3.3 ARRESTS
3.301 Definition.
An arrest results in complete seizure and custody of the person. It must be based upon probable cause and, subject to many exceptions, must be made with a warrant. This chapter will not address the law of arrest in a comprehensive manner but will cover two aspects of arrest that are frequently involved in driving cases: (i) whether probable cause existed to arrest, and (ii) whether a particular arrest was lawful under Virginia law.
3.302 Probable Cause for Arrest.
A. In General.
Probable cause for arrest exists when facts and circumstances within the arresting officer's personal knowledge or of which he or she has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed. This definition encompasses the totality of the circumstances up to the point of arrest, which includes the defendant's statements and driving behavior, field test results, and the general observations of the arresting officer. 764
An arrest that is not based on probable cause is both illegal and unconstitutional, and the exclusionary rule precludes any evidence derived from such an arrest from being presented against the defendant.
B. Case Examples.
When an officer witnessed the defendant dropping an object that appeared to be cocaine and reported this observation to two other officers, the other officers had probable cause to arrest the defendant and escort him back to the witnessing officer. 765
Officers had probable cause to believe that the defendant had committed a drug offense when they received two apparently independent tips that largely corroborated each other. One of the informants, who was known to the police and had previously given accurate information, told the officers that he had actually seen the drug deal take place. But the police unlawfully arrested the defendant in his own backyard, which violated the common law rule that arrests "within the curtilage" require a warrant. 766 Approximately one hour after his arrest, the defendant gave a statement that was suppressed as a fruit of the illegal arrest. 767
For over 30 years the Virginia Supreme Court has consistently found that probable cause could not be established solely on the observation of materials that may be used for legitimate purposes, even when an officer's experience indicates that those materials are often used for illegitimate purposes. To support a finding of probable cause, the observations must be combined with a circumstance indicating criminal activity. 768
Probable cause for arrest must be particularized to the individual; mere proximity to criminal activity alone is insufficient to establish probable cause. For example, police lacked probable cause to arrest the defendant after a drug detection dog alerted to the vehicle in which he was a passenger and the dog's alert indicated that contraband was present somewhere. Nothing indicated that the defendant and the other occupants were involved in any common enterprise involving criminal activity or that the defendant was individually involved in criminal activity, and the dog could have alerted to a lingering odor of drugs that were no longer present. 769
3.303 Probable Cause in DUI Cases.
A. Establishing Probable Cause to Arrest.
1. Driving Behavior.
The operator's driving behavior itself can establish probable cause. Except in situations where the vehicle is stopped before the police encounter the driver, the driving behavior used to support the articulable suspicion to stop will also provide probable cause to arrest. This behavior includes the driver's demeanor after the stop takes place.
2. Field Sobriety Testing.
The second way to establish probable cause to arrest is field sobriety testing, which is generally divided into two categories: standardized and unstandardized. Standardized tests are those that have been subjected to "laboratory-like" conditions to scientifically examine their reliability. 770
The standardized tests are the "heel to toe," "walk and turn," "one-leg stand," and horizontal gaze nystagmus (HGN) tests. These tests have been reviewed by the National Highway Traffic and Safety Administration (NHTSA). All other forms of field testing lack the imprimatur of NHTSA, have no standardized procedures based on scientific testing, and lack a scientific basis for reliability. For a detailed discussion of field sobriety testing see Chapter 7 of this book. 771 The practitioner must be familiar with the multiple issues surrounding standardized and unstandardized tests and their appropriate use at trial in establishing probable cause to arrest.
A defendant's refusal to submit to a field sobriety test is not evidence of consciousness of guilt supporting probable cause for arrest for driving while intoxicated. But when the refusal is accompanied by evidence of alcohol consumption and its discernible effect on the defendant's mental or physical state, a refusal to perform any field sobriety test is circumstantial evidence pointing toward the defendant's awareness that his or her consumption of alcohol would affect his or her performance of those tests and may be relevant to a probable cause determination. 772
3. Alka-Sensor.
The third way to establish probable cause to arrest is described in section 18.2-267 of the Virginia Code. Section 18.2-267(F) requires law enforcement officers who have stopped a DUI suspect to advise that person of the right to take a preliminary breath test (PBT). This test is a preliminary analysis to determine the "probable" alcohol content of the blood of the accused. Statutorily, all that is required for the officer to determine probable cause for arrest is for the test to indicate that "alcohol is present." There is no "magic number" indicated by this device that authorizes the officer to arrest without a warrant. Clearly, this determination by the officer does not bind any court, since the "mere presence" of alcohol is insufficient to establish probable cause to arrest, but it is one factor for the court to consider. Because the test is voluntary, the failure to offer a PBT does not raise a constitutional issue. The results are inadmissible in any prosecution 773 and are intended instead to resolve disputes at the scene regarding probable cause to arrest. 774
The statute also does not require that a defendant agree to submit to the PBT. It is just one in a series of tools available to determine the condition of a driver, including the officer's own observations. The Virginia Court of Appeals has held that, when an officer observed that the defendant smelled of alcohol, began to fall out of the car when he opened the door, was not able to stand, and appeared physically unable to perform any field sobriety tests, including a preliminary breath analysis, the record established that the officer had probable cause to arrest without using the PBT. Therefore, the officer's failure to comply with section 18.2-267 by offering the test did not invalidate the arrest. 775
B. Not Sufficient to Establish Probable Cause.
1. Odor of Alcohol.
The Virginia Supreme Court has ruled that the mere odor of alcohol on a person's breath without more is insufficient to establish either intoxication 776 or lack of control. 777 Therefore, an officer's observation that the odor of alcohol emanated from the defendant is not sufficient evidence by itself to sustain an arrest. But where the evidence also shows that consumption of alcohol has affected the person's manner, disposition, speech, muscular movement, general appearance, or behavior, as listed in section 4.1-100 of the Virginia Code, the mere odor rule will not apply. For example, there was probable cause to arrest the defendant for public intoxication where the officer observed the strong odor of alcohol on the defendant's breath, his very bloodshot eyes, and slurred speech. 778 The "mere odor" rule also does not apply where evidence of the quantity of alcohol consumed and the approximate time of its consumption is sufficient to raise an inference of intoxication. 779
2. Demeanor.
For the same reasons that the odor of alcohol about the defendant's person is by itself insufficient to sustain an arrest, erratic behavior of the defendant alone is also not sufficient. 780 There must be a nexus between the behavior and the consumption of alcohol before the evidence can rise to the level of probable cause for a lawful arrest. Where the evidence shows that the consumption of alcohol affected the person's manner, disposition, speech, muscular movement, general appearance, or behavior, 781 a finding of intoxication will be substantiated.
C. General Observations as to Field Sobriety Tests.
The courts recognize that the effects of consuming the same amount of alcohol will vary among individuals. The Virginia Court of Appeals stated the matter succinctly when it observed:
It is a matter of common knowledge based on human experience that outward manifestations of intoxication will vary from individual to individual. While one highly intoxicated individual may exhibit few, if any, outward manifestations of intoxication, another individual may appear to be very intoxicated after consuming a small quantity of alcohol. Thus, a determination whether a person was "under the influence of alcohol," even when aided by statutory presumptions, cannot be reduced to a readily usable mathematical or objective formula. Rather, that determination must be based upon the totality of the evidence. Under such circumstances the difficulty of establishing proof beyond a reasonable doubt that a person was under the influence of alcohol, and conversely, the difficulty of defending against an unwarranted charge, are readily apparent. 782
3.304 Arrest Valid Under Virginia Law.
Section 19.2-81 of the Virginia Code states that a misdemeanor must be committed in the presence of the officer or meet certain statutory exceptions for the...
