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Sheppard v. Com.9/9/1997
OPINION BY
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 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 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 law-enforcement 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 o
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