Slentz v. Commonwealth
| Decision Date | 12 December 2017 |
| Docket Number | Record No. 2102-16-1 |
| Court | Virginia Court of Appeals |
| Parties | DONALD BRIAN SLENTZ v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Chief Judge Huff, Judges Decker and AtLee
Argued at Norfolk, Virginia
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
Chad G. Dorsk (Dorsk Law Office, PLC, on brief), for appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Donald Slentz appeals his conviction for driving under the influence of alcohol, in violation of Code § 18.2-266. He argues that the circuit court erred by denying his motion to suppress evidence. He contends that law enforcement did not have a reasonable articulable suspicion of criminal activity to support a traffic stop of his vehicle. He concludes that consequently the police violated his rights under the Fourth Amendment of the Constitution of the United States and the circuit court should have suppressed the evidence. We hold that the court did not err in denying the motion to suppress. Accordingly, we affirm the conviction.
At about 12:30 a.m. on August 7, 2016, Virginia State Trooper Louis Milyko saw the appellant driving an older model Ford Bronco with "a raised suspension." The trooper was in his police car directly behind the vehicle. Milyko watched the appellant's vehicle twice cross the white fog line of the roadway and drive on the grass shoulder. Milyko immediately activated his emergency lights, and he stopped the Bronco for "failing to maintain the lane of travel." "[A]s soon" as the trooper activated his blue lights, his equipment "start[ed] recording audio and video, but it had been already recording a minute prior to that," capturing the appellant's actions.
Virginia State Trooper Daniel Wallace, who was driving in his police car behind Trooper Milyko, knew that there was a vehicle in front of Milyko. Trooper Wallace could not see the vehicle but did see a large "area of dust" to the right side of the road. Wallace did not see Milyko's police car leave the roadway and knew that Milyko's tires did not create the dust.
The video recorded by the dashboard camera in Milyko's police car was played at trial. Trooper Milyko narrated as the video was played and answered questions associated with the recording of the events leading to the stop. The video recorded Milyko's car approach the appellant's vehicle from behind on a two-lane road. It shows the appellant's vehicle veer onto and partially over the fog line within five seconds before Milyko activated his emergency lights. The shoulder of the road appears to be a grassy shoulder directly to the right side of the fog line.
The appellant filed a motion to suppress the evidence, contending that the trooper had no reasonable basis for the stop. He argued that the video recording from Milyko's police car camera showed that his vehicle merely touched the white line and did not cross it.
The circuit court, after closely watching the video and listening to the narration by the state trooper, determined that Milyko had reasonable suspicion to initiate the traffic stop. The court made a factual determination and specifically noted that the video supported the trooper's account that "the vehicle appeared to go off the road momentarily" and "instantly the trooper turned the blue lights on." The court noted:
The question is whether or not what the trooper observed created a situation where there was a reasonable suspicion to initiate the traffic stop. And I believe that there was. I believe that seeing that vehicle cross that line that the trooper immediately activated his emergency equipment. And I recognize that this is a close case, but it's 12:35 a.m. and there are any number of reasons that something could be going on.
The court stated that reasons to investigate after the trooper saw the appellant's vehicle cross the fog line included the possibility that the driver was having a health issue or falling asleep. Based on its findings, the court denied the motion to suppress.
The appellant entered a conditional guilty plea to driving under the influence of alcohol in violation of Code § 18.2-266, preserving his right to appeal the denial of his motion to suppress.2 The court accepted his plea and sentenced him to thirty days in jail, with the entire time suspended.
The appellant argues that the circuit court erred in denying his motion to suppress the evidence. He contends that the state trooper did not have a reasonable, articulable suspicion that he was engaged in criminal activity or had committed a traffic infraction at the time that he was stopped. The appellant's challenge consists of two arguments. First, he suggests that the trooper's testimony was contradicted by the video viewed by the circuit court and thus did notprovide a factual basis to support the stop. Second, the appellant contends that even if the circuit court was not plainly wrong in accepting the trooper's testimony as credible, the circumstances as a whole did not provide a reasonable, articulable suspicion to conduct the traffic stop as a matter of law.
On appeal of the denial of a motion to suppress evidence, the appellant has the burden to show that the circuit court's ruling constituted reversible error. Mason v. Commonwealth, 291 Va. 362, 367, 786 S.E.2d 148, 151 (2016). The ultimate determinations of whether reasonable suspicion exists and "whether a person has been seized in violation of the Fourth Amendment" involve "questions of both law and fact and are reviewed de novo on appeal." Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000). The appellate court must "independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment." McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 515 (2008). In doing so, however, the Court is "bound by the trial court's factual findings unless those findings are plainly wrong or unsupported by the evidence." Jones v. Commonwealth, 279 Va. 665, 670, 691 S.E.2d 801, 803 (2010) (quoting Whitehead v. Commonwealth, 278 Va. 300, 306, 683 S.E.2d 299, 301 (2009)). In addition, we "give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Reittinger, 260 Va. at 236, 532 S.E.2d at 27 (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).
First, we address the appellant's factual challenge. He argues that the circuit court's factual finding that he crossed the fog line was plainly wrong. The appellant recognizes that Trooper Milyko's testimony supports the court's finding but suggests that the video contradicts the trooper's testimony, contending that it does not show that he crossed the fog line and drove on the shoulder of the roadway. He relies exclusively on the video for the proposition that"[i]ncidentally, his right tires touched the far right 'fog line[]' but that his vehicle did not appear to cross over the line onto the grassy shoulder." Contrary to the appellant's assertions, the record, viewed in light of the applicable law, does not support this challenge.
Trooper Milyko, a trained police officer, unequivocally testified that while driving behind the appellant's vehicle he saw it leave "the travel portion of the highway," cross the fog line, and drive on the grassy shoulder of the roadway. Specifically, the trooper saw the vehicle cross the fog line twice before he made the stop. See Code § 46.2-804(2).3 In addition, Trooper Milyko's testimony was supported by that of Trooper Wallace, who was traveling behind Milyko. Wallace knew that a vehicle was in front of Milyko and although he could not actually see that vehicle, he did see a large cloud of dust on the right side of the roadway in the area of the ditch, which was not created by Milyko's car.4 This testimony is consistent with Milyko's observations and reinforces the conclusion that the appellant's vehicle went off the roadway onto the shoulder prior to the stop.
The appellant's conclusion that he did not cross over the fog line onto the grassy shoulder is not supported by the record, including the video itself. The video was viewed by the circuit court and narrated by Trooper Milyko in order to provide context. Contrary to the appellant's argument, it does not refute the testimony of the witnesses. The video is necessarily limited by its location in the vehicle, the quality of the camera, the distance between it and the Bronco, andthe fact that it recorded in the darkness with minimal light source. Nevertheless, subject to its limitations, the video shows the Bronco drift off the roadway. The recording shows that the appellant veered to the right, indicating that the Bronco went off the roadway, necessarily crossing the fog line, even if only for a short time.
Notably, due to the distance and darkness it is difficult for the viewer to clearly see all of the detailed actions of the appellant's Bronco. See generally State v. Brito, 154 A.3d 535, 549 (Conn. App. Ct. 2017) (). Trooper Milyko, on the other hand, was present on that roadway and in a much better position to view the appellant's actions in front of him. See McCary v. Commonwealth, 36 Va. App. 27, 41, 548 S.E.2d 239, 246 (2001) (). He witnessed the event from his location in the police car and testified very clearly as to what he saw—namely, that the appellant's Bronco crossed the white fog line on the roadway twice and drove on the grass shoulder.
Viewing the evidence in the light most favorable to the Commonwealth, the circuit court's factual finding that the appellant crossed the fog line was not plainly wrong and had ample...
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