¶1concurring and dissenting.
¶2I concur only in Part II of the majority opinion which determines that, when he objected at trial to the admission of evidence obtained from him as he was seized at a highway checkpoint, Gary Lee Simmons properly preserved for appeal the question of the fourth amendment violation. I dissent from the remainder of the opinion because I conclude that the checkpoint was established and operated in violation of the constitutional prohibition against “unreasonable searches and seizures.” U.S. Const. amend. IV.
¶3“[S] topping [a motor vehicle] and detaining its occupants constitute a ‘seizure’ within the meaning of [the Fourth and Fourteenth] Amendments [to the United States Constitution], even though the purpose of the stop is limited and the resulting deten*458tion quite brief.” Delaware v. Prouse, 440 U.S. 648, 653 (1979); see also Brown v. Texas, 443 U.S. 47, 50 (1979). Thus, when a citizen, driving a motor vehicle, is stopped by a law enforcement officer, the issue to be decided is the same as when an individual is otherwise detained by a law enforcement officer in any other setting — whether the seizure was constitutionally reasonable. “[T]he Fourth Amendment requires that [the] 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.” Brown, 443 U.S. at 51; see also Prouse, 440 U.S. at 663; United States v. Martinez-Fuerte, 428 U.S. 543, 558-62 (1976); Lowe v. Commonwealth, 230 Va. 346, 350, 337 S.E.2d 273, 275-76 (1985), cert. denied, 475 U.S. 1084 (1986).
¶4Simmons was not stopped by the officers because of specific, objective facts which gave rise to particularized, articulable suspicion “that a crime had been, was being, or was about to be committed.” Lowe, 230 Va. at 350, 337 S.E.2d at 276; see Zimmerman v. Commonwealth, 234 Va. 609, 612, 363 S.E.2d 708, 709 (1988). Therefore, we must decide whether the checkpoint where the officers stopped Simmons was operated “pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown, 443 U.S. at 51. Because this record does not establish that fact, I respectfully disagree with the majority’s conclusion that the seizure of Simmons was not violative of the fourth amendment.
¶5The Commonwealth did not discharge its burden of proving the constitutional reasonableness of the warrantless seizure under the fourth amendment. See Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); Vale v. Louisiana, 399 U.S. 30, 34 (1970). The evidence established that at approximately 8 p.m. on Thursday, July 10, 1986, Officers Crowder and Morton of the Virginia State Police set up a “checking detail on Route 601 and Route 776” without having been directed by a supervisor to do so. Crowder testified that the purpose of his checkpoint was to check for “driver’s license and equipment violations.” Although Crowder testified that he made the decision to set up the checkpoint and determined its location, the record does not reflect his reason for choosing this particular site. Crowder also testified that although *459he had discretion as to which vehicles to stop, “normal procedure is to stop all vehicles.” He said that they “stopped all vehicles” at the checkpoint.
¶6Crowder and Morton were assisted at the checkpoint by state park police. The record does not reflect the number of state park police that assisted; however, it is reasonable to assume that at least two state park police were present since two state park police cars were present at the checkpoint. The record contains no further details concerning the activities of the state park police.
¶7At approximately 8:40 p.m. Simmons approached the checkpoint in his truck, pulling a boat on a trailer. He and his passenger, Steve Harris, had been fishing in nearby Lake Chesdin. Crowder could not recall whether the blue lights on the police vehicles were activated to warn drivers of the checkpoint, but he did recall that two flags were placed at the checkpoint. Crowder did not notice anything erratic about the manner in which Simmons was operating his truck, and, prior to the stop, Crowder did not have reason to suspect that Simmons was intoxicated or unlicensed. Crowder described his encounter with Simmons as follows:
His eyes were very red, strong odor of alcohol on his person. And he pulled up to where I was standing. He told me that he had been fishing. I asked him how much had he had to drink. He said about five beers. I had him pull his truck over and asked him out. He had no shirt on and no shoes at the time. I asked him what time it was without looking at the watch. He was about 20 minutes off. I had him stand still with his eyes shut and head tilted backwards. He swayed back and forth. I had him stand on one leg and count to ten. He did keep his leg up, but he swayed and jumped around just a little bit. I had him touch his nose with his index finger with his eyes shut. With his right finger he did okay. I offered him a alcosensor test at this time. I advised him that he was under arrest for driving under the influence. I advised him of the Virginia implied consent law. He took a breath test.
¶8The breath test indicated his blood alcohol content was .11 percent by weight by volume.
¶9*460In Lowe, our Supreme Court approved a checkpoint that “is safe and objective in its operation, employs neutral criteria, and does not involve standardless, unbridled discretion by the police officer in the field.” 230 Va. at 352, 337 S.E.2d at 277. The decision in Lowewas based upon evidence in that record which established the details of the plan under which the City of Charlottesville Police operated its checkpoint. Although the specific location of the Charlottesville roadblock was not publicized, the DUI roadblock project was extensively publicized. In addition, the Lowerecord established that the plan included:
criteria for selection of a particular area for designation as a checkpoint site; provisions that a high-ranking police officer make the daily assignment of a previously designated site for operation of a roadblock and that such officer assign the personnel to work a particular roadblock; specific provisions for the manner in which a roadblock site should be manned and equipped; and detailed routine for bringing traffic to a stop, interviewing motorists, and evaluation of an operator suspected of driving under the influence.
¶10Id. at 351, 337 S.E.2d at 277. Furthermore, the record in Loweestablished that “[t]he officers at the checkpoint had no discretion regarding which vehicles to stop,” and the record also established the manner in which the checkpoint was operated to accomplish the goals of the project. Id. at 352, 337 S.E.2d at 277.
¶11Every factor that the Court cited as evidence that the Loweroadblock was “safe and objective in its operation, employ [ed] neutral criteria, and [did] not involve standardless, unbridled discretion by the police officer in the field” is lacking in th¿ present case. The record of this case establishes that no supervisor or high ranking officer made the decision to institute the checkpoint or determine the situs of the checkpoint. Those decisions were made entirely at the discretion of Crowder, the officer in the field. No provisions were made for the manner in which the checkpoint site should be manned and equipped, and no provisions were made for a detailed routine for bringing traffic to a stop, interviewing motorists, evaluating suspected violators, and specifying which equipment was to be checked for violations. Also no evidence establishes that the checkpoint was operated in a manner to accomplish the stated goals of the project. Although Crowder testified that *461the checkpoint was operated according to “normal procedures,” no testimonial or documentary explanation was presented to establish what constitutes “normal procedures.”
¶12The majority, while recognizing that the principles of law stated in Loweare valid, states that Lowe“was decided upon the facts and circumstances existing at [that] particular roadblock . . . and is distinguishable from the facts of this case.” The majority further states that we must, therefore, “analyze the facts particular to the checkpoint in this case to determine whether the checkpoint violated the fourth amendment.” While I agree that the facts and circumstances of the present case are distinguishable from the facts and circumstances of Lowe, I believe that the import of the stark contrast in the degree of limitation placed on the officers’ discretion in the two cases is indicative that the checkpoint in the present case violated minimum constitutional standards.
¶13There is not a scintilla of evidence that the checkpoint in this case was established pursuant to a “plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown, 443 U.S. at 51. We only know that Crowder used what he considered to be “normal procedures” and that “every car was stopped.” Thus, the only support for the Commonwealth’s claim of constitutionality of the stop in this case is reliance upon dicta in Prouseto give unwarranted significance to Crowder’s testimony that every car was stopped. This testimony, however, does not end the inquiry into whether explicit, neutral limitations were placed on Crowder’s conduct.
¶14Crowder admitted that he could exercise his discretion in the operation of the checking detail. Thus, his testimony that he operated the checkpoint according to “normal procedure” does not establish that the discretion within which he was operating was sufficiently checked. The record contains no evidence upon which the trial court could have reviewed or this Court can review the “normal procedures” pursuant to which Crowder said this checkpoint was established and operated. Moreover, the record contains no evidence showing that the park police were aware of or were operating under the “normal procedures” as Crowder understood them. The record does not reflect whether any limit was placed upon the extent of the intrusion by the officers at the checkpoint; whether all drivers were questioned; whether all drivers were required to exit their vehicle; or whether the park police were check*462ing for fish and game violations.
¶15In addition to the failure to establish on this record the specifics of a plan, perhaps the factor most indicative of the absence, in fact, of “a plan embodying explicit, neutral limitations on the conduct of individual officers” is that the decision whether and where to establish the checkpoint was left solely to Crowder’s discretion without any supervision of or direction from a higher level administrator. See Martinez-Fuerte, 428 U.S. at 559 and Lowe, 230 Va. at 351, 337 S.E.2d at 277 (checkpoints operated under high level officials’ supervision). Indeed, it is difficult to imagine a situation where a field officer, in establishing a checkpoint at his discretion and without a supervisor’s knowledge, would not be acting with the “unbridled discretion” forbidden by Prouse, 440 U.S. at 663.
¶16Furthermore, even if one disregards the absence of such a plan and weighs “the public concerns served by the seizure, the degree to which it advances the public interest, and the severity of the interference with individual liberty,” Brown, 443 U.S. at 50-51, the checkpoint as described in this scant record is constitutionally deficient. The majority cites Commonwealth v. Mitchell, 355 S.W.2d 686, 688-89 (Ky. 1962); Palmore v. United States, 290 A.2d 573, 582 (D.C. 1972); and State v. Holmberg, 194 Neb. 337, 340, 231 N.W.2d 672, 675 (1975), for the proposition that the operation of a checkpoint serves the Commonwealth’s “interest in protecting its motorists, passengers and pedestrians from unsafe drivers and vehicles.” Neither Palmore(driver pulled over for a “spot check” by an unmarked police car although there were no violations and no cause to suspect criminal activity), nor Holmberg(driver stopped randomly by a state trooper for a check of his operator’s license and vehicle registration) can survive constitutional scrutiny under the analysis of Prouse. Although Mitchellinvolved a “ ‘roadblock’ by which state police indiscriminately stopped all traffic for the purpose of ascertaining whether [drivers had valid operator’s licenses],” 355 S.W.2d at 687, the facts as recited in that case concerning the establishment and operation of the roadblock do not minimally satisfy the dicta in Prousethat “[questioning of all oncoming traffic at roadblock-type stops” may satisfy fourth amendment concerns provided there are prohibitions against intrusive stops and “the unconstrained exercise of discretion.” 440 U.S. at 663.
¶17*463While there is a public interest in protecting the public from unsafe drivers and vehicles, the record does not demonstrate that Crowder’s impromptu checkpoint effectuated the stated purpose of the checkpoint. No evidence establishes the reasons Crowder used this particular location; thus, we cannot determine whether the location of the checkpoint was based upon considerations of inconvenience to the public, safety of the operation, or potential for detecting and deterring equipment and operator license violations. See United States v. Ortiz, 422 U.S. 891, 894 (1975). Nor does the record disclose why park police were assisting in a check for license and equipment violations or why a check for equipment violations began at the late evening hour of 8 p.m. Furthermore, no evidence establishes that Crowder checked Simmons’ operator’s license or vehicle registration. These circumstances do not provide a basis upon which we can assess the validity of the stated purpose — to check license and vehicle equipment violations.
¶18Moreover, the severity of the intrusion resulting from Crowder’s discretionary and standardless infringement on the individual’s right to and expectation of privacy weighs against the reasonableness of the seizure. “The ‘grave danger’ of abuse of discretion does not disappear simply because the automobile is subject to state regulation resulting in numerous instances of police-citizen contact.” Prouse, 440 U.S. at 662. In the present case, Crowder stated that he was stopping vehicles solely for the purpose of checking for “driver’s license and equipment violations.” The Supreme Court in Prousediscussed the public interest in stopping vehicles to insure that drivers are properly licensed and their automobiles are properly registered. Since unlicensed drivers are presumably more likely to commit traffic offenses and, therefore, are more likely to be stopped, the benefit to the public interest by police randomly stopping drivers to check their licenses and registrations is minimal. 440 U.S. at 658-61. Similarly, in failing to establish that Crowder was operating upon any standards or guidelines for checking suspected equipment violations, there is no indication that more than a minimal public benefit flows from this kind of search for equipment violations.
¶19That a checkpoint was used to intercept vehicles is not dispositive of the constitutionality of the seizure. In United States v. Martinez-Fuerte, 428 U.S. 543, 566 n.19 (1976) the Supreme Court stated: “Our holding today, approving routine stops for *464brief questioning ... is confined to permanent checkpoints.” Unlike Martinez-Fuertethe checkpoint here was temporary, not permanent; moreover the location of the checkpoint was chosen by the oificer in the field rather than by supervisory olficials as in Martinez-Fuerteand Lowe. Here Crowder’s discretion concerning site selection, and, thus, which vehicles to intercept, was not limited by the location of a permanent checkpoint. See Ortiz, 422 U.S. at 894. Crowder used his discretion in placing the checkpoint to meet whatever aims he deemed important, none of which are explained on this record, beyond the general goal of checking for license and equipment violations.
¶20The record provides no basis upon which the trial court or this Court can conclude that this was a “reasonably located checkpoint.” Martinez-Fuerte, 428 U.S. at 562. No evidence establishes whether the checkpoint was moved from time to time, or whether the site was selected to intercept an identifiable group of drivers. Absent such evidence, the conclusion is inescapable that citizens who were stopped at the checkpoint were subject to whatever whim may have controlled the curiosity of the officers operating the checkpoint. Having been set up at the late evening hour of 8 p.m., placed on a rural road, operated at the discretion of Crowder, and located at a place chosen at Crowder’s discretion, the checkpoint had the characteristic of a roving patrol spot check, which was held unconstitutional in United States v. Brignoni-Ponce, 422 U.S. 873, 876 (1975).
¶21“[T]he central concern of the Fourth Amendment is to protect liberty and privacy from arbitrary and oppressive interference by government officials.” Ortiz, 422 U.S. at 895. Factors such as the isolated rural county road, questionable lighting suggested by the late evening hour, the absence of adequate warning signs, the lack of input and participation by supervisory personnel, and the absence of any limit on field officers’ discretion negate the reasonableness of this type of arbitrarily established checkpoint. See Martinez-Fuerte, 428 U.S. at 565-66; Webb v. State, 695 S.W.2d 676, 681 (Tex. Ct. App. 1985) aff'd as modified, 739 S.W.2d 802 (Tex. Crim. App. 1987); State v. McLaughlin, 471 N.E.2d 1125, 1135-36 (Ind. App. 1984); Jones v. State, 459 So.2d 1068, 1077 (Fla. App. 1984). See also Coolidge, 403 U.S. at 450. The creation of such arbitrary, randomly placed checkpoints moves us “dangerously close to what may be referred to as a police state,” *465State v. Smith, 674 P.2d 562, 564 (Okla. Crim. App. 1984), where citizens are stopped and “checked” at the whim of police officers in an effort to exercise tight control over the populace.
¶22By prohibiting the unrestrained exercise of discretion, the fourth amendment guarantees that only the exercise of the legitimate police power of the state will be sanctioned.
An individual 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. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio, supra, recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles. See Adams v. Williams, 407 U.S. 143, 146 (1972).
¶23Prouse, 440 U.S. at 662-63. Regardless of Crowder’s testimony that he was operating in accordance with “normal procedures,” the absence of evidence concerning “a plan embodying explicit, neutral limitations on the conduct of individual officers,” Brown, 443 U.S. at 51, combined with Crowder’s unbridled discretion to select the site and the manner of operation of the checkpoint, run afoul of the requirements of Prouse, Ortiz, Brown, Martinez-Fuerte and Lowe.
¶24I would rely upon the holding in Prousethat Simmons, like other “persons in automobiles on public roadways [,] may not for that reason alone have [his] travel and privacy interfered with at the unbridled discretion of police officers.” 440 U.S. at 663. For these reasons, I would reverse the conviction and dismiss the warrant.