Gibson v. Commonwealth of Va..

• Decision Date: 22 March 2011
• Docket Number: Record No. 2847–09–3.
• Citation: 57 Va.App. 772,706 S.E.2d 541
• Parties: Ray Anthony GIBSONv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

57 Va.App. 772

706 S.E.2d 541

Ray Anthony GIBSON

v.COMMONWEALTH of Virginia.

Record No. 2847–09–3.

Court of Appeals of Virginia, Salem.

March 22, 2011.

W. Andrew Harding (Eldridge, Elledge, Evans & Harding, PLC, on brief), Harrisonburg, for appellant.Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: HALEY, PETTY and POWELL, JJ.POWELL, Judge.

Ray Anthony Gibson (“Gibson”) appeals his conviction for driving under the influence, third offense, in violation of Code § 18.2–266. Gibson contends that the trial court erred in denying his motion to suppress testimony regarding his field sobriety tests. For the reasons that follow, we affirm the decision of the trial court.

BACKGROUND

In reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the prevailing party below, in this case the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). So viewed, the evidence demonstrates that, on December 19, 2008, Officer Aaron Will initiated a traffic stop on a vehicle driven by Gibson. After obtaining Gibson's identification, Officer Will determined that Gibson's license had been revoked for being a habitual offender. As a result, Officer Will arrested Gibson and placed him in the back of his patrol car. Officer Will then sat in the front seat of his patrol car and began to fill out the paperwork necessary to have Gibson's vehicle towed.

While filling out the paperwork, Officer Will detected the odor of alcohol coming from the backseat where Gibson was seated. Officer Will asked Gibson if he had been drinking, to which Gibson responded that he had consumed three beers.

Suspecting that Gibson had been driving under the influence of alcohol, Officer Will had Gibson exit the vehicle to perform field sobriety tests. Prior to administering the field sobriety tests, Officer Will asked Gibson whether he had any physical problems. In response, Gibson informed Officer Will that he had a problem with his right knee.

Officer Will administered three tests: a horizontal gaze nystagmus test, a one-legged stand test, and a nine-step walk and turn test. Before the one-legged stand test, Officer Will advised Gibson that, in light of his right knee problem, Gibson could choose which leg he used to perform that sub-test. According to Officer Will, Gibson was unable to successfully perform any of the tests.

Officer Will then offered Gibson the opportunity to take a preliminary breath test, which Gibson accepted. Based on his observations, Officer Will transported Gibson to jail, where Officer Will administered a breath test. The test indicated that Gibson had a blood alcohol content of .17.

Gibson was subsequently charged with driving after his license had been revoked and driving under the influence of alcohol, third offense. Prior to trial, Gibson moved to suppress any statements he made and the field sobriety tests on the grounds that he was not read his Miranda warnings after he was initially arrested for driving after his license had been revoked.¹

On July 29, 2009, the trial court heard the suppression motion in conjunction with the Commonwealth's evidence. After hearing the evidence, the trial court granted Gibson's motion to suppress with regard to any statements Gibson made regarding consumption of alcohol while he was in custody,² but denied the motion with respect to the field sobriety tests. Gibson was then found guilty of driving after his license had been revoked and driving under the influence of alcohol, third offense.

Gibson appeals.

ANALYSIS

As always, “[t]he defendant bears the burden of establishing that the denial of his suppression motion was reversible error.” Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008). Here, Gibson argues that the trial court erred in admitting testimony about the field sobriety tests into evidence. According to Gibson, parts of the field sobriety tests constitute interrogation, namely the question used to validate the tests (i.e., whether Gibson had any physical problems), therefore the field sobriety tests as a whole are testimonial. As such, he contends that any testimony about the field sobriety tests should be excluded as a result of Officer Will's failure to read Gibson the necessary Miranda warnings prior to initiating the field sobriety tests. We disagree.

The Fifth Amendment to the United States Constitution guarantees that no “person ... shall be compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 1629–31, 16 L.Ed.2d 694 (1966), the United States Supreme Court extended the Fifth Amendment privilege against self-incrimination to individuals subjected to custodial interrogation by the police.

Under Miranda, before a suspect in police custody may be questioned by law enforcement officers, the suspect must be warned that he has a right to remain silent, that any statement he makes may be used as evidence against him, and that he has a right to have an attorney, either retained or appointed, present to assist him.

Dixon v. Commonwealth, 270 Va. 34, 39, 613 S.E.2d 398, 400 (2005). Failure to give Miranda warnings prior to a custodial interrogation violates the accused's rights under the Fifth Amendment; therefore, “[s]tatements obtained by law enforcement officers in violation of [the Miranda ] rule generally will be subject to exclusion for most proof purposes in a criminal trial.” Id.

There are, however, limits to the protections offered by the Fifth Amendment. Notably, the right against self-incrimination “applies only when the accused is compelled [1] to make a testimonial communication [2] that is incriminating.” Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39 (1976) (emphasis added). For a communication to be considered testimonial, the speaker (or actor) must “reveal, directly or indirectly, his knowledge of facts relating him to the offense or ... share his thoughts and beliefs with the Government.” Doe v. United States, 487 U.S. 201, 213, 108 S.Ct. 2341, 2349, 101 L.Ed.2d 184 (1988). Generally, a “testimonial communication” involves a verbal or written statement, but it may also include acts. See id. at 209, 108 S.Ct. at 2347 (holding that nonverbal conduct contains a testimonial component whenever the conduct communicates the actor's thoughts or beliefs to another).

A compelled act “which makes a suspect or accused the source of ‘real or physical evidence’ ” is not generally considered a testimonial communication. Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966). “[C]ompelling the accused merely to exhibit his person for observation ... prior to trial involves no compulsion of the accused to give evidence having testimonial significance.” United States v. Wade, 388 U.S. 218, 222, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967). Rather, it is merely “compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.” Id. This removes from the Fifth Amendment's protection a multitude of compelled acts that, while leading to the discovery of incriminating evidence, do not themselves make an incriminating factual assertion.³ For example, the Fifth Amendment “offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Schmerber, 384 U.S. at 764, 86 S.Ct. at 1832. Similarly, we have held that a compelled breath test, like other compelled acts, does not violate the Fourth or Fifth Amendments because, as with blood, the alcohol content in a person's breath is not testimonial. Rowley v. Commonwealth, 48 Va.App. 181, 184, 629 S.E.2d 188, 190 (2006) (citing Schmerber, 384 U.S. at 765, 86 S.Ct. at 1832–33).

In the present case, neither the physical components of the field sobriety tests nor Gibson's inability to perform them constitute a testimonial communication. None of the three tests compelled Gibson to reveal his knowledge, thoughts, or beliefs; rather, they only required him to exhibit certain physical characteristics. Indeed, we note that both the one-legged stand component and the nine-step walk and turn component are synonymous with assuming a stance and walking, actions the Supreme Court has specifically recognized as non-testimonial communications. See Schmerber, 384 U.S. at 764, 86 S.Ct. at 1832. Moreover, the majority of the states that have addressed this issue have ruled similarly. See, e.g., State v. Devlin, 294 Mont. 215, 980 P.2d 1037 (1999); State v. Whelan, 728 So.2d 807 (Fl.Dist.Ct.App.1999); State v. Nielsen, 147 Or.App. 294, 936 P.2d 374 (1997); State v. Theriault, 144 Ariz. 166, 696 P.2d 718 (Ariz.Ct.App.1984); Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60 (1982); People v. Ramirez, 199 Colo. 367, 609 P.2d 616 (1980).

Gibson further argues that Officer Will's question regarding whether he had any physical problems was a custodial interrogation designed to validate the field sobriety test and, as such, his response, that he had a problem with his right knee, should have been suppressed along with the physical components of the field sobriety tests.⁴ We disagree.

The Supreme Court has defined interrogation for Miranda purposes as pertaining to “express questioning” as well as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). In Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110...