By Eric Fanning
Ok, so just to be clear at the outset, this case does not involve a cop on trial or under sanctions; I just like the sound of that name. But it does involve a police officer and, you guessed it, whether or not some of his actions (or omissions, as you’ll soon see) amount to negligence. If this is enough to tickle your fancy, read on. If not, well you should keep reading anyway, because there’s more to this case that might interest you.
Ms. Hayes appealed her conviction of driving while intoxicated (DWI), second offense. The fact that this is her second offense is worth pointing out because a DWI is what’s called a ‘predicate offense,’ which means it’s a crime that can be used to enhance the sentence of any later conviction. In other words, if you have a DWI on your record, and then you got popped for another one, your penalty goes up, up, up!
Shortly before midnight on January 17, 2015, Ms. Hayes was pulled over by a Town of Richmond police officer. While she was not stopped for any specific traffic violation, the officer observed three driving errors that made him suspect that she was not totally okay: (1) she nearly hit another car while exiting a store parking lot when she failed to yield the right of way, (2) she crossed the fog line and kicked up dirt along the shoulder of the road while making a left-hand turn, and (3) during a right-hand turn her headlights were turned off for a couple of seconds.
After the officer pulled over Ms. Hayes, she submitted to a field sobriety test and a breath test. The breath test revealed a blood-alcohol concentration (BAC) of 0.135%, so she was arrested and taken to the Richmond police station where she provided evidentiary breath samples which revealed BAC’s of 0.127% and 0.133%. She also obtained a test kit for an independent blood test.
The Criminal Division denied Ms. Hayes's motions to suppress and dismiss, and she entered a conditional guilty plea. Which brings us to this appeal. Ms. Hayes argues that the arresting officer did not have a reasonable basis to pull her over, and that the evidence against her should have been suppressed due to the officer’s failure to make a complete video recording of the stop. SCOV affirms.
SCOV reviews the denial of the motion to suppress de novo, but will uphold the trial court’s findings as long as they are supported by evidence. In the case of an investigatory traffic stop, like the one Ms. Hayes was the subject of, the police officer must have a “reasonable and articulable suspicion of criminal activity.” "Reasonable suspicion" feels like a middle of the road standard (pun not intended), but only if one side of the road is "unparticularized hunch" and the other side is "probable cause."
This is also an objective standard, meaning that it really doesn’t matter exactly what’s going through the cop’s head when he or she initiates a traffic stop, just as long as there’s a “reasonable basis to suspect that a motor vehicle violation was taking place.” The court looks at the “totality of the circumstances” to discern whether or not a reasonable person in that situation would suspect that there was some wrongdoing.
Ms. Hayes says, “hey, I didn’t break any traffic laws, so the cop really didn’t have a reason to stop me.” SCOV doesn’t buy it. They note that, even though it’s technically true that she didn’t violate any traffic laws before being stopped, and the officer did not allege in his affidavit that he stopped her based on suspicion of DWI, the Criminal Division still had enough evidence to find that there was reasonable suspicion of wrongdoing given the circumstances. Let’s quickly recap: she almost hit another car after failing to yield the right of way, she crossed the fog line and kicked up dirt, and she had her lights turned off for a couple of seconds while making a turn. SCOV says a reasonable police officer can make those observations and conclude that there may be some shenanigans going on. Swing and a miss!
The second basis for Ms. Hayes’ motion to suppress is that the arresting officer was negligent in failing to preserve evidence that she says could have exculpated her, namely the police dash-cam recording of the traffic stop. The dash-cam caught only about 7 minutes of the stop because the officer did not flip a toggle switch that would have kept the camera recording after his cruiser’s lights were turned off. Her argument is that if the camera had kept recording it would have exposed inaccuracies in the cop’s statements about how she was acting.
So the questions now posed to SCOV are (1) did the officer have a duty to make and preserve a full recording of the traffic stop, and (2) did the failure to make a full recording constitute prejudicial error?
SCOV says ‘no’ to both.
Ms. Hayes says that the police do have a legal duty to create video recordings of all roadside stops (and ensuing field sobriety tests). Her argument is based on this statute, which states that “A copy of a videotape made of the alleged offense shall be provided to the defendant within ten days after the defendant requests the copy and pays a $45.00 fee for its reproduction.” SCOV rejects this argument because the statute doesn’t require police to make a recording, it only requires them to provide a copy upon request if one had been made in the first place. This is like if I had a rule in my house that says “you must give me one half of the cookies you bake in my oven upon request.” This rule would not require all of my guests to bake cookies in my oven when they come over, it merely states that if they do bake the cookies, they must give me half of them if I ask (say, that’s not a bad idea!).
SCOV next looks to whether or not, under the circumstances, the failure to record the entire stop was prejudicial to Ms. Hayes. SCOV uses what’s called a Bailey analysis, which takes its name from the case of State v. Bailey (available for your reading pleasure here). This is basically a three-pronged analysis that goes like this: “if defendant shows reasonable possibility that missing evidence would have been favorable to defendant, court must balance (1) degree of negligence or bad faith by government, (2) importance of lost evidence, and (3) other evidence of guilt adduced at trial.”
A Bailey analysis here is relevant (although Justice Dooley’s concurrence casts doubt on this) because we’re dealing with evidence that the police did not collect (the video of the whole roadside stop), that had the potential to exculpate the defendant. SCOV considers the Bailey factors and decides that they don’t help Ms. Hayes at all.
First, as SCOV already said, the officer was not negligent in failing to record the stop (SCOV disagrees with the Criminal Division on this matter, interestingly enough), nor was there any allegation made of bad faith. Second, a video recording probably would not have helped Ms. Hayes because it would not have picked up on many of the disputed observations that the arresting officer relied upon (like the odor of intoxicants in her car, bloodshot eyes, etc.). Finally, there was other evidence of guilt, like the breath tests that showed her BAC was way above the legal limit.
So, Ms. Hayes is 0 for 3 on the Bailey factors, and therefore there is no reason to reverse the denial of her motions to suppress and dismiss. Conviction upheld.