Lundmark v. Cnty. of Henrico
| Docket Number | 0677-21-2 |
| Decision Date | 01 August 2023 |
| Parties | PAUL H. LUNDMARK v. COUNTY OF HENRICO |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF HENRICO COUNTY Randall G. Johnson, Jr Judge
Paul C. Galanides for appellant.
(Alexandra Maher, Assistant Commonwealth's Attorney, on brief), for appellee. Appellee submitting on brief.
Present: Judges Raphael, White and Senior Judge Petty
Paul H Lundmark appeals his conviction for driving under the influence of alcohol. He argues that his nine-second failure to move forward when the traffic light turned green did not give the officer reasonable suspicion to detain him. He also claims that the trial court should have excluded the breathalyzer results because the officer did not first confirm that Lundmark had nothing in his mouth before administering the test. Finding no error, we affirm.
Background[1]
At 11:06 p.m. on October 12, 2019, Henrico County Police Sergeant Joseph D. Butcher was driving in his marked police cruiser along Three Chopt Road in Henrico County. As he got within eyesight of the intersection with Pump Road, the traffic light on Three Chopt Road turned from red to green. Butcher noticed Lundmark's vehicle in the same travel lane ahead of him stopped at the intersection. Despite having a green light, Lundmark's car remained stopped, its brake lights illuminated. As Butcher arrived at the intersection, Lundmark's car finally moved forward. Butcher estimated that Lundmark had remained stopped at the green light for nine seconds.[2] His body-camera video showed no vehicles moving through the intersection that would have obstructed Lundmark's path forward.
Although Sergeant Butcher pursued Lundmark's vehicle, activating his blue emergency lights to initiate a traffic stop, Lundmark did not pull over. Instead, he drove for about 25 seconds before stopping at a red light in the left-turn lane at the next intersection. Sergeant Butcher pulled behind Lundmark, got out of the cruiser, shined a flashlight at Lundmark's window, and knocked on his car while twice calling out "hello." When the left arrow turned green, however, Lundmark drove off. Sergeant Butcher returned to the cruiser and renewed the pursuit, this time activating the siren. Lundmark pulled over after completing the left turn.
When Lundmark lowered the driver's-side window as Butcher approached his car, Butcher "immediately smelled an odor of alcoholic beverages coming from [Lundmark's] person." Lundmark claimed to be "unaware" that Butcher had been trying to stop him. Lundmark "ha[d] red, watery eyes" and "slurred [his] speech." When Butcher asked Lundmark if he had been drinking, Lundmark first said no but then admitted to having "had [a couple] margaritas." Butcher radioed for a second unit to assist with a "DUI investigation."
Officer Brett Jennings arrived and took over the investigation. Lundmark admitted to consuming margaritas at a nearby restaurant for about two hours before driving home. He denied having any physical impairments or taking any medications that could affect his driving. Based on "pre-exit" field-sobriety tests, Jennings told Lundmark to get out of the car. After conducting other field-sobriety tests and a preliminary breath test, Jennings arrested Lundmark at 11:47 p.m.
Officer Jennings transported Lundmark to the police station for a breath test. Jennings, a licensed breath-test operator, followed Department of Forensic Science (DFS) procedures by observing Lundmark for 20 minutes before administering the test. Lundmark's hands remained secured behind his back the whole time. Although Jennings did not specifically inspect Lundmark's mouth before administering the breath test, as called for in the DFS manual, Lundmark did not appear to have anything in his mouth. Jennings had engaged in "a very lengthy" conversation with Lundmark while transporting him. And during that time, Lundmark did not consume any food or drink, did not "belch[,] burp[,] or vomit," and did not put his hands in his mouth. Officer Jennings took the breath sample at 12:27 a.m.; the resulting certificate of analysis showed that Lundmark had an alcohol content of 0.11 grams per 210 liters of breath, in excess of the 0.08 limit.
Lundmark moved to suppress the evidence, arguing that his temporary delay after the light turned green failed to provide reasonable, articulable suspicion for Sergeant Butcher to detain him. The trial court denied the motion.
Lundmark also moved in limine to exclude the certificate of analysis containing the breath-test results.[3] The trial court received the DFS instruction manual into evidence. The manual states that "[t]he operator should always inspect the subject's mouth for any foreign objects." Any foreign objects "should be removed," and "the subject must be observed for 20 minutes [before] providing a breath sample." Officer Jennings admitted that he had not checked Lundmark's "mouth for any contents visually" before the 20-minute observation period. The trial court denied the motion in limine, finding that Officer Jennings substantially complied with DFS's requirements.
The court convicted Lundmark of driving under the influence, in violation of Henrico County Code § 22-2(a) (). Lundmark noted a timely appeal.
On appeal, Lundmark asserts that the trial court erred in denying his motion to suppress and his motion in limine.
A defendant's claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that we review de novo on appeal. White v. Commonwealth, 73 Va.App. 535, 552 (2021). But "[w]hile we are bound to review de novo the ultimate questions of reasonable suspicion and probable cause, we 'review findings of historical fact only for clear error and . . . give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.'" Long v. Commonwealth, 72 Va.App. 700, 712 (2021) () (footnote omitted) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)). "It is the appellant's burden to show that when viewing the evidence in such a manner, the trial court committed reversible error." Aponte v. Commonwealth, 68 Va.App. 146, 156 (2017) (quoting Hairston v. Commonwealth, 67 Va.App. 552, 560 (2017)).
"[A] traffic stop for a suspected violation of law is a 'seizure' of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment." Mason v. Commonwealth, 291 Va. 362, 367-68 (2016) (quoting Heien v. North Carolina, 574 U.S. 54, 60 (2014)). "To justify the traffic stop, an officer must have reasonable suspicion that the person stopped committed a crime or traffic violation." Jones v. Commonwealth, 71 Va.App. 375, 380 (2019).
"Although a mere hunch does not create reasonable suspicion," a "'reasonable suspicion' requires only 'some minimal level of objective justification.'" Mitchell v. Commonwealth, 73 Va.App. 234, 246-47 (2021) (quoting Bland v. Commonwealth, 66 Va.App. 405, 413 (2016)). "The possibility that an officer ultimately may prove to be mistaken or that there may be an innocent explanation for the facts giving rise to the officer's suspicion does not negate, in and of itself, the officer's reasonable, articulable suspicion." Id. at 247.
We conclude that Sergeant Butcher had reasonable suspicion to believe that Lundmark had violated Code § 46.2-833(A). That statute provides that a green signal "indicates the traffic shall move in the direction of the signal and remain in motion as long as the green signal is given, except that such traffic shall yield to other vehicles and pedestrians lawfully within the intersection." Code § 46.2-833(A). A "driver of any motor vehicle may be detained or arrested for a violation of this section if the detaining law-enforcement officer is in uniform, displays his badge of authority, and . . . has observed the violation." Code § 46.2-833(D).
In Joyce v. Commonwealth, 72 Va.App. 9, 15 (2020), we held that a police officer had reasonable suspicion that Joyce violated Code § 46.2-833(A) when Joyce "remained motionless . . . for six or seven seconds" after the light turned green and the officer "did not observe any other vehicles in the intersection." We observed that failing to proceed when the signal is green is "not automatically a traffic violation"; rather, "some prolonged stops" might violate Code § 46.2-833 while "others will not." Id. at 15-16. But we emphasized that the possibility of an innocent explanation for not driving forward when the light turns green does not negate the reasonable suspicion that warrants stopping the driver. Id. at 16.
Joyce controls our decision here. Lundmark remained stopped at the green light for at least nine seconds-longer than the six seconds in Joyce. Butcher saw nothing in the intersection that would have obstructed Lundmark from driving forward. Like Joyce, Lundmark insists that he was merely exercising "reasonable care" or caution. Id. at 15. But the mere possibility that Lundmark might have had an innocent explanation for not moving did not negate Butcher's reasonable suspicion that Lundmark had violated Code § 46.2-833(A). Thus, Sergeant Butcher could stop Lundmark's vehicle to investigate further. Id. at 16.
Lundmark's efforts to distinguish Joyce are unpersuasive. He claims to have faced more challenging driving conditions than Joyce, asserting that the intersection here was poorly lit rural, and near wildlife, whereas Joyce drove through Bowling Green, Virginia, see id. at 12-13, which Lundmark assures us is "well lit, populated with landmarks, and much...
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