COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Bumgardner 

Argued at Salem, Virginia 

RONNIE LEE 

 MEMORANDUM OPINION* BY 

v. Record No. 2181-99-3 JUDGE RUDOLPH BUMGARDNER, III 

 AUGUST 29, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 Elwood Earl Sanders, Jr., Appellate Defender 

(Public Defender Commission, on brief), for 

appellant. 

 (Mark L. Earley, Attorney General; Amy L. 

Marshall, Assistant Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 The trial judge convicted Ronnie Lee of one count of driving 

after having been adjudicated an habitual offender in violation of 

Code § 46.2-357(B)(3). On appeal, he contends the trial judge 

erred in refusing to allow him to ask during cross-examination 

whether race was a criterion in selecting a traffic checkpoint. 

For the following reasons, we affirm the defendant's conviction. 

I. 

 Field Training Officer Ricky Luck, of the Danville Police 

Department, testified that on May 11, 1999 he was in charge of a 

routine traffic checkpoint on the corner of Betts and Epps Streets 
in the City of Danville. In accordance with departmental policy, 

the deputy chief of police approved the checkpoint plan as part of 

the community-policing program. All vehicles that came through 

the checkpoint were stopped. The defendant's car was stopped. 

When an officer asked him if he had his license, the defendant 

said he did not have one. 

 During cross-examination, Officer Luck explained the criteria 

for selecting a checkpoint. They included: (1) location within 

the community-policing area; (2) the amount of traffic; (3) the 

number of past arrests in the area based on community-policing 

logs; (4) the physical proximity to an entrance to the 

community-policing area; (5) the visibility of the checkpoint for 

the motorists' and officers' safety, and (6) the width of the road 

which enabled officers to pull vehicles off the road safely. 

Defense counsel then asked Luck whether the housing development 

near the checkpoint was predominantly black. The Commonwealth 

objected and asked, "What relevance does that have?" 

 Defense counsel claimed that if race was a factor in 

determining where to conduct the checkpoint, it adversely 

affected the black community. The trial judge noted that the 

essence of public housing was a lack of racial bias, and because 

the checkpoint was conducted on a public street, he believed 

defense counsel was "injecting something into this, that's 

improper." The trial judge sustained the Commonwealth's 

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objection. Defense counsel accepted the judge's ruling: "All 

right." 

 On appeal, the defendant contends the trial judge 

improperly limited his cross-examination of Officer Luck by 

refusing to allow him to ask whether race was an additional 

criterion used in establishing the checkpoint. He argues the 

police did not use neutral criteria to select the checkpoint, 

and therefore, the results of the stop should be suppressed. 

The defendant's claim is procedurally barred. First, the 

defendant failed to file a motion to suppress the evidence in 

accordance with Code § 19.2-266.2.1 See Upchurch v. 

Commonwealth, 31 Va. App. 48, 53, 521 S.E.2d 290, 292 (1999) 

(statutory requirement that motion to suppress be timely filed 

is mandatory and trial court did not abuse its discretion in 

"finding lack of good cause for excusing" defendant's failure to 

do so). The defendant also failed to proffer the answer Officer 

Luck would have given had the trial court permitted the 

question. See Spencer v. Commonwealth, 238 Va. 563, 570, 385 

S.E.2d 850, 854 (1989) (where defendant claims court erroneously 

 1

 Code § 19.2-266.2 provides that: 

Defense motions or objections seeking 

(i) suppression of evidence on the grounds 

such evidence was obtained in violation of 

the . . . Constitution of the United States 

or . . . the Constitution of Virginia . . . 

shall be raised by motion or objection, in 

writing, before trial. 

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limited cross-examination, record must contain proffer of both 

questions to be asked and expected answers), cert. denied, 493 

U.S. 1093 (1990). Absent a proper proffer of the anticipated 

evidence of the use of race as a criterion in selecting 

checkpoints, "we are precluded from a consideration of this 

issue on appeal." Mostyn v. Commonwealth, 14 Va. App. 920, 924, 

420 S.E.2d 519, 520 (1992) (citations omitted). See Whittaker 

v. Commonwealth, 217 Va. 966, 968-69, 234 S.E.2d 79, 81 (1977). 

In addition, the defendant is required to show the excluded 

evidence was relevant and material to his case. See Toro v. 

City of Norfolk, 14 Va. App. 244, 254, 416 S.E.2d 29, 35 (1992). 

The defendant did not file a motion to suppress or challenge the 

constitutionality of the checkpoint. He never raised the issue, 

so the issue of race was collateral and immaterial to his case. 

See Maynard v. Commonwealth, 11 Va. App. 437, 444, 399 S.E.2d 

635, 640 (1990) (en banc) (cross-examination questions about 

existence of probable cause are irrelevant to the issue of guilt 

or innocence because defendant did not challenge the legality of 

his arrest). Cf. Stewart v. Commonwealth, 10 Va. App. 563, 568, 

394 S.E.2d 509, 512 (1990) (no abuse of discretion where defense 

counsel properly prevented from engaging in a fishing 

expedition). 

Accordingly, we affirm the conviction. 

 Affirmed.

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Benton, J., dissenting. 

 The right to cross-examine prosecution witnesses is 

"fundamental to the truth-finding process [and] is an absolute 

right guaranteed to an accused by the confrontation clause of 

the Sixth Amendment." Barrett v. Commonwealth, 231 Va. 102, 

108, 341 S.E.2d 190, 194 (1986). "While it is true that the 

trial [judge] may, in the exercise of discretion, limit 

cross-examination of a witness within reasonable bounds, that 

does not mean that in the exercise of such judicial discretion 

[the trial judge] should exclude relevant evidence." Hummel v. 

Commonwealth, 217 Va. 548, 550, 231 S.E.2d 216, 217 (1977). 

"Subject to such reasonable limitations as the trial [judge] may 

impose, a party has an absolute right to cross-examine his 

opponent's witness on a matter relevant to the case, which the 

opponent has put in issue by direct examination of the witness." 

Washington v. Commonwealth, 228 Va. 535, 549, 323 S.E.2d 577, 

587 (1984). 

 The issue of the criteria used to establish the roadblock 

was relevant and was placed in issue by the prosecutor when he 

presented testimony from Officer Ricky Luck concerning 

"procedures mandated by departmental policies" for the 

roadblock. On cross-examination, Officer Luck testified that 

"all of our [driver's license traffic] checks are located near 

housing developments, or near the areas that we walk, and patrol 

[as part of the community-policing program]." Ronnie Lee's 

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counsel was entitled to explore this and the other criteria used 

to establish the roadblock. 

 The following exchange occurred between Lee's counsel and 

Officer Luck on cross-examination: 

[DEFENSE COUNSEL]: Well, do you run traffic 

checks . . . traffic count checks all over 

the city of Danville. . . . 

[OFFICER LUCK]: Yes. 

[DEFENSE COUNSEL]: . . . or just in those 

areas? 

[OFFICER LUCK]: No. We go all over . . . 

community police . . . we only do them 

within our areas. 

[DEFENSE COUNSEL]: Okay. 

[OFFICER LUCK]: Patrol goes all over the 

city. 

[DEFENSE COUNSEL]: All right, so community 

police, if I understand it, only do it 

within the areas that you previously 

identified to me? Is that correct? 

[OFFICER LUCK]: Yes. But now, again, we go 

several blocks . . . we can go several 

blocks away from it. Now this is just a 

policy within community police. 

* * * * * * * 

[DEFENSE COUNSEL]: And that was the 

criteria that was used to draw . . . to have 

this stop? 

[OFFICER LUCK]: Yes. 

[DEFENSE COUNSEL]: Now, the housing 

development that's over there near Betts and 

Epps Streets . . . 

[OFFICER LUCK]: Uh-huh. 

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[DEFENSE COUNSEL]: . . . it's predominantly 

black, isn't it? 

[PROSECUTOR]: Objection. What relevance 

does that have? 

 The record clearly establishes that Lee's counsel preserved 

for the record his argument that his question was relevant and 

that the area the police chose for the roadblock was 

predominantly African-American. After the prosecutor objected 

as to the relevance of Lee's counsel's questions concerning the 

racial composition of the housing development near the 

checkpoint, the following colloquy occurred between Lee's 

counsel and the trial judge: 

[DEFENSE COUNSEL]: It has good relevance. 

If the community police are picking things 

that have an adverse impact on the black 

community, then it has some relevance. 

[PROSECUTOR]: No it doesn't. 

[DEFENSE COUNSEL]: And if they are choosing 

that as a criteria for where their stops are 

going to be made . . . that's it . . . and 

that's why I'm asking these questions. 

[PROSECUTOR]: I don't think . . . I don't 

think race has got anything to do with this 

case. 

[DEFENSE COUNSEL]: If they are choosing 

areas that are predominantly black, it does 

have something to do with it, because there 

are predominantly going to be black people 

in it. 

[PROSECUTOR]: Judge, he has testified they 

choose the areas where they patrol. I mean, 

that's got nothing to do with the racial 

composition of the areas they patrol. 

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[DEFENSE COUNSEL]: The areas that they 

patrol have been identified . . . are those 

areas that you identified, that are owned by 

the Public Housing Authority . . . are those 

predominantly . . . the occupants 

predominantly black? 

[PROSECUTOR]: Objection. 

* * * * * * * 

[DEFENSE COUNSEL]: I have to ask these 

questions, as to the basis of it. 

THE COURT: Well, I think you are . . . I 

think you are entitled to ask him questions 

about the thing . . . , but I don't think 

that race is one of the issues to be 

injected into this. If it's public streets, 

and there are people of all races living in 

these areas . . . I think you are out of 

line on that. 

[DEFENSE COUNSEL]: Well, Judge, that's to 

be established. According to his testimony, 

the areas that they are . . . that they are 

set up in . . . community policing . . . 

from what I understand, are things that are 

owned by the Danville Redevelopment and 

Housing Authority. Now again, I've been 

away from Danville a long time, but the ones 

that I know about . . . and this one I know 

about, over there, I know what the 

composition of it was, and I'm asking that 

. . . if that's going to be a criteria, I 

think that . . . that has got to be set out 

here, and that ought to be set out here, 

because as we are making a record, we have 

to make the record full, and this Court 

. . . and the Supreme Court of Virginia 

. . . the Court of Appeals have looked at 

these stops, and they . . . these stops have 

. . . are subject to a greater 

constitutional scrutiny, because of the way 

they are done . . . . 

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[JUDGE]: Well, the Redevelopment and 

Housing Authority is predicated on the thing 

that it's open to . . . 

[DEFENSE COUNSEL]: Oh, I agree Judge . . . 

I . . . 

[JUDGE]: . . . people of all races, creeds 

and colors [counsel], so I mean I think you 

are attacking it on that, the every basis of 

the foundation of the thing is that there be 

no racial bias in that. 

[DEFENSE COUNSEL]: I agree with . . . 

[JUDGE]: And we're talking about public 

streets. We don't know who is going to be 

coming down the street, using the public 

roads, so I think you are injecting 

something into this, that's improper. 

[DEFENSE COUNSEL]: All right. 

 Defense counsel's argument was sufficient to preserve for 

appeal the issues of criteria for establishing the roadblock. 

The trial judge simply did not want defense counsel to inquire 

whether race was a factor in locating the roadblock. Indeed, 

the trial judge resisted defense counsel's best efforts to 

establish any more of a record as to the actual racial 

composition of the housing development, saying his efforts were 

"improper." In view of defense counsel's statements on the 

record and the trial judge's admonition to defense counsel, I 

would hold that Lee's counsel created an adequate record to 

preserve the issue of the criteria for establishing the 

roadblock and the issue of relevance. 

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 The trial judge should not have barred cross-examination to 

prove this evidence because whether the neighborhood is or is 

not predominantly African-American was relevant to the issue 

whether the checkpoint was based on neutral criteria or had a 

discriminatory impact. The Commonwealth bears the burden of 

proving that a "roadblock [has been] carried out pursuant to a 

plan or practice which . . . contains neutral criteria." 

Simmons v. Commonwealth, 238 Va. 200, 202-03, 380 S.E.2d 656, 

658 (1989); see also Brown v. Commonwealth, 20 Va. App. 21, 25, 

454 S.E.2d 758, 759 (1995). Thus, the question of impermissible 

criteria is germane not just to suppression of evidence but also 

to whether the prosecution itself is lawful. 

 "Selectivity in the enforcement of criminal laws is . . . 

subject to constitutional constraints." United States v. 

Batchelder, 442 U.S. 114, 125 (1979). Indeed, the Equal 

Protection Clause of the Constitution prohibits selective 

enforcement of the law based on considerations such as race. 

See Arnold v. North Carolina, 376 U.S. 773, 774 (1964); Oyler v. 

Boles, 368 U.S. 448, 456 (1962). When, as in this case, the 

neutrality of the criteria is at issue, the Equal Protection 

Clause guarantees the defendant the right to inquire about the 

use of race as an impermissible factor as a defense to the 

prosecution. See Turner v. Murray, 476 U.S. 28, 35-36 (1986); 

Ham v. South Carolina, 409 U.S. 524, 529 (1973). A conviction 

cannot be based upon state activity that denies an accused equal 

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protection of the law. See Brown v. Louisiana, 383 U.S. 131 

(1966); Wright v. Georgia, 373 U.S. 284 (1963). 

 For these reasons, I would hold that the trial judge erred 

in limiting cross-examination on a relevant issue. Accordingly, 

I would reverse the conviction and remand for retrial, 

permitting consideration of the evidence concerning racial 

composition of the area adjacent to the checkpoint and the 

criteria for placing the checkpoint. 

 I dissent. 

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