A person's reasonable expectation of privacy is not subject to arbitrary invasion solely at the unfettered discretion of the police. How many people know what this means? How many people know that when you are stopped at a roadblock or checkpoint, the police teeter dangerously on this edge?
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. In Wilson v. Commonwealth, 29 Va. App. 63 (1999), the Court of Appeals agreed that stopping a car and detaining the driver at a roadblock or a checkpoint is a seizure within the meaning of the Fourth Amendment.
To determine whether or not a checkpoint is constitutionally valid, the court applied the balancing test established in Brown. The Brown test involves the weighing three 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.
In Lowe v. Commonwealth, 230 Va. 346, 337 S.E. 2d 273 (1985), an arrest was made at a checkpoint conducted pursuant to a 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 a couple of troopers on their own initiative. The troopers stopped and inspected every vehicle passing through the checkpoint. This checkpoint was deemed unconstitutional. The Court demanded that that checkpoints, if they are to be undertaken, must be done pursuant to an explicit plan or practice which uses neutral criteria and limits the discretion of officers conducting the roadblock.
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.