Steven O. Dale v. Anthony Ciccone , 233 W. Va. 652 ( 2014 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2014 Term FILED
_____________ June 5, 2014
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 13-0821 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
_____________
STEVEN O. DALE, Acting Commissioner of the
West Virginia Division of Motor Vehicles, Petitioner
v.
ANTHONY CICCONE, Respondent
_______________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Louis H. Bloom, Judge
Civil Action No. 12-AA-138
REVERSED AND REMANDED WITH DIRECTIONS
______________________________________________________
Submitted: May 7, 2014
Filed: June 5, 2014
Patrick Morrisey, Esq. Anthony Ciccone, Pro Se
Attorney General Respondent
Elaine L. Skorich, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Petitioner
The Opinion of the Court was delivered PER CURIAM.
JUSTICE BENJAMIN concurs in part, dissents in part, and reserves the right to file a
separate opinion.
SYLLABUS BY THE COURT
1. “On appeal of an administrative order from a circuit court, this Court is
bound by the statutory standards contained in W.Va. Code § 29A-5-4(a) and reviews
questions of law presented de novo; findings of fact by the administrative officer are
accorded deference unless the reviewing court believes the findings to be clearly wrong.”
Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).
2. “Upon judicial review of a contested case under the West Virginia
Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may
affirm the order or decision of the agency or remand the case for further proceedings. The
circuit court shall reverse, vacate or modify the order or decision of the agency if the
substantial rights of the petitioner or petitioners have been prejudiced because the
administrative findings, inferences, conclusions, decisions or order are: “(1) In violation of
constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction
of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law;
or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole
record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.’” Syl. Pt. 2, Shepherdstown Volunteer Fire Dept. v. State
ex rel. State of W.Va. Human Rights Comm’n, 172 W.Va. 627, 309 S.E.2d 342 (1983).
i
3. “Police officers may stop a vehicle to investigate if they have an articulable
reasonable suspicion that the vehicle is subject to seizure or a person in the vehicle has
committed, is committing, or is about to commit a crime[.]” Syl. Pt. 1, in part, State v. Stuart,
192 W.Va. 428, 452 S.E.2d 886 (1994).
4. “When evaluating whether or not particular facts establish reasonable
suspicion, one must examine the totality of the circumstances, which includes both the
quantity and quality of the information known by the police.” Syl. Pt. 2, State v. Stuart, 192
W.Va. 428, 452 S.E.2d 886 (1994).
5. “A police officer may rely upon an anonymous call if subsequent police
work or other facts support its reliability and, thereby, it is sufficiently corroborated to justify
the investigatory stop under the reasonable-suspicion standard.” Syl. Pt. 4, State v. Stuart,
192 W.Va. 428, 452 S.E.2d 886 (1994).
6. “For a police officer to make an investigatory stop of a vehicle the officer
must have an articulable reasonable suspicion that a crime has been committed, is being
committed, or is about to be committed. In making such an evaluation, a police officer may
rely upon an anonymous call if subsequent police work or other facts support its reliability,
and, thereby, it is sufficiently corroborated to justify the investigatory stop under the
reasonable-suspicion standard.” Syl. Pt. 5, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d
ii518 (1996).
7. “W.Va. Code § 17C-5A-1a (a) (1994) does not require that a police officer
actually see or observe a person move, drive, or operate a motor vehicle while the officer is
physically present before the officer can charge that person with DUI under this statute, so
long as all the surrounding circumstances indicate the vehicle could not otherwise be located
where it is unless it was driven there by that person.” Syl. Pt. 3, Carte v. Cline, 200 W.Va.
162, 488 S.E.2d 437 (1997).
8. “Where there is evidence reflecting that a driver was operating a motor
vehicle upon a public street or highway, exhibited symptoms of intoxication, and had
consumed alcoholic beverages, this is sufficient proof under a preponderance of the evidence
standard to warrant the administrative revocation of his driver’s license for driving under the
influence of alcohol.” Syl. Pt. 2, Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984).
Per Curiam:
iii
This is an appeal by Steven O. Dale, Acting Commissioner of the West
Virginia Division of Motor Vehicles (hereinafter “DMV”), from an order of the Circuit Court
of Kanawha County, West Virginia, reversing the administrative license revocation of
Anthony Ciccone (hereinafter “the respondent”). The Office of Administrative Hearings
(hereinafter “OAH”) and the circuit court found that the DMV failed to prove that a lawful
investigatory traffic stop was accomplished and consequently failed to prove that the
respondent was lawfully arrested pursuant to West Virginia Code § 17C-5A-2(f) (2013).
Upon thorough review of the statutory framework, briefs, arguments of counsel, record, and
applicable precedent, this Court reverses the order of the Circuit Court of Kanawha County
and remands for entry of an order reinstating the respondent’s administrative license
revocation.
I. Factual and Procedural History
On November 4, 2010, the respondent was arrested in Grafton, West Virginia,
for driving under the influence of alcohol (hereinafter “DUI”). At an administrative hearing
held on March 24, 2011, Sergeant James Davis of the Grafton Police Department testified
that he received a telephone call at the police department on the evening of November 4,
2010, from Ms. Sharon Marks. Sergeant Davis testified that Ms. Marks described a vehicle
she had observed driving erratically and proceeding south on Route 119.1 She stated that the
1
Sergeant Davis testified that Ms. Marks also indicated that the vehicle was “weaving
and swerving.”
1
vehicle had Delaware registration, and she specifically informed Sergeant Davis that the
driver might be intoxicated.
According to Sergeant Davis’ testimony, he thereafter drove to the intersection
of Route 119 and Route 50 and observed the described vehicle make a proper left turn from
Route 50 East onto Route 119 North. Sergeant Davis did not observe any suspicious or
erratic driving, but he stopped the vehicle based solely on the telephone call and information
obtained from Ms. Marks. Although Sergeant Davis testified that he was not certain of the
time of the stop, he estimated that it was approximately 11:33 p.m.
When Sergeant Davis stopped the vehicle, the respondent was not driving. He
was seated in the passenger seat. The DUI Information Sheet indicates that by approximately
11:40 p.m., Officer T.R. Rutherford, also with the Grafton Police Department, arrived at the
scene. Both officers detected an odor of alcohol on the respondent’s breath. They also
observed that the respondent had slurred speech and bloodshot eyes. The respondent
admitted he had been driving the vehicle until he picked up his friend. The driver informed
the officers that he had just recently gotten into the vehicle at the “Dairy King area on Rt. 50”
and that the respondent had previously driven from Morgantown, West Virginia, to Grafton
on Route 119.2 According to Sergeant Davis’ testimony, the respondent explained that he
2
Sergeant Davis testified as follows:
2
had started driving south from Morgantown at approximately 11:00 p.m. He also admitted
that he had consumed four bottles of beer. Sergeant Davis further testified that the
respondent admitted to driving the vehicle at the time of the complaint.3 The respondent
failed the sobriety tests and was arrested for DUI at 11:59 p.m. The respondent was
determined to have a blood alcohol level of .104.4
The DMV issued an order administratively revoking the respondent’s license
on December 9, 2010. On October 25, 2012, the OAH reversed the respondent’s license
I spoke to this driver and explained to him what my complaint
was; that the reason for the traffic stop was that I had a
complaint that it was driving all over the road coming from
Morgantown to Grafton. He indicated that he had just got into
the vehicle from the Dairy King area on U.S. Route 50. He
indicated that, so I asked who was driving the vehicle when they
were coming from Morgantown. He indicated his friend, Mr.
Ciccone.
Mr. Ciccone then admitted to me that he was driving to
come pick up the owner of the car and his friend in Grafton.
3
Specifically, Sergeant Davis testified:
I then directed him [Officer Rutherford] to take Mr. Ciccone - -
that he admitted to driving the vehicle at the time of the
complaint, admitted to me that he was driving, admitted that he
had consumed some alcohol beverages, so at that point I
directed him to take him out and perform a field sobriety on
him.
4
Neither the respondent nor the driver of the vehicle testified at the hearing. The
informant, Ms. Marks, was apparently present at the preliminary hearing, but she did not
attend the administrative hearing.
3
revocation, finding that the record was not sufficient to prove that the officers had an
articulable reasonable suspicion to initiate the traffic stop. The hearing examiner cited State
v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994), for the proposition that a police officer
may rely on information provided by an informant if subsequent police work or other facts
support the reliability of that information. The hearing examiner ultimately found no
articulable reasonable suspicion to initiate a traffic stop because only the informant’s
information was used. No other observations of erratic driving or suspicious activity were
made by the investigating officers. Thus, the hearing examiner found the initial traffic stop
to be invalid and the resulting license revocation to be improper.
On April 11, 2013, the circuit court held a hearing on the DMV’s appeal. By
order dated July 25, 2013, the circuit court affirmed the hearing examiner’s decision, finding
that no valid initial stop occurred because the police officers relied exclusively upon Ms.
Marks’ tip with no corroborating police investigation or other facts supporting the reliability
of the information provided by Ms. Marks. This appeal followed.
II. Standard of Review
In syllabus point one of Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518(1996), this Court explained the standard of review of a circuit court’s order:
On appeal of an administrative order from a circuit court,
4
this Court is bound by the statutory standards contained in
W.Va. Code § 29A-5-4(a) and reviews questions of law
presented de novo; findings of fact by the administrative officer
are accorded deference unless the reviewing court believes the
findings to be clearly wrong.
In syllabus point two of Shepherdstown Volunteer Fire Department v. State ex rel. State of
West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983), this Court
also stated:
Upon judicial review of a contested case under the West
Virginia Administrative Procedure Act, Chapter 29A, Article 5,
Section 4(g), the circuit court may affirm the order or decision
of the agency or remand the case for further proceedings. The
circuit court shall reverse, vacate or modify the order or decision
of the agency if the substantial rights of the petitioner or
petitioners have been prejudiced because the administrative
findings, inferences, conclusions, decisions or order are: “(1) In
violation of constitutional or statutory provisions; or (2) In
excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedures; or (4) Affected by other
error of law; or (5) Clearly wrong in view of the reliable,
probative and substantial evidence on the whole record; or (6)
Arbitrary or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion.”
Thus, although deference is given to the administrative agency’s factual findings, the Court
applies a de novo standard of review to the agency’s conclusions of law.
III. Discussion
A. The Statutory Inclusion of Lawful Arrest Requirement
The DMV asserts that the circuit court erred in conflating a lawful stop with
a lawful arrest, as the phrase “lawfully placed under arrest” is used in West Virginia Code
5
§ 17C-5A-2(f).5 The alterations to this statute over the prior decade have created some
degree of confusion surrounding the concept of lawful arrest. The 2004 version included the
lawful arrest reference; the 2008 version omitted that lawful arrest language; and the 2010
5
West Virginia Code § 17C-5A-2(f) provides as follows:
In the case of a hearing in which a person is accused of
driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs, or accused of driving a motor
vehicle while having an alcohol concentration in the person’s
blood of eight hundredths of one percent or more, by weight, or
accused of driving a motor vehicle while under the age of
twenty-one years with an alcohol concentration in his or her
blood of two hundredths of one percent or more, by weight, but
less than eight hundredths of one percent, by weight, the Office
of Administrative Hearings shall make specific findings as to:
(1) Whether the investigating law-enforcement officer had
reasonable grounds to believe the person to have been driving
while under the influence of alcohol, controlled substances or
drugs, or while having an alcohol concentration in the person's
blood of eight hundredths of one percent or more, by weight, or
to have been driving a motor vehicle while under the age of
twenty-one years with an alcohol concentration in his or her
blood of two hundredths of one percent or more, by weight, but
less than eight hundredths of one percent, by weight; (2)
whether the person was lawfully placed under arrest for an
offense involving driving under the influence of alcohol,
controlled substances or drugs, or was lawfully taken into
custody for the purpose of administering a secondary test:
Provided, That this element shall be waived in cases where no
arrest occurred due to driver incapacitation; (3) whether the
person committed an offense involving driving under the
influence of alcohol, controlled substances or drugs; and (4)
whether the tests, if any, were administered in accordance with
the provisions of this article and article five of this chapter.
W.Va. Code § 17C-5A-2(f) (emphasis added).
6
version once again included that language. Thus, the cases decided by this Court have
differed based upon which version of the statute applied.
In Clower v. West Virginia Department of Motor Vehicles, 223 W.Va. 535, 678
S.E.2d 41 (2009), for instance, this Court’s evaluation of the facts was guided by the 2004
version of the statute which included the lawful arrest language. In light of that particular
statute, this Court held that because the police officer’s stop of Mr. Clower’s vehicle was not
justified, Mr. Clower was not “lawfully placed under arrest” as required by the statute, and
his license revocation was therefore improper. Id. at 544, 678 S.E.2d at 50. Although the
Clower decision was based on the 2004 statute, the Clower Court referenced the alteration
of the statute in 2008 and specified that “[o]ur decision on this issue is therefore limited to
the application of the 2004 version” of the statute. Id. at 544 n.7, 678 S.E.2d at 50 n.7
(emphasis added).
In contrast to Clower, this Court’s decisions in Miller v. Toler, 229 W.Va. 302,
729 S.E.2d 137 (2012), and Miller v. Smith, 229 W.Va. 478, 729 S.E.2d 800 (2012), were
based upon the 2008 version of the statute which did not include the lawful arrest
requirement. Because the statutory requirement for a lawful arrest was no longer present to
essentially serve as a statutorily-created exclusionary rule for evidence obtained through a
non-lawful arrest, this Court was tasked with determining whether the judicially-created
exclusionary rule would apply to exclude such evidence in the civil license revocation
7
context.6 In the absence of the statutory lawful arrest requirement, this Court found that the
judicially-created exclusionary rule would not serve as a method of excluding such evidence.
Syllabus point three of Toler articulated that ruling by explaining that the judicially-created
exclusionary rule is inapplicable in the context of an administrative driver’s license
revocation proceeding. 229 W.Va. at 303, 729 S.E.2d at 138.
The Smith and Toler opinions were very clearly limited to DUI incidents
occurring under the 2008 version of the statute. In Smith, this Court specifically noted that
it was not expressing any opinion upon what the result would have been if the guiding statute
had included the lawful arrest language. See 229 W.Va. at 484 n.8, 729 S.E.2d at 806 n.8
(“Because this Court finds that the statute applicable to this case did not require a ‘lawful
arrest,’ we have no occasion to elaborate upon what the lawful arrest language in the 2010
6
The distinction between a judicially-created exclusionary rule and a statutorily-
created one must not be overlooked. In Chase v. Neth, 697 N.W.2d 675 (Neb. 2005), the
Supreme Court of Nebraska dealt with such distinction, explaining that “the statutes in effect
at the time of Chase’s arrest do not require the State to establish the validity of the arrest, that
requirement having been specifically removed from the statutes by the 2003 amendments.”
Id. at 684 (holding judicial exclusionary rule inapplicable to administrative license revocation
proceedings, but acknowledging application of statutory exclusionary rules, where
applicable); see also People v. Krueger, 567 N.E.2d 717, 722-23 (Ill. App. Ct. 1991) (“We
believe the trial court erred in concluding that the legality of the defendant’s arrest was not
material to the suspension hearing because the exclusionary rule may not be applied to this
civil proceeding. Although we agree that this proceeding is civil rather than criminal or
quasi-criminal, we reiterate that the issue here is not whether the court is to apply a judicially
created rule pursuant to its inherent authority but whether the statute should be construed to
condition the Secretary of State’s power to suspend a driver’s license on the presence of a
valid arrest.” (internal citations omitted)).
8
statute would have required under the facts of this particular case.”); see also Toler, 229
W.Va. at 303 n.1, 729 S.E.2d at 138 n.1 (“The 2008 version of West Virginia Code § 17C-
5A-2 is applicable to the instant case.”). The Smith Court also noted that reliance on Clower
was misplaced because Clower was based on the 2004 version of the statute which included
the lawful arrest language. Id. at 484, 729 S.E.2d at 806.
In the present case, this Court’s evaluation is guided by the 2010 version of the
statute in which the lawful arrest language is once again included.7 Consequently, this Court
must proceed with an evaluation similar to that in Clower, and the validity of the underlying
traffic stop is relevant to our determination. The issue is resolved by direct reference to the
requirements set forth in the West Virginia Code § 17C-5A-2(f), and the inquiry must
7
In Arnold v. Turek, 185 W.Va. 400, 407 S.E.2d 706 (1991), this Court explained:
We have traditionally held that where a statute is amended to
use different language, it is presumed that the legislature
intended to change the law. We spoke to this concept in
Syllabus Point 2 of Butler v. Rutledge, 174 W.Va. 752, 329
S.E.2d 118 (1985):
“‘The Legislature must be presumed to know the
language employed in former acts, and, if in a
subsequent statute on the same subject it uses
different language in the same connection, the
court must presume that a change in the law was
intended.’ Syl. pt. 2, Hall v. Baylous, 109 W.Va.
1, 153 S.E. 293 (1930).”
185 W.Va. at 404, 407 S.E.2d at 710.
9
therefore include “whether the person was lawfully placed under arrest for an offense
involving driving under the influence of alcohol. . . .” W.Va. Code § 17C-5A-2(f)(2).8 As
this Court stated in Dale v. Odum, 2014 WL 641990 (W.Va. Feb. 11, 2014) (memorandum
decision), “absent a valid investigatory stop, a finding that the ensuing arrest was lawful
cannot be made.” Id. at *5. This issue was also addressed in Dale v. Arthur, 2014 WL
1272550 (W.Va. March 28, 2014) (memorandum decision), as follows:
Our decision in Clower v. West Virginia Department of
Motor Vehicles, 223 W.Va. 535, 544, 678 S.E.2d 41, 50 (2009),
applied the 2004 version of West Virginia Code § 17C-5A-2(e)
which required a specific finding of “whether the person was
lawfully placed under arrest for an offense involving driving
under the influence of alcohol . . . or was lawfully taken into
custody for the purpose of administering a secondary test.” The
2008 version of the statute did not contain this language. Miller
v. Chenoweth, 229 W.Va. 114, 117 n. 5, 727 S.E.2d 658, 661 n.
5 (2012). However, the Legislature amended the statute in
2010, and restored the language requiring a finding that the
person was either lawfully arrested or lawfully taken into
custody. Id.2014 WL 1272550 at *3 n.2. As this Court observed in Arthur, “the decision to include this
requirement is within the prerogative of the Legislature, and it is not to be invaded by this
Court.” Id. at *3. Consequently, in cases in which the applicable version of West Virginia
Code § 17C-5A-2 has included the requirement for a lawful arrest, as it does in the case sub
8
The DMV also contends that the “lawful arrest” language is only intended to address
matters involving a secondary chemical test. As the circuit court correctly found, there is no
merit to this argument, and it is contrary to the clear language of the statute. The statute sets
forth findings which must be made with regard to the lawful arrest of the individual for
driving under the influence, distinct from any secondary chemical test issue.
10
judice and did in Clower, an individual cannot be considered lawfully arrested for DUI where
law enforcement did not have the requisite articulable reasonable suspicion to initiate the
underlying traffic stop. We consequently address the factual situation in the present case to
determine whether the law enforcement officer’s initial investigatory traffic stop was valid.
B. The Lawful Stop and Lawful Arrest
The hearing examiner and circuit court relied upon this Court’s reasoning in
Stuart to conclude that information obtained from Ms. Marks was insufficient to create an
articulable reasonable suspicion in the absence of corroborating police investigation or other
facts supporting reliability. See Stuart, 192 W.Va. at 435, 452 S.E.2d at 893. In Stuart, this
Court held that under the Fourth Amendment to the United States Constitution and Section
6 of Article III of the West Virginia Constitution, “[p]olice officers may stop a vehicle to
investigate if they have an articulable reasonable suspicion that the vehicle is subject to
seizure or a person in the vehicle has committed, is committing, or is about to commit a
crime[.]” Syl. Pt. 1, in part, Stuart, 192 W.Va. at 429, 452 S.E.2d at 887. We also specified
in syllabus point two that “[w]hen evaluating whether or not particular facts establish
reasonable suspicion, one must examine the totality of the circumstances, which includes
both the quantity and quality of the information known by the police.” Id.With specific regard to reliance upon an anonymous tip, syllabus point four of
Stuart provides: “A police officer may rely upon an anonymous call if subsequent police
11
work or other facts support its reliability and, thereby, it is sufficiently corroborated to justify
the investigatory stop under the reasonable-suspicion standard.” Id. (emphasis added); see
also Syl. Pt. 5, Muscatell, 196 W.Va. at 590, 474 S.E.2d at 520 (“For a police officer to make
an investigatory stop of a vehicle the officer must have an articulable reasonable suspicion
that a crime has been committed, is being committed, or is about to be committed. In making
such an evaluation, a police officer may rely upon an anonymous call if subsequent police
work or other facts support its reliability, and, thereby, it is sufficiently corroborated to
justify the investigatory stop under the reasonable-suspicion standard.”).
The specific holdings of Stuart and Muscatell provide the appropriate standard
for the assessment of information supplied by an anonymous caller. The caller in the present
case, however, was not anonymous. Ms. Marks provided her name to Sergeant Davis when
she telephoned the police department, and she even appeared at the preliminary hearing.
Thus, the standards relating to an anonymous caller are not controlling in this case. As this
Court has recognized, “an anonymous tip requires more corroboration than the tip of an
informant whose identity is known and who may or may not have a track record.” State v.
Bookheimer, 221 W.Va. 720, 729, 656 S.E.2d 471, 480 (2007).
This Court’s determination in the present case must be premised upon whether
the police officer had sufficient reliable information to form an articulable reasonable
suspicion, based upon the totality of the circumstances, as those standards are explained in
12
syllabus points one and two of Stuart. 192 W.Va. at 429, 452 S.E.2d at 887. Applying those
principles to the present case, this Court finds that the initial traffic stop was lawfully
accomplished by Sergeant Davis. As outlined above, Sergeant Davis received a telephone
call from an identified caller, Ms. Marks. She informed him that a vehicle with Delaware
plates was weaving and swerving while proceeding south on Route 119. She described the
vehicle, and she also informed Sergeant Davis that the driver could possibly be intoxicated.
This Court finds that such information provided Sergeant Davis with sufficient indicia of
reliability to warrant his articulable reasonable suspicion of unlawful activity and to justify
the investigatory stop.
This Court’s holding on this issue is consistent with the United States Supreme
Court’s recent decision in Navarette v. California, 134 S.Ct. 1683 (2014). In addressing the
nature of evidence necessary to create an articulable reasonable suspicion, the Court held that
an informant’s tip,9 even in the absence of police corroboration, may be sufficient if it is
detailed enough to warrant the officer’s articulable reasonable suspicion of unlawful activity.
Id. at 1688. In explaining the rationale for that ruling, the United States Supreme Court
reiterated established principles regarding investigatory stops: “The Fourth Amendment
permits brief investigatory stops . . . when a law enforcement officer has ‘a particularized and
9
Writing for the majority, Justice Thomas noted that the motorist who provided the
tip had identified herself by name, but, because neither the motorist nor the 911 operator
were present at the suppression hearing, the prosecution and the lower courts treated the tip
as anonymous. 134 S.Ct. at 1687 n.1.
13
objective basis for suspecting the particular person stopped of criminal activity.’” Id. at 1687(internal citation omitted). The Court further explained: “The ‘reasonable suspicion’
necessary to justify such a stop ‘is dependent upon both the content of information possessed
by police and its degree of reliability.’ The standard takes into account ‘the totality of the
circumstances - the whole picture.’” Id. (internal citations omitted).
In Navarette, the informant had provided a tip to a 911 emergency operator and
had indicated that a truck had run her off the highway. Officers stopped that truck and
discovered thirty pounds of marijuana. The United States Supreme Court ultimately found
that the tip had sufficient indicia of reliability, even without additional police corroboration.
Id. at 1688. The motorist had described the truck by model name, brand name, and license
plate number, and the police had responded to the tip shortly after it was received. Further,
based upon the motorist’s allegations of the specific conduct of running her car off the
highway, the Court reasoned that the tip created reasonable suspicion of an ongoing crime,
such as drunk driving, rather than an isolated instance of reckless behavior. Id. at 1691. The
motorist had also utilized the 911 system, thereby permitting recording of the call and
subjecting the caller to potential prosecution for misuse of the emergency system. Id. at
1690.10
10
As observed in Commonwealth v. Love, 775 N.E.2d 1264 (Mass. App. Ct. 2002):
The rationale for according more weight to the reliability of
persons who are either identified or able and not unwilling to be
14
Having determined that the initial investigatory traffic stop was proper in the
present case, this Court also addresses the issue of probable cause for the respondent’s arrest.
Although the law enforcement officers did not observe the respondent operating the vehicle,
this Court has previously held that an officer does not have to personally observe an
individual operating the motor vehicle while under the influence in order to arrest that
individual for DUI. In State v. Davisson, 209 W.Va. 303, 547 S.E.2d 241 (2001), this Court
stated as follows:
With particular reference to the offense of drunk driving, this
Court acknowledged in Carte v. Cline, 200 W.Va. 162, 488
S.E.2d 437 (1997) that “‘an officer having reasonable grounds
to believe that a person has been driving while drunk may make
a warrantless arrest for that offense even though the offense is
not committed in his presence.’” Id. at 167, 488 S.E.2d at 442(quoting Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465,
467 (1987)).
209 W.Va. at 308, 547 S.E.2d at 246. Further, syllabus point three of Carte provides:
W.Va. Code § 17C-5A-1a (a) (1994) does not require that
a police officer actually see or observe a person move, drive, or
operate a motor vehicle while the officer is physically present
before the officer can charge that person with DUI under this
statute, so long as all the surrounding circumstances indicate the
identified is that these individuals do not “have the protection
from the consequences of prevarication that anonymity would
afford.” Identified and readily identifiable individuals expose
themselves to charges of filing false reports, and they risk
reprisal from those they accuse[.]
Id. at 1268-69 (internal citations omitted).
15
vehicle could not otherwise be located where it is unless it was
driven there by that person.
200 W.Va. at 162, 488 S.E.2d at 437; see also Bennett v. Coffman, 178 W. Va. 500, 502, 361
S.E.2d 465, 467 (1987), overruled in part on other grounds, State v. Chase Sec., Inc., 188
W.Va. 356, 424 S.E.2d 591 (1992) (Bennett explains that “an officer having reasonable
grounds to believe that a person has been driving while drunk may make a warrantless arrest
for that offense even though the offense is not committed in his presence.” (internal citation
omitted)); accord State v. Byers, 159 W. Va. 596, 224 S.E.2d 726 (1976) (finding that
driving under influence does not have to be committed in presence of officer).
In Dale v. Reynolds, 2014 WL 1407375 (W.Va. 2014) (memorandum
decision), Mr. Reynolds was found intoxicated in the driver’s seat of his automobile in a
Kroger parking lot. Id. at *1. He admitted he had been drinking and that he had previously
driven from a different location to that Kroger parking lot. In assessing those circumstances,
this Court explained that “[t]he uncontested facts show that Mr. Reynolds was intoxicated
the night of June 29, 2010. However, the question presented for this Court’s decision is
whether the evidence proves that Mr. Reynolds operated a motor vehicle during his
intoxication.” Id. at *2. In addressing the issue, the Reynolds Court reiterated our prior
holding that there is no requirement that an officer observe the person driving under the
influence. Id. at *3. The Court concluded that the evidence demonstrated that “[i]t was
reasonable to believe that the car came to be in the Kroger parking lot as a result of Mr.
16
Reynolds’s actions.” Id. at *4; see also State v. Hummel, 796 N.E.2d 558, 562-63 (Ohio Ct.
App. 2003) (holding that “probable cause exists when the facts and circumstances known to
the police officer and of which he has reasonably trustworthy information are sufficient to
warrant a prudent man in believing that the accused had committed or was committing an
offense. In situations where the arresting officer has not observed the operation of the
vehicle, such facts and circumstances would necessarily have to include a relationship
between the time there was evidence to show the influence of intoxicants and the time of
operation of the vehicle.” (internal citations omitted)).11
In the present case, Sergeant Davis’ testimony and the DUI Information Sheet
11
A situation similar to the present case was encountered in the context of criminal
prosecution in State v. Sharp, 702 P.2d 959 (Mont. 1985). In Sharp, the court explained that
“[a] founded suspicion to stop for investigative detention may ripen into probable cause to
arrest through the occurrence of facts or incidents after the stop.” Id. at 963 (citations
omitted). The court continued:
Here, Officer Williams . . . observed the passenger Wesley
Sharp in the vehicle slouched over and apparently intoxicated.
Based on that observation, Officer Williams inquired further. In
response to the officer’s questions, Ron Truman [the driver
when the officer observed the vehicle] stated that the two had
just switched places and that they did so because Sharp was “too
drunk to drive.” To further corroborate this, Officer Williams
went back to the squad car and had the dispatcher call the First
and Last Chance Saloon. The informant, then identified, stated
that Wesley Sharp was driving the car when it left the saloon.
At that time, Officer Williams’ investigation had produced facts
that ripened into the probable cause to arrest Wesley Sharp.
Id.17
indicate that the respondent admitted he had consumed four beers, and he also admitted he
was driving prior to the time he picked up his friend at the Dairy King on Rt. 50 in Grafton.
Sergeant Davis also testified that the respondent admitted he was driving at the time the tip
from Ms. Marks was provided to Sergeant Davis. The chronology of the events12 also
supports that admission. Thus, this Court finds that the respondent’s admissions to police
officers, as well as the timing of Ms. Marks’ telephone call and the respondent’s route of
travel, provided the officers with sufficient probable cause to arrest the respondent for DUI.
C. The Revocation
To warrant administrative revocation of a driver’s license, the facts must
establish, by a preponderance of evidence, that the person had been driving under the
influence. See Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984) (“We believe that
these facts are sufficient to establish by a preponderance of the evidence that the appellant
had been driving under the influence of alcohol. A preponderance of the evidence is all that
is required to justify administrative revocation. See, W.Va. Code, 17C-5A-2(j)(4) (1981);
Jordan v. Roberts, W.Va., 246 S.E.2d at 262, 263.”). As this Court explained in syllabus
point two of Albrecht,
12
As noted above, the respondent left Morgantown at approximately 11:00 p.m. and
drove south on Route 119 toward Grafton. Ms. Marks observed the vehicle while it was still
on Route 119 South. To pick up his friend at the Dairy King, the respondent would have
exited Route 119 onto Route 50. Sergeant Davis observed the vehicle at approximately
11:33 p.m., and Officer Rutherford arrived at the scene at 11:40 p.m.
18
Where there is evidence reflecting that a driver was
operating a motor vehicle upon a public street or highway,
exhibited symptoms of intoxication, and had consumed
alcoholic beverages, this is sufficient proof under a
preponderance of the evidence standard to warrant the
administrative revocation of his driver’s license for driving
under the influence of alcohol.
173 W. Va. at 269, 314 S.E.2d at 861.
Having determined that both the initial stop and the arrest were valid, this
Court finds that evidence was properly and adequately presented to prove, by a
preponderance of evidence, that the respondent was driving under the influence of alcohol
on the evening of November 4, 2010. The chronology of events outlined above, the
respondent’s admission of consuming alcoholic beverages and driving, and the respondent’s
blood alcohol level are sufficient proof to warrant the administrative revocation of his
driver’s license for driving under the influence of alcohol. The final order of the circuit court
is consequently reversed, and this case is remanded to the circuit court for reinstatement of
the order administratively revoking the respondent’s driver’s license.
Reversed and Remanded with Directions.
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