Emory Allen Addison v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: October 1, 1996
• Docket: 1545954
• Status: Unpublished

Opinion

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

- 2 - 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.

- 3 - 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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