Pierce Abbott Ford v. Commonwealth of Virginia ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Kelsey and Senior Judge Bumgardner
UNPUBLISHED
Argued at Richmond, Virginia
PIERCE ABBOTT FORD
MEMORANDUM OPINION* BY
v. Record No. 1629-12-2 CHIEF JUDGE WALTER S. FELTON, JR.
DECEMBER 10, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Bradley B. Cavedo, Judge
Lawrence A. Drombetta, III (Charles C. Cosby, Jr., on brief), for
appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Pierce Abbott Ford (“appellant”), was convicted in a bench trial before the Circuit Court for
the City of Richmond (“trial court”) for driving while intoxicated, in violation of Code § 18.2-266.
On appeal, he contends the trial court erred in denying his motion to suppress certain evidence
presented at trial. Specifically, he asserts that the arresting officer was not within the jurisdiction of
the Virginia Commonwealth University Police Department at the place of appellant’s arrest, that his
arrest was therefore unlawful, that the arresting officer was without authority to administer the field
sobriety tests and the alcohol breathalyzer test, and that the results of the field sobriety tests and the
alcohol breathalyzer test certificate should have been suppressed at trial. For the following reasons,
we affirm appellant’s conviction.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
“[W]e consider the facts in the light most favorable to the Commonwealth, the prevailing
party at trial.” Malbrough v. Commonwealth, 275 Va. 163, 168, 655 S.E.2d 1, 3 (2008).
Shortly after 12:00 a.m. on October 10, 2011, Officer Joel Jeffress of the Virginia
Commonwealth University (“VCU”) Police Department observed appellant’s SUV make a right
turn from Lombardy Street “onto West Grace Street at a high rate of speed.”1 He observed
appellant’s SUV “lean to the left” as it made the turn onto West Grace Street. The SUV
“continued to accelerate” as it traveled westbound on West Grace Street. The posted speed limit
for the area was 25 miles per hour. Even though Officer Jeffress’s vehicle reached speeds in
excess of 45 miles per hour, he was unable to catch up to appellant’s SUV. Appellant briefly
stopped at the stop sign at the intersection of West Grace Street and Allen Avenue before
proceeding down West Grace Street. Officer Jeffress then activated his “emergency equipment,”
after which appellant stopped his SUV.
When Officer Jeffress “approached [appellant’s SUV], [he] did immediately notice the
strong smell of alcohol coming from the [SUV].” Appellant admitted he had been drinking
earlier at a bar. Officer Jeffress conducted several field sobriety tests after appellant got out of
his SUV. Appellant did not perform the tests satisfactorily. Officer Jeffress placed appellant
into custody and advised him of his Miranda2 rights and the implied consent law. He then
transported appellant to the magistrate’s office where he administered an alcohol breathalyzer
test, which showed appellant’s blood alcohol content was 0.10 grams per 210 liters of breath.
1
Officer Jeffress was on Grace Street “facing westbound at the intersection of Lombardy
and Grace.”
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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Appellant was charged with driving while intoxicated, in violation of Code § 18.2-266, and
reckless driving by speed, in violation of Code § 46.2-852.3
At trial, appellant moved to suppress the results of the field sobriety tests and the alcohol
breathalyzer test obtained by Officer Jeffress at the time of appellant’s arrest. Appellant asserted
that Officer Jeffress’s authority as a VCU police officer did not extend past the intersection of
Lombardy Street and West Grace Street. He argued that because Officer Jeffress was outside of
his VCU jurisdiction and was not in close pursuit when he stopped appellant, he was not
authorized to arrest him. Appellant also contended that while Officer Jeffress may have lawfully
made a citizen’s arrest, see Tharp v. Commonwealth, 221 Va. 487, 490, 270 S.E.2d 752, 754
(1980), he unlawfully acted in conducting the field sobriety tests and the breath test as a police
officer. The trial court ruled Officer Jeffress had acted within the authority granted to him under
Code § 23-234 (authorizing campus police officers to “exercise the powers and duties conferred
by law upon police officers . . . upon any property owned or controlled” by the college or
university).4 The trial court denied the suppression motion stating:
But I think what he observed at that intersection and then
following the vehicle as a result of what he observed down that
block, which is adjacent to a piece of VCU property, reasonably
3
Appellant’s reckless driving by speed charge is not before this Court on appeal.
4
By order dated December 14, 1999, the VCU Police Department was granted
concurrent jurisdiction with the Richmond City Police Department of the following area:
bounded by the westernmost side of Lombardy Street and Stuart
Circle Street to the West; the northernmost side of Moore Street to
the North; the easternmost side of Belvidere Street from Moore
Street south to the northernmost side of Broad Street, the
northernmost side of Broad Street to the easternmost side of
Madison Street and the easternmost side of Madison Street from
Broad Street to the the [sic] Richmond Metropolitan Authority
Expressway, collectively, to the East; and the northernmost side of
the Richmond Metropolitan Authority Expressway to the South
....
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makes that block between Stuart Circle/Lombardy, because it has
both names at the Grace Street intersection, and Allen Avenue,
that’s an adjacent street pursuant to the [C]ode section.
* * * * * * *
. . . I think construing it as I have is construing it strictly. I’m not
saying the jurisdiction covers all of Grace Street. I’m saying it
covers at least for purposes of this case that block which is
adjacent to VCU property.
II. ANALYSIS
On appeal of a trial court’s ruling on a motion to suppress evidence, “‘the burden is upon
[the defendant] to show that the ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error.’” McGee v. Commonwealth, 25 Va. App. 193, 197,
487 S.E.2d 259, 261 (1997) (en banc) (alteration in original) (quoting Fore v. Commonwealth, 220
Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980)).
Appellant asserts on appeal that the trial court erred in denying his motion to suppress the
results of the field sobriety tests and the field breathalyzer test because Officer Jeffress was outside
of his territorial jurisdiction as a VCU police officer. Appellant contends that the evidence should
have been suppressed because Officer Jeffress was acting “under color of office” outside of his
territorial authority.
In Hudson v. Commonwealth, 266 Va. 371, 585 S.E.2d 583 (2003), the Supreme Court
described “under color of office” as “‘prohibit[ing] a law enforcement officer from using the indicia
of his or her official position to collect evidence that a private citizen would be unable [to] gather.’”
266 Va. at 377, 585 S.E.2d at 586 (second alteration in original) (quoting State v. Gustke, 516
S.E.2d 283, 293 (W. Va. 1999)).
“[T]he language of the case law indicates that the ‘under color of
office’ doctrine limits the power to arrest. But this doctrine does not
prevent officers from making an otherwise valid citizen’s arrest just
because they happen to be in uniform or otherwise clothed with the
indicia of their position when making the arrest. When officers
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outside their jurisdiction have sufficient grounds to make a valid
citizen’s arrest, the law should not require them to discard the indicia
of their position before chasing and arresting a fleeing felon. Any
suggestion that officers could not make a valid citizen’s arrest merely
because they happened to be in uniform or happened to be in a police
car at the time they inadvertently witnessed a [crime] outside their
jurisdiction would be ridiculous.”
Wilson v. Commonwealth, 45 Va. App. 193, 203, 609 S.E.2d 612, 617 (2005) (quoting Gustke, 516
S.E.2d at 293 (citations omitted)).5 Moreover,
“[c]ontrary to appellant’s assertions, Hudson does not require the
suppression of any evidence obtained by a police officer effecting
a citizen’s arrest. At most, it supports the suppression of ‘evidence
that a private citizen would be unable [to] gather’ if the method the
officer used to gather that evidence amounted to a constitutional
violation.”
Id. at 204, 609 S.E.2d at 617 (alteration in original) (second emphasis added) (quoting Gustke,
516 S.E.2d at 293) (internal quotation marks omitted).
Appellant does not contend that the evidence should have been suppressed because it was
inaccurate or unreliable. Nor does he claim that the evidence was gathered in violation of the
Fourth Amendment. He contends only that Officer Jeffress had no right to administer the field
sobriety tests or the alcohol breathalyzer test because he stopped appellant outside of the VCU
police department’s jurisdictional boundaries.
The exclusionary rule applies only to constitutional violations, not to alleged violations of
state arrest laws. Virginia v. Moore, 553 U.S. 164, 178 (2008). “Absent an infirmity of
constitutional dimensions, the ‘mere violation of state statutory law does not require that the
5
Appellant further contends that the evidence should have been suppressed under the
judicially created suppression remedy promulgated in Durant v. City of Suffolk, 4 Va. App. 445,
358 S.E.2d 732 (1987). Contrary to appellant’s assertion, the Durant remedy does not apply to this
case. In Durant, the arrest was held to be unlawful because the defendant was arrested without a
warrant for a misdemeanor not committed in the arresting officer’s presence. Here, Officer Jeffress
had the power to make a citizen’s arrest under the common law after witnessing appellant’s reckless
driving, the strong smell of alcohol that emanated from appellant, and appellant’s own admission
that he had been drinking earlier at a bar.
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offending evidence be suppressed, unless the statute expressly provides for an evidentiary exclusion
remedy.’” Cutright v. Commonwealth, 43 Va. App. 593, 600, 601 S.E.2d 1, 4 (2004) (quoting
Seaton v. Commonwealth, 42 Va. App. 739, 757 n.7, 595 S.E.2d 9, 17 n.7 (2004)).
The driving while intoxicated statute, Code § 18.2-266, does not “provide for a suppression
remedy for procedural violations.” Id. As this Court stated in Cutright,
Instead, Code § 18.2-268.11 [(requiring substantial compliance with
statutes governing blood and breath test procedures)] states that a
violation of the procedural steps of Code §§ 18.2-268.2 through
18.2-268.9 “shall go to the weight of the evidence and shall be
considered with all the evidence in the case.” The same provision
also makes clear that the defendant may “introduce evidence on his
own behalf to show noncompliance with the aforesaid procedures or
any part thereof, and that as a result his rights were prejudiced.”
Code § 18.2-268.11. By statute, therefore, the legislative remedy for
a procedural violation is not suppression of the evidence, but a full
and fair opportunity for both sides to attempt to prove or disprove
any prejudicial effect of the violation.
Id. at 600-01, 601 S.E.2d at 4 (citations and footnote omitted).
From our review of the record on appeal, the trial court did not err in refusing to suppress
the evidence of the results of the field sobriety tests and the alcohol breathalyzer test conducted
at the time appellant was stopped by Officer Jeffress who observed appellant’s reckless conduct.
III. CONCLUSION
Accordingly, for the foregoing reasons, we affirm appellant’s conviction.
Affirmed.
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