Tuesday 5th 

 May, 1998. 

Elvin William Sheppard, Appellant, 

 against Record No. 1335-96-3 

 Circuit Court Nos. CR95000976 and CR95000977 

Commonwealth of Virginia, Appellee. 

Upon a Rehearing En Banc 

 Before Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman, 

 Willis, Elder, Bray, Annunziata, Overton and Bumgardner 

 Wayne T. Baucino, Assistant Public Defender 

(Vikram Kapil, Assistant Public Defender, on 

brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Richard Cullen, Attorney General, on 

brief), for appellee. 

A divided panel of this Court affirmed the judgment of the 

trial court. See Sheppard v. Commonwealth, 25 Va. App. 527, 489 

S.E.2d 714 (1997). We stayed the mandate of that decision and granted 

rehearing en banc. 

 Upon rehearing en banc, the judgment of the trial court is 

affirmed without opinion by an evenly divided Court. 

The Commonwealth shall recover of the appellant the costs in 

this Court, which costs shall also include an additional fee of $200 

for services rendered by attorneys of the Public Defender's office on 

the rehearing portion of this appeal, in addition to counsel's 

necessary direct out-of-pocket expenses. 
This order shall be published and certified to the trial 

court. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 
 Tuesday 14th 

 October, 1997. 

Elvin William Sheppard, Appellant, 

 against Record No. 1335-96-3 

 Circuit Court Nos. CR95000976 and CR95000977 

Commonwealth of Virginia, Appellee. 

Upon a Petition for Rehearing En Banc 

Before the Full Court 

 On September 22, 1997 came the appellant, by court-appointed 

 counsel, and filed a petition praying that the Court set aside 

the judgment rendered herein on September 9, 1997, and grant a 

rehearing en banc thereof. 

 On consideration whereof, the petition for rehearing en banc 

is granted, the mandate entered herein on September 9, 1997 is 

stayed pending the decision of the Court en banc, and the appeal 

is reinstated on the docket of this Court. 

 The parties shall file briefs in compliance with Rule 5A:35. 

 It is further ordered that the appellant shall file with the 

clerk of this Court ten additional copies of the appendix 

previously filed in this case. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 Deputy Clerk 
 4 

COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Willis 

Argued at Salem, Virginia 

ELVIN WILLIAM SHEPPARD 

 OPINION BY 

v. Record No. 1335-96-3 JUDGE JERE M. H. WILLIS, JR. 

 SEPTEMBER 9, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE 

Charles M. Stone, Judge 

 Wayne T. Baucino, Assistant Public Defender 

(Vikram Kapil, Assistant Public Defender, on 

briefs), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Elvin William Sheppard was a passenger in an automobile that 

was stopped by the police at a license checking roadblock. He 

was convicted of possession of cocaine and possession of 

marijuana discovered by the police upon search of the automobile. 

 On appeal, he contends that the roadblock was established 

unconstitutionally, that the seizures of the automobile and of 

his person were therefore unlawful, and that the trial court 

erred in refusing to suppress the evidence discovered upon the 

search of the automobile. We find no error and affirm the 

judgment of the trial court. 

 Prior to Sheppard's arrest, the Martinsville Police 

Department adopted General Order Number 3-31 governing traffic 
 5 

checkpoints "to enforce driver's license and vehicle registration 

laws" and to address "all other violations of law coming to the 

attention of officers conducting the checking detail." The plan 

required that checkpoints should be located at sites set forth on 

a list attached to the plan as "Appendix A" and that checkpoints 

would be conducted "for no less than [thirty] minutes or for no 

more than two hours." The plan set forth rules governing the 

number of officers to be present, the officers' attire, emergency 

lights and flares to be used, location of emergency vehicles on 

the scene, removal of detained vehicles from traffic, and the 

number of cars to be stopped. 

 Charles E. Long testified that at the time of Sheppard's 

arrest, he was Lieutenant of Criminal Investigations, Services 

Division, of the Martinsville Police Department. He testified 

that the police "were receiving numerous complaints about the 

Moss Street area involving drugs, speeders, people driving 

without driver's license, suspensions . . . ." Lieutenant Long 

decided to set up a "roadcheck" on Moss Street and assigned 

officers to Moss Street for that purpose. The Moss Street 

location was not included in Schedule A of General Order Number 

3-31. However, the roadcheck complied with that order in every 

other respect. Lieutenant Long did not participate in the 

roadcheck personally, but acted only in a supervisory capacity. 

 Sheppard was a passenger in an automobile that was stopped 

at the Moss Street roadcheck. The driver did not have an 
 6 

operator's license and was charged with that offense. He gave 

the police permission to search the automobile. The police 

discovered cocaine and marijuana, and Sheppard was charged with 

possession of those substances. 

 Sheppard moved the trial court to suppress the cocaine and 

marijuana on the ground that their discovery resulted from an 

unconstitutional search and seizure. He argued that because the 

establishment of the Moss Street checkpoint deviated from General 

Order Number 3-31, the conduct of the checkpoint was an exercise 

in unbridled police discretion and was constitutionally 

impermissible. The trial court denied the motion, admitted the 

evidence, and convicted Sheppard on both counts. 

 Code § 46.2-103 provides, in pertinent part: 

 Except as prohibited by § 19.2-59, on his 

request or signal, any law-enforcement 

officer who is in uniform or displays 

his badge or other sign of authority 

may: 

 1. Stop any motor vehicle, trailer, or 

semi-trailer to inspect its equipment, 

operation, . . . . 

 Code § 46.2-104 provides, in pertinent part: 

 The owner or operator of any motor 

vehicle, trailer, or semi-trailer shall 

stop on the signal of any lawenforcement officer who is in uniform 

or shows his badge or other sign of 

authority and shall, on the officer's 

request, exhibit his registration card, 

driver's license, learner's permit, or 

temporary driver's permit . . . . 

 The statutory right of a law enforcement officer to stop a 
 7 

motor vehicle and the obligation of a motor vehicle operator to 

submit to such a stop for a license or registration inspection 

are circumscribed by the decision of the United States Supreme 

Court in Delaware v. Prouse, 440 U.S. 648 (1979), holding 

unconstitutional the random stopping of motor vehicles, other 

than upon the basis of probable cause or reasonable suspicion of 

criminal conduct. The Court ruled that a person "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." Id. at 662. However, the 

Court went on to say: 

 This holding does not preclude the States 

from developing methods for stopchecks 

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. 

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 traffic stops not based upon probable cause or 

reasonable suspicion of criminal activity. The test involves 

three criteria: (1) the gravity of the public concerns served by 

the seizure, (2) the degree to which the seizure advances the 
 8 

public interest, and (3) the severity of the interference with 

individual liberty. Id. at 50-51. Noting the central 

constitutional concern that "an individual's reasonable 

expectation of privacy is not subject to arbitrary invasions 

solely at the unfettered discretion of officers in the field," 

the Court said, "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 Lowe v. 

Commonwealth, 230 Va. 346, 350, 337 S.E.2d 273, 275-76 (1985). 

Lowe involved an arrest made at a license and sobriety 

checkpoint conducted pursuant to Charlottesville's checkpoint 

plan. Analyzing the components of the plan under 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 

the police in this case was not an 

impermissible infringement upon 

defendant's reasonable expectation of 

privacy. The Charlottesville system is 

safe and objective in its operation, 

employs neutral criteria, and does not 

involve standardless, unbridled 

discretion by the police officer in the 

field, which was condemned in Prouse. 

Lowe, 230 Va. at 352, 337 S.E.2d at 277. 
 9 

 In Simmons v. Commonwealth, 238 Va. 200, 380 S.E.2d 656 

(1989), the Supreme Court considered a license and registration 

checkpoint established and conducted by two 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 Supreme Court said: 

 We 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. 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 the 

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 from any supervisor or 

superior officer was required to set up 

the roadblock. 

Id. at 203-04, 380 S.E.2d at 658-59 (footnote omitted). 

 The seizure of the vehicle in which Sheppard was riding did 

not derive from a random stop forbidden by Prouse. The 

Martinsville plan satisfied the criteria set forth in Brown, 

conformed to the standards approved in Lowe, and satisfied the 

requirement of Simmons. The officers conducting the Moss Street 

checkpoint complied with the Martinsville plan in every respect. 
 10 

 The issue before us is whether the sole deviation from that 

plan, the selection by Lieutenant Long of a checkpoint site not 

included in Schedule A, was of sufficient significance to render 

the checkpoint unreasonable and constitutionally impermissible. 

We hold that it did not. 

 Although Lieutenant Long selected the site, he did not 

participate in conducting the checkpoint. He was not an officer 

in the field. His involvement was altogether in a supervisory or 

administrative capacity. Thus, in no respect, was the 

establishment or conduct of the checkpoint left to the unbridled 

discretion of field officers. 

 Nothing in the record suggests that Lieutenant Long's 

decision to establish the checkpoint involved, in any way, an 

effort to target a specific person or a specific group of people. 

 His decision was based on citizen complaints of unlawful 

activity at the Moss Street location. His decision addressed the 

unlawful situation, not any person or group of people. His 

purpose was to quell unlawful activity and to control a trouble 

spot, employing neutral criteria. The location of the checkpoint 

on Moss Street imposed no greater intrusion on the privacy of the 

general traveling public than would have been imposed had the 

checkpoint been located at a Schedule A site. Thus, we hold that 

the mere fact that the Moss Street location was not included in 

Schedule A, effected a minor, insubstantial deviation from 

compliance with the Martinsville plan, and did not render the 
 11 

checkpoint constitutionally impermissible. 

 The judgment of the trial court is affirmed. 

 Affirmed.
 12 

Coleman, J., dissenting. 

 In my opinion, the traffic checking roadblock that the 

Martinsville police set up on Moss Street significantly deviated 

from the city's roadblock plan. The roadblock was not conducted 

at a pre-approved location as specified in General Order 3-31, 

the plan did not authorize a supervisor to designate an alternate 

site based upon public safety concerns, and the roadblock was 

established for general crime detection purposes and not for 

legitimate operator licensing and vehicle registration checking 

purposes. Moreover, the roadblock at the Moss Street site was 

not based on objective criteria; rather, it was established on an 

ad hoc basis in response to citizen complaints about illegal 

activity in the area. For these reasons, I would hold that the 

roadblock did not satisfy the reasonableness requirements of the 

Fourth Amendment. The manner in which the roadblock was 

established did not remove the officers' unfettered discretion as 

to who could be stopped. Accordingly, because the roadblock did 

not, in my opinion, satisfy Fourth Amendment requirements, the 

stop of the vehicle in which the defendant was a passenger and 

the seizure of drugs from him was unlawful. Accordingly, I 

respectfully dissent from the majority opinion. 

 I. 

 The site for the roadblock was selected by Lieutenant Long, 

who was the officer in charge of the Criminal Investigations 

Services Division. Long testified that he had received numerous 
 13 

complaints, from one citizen in particular, regarding drugs, 

speeding, and people driving in the Moss Street area without 

licenses or on suspended licenses. Long testified: 

 [A]t that time, [Moss Street] was a pretty 

hot area. We were doing reversal, 

sting reversals, the vice unit was . . 

. [investigating] drugs and like I said 

there was a lot of traffic in that 

area. There were complaints of traffic 

in that area being very heavy and 

people speeding, people driving around 

with no driver's license . . . . [The 

roadblock] was one of the procedures 

that I chose to try to [quell] some of 

the trouble we were having on Moss 

Street. 

Thus, the purpose for conducting the roadblock at Moss Street 

deviated from the city's stated purpose in General Order 3-31 of 

enforcing driver's license and vehicle registration laws. 

 Furthermore, no evidence established that a roadblock is an 

effective or legitimate enforcement measure which can be used or 

is designed to detect the crimes that were being reported at Moss 

Street. See Department of State Police v. Sitz, 496 U.S. 444, 

454 (1990). Although Lieutenant Long mentioned "citizen 

concerns" about "people driving without licenses or on suspended 

licenses," he testified that he authorized the Moss Street 

roadblock in response to citizen complaints about drugs, 

speeders, and traffic congestion associated with the drug 

traffic. The record contains no evidence establishing how 

officers at a properly conducted roadblock checking licensing and 

registration can legitimately detect drugs, speeders, or reduce 
 14 

traffic congestion. Long ordered that the roadblock be 

established on Moss Street in order to show a police presence in 

the area and to deter criminal conduct, reduce traffic flow, 

control speeding drivers, and identify unlicensed drivers. 

Long's admitted primary concern was "anyone . . . violating any 

laws." None of these purposes are articulated in the city's plan 

as reasons for conducting a roadblock. 

 The balancing test announced in Brown v. Texas and confirmed 

in Sitz requires that a reviewing court look at the public or 

governmental interest being addressed by a checkpoint or 

roadblock and "the degree to which the seizure advances the 

public interest." 443 U.S. 47, 51 (1979). Roadblocks or 

checkpoints, such as the one here, that are established in whole 

or in part for purposes of combatting drug-related crimes, 

reducing traffic flow and controlling speeding drivers are not 

reasonable measures, in my opinion, to detect these types of 

offenses. A roadblock may discourage such conduct in the area by 

providing a general police presence that serves as a deterrent; 

however, when balanced against the intrusion on individual Fourth 

Amendment rights, these purposes do not justify the roadblock. 

See United States v. Morales-Zamora, 974 F.2d 149, 151-52 (10th 

Cir. 1992) (holding that traffic checking detail was an 

impermissible pretextual stop to search for drugs); Taylor v. 

United States, 595 A.2d 1007, 1009 (D.C.App. 1991) (finding that 

alleviation of traffic congestion is not a purpose shown to be 
 15 

furthered by a roadblock); Galberth v. United States, 590 A.2d 

990, 997-98 (D.C.App. 1991) (holding that government's general 

deterrence interest does not outweigh seized individual's liberty 

interest when primary purpose of roadblock is general law 

enforcement); Meeks v. State, 692 S.W.2d 504, 508 (Tex. Crim. 

App. 1985) (holding roadblock detention illegal when purpose was 

to "enforce all the laws"); cf. United States v. McFayden, 865 

F.2d 1306, 1312 (D.C.Cir. 1989) (acknowledging that if a 

roadblock's principal purpose is the detection of crimes 

unrelated to licensing, it could be a violation of the Fourth 

Amendment). But see State v. Damask, 936 S.W.2d 565, 571 

(Mo. 1996) (en banc) (holding that state may validly conduct a 

checkpoint to apprehend drug traffickers); State v. Everson, 474 

N.W.2d 695, 701 (N.D. 1991) (same). 

 Here, the Commonwealth failed to establish the required 

nexus between the public concerns about speeding and drug-related 

crimes and the use of a roadblock and its effectiveness to combat 

those problems. Although a roadblock necessarily slows traffic, 

it is not a practice that will, when lawfully executed, 

effectively and objectively detect and apprehend speeders. 

Similarly, the public's concern about drug trafficking at Moss 

Street is not furthered by a roadblock that permits the state, in 

the exercise of its police powers, to check for licensing and 

registration violations. Without the authority to search the 

vehicle or its occupants, a roadblock is not an effective measure 
 16 

to combat drug-related crimes. 

 II. 

 We previously have held that when the police have adopted a 

plan for conducting a roadblock, an officer in the field does not 

have the discretion to deviate from the plan. See Brown v. 

Commonwealth, 20 Va. App. 21, 25, 454 S.E.2d 758, 759 (1995). 

"To allow the [police] to do anything short of complying in full 

with [their] own guidelines would inject an element of discretion 

into the [checkpoint] procedures and thus undercut the very 

foundation upon which the [checkpoint] seizure is 

constitutionally justified." Id. (quoting Commonwealth v. 

Anderson, 547 N.E.2d 1134, 1137-38 (1989)). Objective guidelines 

provide the safeguards that ensure the "reasonableness" of 

roadblock seizures. Without objective guidelines, the seizures 

would "'lack the usual probable cause or individualized suspicion 

requirements [that] ordinarily safeguard citizens from arbitrary 

government intrusion." Id. at 25-26, 454 S.E.2d at 760. For 

this reason, "the [safest] course is to require the Commonwealth 

to follow its own rules.'" Id. at 25-26, 454 S.E.2d at 760. 

 The majority ignores Brown v. Commonwealth and holds that 

the deviation from the objective guidelines adopted in General 

Order 3-31 was not an error of constitutional proportion. 

However, in my opinion, the deviation from General Order 3-31, 

even though not done at the discretion of an officer in the 

field, renders the roadblock conducted on Moss Street 
 17 

constitutionally impermissible. The Moss Street location was not 

a pre-approved site in the plan. Furthermore, the plan contained 

no provision or procedure whereby a supervisor, under given 

conditions, such as traffic safety, could authorize a traffic 

checking roadblock at an alternate location or a site not 

pre-approved in the plan.1

 Thus, the Martinsville police did not 

follow their own guidelines for establishing a traffic checking 

roadblock. 

 Preventing an officer in the field from making random stops 

or exercising unfettered discretion in seizing citizens without 

probable cause at a roadblock is the primary safeguard that must 

be assured before the government can be permitted to infringe 

upon the citizen's right to privacy, even to a limited degree and 

in limited circumstances.2 See Galberth, 590 A.2d at 996 

("Subjecting every occupant of a motor vehicle to a seizure at 

the 'unbridled discretion of law enforcement officials' 

involve[s] the 'kind of standardless and unconstrained discretion 

[which] is the evil the Court had discerned when in previous 

cases it has insisted that the discretion of the official in the 

field be circumscribed, at least to some extent.'") (quoting 

 

 1Although General Order 3-31 grants the police supervisors 

discretion to choose an alternate location for DUI/sobriety 

checkpoints for safety considerations, it does not give the 

supervisors any discretion in site selection for traffic checking 

details. 

 2The field officer's conduct in such cases would not be 

valid simply because the stops were authorized by a supervisor. 
 18 

Delaware v. Prouse, 440 U.S. 648, 661 (1979)). One of the 

safeguards that protects the public from law enforcement officers 

indiscriminately utilizing a checkpoint or roadblock to target 

one or more persons to be stopped without reasonable suspicion or 

probable cause or for general law enforcement purposes is the 

requirement that the policing authorities delineate a plan 

composed of neutral criteria that utilizes objective, 

nondiscretionary procedures. See Simmons v. Commonwealth, 238 

Va. 200, 203, 380 S.E.2d 656, 659 (1989). 

 Allowing the Martinsville police to locate a traffic 

checking roadblock at an unapproved site on an ad hoc basis in 

response to individual complaints or a particular problem 

constitutes the very "unfettered discretion" that a plan is 

intended to avoid. The protection that will normally be afforded 

by a supervisor approving a deviation from a plan, rather than 

allowing a field officer to exercise such discretion, is to 

assure that the plan continues to be based on objective, neutral 

criteria. Here, the supervisor's decision did not protect 

against an abuse of discretion in deciding where to locate the 

roadblock. Contrary to the majority's assertion, the evidence 

proved that a supervisory officer in charge of criminal 

investigations, rather than a field officer, exercised his 

unfettered discretion to deviate from the plan and to locate the 

roadblock on Moss Street in response to a citizen's complaints 

regarding drug trafficking, speeding, and individuals driving 
 19 

 

without licenses. The roadblock that Long authorized on Moss 

Street was designed to target individuals observed by one or 

several citizens when the officers had no articulable, reasonable 

suspicion or probable cause to stop those individuals. The 

supervision that Long exercised did not give the assurance that 

the location or purpose of the roadblock was based on objective 

criteria or that the roadblock furthered a legitimate 

governmental interest. I see no meaningful distinction between a 

supervisor exercising his unfettered discretion to relocate a 

roadblock based, not upon neutral and objective criteria, but 

upon complaints targeting certain individuals, and a field 

officer doing the same.3

 This type of "standardless and 

unconstrained discretion," exercised either by the supervisor or 

the field officer, in my view, violates the Fourth Amendment 

protections against stopping and detaining private citizens 

without probable cause or reasonable suspicion of criminal 

activity. 

 3I do not suggest that a modification of a locality's plan 

to add pre-approved sites based upon citizen complaints is 

impermissible as long as appropriate procedures are used to amend 

the plan and the amendment of the plan is motivated by the public 

interest and not by a desire to stop and detain a certain 

individual or group of individuals without probable cause or 

reasonable suspicion.