STATE OF WEST VIRGINIA,
LINDA S. SIGLER a/k/a LINDA S. MULLINS,
Appeal from the Circuit Court of Fayette County
The Honorable John W. Hatcher, Jr., Judge
Indictment No. 08-F-138
REVERSED AND REMANDED
STATE OF WEST VIRGINIA,
JOHN R. MULLENS,
Appeal from the Circuit Court of Fayette County
The Honorable Paul M. Blake, Jr., Judge
Civil Action No. 07-M-AP-1756
REVERSED AND REMANDED
Submitted: September 22, 2009
Filed: November 25, 2009
| John M. (Jack) Thompson, Jr., Esquire
Oak Hill, West Virginia
Attorney for Appellants
| Brian Parsons, Esquire
Assistant Prosecuting Attorney
Fayetteville, West Virginia
Attorney for Appellee
4. A stop of a motor vehicle at a police checkpoint is intrusive to private citizens.
Such an intrusion is by its nature a constitutional seizure.
5. The essential purpose of the Fourth Amendment is to impose a standard of 'reasonableness' upon the exercise of discretion by officers in order to protect against arbitrary intrusions into the privacy of individuals. Delaware v. Prouse, 440 U.S. 648, 653- 55, 99 S.Ct. 139, 1395-97, 59 L.Ed.2d 660 (1979).
6. In evaluating the lawfulness of a suspicionless seizure, a balancing of interests should be considered to determine if such a seizure is permissible under the United States Constitution and the Constitution of West Virginia and, and these factors should be considered: (1) the gravity of the public concern that is being addressed or served by the checkpoint; (2) the degree to which the checkpoint is likely to succeed in serving this public interest; and (3) the severity with which the checkpoint interferes with individual liberty.
7. When evaluating the degree of severity of interference with individual liberty, West Virginia courts must consider not only the subjective intrusion determined by the potential of the checkpoint to generate fear and surprise in motorists, but also the objective intrusion into individual freedom as measured by the duration of the detention at the checkpoint and the intensity of the inspection.
8. The court's obligation in weighing these factors is to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.
9. Suspicionless checkpoint roadblocks are constitutional in West Virginia only when conducted in a random and non-discriminatory manner within predetermined written operation guidelines which minimize the State's intrusion into the freedom of the individual and which strictly limits the discretion vested in police officers at the scene.
Benjamin, Chief Justice:
These consolidated appeals relating to the propriety of administrative or safety roadblocks are before the Court upon final judgments of the Fayette County Circuit Court. Linda S. Sigler, also known as Linda S. Mullins (hereinafter referred to as appellant Sigler), appeals her conviction for third offense driving under the influence. John R. Mullens (hereinafter referred to as appellant Mullens) appeals the circuit court affirmation of his magistrate court conviction for first offense driving under the influence. The appeals were consolidated by this Court on December 30, 2008.
After carefully reviewing the briefs, the arguments of the parties, the legal authority cited and the record presented for consideration, we reverse the circuit court's rulings.
Appellant Sigler was subsequently indicted by the May, 2008, term of the
Fayette County Grand Jury on one count of third-offense driving under the influence of
alcohol, in violation of West Virginia Code §§17C-5-2(d) and (k). (See footnote 1)
Prior to the trial of this matter, Appellant Sigler, through her counsel, moved to suppress the all evidence obtained by the State of West Virginia pursuant to Officer Burkhamer's safety checkpoint, which was called by counsel an illegal road block. In his motion, counsel stated that Defendant believes that the Officer was in fact conducting a sobriety check point and not a safety check point, and that the operation of the sobriety check point was in violation of standards promulgated by the Fayette County Sheriff's Department and the West Virginia State Police. Gauley Bridge Police Department had not promulgated any regulations, policies or procedures governing sobriety or other checkpoints. The motion stated that the arresting officer failed to have flares, appropriate lighting or signs notifying drivers of the stop, and that the officer was acting outside the scope of his authority in calling the road block a safety check when in fact, it was a sobriety check point.
The State of West Virginia responded that the checkpoint was not placed in an area intended to intimidate motorists and that the stops were uniformly conducted, with all vehicles passing the checkpoint were stopped in a minimally intrusive manner. The
State's response also indicated that the checkpoint was being conducted in such a manner consistent with prior Supreme Court rulings on the issue.
On July 10, 2008, the circuit court commenced a hearing on appellant Sigler's motion to suppress. In its order dated August 6, 2008, denying the motion to suppress, the circuit court made the following findings:
1. On January 27, 2008, in Gauley Bridge, Fayette County, West Virginia, Patrolman C.L. Burkhamer, a non-certified officer at the time, set up a safety road check, which has been done seven (7) or eight (8) times before.
2. The road check was on Route 60/39 with marked curves with lights and a flashlight.
3. From 3:00 a.m. until 3:22 a.m. all cars passing through the intersection were stopped at the intersection including the defendant's car.
4. The police officer did not issue any citations on the night in question.
5. There were two (2) other ways around the road check.
6. Patrolman Burkhamer asked the defendant for her driver's license, registration and proof of insurance.
7. The officer was generally authorized by the Chief of Police to conduct the road checks, but had no specific authority to conduct this particular road check.
8. Road checks were being conducted because nothing was going on in town.
9. The police officer did not know the defendant
10. Upon smelling alcohol on the defendant's person, Patrolman Burkhamer did a field sobriety test and the defendant was arrested.
11. Patrolman Burkhamer knows the difference between a safety check and a DUI road block.
12. According to State v. Davis 195 W. Va. 79 (1995), Carte v. Cline, 194 W. Va. 233 (1995) and State v. Frisby, 161 W. Va. 734 (1978), the Court sees clear distinction between a DUI road block and a safety check.
13. The factual situation is covered by Davis.
14. The stop was random, non-discriminatory and non-excessive.
The State and appellant Sigler entered into a plea agreement, in which Sigler agreed to plead guilty to the felony offense of third offense driving under the influence. The State agreed to stand silent at the sentencing phase. Appellant Sigler specifically reserved the right the appeal the circuit court's adverse ruling regarding her motion to suppress evidence arising from the road block. By order entered August 15, 2008, appellant Sigler was convicted of this offense. Sentencing of Sigler was deferred in this order until the conclusion of the present appeal. On December 30, 2008, this Court accepted the petition for appeal and consolidated it with the Mullens' appeal for argument, decision and opinion.
Appellant Mullens stopped and was approached by Deputy Sheriff Steven L.
Yarber, Jr. The deputy pressed his torso against the driver's door of the car, and requested
that Mullens produce his driver's license, vehicle registration and proof of insurance.
Mullens complied with the request. The parties agree that the state inspection sticker,
registration and license were current and up-to-date. The parties also agree that there were
no mechanical defects, such as a burnt-out headlight, taillights or other malfunction
apparent. Despite the good working order of the equipment on the vehicle, Deputy Yarber
requested that appellant Mullens pull into the parking lot. Appellant Mullens was asked to
exit the vehicle and complied with the demand. Deputy Yarber asked the appellant Mullens
whether he had been drinking. Mullens replied Not really. Deputy Yarber then
responded, Either you have or you haven't. Which is it? It doesn't really matter, I can
smell alcohol. I'm going to do a sobriety test. The criminal complaint filed by the arresting
officer indicates that appellant Mullens failed a preliminary breath test and after completing
a secondary breath test, his blood alcohol content registered at .161.
The record reflects that in effect at the time of appellant Mullens' arrest were certain Sobriety Checkpoint Policies and Procedures. Promulgated by the Fayette County Sheriff's Department and issued on March 10, 2003, these policies and procedures state that in the Policy Statement section:
...Since the deployment and use of sobriety
checkpoints has been found to be an effective
means of achieving the goal of counteracting the
problems of alcohol related traffic accidents, the
Fayette County Sheriff's Department has
promulgated this directive for the purpose of
establishing procedures for the operation of
sobriety checkpoints in a safe, efficient and legal
Sobriety checkpoints conducted by the Fayette County Sheriff's Department will not be used as a subterfuge to search for evidence of other crimes. However, any officer may initiate appropriate enforcement action for any violations that are detected while conducting a sobriety checkpoint...
The Fayette County Sheriff's Department's sobriety checkpoint procedures detail how the site should be selected. Site selection must be made in advance of establishing the checkpoint, with a site drawing being made for each site selected showing locations of warning signs, barricades, personnel, observation areas for media and citation areas for offenders. This directive stated that the sheriff, or his or her designee, would select the site based upon the incidents of alcohol related accidents during the past 12 months, incidents of DUI arrests during the previous 12 months, proximity of drinking establishments in the general area and the ability to conduct a sobriety checkpoint safely and with minimal inconvenience to the public. Other factors to be considered as secondary criteria include the presence of adequate lighting, or the ability to supplement the lighting available, whether there is sufficient space to ensure the safety of all participants and whether there was an alternate route available for drivers choosing to avoid the sobriety checkpoint operation.
The Fayette County Sheriff's Department's Guidelines require that a sobriety checkpoint be marked with signs prior to the start of the checkpoint, with traffic cones/flashing barricades to give warning of the impending stop and with marked police cars with operating emergency lights at the checkpoint. All officers controlling traffic at the checkpoint must carry a flashlight and wear an orange or a white reflective safety vest.
Under the Fayette County Sheriff's Department's guidelines, prior notice is required to the public through the media. The guidelines also detail that at least eight officers must be present at the checkpoint to hand out informational material to all traffic passing through the checkpoint, to perform field sobriety tests, to monitor and control traffic through the checkpoint and to issue citations. The guidelines provide that eight officers is the minimum number required to be present but that additional officers may be pulled in if the officer in charge deems them necessary.
Appellant Mullens' appeal to the Circuit Court of Fayette County, West Virginia was denied by order entered February 27, 2008. On November 5, 2008, this Court accepted the petition for appeal.
Less than one year later, in another Border Patrol case, the Supreme Court
considered the reasonableness of a permanent motorist checkpoint. Martinez-Fuerte, supra.
This time, the Court found the stops for brief questioning routinely conducted at permanent
checkpoints to be consistent with the Fourth Amendment. Id., 428 U.S. at 566, 96 S.Ct. at
3087. Balancing the privacy interests of motorists with the public interest of stopping illegal
immigration, the Court concluded that the checkpoints were reasonable despite the absence
of individualized suspicion. Id., 428 U.S. at 562-66, 96 S.Ct. at 3087. Focusing on the effects
of the seizure on motorists, the Court stated, [t]he principal protection of Fourth Amendment
rights at checkpoints lies in appropriate limitations on the scope of the stop. Id., 428 U.S.
at 566-67, 96 S.Ct. at 3085-3087.
Three years after Martinez-Fuerte, the Supreme Court again considered the legitimacy of a motorist checkpoint in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). In Prouse, a police officer, without having observed any traffic violation or noticed any suspicious activity, stopped a vehicle to check the driver's license and registration. Id., 440 U.S. at 650, 99 S.Ct. at 1394. The officer was not acting in accordance with any approved guidelines or policies regarding checkpoints. Id. During the stop, the officer smelled marijuana and confiscated marijuana that was in plain view on the floor of the car. Id. As in Martinez-Fuerte, the Court analyzed the permissibility of this seizure by balancing its intrusion on the individual's Fourth Amendment interests against its promotion
of legitimate governmental interests. Id., 440 U.S. at 654, 99 S.Ct. at 1396. The Court explained that an essential purpose of the Fourth Amendment is to impose a standard of 'reasonableness' upon the exercise of discretion by officers in order to protect against arbitrary intrusions into the privacy of individuals. Id., 440 U.S. at 653-55, 99 S.Ct. at 1395- 1397. The Court went on to say:
In those situations in which the balance of interests precludes insistence upon some quantum of individualized suspicion, other safeguards are generally relied upon to assure that the individual's reasonable expectation of privacy is not subject to the discretion of the official in the field.
Id., 440 U.S. at 654-55, 99 S.Ct. 1396-1397. Thus, from the beginning of its motor vehicle checkpoint jurisprudence, the United States Supreme Court has focused not on the purported purpose advanced by the State in seeking to uphold the legitimacy of a checkpoint, but rather on the intrusion to the motorist and the level of discretion afforded to the State's official in the field. The absence of a limitation on an official's discretion in the field would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches. Id., 440 U.S. at 661, 99 S.Ct. at 1400 (quoting Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)).
The same year that the Supreme Court decided Prouse, the Court developed a balancing test for suspicionless seizures in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Brown involved a pedestrian who was arrested for failing to identify himself when stopped by police in an area known for drug trafficking. Id., 443 U.S. at 49, 99 S.Ct. at 2638. The Supreme Court overturned the conviction holding that the officers lacked reasonable suspicion to make the stop. Id., 443 U.S. at 53, 99 S.Ct. at 2641. In so doing, the Court developed a balancing test to determine whether a suspicionless seizure was constitutionally permissible. The Brown balancing test requires courts evaluating the lawfulness of suspicionless seizures such as motor vehicle checkpoints to consider three factors: (1) the gravity of the public concern that is being addressed or served by the checkpoint; (2) the degree to which the checkpoint is likely to succeed in serving this public interest; (See footnote 5) and (3) the severity with which the checkpoint interferes with individual liberty. Id., 443 U.S. at 50-51, 99 S.Ct. at 264-2641. When evaluating the degree of severity of interference, courts must consider not only the subjective intrusion determined by the potential of the checkpoint to generate fear and surprise in motorists, but also the objective intrusion into individual freedom as measured by the duration of the detention at the checkpoint and the intensity of the inspection. Id. As explained by the Court, the purpose in weighing these factors is to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. Id., 443 U.S. at 51, 99 S.Ct. at 2640.
The United States Supreme Court next considered the constitutionality of suspicionless motor vehicle checkpoints in Sitz, supra, wherein the Court considered the constitutionality of a highway sobriety checkpoint in Michigan. Sitz, 496 U.S. at 447, 110 S.Ct. at 2483 Such checkpoints were set up according to strict, predetermined guidelines which eliminated most field discretion by officers, ensured a minimal stoppage for motorists, and were designed to minimize subjective fear in motorists. Id.
In determining that the Michigan sobriety checkpoint was consistent with the Fourth Amendment, the Supreme Court utilized the Brown balancing test. In so doing, the Court balanced the State's interest in preventing accidents caused by drunk drivers, the effectiveness of sobriety checkpoints in achieving that goal, and the level of intrusion on an individual's privacy caused by the checkpoints. Id., 496 U.S. at 448-49, 110 S.Ct. at 2484. Key to the Court's upholding of the checkpoint was the use of strict predetermined guidelines and the minimal discretion of officers in the field. Id., 496 U.S. at 451-53, 110 S.Ct. at 2485- 2486.
Five years later, the validity of sobriety checkpoints in West Virginia was established in Justice Fox's seminal opinion of Carte v. Cline, 194 W. Va. 233, 460 S.E.2d 48 (1995). In Carte, a driver was stopped in a sobriety checkpoint in Kanawha County in which all vehicles traveling in either direction along a certain road were stopped. Upon stopping Carte, the arresting officer requested to see his insurance, driver's license and proof of insurance. The arresting officer also detected the odor of alcohol and saw beer containers in Carte's automobile. Carte was pulled over to the side of the road, where field sobriety tests were administered. Carte failed and was arrested for driving under the influence. Carte challenged his arrest on the grounds that the sobriety checkpoint was unconstitutional and violated West Virginia Constitution.
In place at the time of Carte's arrest were The Standard Operating Procedures of the West Virginia Department of Public Safety for Sobriety Checkpoints. All sobriety checkpoints administered at that time by officers of the West Virginia State Police were to be in compliance with these rules and regulations. The stated purpose of the sobriety checkpoints was to deter and detect alcohol and/or drug impaired drivers; and to reduce the number of alcohol related motor vehicle accidents, fatalities and injuries. The sobriety roadblock described in Carte appeared to be in compliance with these extensive regulations and guidelines.
In Carte, this Court cited the case of State v. Frisby, 161 W. Va. 734, 245 S.E.2d 622 (1978), in which we stated:
The weight of authority is that without violating the Fourth Amendment to the Constitution of the United States or W. Va. Constitution, art. 3, §6, motorists may be stopped for no other reason than examination of licenses and registrations when such examinations are done on a random basis pursuant to a preconceived plan, such as the stopping of every car at a checkpoint, the examination of every car on a given day with particular letter or number group in the license, or any other nondiscriminatory procedure.
Id. 245 S.E.2d at 625.
This Court found in Carte that
A seizure incident to a sobriety checkpoint is a reasonable law enforcement practice under the Fourth Amendment. Moreover, we do not find sobriety checkpoints violative of any provisions of the West Virginia Constitution. Sobriety checkpoint roadblocks are constitutional when conducted within predetermined operational guidelines which minimize the intrusion on the individual and mitigate the discretion vested in police officers on the scene.
Id. 194 W. Va. 233 at 238, 460 S.E.2d at 53.
In the Sigler case, there were no guidelines in place for the City of Gauley
Bridge. The officer unilaterally decided create a checkpoint because there was nothing going
on in town that evening that required his attention. The planning level was minimal for this
type of checkpoint. There was no coordination with other members of the municipal police
force or with the county sheriff. This type of stoppage highlights a motor vehicle checkpoint
with nearly unbridled discretion, akin to the type of checkpoint disfavored by the United
States Supreme Court in Prouse as unreasonable under the Fourth Amendment. Indeed, with
no significant prior planning or preconceived plan, and with the virtually limitless discretion
afforded to Officer Burkhamer, the Sigler motor vehicle checkpoint completely fails the third
prong relating to the State's intrusion into the freedom of the motorist of the Brown balancing
test. Even if the checkpoint which stopped appellant Sigler had been termed a sobriety
checkpoint, it still would have failed the Brown balancing test as well as our holding in Carte. (See footnote 6)
While there was a greater level of planning in the Mullens case, the planning was no where near that required for a sobriety checkpoint under the Fayette County Sheriff's own guidelines. As with the Sigler case, the decision to run a checkpoint appears to have been made in haste. If the checkpoint encountered by appellant Mullens had been deemed a sobriety checkpoint, the number of officers present was below the minimum required. The lighting was not sufficient. The checkpoint was inadequately marked and had inadequate signs to signify its existence. Appellant Mullens had to drive within 75 feet of the officers to even realize that they were law enforcement officers. As with Sigler, the motor vehicle checkpoint used in the Mullens case, at a minimum, failed the third prong of the Brown balancing test as well as our decision in Carte.
We furthermore disagree with the State's contention that its decision to call these roadblocks something other than sobriety checkpoints somehow tempers our seizure analysis. It does not. If anything, an administrative checkpoint is on thinner ice than is a sobriety checkpoint. Returning to the first and second prongs of the Brown balancing test, the concern that someone has forgotten to renew their driver's license or that their automobile may be a month beyond its annual inspection date comes no where close to the State's interest in safeguarding the highways from drivers under the influence of illicit drugs or alcohol. We believe that the safeguards currently applicable to sobriety checkpoints in West Virginia under the Carte decision, as well as under Brown, is the minimum necessary for the State to engage in motor vehicle checkpoints in West Virginia under both the federal and state constitutions.
For its arguments, the State relies almost entirely on the per curiam decision in State v. Davis, 195 W. Va. 79, 464 S.E.2d 598 (1995), issued four months after this Court's decision in Carte, for the contention that a safety road check is somehow less intrusive than is a sobriety checkpoint. In Davis, a motorist was stopped in what the State called a routine road check, as opposed to a sobriety checkpoint. By terming the checkpoint a routine road check, the State contended that less onerous protocols and standards were required. In Davis, the circuit court found that the roadblock was a routine road check, rather than a sobriety checkpoint. The purpose of the roadblock as stated by the arresting officer was to check for the possession and validity of driver's licenses, vehicle registrations and mandatory insurance. If during routine stops the officers found an intoxicated driver, the officers would take appropriate action in light of that discovery.
The Davis court acknowledged that had the roadblock been called a sobriety checkpoint, a more detailed scrutiny would be required. Davis at 84, 603. But because the roadblock was instead termed a routine road check, this Court found that the circuit court's determination that the arrest of Davis was appropriate under the circumstances was correct.
Clearly the conclusion reached by the court in Davis falls outside the constitutional parameters for suspicionless motor vehicle checkpoints set by the United States Supreme Court and by this court in Carte and Frisby. As such, to permit the State to
determine the constitutional scrutiny to which a checkpoint is measured simply by allowing the State to simply call the checkpoint a different name would be an open invitation to all forms of pretextual roadblocks. Since our holding in Davis cannot be reconciled with current constitutional protections under our federal and state constitutions, Davis is hereby overruled.
We hold that a stop of a motor vehicle at a police checkpoint such as the stoppage here is intrusive to private citizens. Such an intrusion is by its constitutional nature a seizure. As in Brown, in evaluating the lawfulness of a suspicionless seizure such as here, we believe that a balancing of interests should be considered to determine if such a seizure is permissible under the United States Constitution and the Constitution of West Virginia and these factors should be considered: (1) the gravity of the public concern that is being addressed or served by the checkpoint; (2) the degree to which the checkpoint is likely to succeed in serving this public interest; and (3) the severity with which the checkpoint interferes with individual liberty. When evaluating the degree of severity of interference with individual liberty, West Virginia courts must consider not only the subjective intrusion determined by the potential of the checkpoint to generate fear and surprise in motorists, but also the objective intrusion into individual freedom as measured by the duration of the detention at the checkpoint and the intensity of the inspection. The court's obligation in weighing these factors is to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.
In conclusion, suspicionless checkpoint roadblocks are constitutional in West Virginia only when conducted in a random and non-discriminatory manner within predetermined written operation guidelines which minimize the State's intrusion into the freedom of the individual and which strictly limits the discretion vested in police officers at the scene. (See footnote 7) The checkpoints utilized by law enforcement herein were improper and any evidence derived therefrom should have been suppressed.