United States v. Ahlstrom

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.CARLY AHLSTROM, Defendant - Appellant.

No. 12-4772

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: May 16, 2013

Decided: June 24, 2013

UNPUBLISHED

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O'Grady, District Judge. (1:12-cr-00298-LO-1)

Before TRAXLER, Chief Judge, THACKER, Circuit Judge, and Ellen L. HOLLANDER, United States District Judge for the District of Maryland, sitting by designation.

Affirmed by unpublished opinion. Judge Hollander wrote the opinion, in which Chief Judge Traxler and Judge Thacker joined.

ARGUED: Thomas Kenneth Plofchan, Jr., WESTLAKE LEGAL GROUP, Sterling, Virginia, for Appellant. Stacy Bogert, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

ELLEN LIPTON HOLLANDER, District Judge:

Following a bench trial conducted by a federal magistrate judge, Carly Ahlstrom was convicted of one count of driving while intoxicated, in violation of 36 C.F.R. § 4.23(a)(2). The district court affirmed the conviction. On appeal to this Court, Ahlstrom contends that the initial stop of her vehicle violated the Fourth Amendment. She also challenges the admissibility and evidentiary weight of the breath alcohol test used to prove her intoxication. Finding no error, we shall affirm.¹

I.

As a result of events that occurred on January 6, 2012, Carly Ahlstrom was charged with driving without a tag light, in violation of 36 C.F.R. § 4.2, incorporating Va. Code Ann. § 46.2-1013 ("Citation 3326984"). See Joint Appendix ("J.A.") at 5, 22. The Virginia statute requires illumination of a vehicle's rear tag so that it is visible "from a distance of 50 feet to the rear." Ahlstrom was also charged with driving under the influence of alcohol, in violation of 36 C.F.R. § 4.23(a)(1) ("Citation 3326985"). J.A. at 6. In addition, she was chargedwith driving while intoxicated, in violation of 36 C.F.R. § 4.23(a)(2), prohibiting the operation of a motor vehicle with a breath alcohol content of 0.08 grams of alcohol or more per 210 liters of breath ("Citation 3326986"). See J.A. at 7, 22-23.

At a hearing held before a federal magistrate judge on June 21, 2012, Ahlstrom moved to suppress evidence allegedly obtained in violation of her Fourth Amendment rights. See J.A. at 8, 21. In particular, she claimed that U.S. Park Police Officer Pentti Gillespie, who executed the vehicle stop, lacked reasonable suspicion to justify the stop. Id. at 21, 49-50. Finding that Officer Gillespie had probable cause to execute the stop based on Ahlstrom's failure to illuminate her rear license plate, as required by Virginia law, the magistrate judge denied the motion. Id. at 51. The trial followed immediately thereafter. The following evidence was adduced at the motion hearing and the trial.

At approximately 2:45 a.m. on January 6, 2012, Officer Gillespie observed a Lexus vehicle traveling southbound on the George Washington Memorial Parkway (the "Parkway"), near Reagan National Airport in Alexandria, Virginia. Id. at 25-26. At the time, Officer Gillespie was parked in a turn lane on the northbound side of the Parkway, but parallel to the Parkway, such that he could see traffic on both the northbound and southbound sides. Id. at 26-27, 35.

When the Lexus approached Officer Gillespie's patrol car, the officer observed the driver hit the brakes suddenly, causing the vehicle to "dip down," although the vehicle was not going "excessively over the speed limit." Id. at 27. As the Lexus passed the police vehicle, Officer Gillespie looked in his side-view mirror and noticed that the rear license plate of the Lexus was not visible in the dark, which he understood to be a violation of Virginia law, requiring illumination of a rear tag to provide visibility "from a distance of 50 feet to the rear." Id. at 30-31, 45; see Va. Code Ann. § 46.2-1013.

Because the Parkway is within the boundaries of federally owned land administered by the National Park Service, id. at 29, drivers are subject to the federal traffic regulations set forth in Chapter I, Title 36 of the Code of Federal Regulations. See 36 C.F.R. §§ 1.2(a), 4.1. The federal traffic regulations incorporate state law, "[u]nless specifically addressed" by the federal regulations. Id. § 4.2(a). "Violating a provision of State law is prohibited." Id. § 4.2(b).

The officer followed the vehicle southbound for about a half mile, and observed it weaving several times within its lane. Id. at 31, 40-41. Officer Gillespie testified that, while he followed the vehicle, "there was a time" that he "could see the back of [the] car . . . and not see [its] tag light." Id. at 44. However, while Officer Gillespie was behind theLexus, the headlights of the officer's vehicle illuminated the rear of the Lexus from a distance of more than 50 feet, and Officer Gillespie admitted that he could not discern at that time whether the license plate was properly illuminated. Id. at 38-39.

Nevertheless, based on his earlier observations, Officer Gillespie turned on his emergency lights to execute a traffic stop. Id. at 28. The driver of the Lexus did not pull over for another two-tenths of a mile. Id. at 29. Upon approaching the vehicle, Officer Gillespie determined that Ahlstrom was the driver. Id. at 53. A female passenger was in the front seat, and another was in the rear seat. Id. Officer Gillespie noticed that Ahlstrom and the front passenger were wearing coats that were on backwards, their legs were bare, and underwear and other clothing was strewn about the vehicle. Id. at 54. According to Gillespie, Ahlstrom explained that she and the front-seat passenger had been playing a game, and she had not stopped the vehicle sooner because she was not fully clothed. Id.

Officer Gillespie also observed that Ahlstrom's eyes were "red and glassy," and he "detected an odor of alcoholic beverage emanating from her." Id. Ahlstrom denied that she had been drinking, but stated that the front-seat passenger had been drinking. Id.

Based on his observations, Officer Gillespie administered three field sobriety tests to Ahlstrom: the "horizontal gaze nystagmus" test ("HGN"), the "walk and turn" test, and the "one-leg-stand" test. Id. at 56-57, 61. According to Officer Gillespie, Ahlstrom's performance on the HGN and walk-and-turn tests indicated "a high probability" that she was intoxicated. Id. at 62, 64. As a result of the field sobriety tests as well as his observations, Officer Gillespie placed Ahlstrom under arrest and transported her to the Park Police station. Id. at 65. Along the way, and before Ahlstrom was advised of her Miranda rights, she blurted that she knew she should not have been driving, but did so anyway. Id. at 65-66.

At the station, Officer Gillespie administered two tests of Ahlstrom's breath alcohol content ("BrAC"), using a device known as an Intoximeter EC/IR-II (the "Intoximeter"). Id. at 67-69. Officer Gillespie testified that he is a trained and certified operator of the Intoximeter, and had administered hundreds of tests using the device on individuals suspected of driving under the influence. Id. at 68-69.

Pursuant to Park Police training, Officer Gillespie observed Ahlstrom for twenty minutes before administering the test, to ensure that she did not burp, belch, or hiccup, and provided Ahlstrom with water to rinse out her mouth. Id. at 69-70.² Additionally, Officer Gillespie testified that the Intoximeter was operating properly at the time. Id. at 70. In this regard, he explained that the Intoximeter undergoes a self-test before use, and is designed to disable itself if a malfunction is detected. Id. at 70-71.

The test results were memorialized in a printout generated by the Intoximeter, which was entered into evidence, over objection. See id. at 93, 154. The first test reported that Ahlstrom's BrAC was 0.114 grams of alcohol per 210 liters of breath. Id. at 154. The second test reported that Ahlstrom's BrAC was 0.116 grams of alcohol per 210 liters of breath. Id. Both readings are above the legal limit for motor vehicle operators set by 36 C.F.R. § 4.23(a)(2), which is 0.08 grams of alcohol per 210 liters of breath.

Although Officer Gillespie was not personally involved with the maintenance of the Intoximeter, J.A. at 91, the printout reflected that the device had been certified for accuracy on November 14, 2011, less than two months before it was used on Ahlstrom. Id. at 154. The printout also included the followingattestation clause, which Officer Gillespie and Ahlstrom signed, id.:

I CERTIFY THAT THE BREATH SAMPLE RESULT(S) ABOVE WERE ANALYZED BY AN INSTRUMENT THAT HAS BEEN APPROVED BY THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION (NHTSA) AS CONFORMING TO THE MODEL SPECIFICATIONS FOR EVIDENTIAL BREATH ALCOHOL MEASUREMENT DEVICES; THAT THE DRY GAS STANDARDS USED WITH THIS INSTRUMENT HAVE NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY TRACEABILITY; THAT THE TESTING PROCEDURES MEET NHTSA RECOMMENDATIONS AND MANUFACTURER'S SPECIFICATIONS; THAT THE SCIENTIFIC ASPECTS OF THE BREATH TESTING PROGRAM ARE OVERSEEN BY THE DISTRICT OF COLUMBIA'S CHIEF/DEPUTY CHIEF TOXICOLOGIST; THAT THE INSTRUMENT WAS CERTIFIED AS ACCURATE WITHIN THE PAST 90 DAYS BY A UNITED STATES PARK POLICE TECHNICIAN WHO IS CERTIFIED BY THE INSTRUMENT MANUFACTURER TO CALIBRATE AND CONDUCT ACCURACY CHECKS WITH THIS INSTRUMENT; THAT I AM CERTIFIED TO CONDUCT SUCH TESTING; AND THAT SET PROCEDURES WERE FOLLOWED WHILE OBTAINING THE ABOVE BREATH SAMPLE RESULT(S).

Ahlstrom contested the admissibility of the Intoximeter test results, asserting that Officer Gillespie had not observed Ahlstrom for the full twenty minutes before administering the breath tests. Id. at 93. She also challenged the Intoximeter's evidentiary weight, on the ground that the Government had not...