field," the Court stated, "the Fourth Amendment requires that a seizure must be based 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 individual officers." Id at 51. See also Lowe v. Commonwealth, 230 Va. 346, 337 S.E. 2d 273 (1985).
Lowe involved an arrest made at a license and sobriety checkpoint conducted pursuant to Charlottesville’s checkpoint plan. Analyzing the plan on the criteria set forth in Brown, the Supreme Court held:
"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 police in this case was not an impermissible infringement upon defendant’s reasonable expectation of privacy."
In Simmons v. Commonwealth, 238 Va. 200, 380 S.E. 2d 656 (1989), the Virginia Supreme Court considered a license and registration checkpoint established and conducted by two (2) state troopers on their own initiative. The troopers stopped and inspected every vehicle passing through the checkpoint. Holding the checkpoint to be constitutionally impermissible, the Court stated:
"We do not read Prouse to stand for the proposition that stopping at 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. While this approach may eliminate the constitutional vice inherent in a random spot check or stop and therefore be a preferred practice, … the roadblock also must be undertaken pursuant to an explicit plan or practice which uses neutral criteria and limits the discretion of officers conducting the roadblock. The evidence in this case establishes that the decision to establish the roadblock, as well as its location and duration, was solely within the discretion of the troopers. No advance approval or authorization of any supervisor or superior officer was required to set up the roadblock."
Finally, in Wilson v. Commonwealth, 29 Va. App. 63 (1999), the court stated that stopping a motor vehicle and detaining its operator at a roadblock or a checkpoint constitutes a seizure within the meaning of the Fourth Amendment. To determine whether a checkpoint stop is constitutionally valid, the court applied the balancing test established in Brown. The Brown test involves the weighing of three (3) criteria: (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 of the interference with the individual liberty. The court stated the Commonwealth must present some evidence establishing the method employed will be an effective tool for addressing the public concern involved. Citing Galberth v. United States, 590 A. 2d 990, 999 (D.C. App. 1991) (holding that the challenged roadblock was unconstitutional, in part, because "there was no empirical evidence that a roadblock technique itself effectively promoted the government’s interest in deterring drug crimes"). Prior to implementing such intrusive methods of law enforcement, authorities should attempt to gather some empirical evidence that such methods will in fact be effective.
In Wilson, the court held where no evidence that a security checkpoint at the entrance to an apartment complex addressed concern about drug dealing or even that there existed empirical evidence that there was such a problem the roadblock stop at the defendant’s vehicle was held to be unconstitutional.
For other roadblock cases, see Gilpin v. Commonwealth, 26 Va. App. 105 (1997), the court held where a roadblock for license, registration, tag and equipment violations where the defendant produced these items, which appeared to be valid, the police officers could not continue detention unless he developed reasonable suspicion of criminal activity. Commonwealth v. Bocock, Judge Duncan M. Byrd, Jr.’s Circuit Court opinion of the 25th Judicial Circuit dated February 15, 1996, the court held the roadblock failed to sufficiently limit officers’ discretion where no indication or plan that a supervisor of any checkpoint need be of any graduated rank or special training, and that the time of the detail was based on "traffic conditions at the time."
Brown v. Commonwealth, 20 Va. App. 21 (1995), where the officers moved the roadblock to a different location because of light traffic and no arrests, eventhough guidelines only authorized moving it for heavy traffic or safety concerns.
Hall v. Commonwealth, 12 Va. App. 972 (1991), giving trooper a choice of fifty-four (54) different locations set up a roadblock at anytime during a given week failed to prove the necessary restraint on the trooper’s discretion and thus the roadblock was held to be invalid.
Commonwealth v. Crenshaw, 7 Va. Cir. 351 (1986), a legal roadblock must be controlled by a written policy to be valid.