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Ford v. Commonwealth

Court of Appeals of Virginia

December 10, 2013

PIERCE ABBOTT FORD
v.
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.

Present: Chief Judge Felton, Judge Kelsey and Senior Judge Bumgardner Argued at Richmond, Virginia

MEMORANDUM OPINION [*]

WALTER S. FELTON, JR. CHIEF JUDGE

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.

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 Miranda[2] 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. 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 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 ...

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