Emory Allen Addison v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
EMORY ALLEN ADDISON
MEMORANDUM OPINION * BY
v. Record No. 1545-95-4 JUDGE ROSEMARIE ANNUNZIATA
OCTOBER 1, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert W. Wooldridge, Jr., Judge
(Jerry M. Phillips; Phillips, Beckwith &
Hall, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Following a bench trial in the Circuit Court of Fairfax
County, appellant, Emory Allen Addison, was convicted of driving
under the influence of alcohol. Appellant challenges the trial
court's ruling on a suppression motion that appellant raised at
trial.
I.
The relevant facts are not disputed. Off-duty Metropolitan
Washington Airport Authority (MWAA) Police Officer Carl D. Moore
observed appellant drive erratically, travel 70-80 mph in a 55
mph zone, change lanes without signalling, cross the far right
and left solid lines, and cut off other vehicles. Using his
vehicle radio, Moore attempted to summon a uniformed officer to
the scene. Moore followed appellant for approximately fifteen
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
minutes before appellant stopped at a traffic light.
John Ivey, another off-duty MWAA officer witnessed appellant
drive erratically after he heard Moore's radio report. Ivey
testified he saw appellant cross both the right and left outer
highway lines, weave across traffic, exceed the speed limit, and
nearly strike four other vehicles before stopping for the first
time at the traffic light.
While appellant was stopped at the light, Moore and Ivey
positioned their vehicles to block appellant's movement. After
Moore identified himself as a MWAA officer, appellant exited his
vehicle.
Moore testified that he smelled a strong odor of alcohol
about appellant and that appellant's eyes were red and glassy and
his speech slurred. In response to Moore's inquiry, appellant
stated he had been drinking. Moore advised appellant of the
implied consent law and asked appellant to perform field sobriety
tests. Appellant consented, failed two tests, and partially
failed a third. By that time, a uniformed, on-duty Fairfax
County police officer whose jurisdiction included the location
where appellant stopped had arrived at the scene.
Notwithstanding the presence of the Fairfax County officer, Moore
took appellant to a nearby Fairfax County Police Station where
appellant took a breath test.
The parties agreed that Moore was outside the jurisdiction
of the MWAA at the time he stopped appellant and is to be treated
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as a private citizen at the time of the stop.
At trial, appellant moved to suppress the arrest and to
strike the Commonwealth's case. In deciding the suppression
motion, the trial court ruled (1) appellant's erratic driving
constituted a breach of the peace; (2) a private citizen may
arrest another for a breach of the peace committed in his
presence; (3) derivative of that right, a private citizen may
"stop" another for a breach of the peace; (4) an arrest in the
present case was not effected until Moore took appellant to the
police station; and (5) that arrest was illegal because a
uniformed officer was present at the time. Accordingly, the
trial court granted appellant's motion in part and suppressed the
results of the breath test. However, the court refused to
suppress the evidence of appellant's erratic and dangerous
driving, his physical condition, his statement to Moore that he
had been drinking, and his failure to pass the field sobriety
tests. The court convicted appellant based solely upon the
latter evidence.
On appeal, appellant contends that an illegal arrest
occurred at the time Moore and Ivey blocked his exit and Moore
ordered him out of his vehicle. Appellant contends that the
trial court should have suppressed all the evidence on that
ground. We disagree.
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II.
"The constraints of the Fourth Amendment apply only to
government or state action; they do not apply to searches or
seizures undertaken by private individuals." Morke v.
Commonwealth, 14 Va. App. 496, 503, 419 S.E.2d 410, 414 (1992).
In the present case, the parties stipulated that Moore acted as a
private citizen at the time of the events in question. Even
assuming, arguendo, Moore had no authority to detain appellant at
any point, appellant has no grounds to complain that the evidence
1
derived from the act should have been excluded.
Accordingly, appellant's conviction is affirmed.
Affirmed.
1
Accordingly, we decline to address the rulings of the
trial court enumerated above.
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