                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Petty and AtLee
              Argued at Lexington, Virginia
UNPUBLISHED




              MARK AUSTIN MARTIN
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1219-17-3                                  JUDGE ROBERT J. HUMPHREYS
                                                                                   MAY 8, 2018
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
                                               Anita D. Filson, Judge

                               Robert C. Hagan, Jr. (Robert C. Hagan, Jr., Attorney At Law, PLC,
                               on briefs), for appellant.

                               Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Following a bench trial, appellant Mark Austin Martin (“Martin”) was convicted on July

              5, 2017, in the Circuit Court of Rockbridge County (the “circuit court”), for driving under the

              influence of alcohol with a blood alcohol concentration of at least 0.15, but not more than 0.20,

              in violation of Code §§ 18.2-266 and 18.2-270. Martin was subsequently sentenced to ninety

              days in jail, with eighty-five days suspended, and a $500 fine, with $250 suspended. Martin

              appeals this decision and argues that the circuit court erred by overruling his motion to suppress

              the evidence that resulted from a traffic stop by a campus police officer beyond that officer’s

              territorial jurisdiction and without authority under Code § 19.2-77 as incorporated by Code

              § 23-234(A)—now Code § 23.1-815(B).1


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                      Effective October 1, 2016, the General Assembly amended and reenacted Code
              § 23-234(A) as Code § 23.1-815(B), with no substantive changes affecting this case. See 2016
              Va. Acts ch. 513, 571, 588.
                                       I. BACKGROUND

       The evidence presented in the circuit court comes before this Court in a “Written

Statement in Lieu of Transcript” pursuant to Rule 5A:8(c). On May 23, 2016, Officer

R. Beagan, Jr. (“Officer Beagan”), of the Virginia Military Institute (“VMI”) Police Department

was stationed within his jurisdiction on N. Main Street in Lexington, Virginia. There, Officer

Beagan observed Martin operating a motor vehicle. Officer Beagan’s stationary radar indicated

that Martin was travelling at a speed of thirty-five miles per hour in a twenty-five mile per hour

zone both before and after Martin passed Officer Beagan’s police cruiser.

       Officer Beagan turned his police cruiser to follow Martin’s vehicle and conduct a traffic

stop. Officer Beagan, however, did not immediately activate his police cruiser’s flashing lights

and/or siren because there was no safe location for Martin to stop without blocking a lane of

traffic. Instead, Officer Beagan followed Martin onto N. Jefferson Street and out of the VMI

Police Department’s jurisdiction before activating his police cruiser’s flashing lights and siren.

In response to Officer Beagan’s signal, Martin then pulled into a nearby parking space.

       Officer Beagan detected the odor of alcohol upon approaching Martin’s vehicle. During

Officer Beagan’s subsequent investigation, Martin displayed evidence of intoxication while

performing field sobriety tests. Officer Beagan determined that Martin was impaired and

arrested Martin for driving under the influence of alcohol. Thereafter, an officer with the

Lexington Police Department transported Martin to the regional jail where Martin submitted to a

breath test. Subsequently, based upon the sworn statements of Officer Beagan, a magistrate

issued a warrant of arrest for Martin charging him with first offense driving under the influence

of alcohol.

       Before trial, the prosecutor filed a memorandum of law regarding Officer Beagan’s

“territorial jurisdiction.” Therein, the Commonwealth conceded that Officer Beagan was beyond

                                                -2-
his territorial jurisdiction when he activated his flashing lights and siren. However, the

Commonwealth argued that Officer Beagan’s stop was nevertheless lawful because, after

witnessing Martin speeding, Officer Beagan immediately pursued Martin with the intent to stop

him. Thus, the Commonwealth argued that this act satisfied the “close pursuit” exception to the

narrow statutory jurisdiction of campus police officers as provided in Code § 23-234(A), a

position the Attorney General also argues on appeal.2 Thereafter, on June 26, 2017, Martin filed

a memorandum on “territorial jurisdiction” where he argued that Officer Beagan “did not have

the authority to initiate the arrest beyond his territorial jurisdiction” because Officer Beagan did

not initiate the “arrest” before leaving his jurisdiction and was therefore not in “pursuit,” close or

otherwise.

       On July 5, 2017, before entering a plea, Martin made an oral motion to suppress the

evidence that resulted from the traffic stop, arguing that Officer Beagan was beyond his

territorial jurisdiction when he initiated the “pursuit” of Martin’s vehicle by activating his

flashing lights and siren.3 But, after the circuit court heard the testimony of Officer Beagan and

arguments of counsel, the circuit court denied Martin’s motion.




       2
           As incorporated by Code § 23-234(A), Code § 19.2-77 provides:

                Whenever a person in the custody of an officer shall escape or
                whenever a person shall flee from an officer attempting to arrest
                him, such officer, with or without a warrant, may pursue such
                person anywhere in the Commonwealth and, when actually in
                close pursuit, may arrest him wherever he is found.

(Emphasis added).
       3
          Although Martin styled his motion as a “Motion to Suppress,” he did not assert that
Officer Beagan lacked probable cause nor did he assert any violation of his rights under the
Fourth Amendment to the Constitution of the United States. Instead, he sought “suppression” of
the entire charge based upon an asserted violation of his rights to procedural due process because
Officer Beagan lacked the authority to arrest him outside of his territorial jurisdiction.
                                               -3-
       Martin pleaded not guilty. And, reserving his exception to the denial of the motion to

suppress, Martin stipulated to Officer Beagan’s testimony on the motion to suppress and the

admissibility of the certificate of analysis containing the results of his breath test. The circuit

court subsequently found Martin guilty. This appeal follows.

                                           II. ANALYSIS

                                       A. Standard of Review

       “On appeal from a denial of a suppression motion, we must review the evidence in the

light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.”

Knight v. Commonwealth, 61 Va. App. 297, 302, 734 S.E.2d 716, 719 (2012) (quoting Slayton

v. Commonwealth, 41 Va. App. 101, 103, 582 S.E.2d 448, 449 (2003)). “In addition, ‘the

defendant has the burden of showing that even when the evidence is reviewed in that light,

denying the motion to suppress was reversible error.’” Gregory v. Commonwealth, 64 Va. App.

87, 93, 764 S.E.2d 732, 735 (2014) (quoting Branham v. Commonwealth, 283 Va. 273, 280, 720

S.E.2d 74, 77 (2012)). “[W]e defer to the trial court’s findings of ‘historical fact’ and give ‘due

weight to the inferences drawn from those facts by resident judges and local law enforcement

officers.’” Hill v. Commonwealth, 52 Va. App. 313, 318, 663 S.E.2d 133, 135 (2008) (quoting

Barkley v. Commonwealth, 39 Va. App. 682, 690, 576 S.E.2d 234, 238 (2003)).

           B. Whether the circuit court erred in overruling Martin’s motion to suppress

       Here, Martin does not dispute that he committed a misdemeanor traffic offense within

Officer Beagan’s territorial jurisdiction. Martin also concedes that Officer Beagan was within

his territorial jurisdiction when Officer Beagan began to follow Martin’s vehicle with the intent

to arrest him or issue a summons. However, Martin argues that because Officer Beagan did not

indicate his intent to make an arrest by activating his flashing lights and siren until both he and

Officer Beagan left the jurisdiction of the VMI Police Department, Code § 19.2-77 did not

                                                 -4-
authorize his extraterritorial arrest. In support of his argument, Martin argues that Officer

Beagan was not in “close pursuit,” if at all, until Officer Beagan activated his flashing lights and

siren to pull Martin over since Martin was neither escaping from the custody of an officer nor

fleeing from an officer attempting to arrest him as the term “close pursuit” is contemplated in the

language of Code § 19.2-77 at which point, and as the Commonwealth concedes, Officer Beagan

was outside of his jurisdiction as a VMI police officer. The Commonwealth responds by arguing

that Officer Beagan lawfully arrested Martin for driving under the influence because he was in

“close pursuit” of Martin, as contemplated by Code § 19.2-77 since he was following Martin

with the ultimate intention of stopping Martin’s vehicle but delayed acting upon his intention

until outside of his territorial jurisdiction due to reasons of safety.

        We need not decide the question of whether Officer Beagan was in “close pursuit” of

Martin within the meaning of Code § 19.2-77 as incorporated by Code § 23-234(A) because we

find that the issuance of an arrest warrant by a judicial officer cured any defect in Martin’s

original arrest by Officer Beagan. Here, a neutral and detached magistrate issued an arrest

warrant based upon probable cause and supported by the sworn statements of Officer Beagan.

See Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972) (“[A]n issuing magistrate must meet

two tests. He must be neutral and detached, and he must be capable of determining whether

probable cause exists for the requested arrest or search.”). Significantly, Martin never

challenged the magistrate’s finding of probable cause or the validity of the warrant upon which

he was tried and focuses his argument solely upon the validity of the traffic stop.4 It follows that,

even if Officer Beagan had no more authority to arrest Martin than an ordinary citizen would,



        4
         We specifically note that Martin stipulated to the admissibility of the results of the
breath test in this case and therefore we need not and do not consider the applicability of the
Commonwealth’s implied consent statute—Code § 18.2-268.2—to the facts of this case.

                                                  -5-
this Court need not consider any question of either suppression or procedural due process

because Martin’s conviction was predicated on an entirely valid arrest warrant.5

       Further, assuming without deciding that Officer Beagan lacked the statutory authority to

arrest Martin, only a finding of a constitutional violation of the Fourth Amendment would permit

any degree of the suppression remedy he seeks. See Virginia v. Moore, 553 U.S. 164, 167

(2008) (holding that “Virginia law does not, as a general matter, require suppression of evidence

obtained in violation of state law”). The exclusionary rule applies only to constitutional

violations, not to alleged violations of state arrest laws. See id. at 178. “Absent an infirmity of

constitutional dimensions, the ‘mere violation of state statutory law does not require that the

offending evidence be suppressed, unless the statute expressly provides for an evidentiary

exclusion remedy.’” Cutright v. Commonwealth, 43 Va. App. 593, 600, 601 S.E.2d 1, 4 (2004)

(quoting Seaton v. Commonwealth, 42 Va. App. 739, 757 n.7, 595 S.E.2d 9, 17 n.7 (2004)).

Though extraterritorial arrests may violate a state statute, they do not warrant the suppression of

evidence in most cases. In fact, our Supreme Court has rejected the invitation to adopt a state

exclusionary rule for arrests that violate a statutory provision when the detention is otherwise

constitutional. See Horne v. Commonwealth, 230 Va. 512, 519, 339 S.E.2d 186, 191 (1986).

       Neither Code § 19.2-77 nor Code § 23-234(A) “provide for a suppression remedy for

procedural violations.” Cutright, 43 Va. App. at 600, 601 S.E.2d at 4. Instead, “[t]he legislative

remedy for a procedural violation is not suppression of the evidence, but a full and fair

opportunity for both sides to attempt to prove or disprove any prejudicial effect of the violation.”



       5
          Although Martin argues his assignment of error on constitutional procedural due
process grounds, the remedy for a violation of due process, in a criminal context, is ordinarily a
new trial with “the right to reasonable notice and a meaningful opportunity to be heard[,]” all of
which he received here, not the suppression of the evidence which he seeks. See, e.g., Parker v.
Commonwealth, 42 Va. App. 358, 383, 592 S.E.2d 358, 371 (2004) (internal quotation and
citation omitted).
                                                -6-
Id. at 600-01, 601 S.E.2d at 4 (emphasis in original). Martin had such an opportunity in the

circuit court. Given this reality, there is no legal basis for Martin’s assertion that he was denied

procedural due process and that the circuit court erred in denying his motion to suppress.

                                        III. CONCLUSION

       For these reasons, we hold that, assuming without deciding that Officer Beagan arrested

Martin outside of his territorial jurisdiction as extended pursuant to Code § 19.2-77 as

incorporated by Code § 23-234(A), the circuit court did not err in denying Martin’s motion to

suppress.

                                                                                           Affirmed.




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