Commonwealth v. Burgoa
| Decision Date | 23 October 2017 |
| Docket Number | Case No. MI-2017-1134 |
| Court | Circuit Court of Virginia |
| Parties | RE: Commonwealth v. Grecia Burgoa |
Ms. Maureen Cummins
Assistant Commonwealth's Attorney
Office of the Commonwealth's Attorney
4110 Chain Bridge Road
Fairfax, VA 22030
Mr. Faraji A. Rosenthal
Attorney at Law
10560 Main Street, #310
Fairfax, VA 22030
Dear Counsel:
This cause raises two distinct questions in the context of a motion to suppress considered as a part of a trial, namely: 1) whether a civilian emergency medical technician ("EMT") tending to the defendant, Ms. Burgoa, by his words, became an "agent of the police" and effected an arrest of Ms. Burgoa; and 2) whether the arresting police officer had probable cause to arrest Ms. Burgoa for operating a vehicle while intoxicated. For the reasons as more fully stated herein, this Court concludes that the EMT's words coupled with the acquiescence of the police officer did not make the EMT an agent of the police or by such conduct, effectuate an arrest of Ms. Burgoa. The Court nevertheless finds the police officer lacked probable cause to arrest Ms. Burgoa for operating her vehicle while intoxicated, inasmuch as no evidence was adduced the police officer was in possession of knowledge, whether directly or by hearsay, that Ms. Burgoa's vehicle engine had been on at the time she was found therein.
This matter came to be heard on the 19th day of October, 2017. The parties agreed the case would be tried in a single evidentiary hearing as both a motion to suppress and on the merits of guilt of Ms. Burgoa. After hearing the evidence, the Court continued the matter for ruling to consider the parties' trial and supplemental briefs, and also review audio of the evidence presented at trial.
Two witnesses were called at trial: an EMT employed by the Fairfax County Fire Department and a Fairfax County police officer. The EMT testified first. He arrived on the scene of the offense alleged on February 5, 2017, around 9:00 p.m. to 10:00 p.m., in response to a complaint about a person sleeping in an automobile. He observed the car was parked in front of a house on a public roadway, with the engine running and the lights on. He encountered Ms. Burgoa either sleeping or passed out in her vehicle. Ms. Burgoahad her seat belt on and was awakened when the EMT shook her, to which she responded within a few seconds. Ms. Burgoa stated she was "coming from a Super Bowl party" and admitted to "drinking". The arresting police officer arrived within minutes thereafter.
The EMT assisted Ms. Burgoa from her vehicle and moved her to the ambulance, where he had the equipment and lighting to assess whether anything was wrong with her physical condition. The EMT held on to one of Ms. Burgoa's arms based on his prior experience, but not because of any then-apparent observations about Ms. Burgoa's balance or gate. He seated Ms. Burgoa onto a cot stationed next to the car. Ms. Burgoa was well dressed and did not appear disheveled. The EMT did not remember what Ms. Burgoa stated in response to his questions at that point, other than that her answers were "not clear". Ms. Burgoa was moved into the back of the ambulance. She then questioned why she was being detained, and was told by the EMT that he and his colleague were not the police, but rather, were there to assist her and assess if there was anything wrong. Ms. Burgoa said she was "fine" and did not wish to be transported to the hospital. She started removing a blood pressure cuff that had been affixed to her arm and was asked by the EMT cease doing so in order to be evaluated. Ms. Burgoa appeared "alert and oriented." Ms. Burgoa emitted an odor consistent with having consumed an alcoholic beverage. Ms. Burgoa signed the refusal of medical treatment form and the police officer then "took her."
On cross examination the EMT did not remember if Ms. Burgoa's vehicle had a key-less ignition. He did not recall who turned the vehicle off, but stated the lights wereon and the vehicle was running when he first encountered Ms. Burgoa behind the wheel of the vehicle. The EMT denied telling Ms. Burgoa her options were that she would be taken to the hospital and then to jail, or directly to jail. The EMT stated he did not tell Ms. Burgoa such a thing because he is not a police officer. He instead claimed he only said he would release her to the police officer if she chose not to go to the hospital. The EMT stated he would never advise a person to whom he was tending their options were to go to the hospital or to jail, as that was a police function and he was not a police officer. The police officer was inside the ambulance during the entire interaction between the EMT and Ms. Burgoa. The EMT stated it was "possible" the police officer deferred to him as to the options given Ms. Burgoa.
The arresting police officer testified as the Commonwealth's second and final witness. When he arrived, the EMT was tending to Ms. Burgoa inside the driver side of a parked vehicle on a public highway in Fairfax County, Virginia. Ms. Burgoa seemed "disoriented", slow to respond, and was not answering the questions of the EMT with clarity. He observed the EMT assist Ms. Burgoa onto the cot and she was wheeled to the ambulance. The officer did not see Ms. Burgoa slumped over the steering wheel of the car. Ms. Burgoa had a heavy odor of alcohol, bloodshot glassy eyes, and slurred speech. Her focus was "off". She stated she was "possibly at a Super Bowl party but not really", and gave too many digits for her home address zip code. She admitted consuming some alcoholic beverages a few hours earlier. Ms. Burgoa declined to be transported to the hospital. The officer allowed Ms. Burgoa to use his arm as leverage to step out of the vehicle. Her balance upon stepping onto the street was "off".
Upon cross-examination, the police officer stated the conversation between the EMT and Ms. Burgoa occurred with the vehicle ambulance door closed and the officer inside. The officer did not remember the specifics but did recall the EMT addressing the topic that Ms. Burgoa could go to the hospital or could go with the officer. He recalled Ms. Burgoa explaining she had been at a bar that was showing the Super Bowl telecast.
The Commonwealth then rested the evidence presented in support of defeat of Ms. Burgoa's motion to suppress. For reasons of judicial economy and in order to allow the police officer who had worked the previous night to depart, the Assistant Commonwealth's Attorney introduced the remainder of her evidence. The facts presented were in support of the foundation for the later taking of a breath alcohol test once Ms. Burgoa was placed into custody. The officer testified that once Ms. Burgoa was out of the vehicle he began to ask his investigative questions, including why she would have been passed out at the wheel. Ms. Burgoa had no response to the question but did admit consuming a shot of liquor at a bar about an hour earlier. She was advised she was being investigated for possible drunk driving and was offered field sobriety tests. Ms. Burgoa declined the tests, became belligerent, and walked towards her vehicle whereupon she was taken into custody. The officer later performed a breath alcohol test on Ms. Burgoa. The Commonwealth laid the proper foundation for the admissibility of the test in terms of the officer's compliance with all the steps required of a breath test operator conducting such an exam. Upon cross-examination, the officer admitted not knowing when the machine was last certified for accuracy by the Department of Forensic Science. The defense objected to the admissibility of the test as a result but the Court conditionallyadmitted the breath certificate subject to the motion to strike. The Court ruled the lack of certification evidence went to the weight to be given to the test not to its admissibility, inasmuch as the General Assembly moved the certification requirement out of the criminal code to a separate statutory section, which had the effect of removing it as an element of admissibility.
At the conclusion of the evidence the parties stipulated the officer's audio recording of the scene of the arrest reflected that the EMT told Ms. Burgoa in the ambulance, and in the presence of the officer, her options were that she could "go to jail or go to the hospital and then to jail", prior to turning Ms. Burgoa over to the police officer.
Ms. Burgoa alleges the EMT in this cause acted as an agent of the police in stating to her while in his care that she had the option to "go to jail or go to the hospital and then to jail" with the officer acquiescing to the statements by his presence and silence. The Court disagrees with this conclusion.
Id. (quoting Skinner v. Railway Executives' Ass'n, 489 U.S. 602, 614 (1989)). See also United States v. Koenig, 856 F.2d 843, 847 n.1 (7th Cir. 1988) (...
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