DEBBIE L. ULLOM,
Petitioner Below, Appellee
JOE E. MILLER, COMMISSIONER,
WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
Defendant Below, Appellant
Appeal from the Circuit Court of Marshall County
The Honorable Mark A. Karl, Judge
Civil Action No. 06-CAP-24K
REVERSED AND REMANDED
Submitted: March 9, 2010
Filed: November 23, 2010
| Darrell V. McGraw, Esq.
Scott E. Johnson, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellants
Marvin W. Masters, Esq.
Richard A. Monahan, Esq.
The Masters Law Firm, LC
Charleston, West Virginia
Attorneys for Amicus Curiae,
West Virginia Troopers' Association, Inc.
| Jason M. Glass, Esq.
Todd F. La Neve, Esq.
La Neve Law OFfices
Jane Lew, West Virginia
Attorneys for Appellee
SYLLABUS BY THE COURT
8. In administrative proceedings under W. Va.Code, 17C-5A-1 et seq., the commissioner of motor vehicles must consider and give substantial weight to the results of related criminal proceedings involving the same person who is the subject of the administrative proceeding before the commissioner, when evidence of such results is presented in the administrative proceeding. Syllabus Point 3, Choma v. West Virginia Division of Motor Vehicles, 210 W.Va. 256, 557 S.E.2d 310 (2001).
The respondent below and appellant, Joe E. Miller, Commissioner of the West Virginia Division of Motor Vehicles (the Commissioner), appeals from an order of the Circuit Court of Marshall County, West Virginia, entered on November 12, 2008. In its order, the circuit court reversed the Commissioner's administrative order revoking appellee's license to operate a motor vehicle in West Virginia following appellee's arrest for driving under the influence of an intoxicating substance (DUI). In reversing the Commissioner, the circuit court found that the arresting officer did not have the requisite reasonable suspicion to detain the appellee, Ms. Debbie Ullom (appellee), and that the appellee was later acquitted of the related criminal charges arising from this arrest. After careful consideration of the parties' arguments, the briefs of the parties, (See footnote 1) the record designated for our consideration, and relevant authorities, we reverse the decision of the circuit court.
After the arrest, the trooper completed and filed with the Commissioner a document entitled Statement of Arresting Officer, triggering the start of the administrative driver's license revocation proceeding. By letter dated July 13, 2006, the Commissioner suspended the driving privileges of the appellee effective August 17, 2006. The appellee timely filed a request for a hearing five days later on July 18, 2006.
In the subsequent administrative hearing, the hearing officer found that while the arresting officer did not observe the appellee driving, all of the surrounding circumstances indicate that the white Subaru could not otherwise have been in its location unless driven there by the petitioner [appellee]. In terms of a justification for the stop, the hearing examiner found that a vehicle in such a position off a rural roadway, with its parking lights engaged, would reasonably lead a police officer to initiate a road safety check. Therefore, the hearing officer found that any observations made by the arresting officer following his initial contact with the appellee were properly a part of the record upon which the revocation was based.
By order dated December 18, 2006, (See footnote 3) the appellee's driver's license was suspended for a period of six months effective with the date of the order. The appellee thereupon filed a petition for judicial review in the Circuit Court of Marshall County on November 13, 2006.
In its November 8, 2008, order reversing the DMV's revocation, the circuit court ruled that the Arresting Officer did not have reasonable suspicion to make an investigatory stop and make a lawful arrest of the petitioner [Appellee] for driving under the influence of alcohol. The facts in the instant case and the testimony of the Arresting Officer provided indicate that the petitioner [Appellee] did not commit, was not committing, and was not going to commit a crime pursuant to the requirements for reasonable suspicion. The circuit court found that there was insufficient admissible evidence presented to show by a preponderance of the evidence that the appellee had committed the offense of driving under the influence of alcohol. The circuit court further found that the DMV was required to give substantial weight to the appellee's subsequent acquittal on the related driving under the influence charges, even though the related criminal proceeding occurred after the revocation hearing had already been completed. The Commissioner appealed the circuit court's order reversing the administrative suspension to this Court. This Court accepted the matter for appeal on April 30, 2009.
Not all contact between a police officer and a citizen rises to the level wherein constitutional protections are implicated. A consensual encounter may occur where a citizen agrees to speak to law enforcement personnel. Such a contact may be initiated by law enforcement without the need of any objective articulable level of suspicion and does not, without more, amount to a seizure raising constitutional protections. See Syl. Pt. 1, State v. Mays, 172 W.Va. 486, 307 S.E.2d 655 (1983) (It is not an unreasonable seizure for police to approach an individual in a public place, ask him if he is willing to answer questions and put questions to him if he is willing to listen.); United States v. Cooper, 43 F.3d 140, 145, (5th Cir. 1995) ('[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual's identification . . . and request consent to search his or her luggage . . . as long as the police do not convey a message that compliance with their request is required' (quoting Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398-99 (1991)). See also Muehler v. Mena, 544 U.S. 93, 101, 125 S.Ct. 1465, 1471, 161 L.Ed.2d 299, 308 (2005). Such encounters are permissible because they are purely consensual and involve no seizure. (See footnote 6)
Where an encounter rises to the level of a search or seizure, both the Fourth Amendment and Article III, Section 6 require the search or seizure to be reasonable and that the governmental actor have probable cause and, absent a recognized exception, a validly issued warrant. Accordingly, searches and seizures performed without a valid warrant are presumed to be unreasonable, and will be lawful only if the search and seizure falls within a recognized exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 575-576 (1971); accord Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967) (valid warrant requirement supported by probable cause subject only to a few specifically established and well-delineated exceptions). In Syllabus Point 20 of State v. Ladd, 210 W.Va. 413, 557 S.E.2d 820 (2001), this Court explained as follows:
Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment and Article III, Section 6 of the West Virginia Constitution-subject only to a few specifically established and well-delineated exceptions. The exceptions are jealously and carefully drawn, and there must be a showing by those who seek exemption that the exigencies of the situation made that course imperative. Syllabus Point 1, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980), overruled in part on other grounds by State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991).
See also State v. Bookheimer, 221 W.Va. 720, 656 S.E.2d 471 (2007); State v. Kendall, 219
W.Va. 686, 639 S.E.2d 778 (2006). Examples of recognized exceptions to the general
warrant requirement include certain brief investigatory stops, searches incident to a valid
arrest, seizures of items in plain view, searches and seizures justified by exigent
circumstances, consensual searches, and searches in which the special needs of law
enforcement make the probable cause and warrant requirements impracticable. Warrantless
Searches and Seizures, 37 Geo.L.J. Ann.Rev.Crim.Proc. 39, 40 (2008). See also State v.
Duvernoy, 156 W.Va. 578, 195 S.E.2d 631 (1973).
One well-recognized exception to the general warrant requirement of the Fourth Amendment and Article III, Section 6, known as a Terry investigative stop, authorizes a police officer to briefly seize an individual so long as the seizure is supported by a reasonable articulable suspicion that the individual has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). For purposes of Article III, Section 6 of the Constitution of West Virginia, we too have recognized the so- called Terry investigative stop exception to the general warrant requirement. In State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994), we held that [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. . . . Stuart at Syl. Pt. 1. We further recognized in Stuart that [w]hen evaluating whether or not particular facts establish reasonable suspicion, one must examine the totality of the circumstances, which includes both quantity and quality of the information known to the police. Id., at Syl. Pt. 2. The need for flexibility in the consideration of such circumstances was recognized by the United States Supreme Court when it stated that [s]treet encounters between citizens and police officers are incredibly rich in diversity . . . . Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute a crime. Terry, 391 U.S. at 13, 88 S.Ct. at 1875- 76, 20 L.Ed.2d at 901.
Here, Trooper Buskirk, while on routine patrol at dusk, encountered a motor vehicle pulled fully off the road and parked in front of a chain gate blocking what appeared to be a dirt road leading to a field. He had not viewed the vehicle being operated. The vehicle's parking lights were on, but the engine was off. There was no overt indication, such as flashers operating or a white towel hanging from the vehicle, that there was a need for assistance. Trooper Buskirk testified that he believed a safety check was needed and proceeded to make contact with the appellee. In these circumstances, a Terry/Stuart exception was not initially present.
On appeal, the Commissioner urges this Court, consistent with the requirements of the Fourth Amendment and Article III, Section 6, to hold that Trooper Buskirk's community caretaker motivation for stopping and interacting with appellee constitutes a constitutionally permissible warrantless encounter with appellee. Specifically, when the totality of the circumstances of this encounter are considered, the Commissioner contends that Trooper Buskirk herein was acting in a legitimate community safety and welfare role when he initiated the warrantless contact with Ms. Ullom, and that the circumstances of this warrantless encounter are therefore properly admissible into evidence in subsequent legal proceedings, including the administrative revocation hearing below, as an exception to the general warrant requirement of the Fourth Amendment and Article III, Section 6.
The community caretaker doctrine is a widely recognized exception to the general warrant requirement of the Fourth Amendment of the United States Constitution. The doctrine recognizes that, in our communities, law enforcement personnel are expected to engage in activities and interact with citizens in a number of ways beyond the investigation of criminal conduct. Such activities include a general safety and welfare role for police officers in helping citizens who may be in peril or who may otherwise be in need of some form of assistance.
The community caretaker exception to the constitutional prohibition against unreasonable warrantless searches and seizures was first acknowledged by the United States Supreme Court in Cady v.Dombroski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In Cady, the United States Supreme Court recognized that because of the extensive regulation of motor vehicles by states and localities and the frequency with which such vehicles may become disabled or involved in accidents, police officers may properly engage in community caretaker functions related to such vehicles. Id, 413 U.S. at 441, 93 S.Ct. at 2528, 37 L.Ed.2d at 714. Such encounters between law enforcement personnel and citizens related to public safety and welfare are totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Id..
In Cady, a police officer from Chicago was involved in an automobile accident in Wisconsin. When Wisconsin law enforcement authorities arrived on the scene of the accident, the Chicago officer appeared to be intoxicated and was transported to the hospital, where he lapsed into a coma. His car was towed to a nearby garage. Believing that Chicago police officers were required to carry their service weapons at all times, the Wisconsin authorities returned to Dombroski's wrecked vehicle and began a warrantless search for that weapon. This search of Dombroski's vehicle revealed numerous items that appeared to have blood on them. Dombroski's attorney told the investigating officers that a body might be found on the farm of Dombroski's brother in Wisconsin. Authorities later found a body on the brother's property and Dombroski was arrested.
Prior to his trial, Dombroski filed a motion to suppress the evidence obtained from the warrantless search of his car, arguing that the search violated Fourth Amendment principles. The United States Supreme Court disagreed, finding
Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.
Cady, 413 U.S. at 441, 93 S.Ct. at 2528, 37 L.Ed.2d at 714-715. The Supreme Court
concluded that the evidence found in the search of Dombroski's vehicle was admissible and
Dombroski's murder conviction, obtained largely on circumstantial evidence, was thereby
Since Cady, a majority of states have acknowledged this community safety and welfare role of police officers and have adopted in some form or another a community caretaker exception to the general warrant requirement present in such states. (See footnote 7) While we have not formally adopted the community caretaker doctrine as part of our search and seizure jurisprudence in West Virginia, we have recognized that law enforcement officers do have community safety and welfare duties beyond their criminal investigatory duties. In Wagner v. Hedrick, 181 W. Va. 482, 383 S.E.2d 286 (1989), we specifically acknowledged Cady in discussing the various roles of police officers in our communities, acknowledging a non-investigatory, community role for law enforcement personnel apart from traditional law enforcement duties:
The more typical Fourth Amendment case involves a search that is initiated for the purposes of obtaining evidence of criminal activity. Certainly, however, we recognize that there are numerous instances in which the nature of a police officer's duty requires that he engage in searches for reasons other than obtaining evidence of criminal activity.
The policeman, as a jack-of-all-emergencies, has "complex and multiple tasks to perform in addition to identifying and apprehending persons committing serious criminal offenses;" by default or design he is also expected to "aid individuals who are in danger of physical harm," "assist those who cannot care for themselves," and "provide other services on an emergency basis." If a reasonable and good faith search is made of a person for such a purpose, then the better view is that evidence of crime discovered thereby is admissible in court.
Id., 181 W. Va. at 489, n.9, 383 S.E.2d at 293, n.9 (quoting 2 LaFave, Search and Seizure:
A Treatise on the Fourth Amendment, § 5.4(c) at 525 (2d ed. 1987) (footnotes omitted.)). (See footnote 8)
We now believe it is appropriate to join the majority of jurisdictions who recognize the community caretaker doctrine, formally recognizing the expectation in West Virginia that the role of law enforcement personnel is not limited to merely to the detection and prevention of criminal activity, but also encompasses a non-investigatory, non-criminal role of police officers to help to ensure the safety and welfare of our citizens. In recognizing this doctrine, however, we are mindful of the important protections of the Fourth Amendment and Article III, Section 6, relating to searches and seizures. In order to balance the caretaking role of police officers with the fundamental protections against unreasonable searches and seizures found in the United States Constitution and the Constitution of West Virginia, we believe it necessary to establish specific requirements for applicability of the community caretaker exception to ensure that the privacy expectations of West Virginia's citizens are balanced with the immediate safety and welfare needs of motorists or the public in situations where the immediate safety and welfare of citizens is reasonably at issue.
No single set of specific requirements for applicability of the community caretaker exception has been adopted by a majority of those states recognizing the exception. Based upon our review of the requirements established in other states, we believe that the requirements recently adopted by the Supreme Court of South Dakota in State v. Deneui, 775 N.W.2d 221 (S.D. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 2072, 176 L.Ed.2d 422 (2010), with modification, provide appropriate direction as we endeavor to best satisfy the reasonableness requirements of the Fourth Amendment and Article III, Section 6, and effect a necessary balance between the privacy expectations of West Virginia citizens and the need for police officers to properly execute their community caretaking duties. (See footnote 9) Accordingly, after due consideration, we now hold that, for an encounter to come within the community caretaker doctrine exception to the warrant requirement, the State must establish the following:
1. Given the totality of the circumstances, a reasonable and prudent police officer would have perceived a need to promptly act in the proper discharge of his or her community caretaker duties;
2. Community caretaking must be the objectively reasonable, independent and substantial justification for the intrusion;
3. The police officer's action must be apart from the intent to arrest, or the detection, investigation, or acquisition of criminal evidence; and
4. The police officer must be able to articulate specific facts that, taken with rational inferences, reasonably warrant the intrusion. (See footnote 10)
Here, in considering the propriety of Trooper Buskirk's actions, we must first determine, even prior to considering community caretaking, whether Trooper Buskirk's actions constituted a seizure implicating the protections set forth in the Fourth Amendment and Article III, Section 6 of the federal and state constitutions, respectively. We believe they did. Trooper Buskirk encountered Ms. Ullom's car lawfully parked just off the roadway, in front of a chained private driveway, with parking lights on and the engine turned off. While Ms. Ullom was free to go, the positioning of the officer at her window and the positioning of Trooper Buskirk's vehicle (which blocked in the Subaru) effectively stopped Ms. Ullom from doing so. Under such circumstances, we believe that in view of the context of all of these circumstances, a reasonable person would believe that she was not free to leave and thus a seizure occurred. See Chesternut, 486 U.S. at 573, 108 S.Ct. at 1979, 100 L.Ed.2d at 572; Todd Andrew H., 196 W.Va. at 619-20, 474 S.E.2d at 549-50.
Trooper Buskirk did not have a warrant and did not, at least initially, have a reasonable articulable suspicion that a crime had been committed, was being committed, or was about to be committed. Nevertheless, we believe that the circumstances involved in his encounter with Ms. Ullom were reasonable and properly fell within the community caretaker doctrine exception to the Fourth Amendment of the United States Constitution and Article III, Section 6 of the Constitution of West Virginia. Trooper Buskirk's testimony establishes that Ms. Ullom's vehicle was parked just off the road in front of a chain gate blocking what appeared to be a dirt road leading to a field. It was dusk and her parking lights were on. Sensing that something might be wrong, Trooper Buskirk initiated what he termed a road safety check.
In view of these objective, specific and articulable facts, we conclude that, given the totality of the circumstances, a reasonable and prudent officer in such a setting would have reasonably suspected that an occupant of the vehicle was in need of immediate help and that Trooper Buskirk's actual motivation for this contact was to ensure the immediate safety of Ms. Ullom. Trooper Buskirk's initiating reasons for his encounter with Ms. Ullom were, when viewed objectively, quite clearly a reasonable, independent and substantial justification for any intrusion he made into Ms. Ullom's privacy under the community caretaker doctrine. The record readily demonstrates that this intrusion was based on safety and welfare considerations, and was separate and apart from any police investigatory or arrest role. We therefore conclude that evidence related to Trooper Buskirk's initial encounter with Ms. Ullom was properly admissible pursuant herein to the community caretaker doctrine exception to the general warrant requirement of the Fourth Amendment and Article III, Section 6.
Once Trooper Buskirk was assured that Ms. Ullom was not in actual need of emergency aid, his caretaking duties were over and any further detention of Ms. Ullom by Trooper Buskirk would have constituted an unreasonable seizure unless Trooper Buskirk had a warrant or some other specific exception to the warrant requirement, such as an articulable, reasonable suspicion that Ms. Ullom had committed, was committing, or was about to commit criminal activity pursuant to Terry and Stuart. Here, we believe there is a sufficient objective basis to conclude that Trooper Buskirk's continued detention of Ms. Ullom, after his initial encounter with her under the community caretaker doctrine, was permissible under Terry and Stuart. Trooper Buskirk testified that Ms. Ullom was behind the wheel of the vehicle with the keys in the ignition, there was a strong odor of alcohol, Ms. Ullom's eyes were glassy and bloodshot, she was speaking with slurred speech and her motor skills were unsteady. We therefore conclude that the remainder of Trooper Buskirk's seizure of Ms. Ullom was reasonable as a legitimate Terry and Stuart investigatory stop.
We find that the circuit court committed error when it reversed the order of the Commissioner suspending the driving privileges of Ms. Ullom on the basis that there was no probable cause for a warrantless seizure herein. Trooper Buskirk's encounter with Ms.
Ullom came within permissible exceptions to the general warrant requirement of the Fourth Amendment and Article III, Section 6 pursuant to the community caretaker doctrine initially and thereafter pursuant to the exception recognized in Terry and Stuart. (See footnote 11)
B. The Circuit Court's Consideration of Appellee's Subsequent Acquittal
In his second assignment of error, the appellant argues that the circuit court improperly relied upon the appellee's subsequent acquittal on the related DUI charges in its decision reversing the revocation order of the Commissioner and thereby misapplied this Court's holding in Choma v. West Virginia Division of Motor Vehicles, 210 W.Va. 256, 557 S.E.2d 310 (2001). Specifically, appellant contends that it was improper of the circuit court to, in its review of the administrative proceeding, consider an acquittal which had not yet occurred and which was not a part of the administrative record.
In Choma, we held:
In administrative proceedings under W. Va.Code, 17C-5A-1 et seq., the commissioner of motor vehicles must consider and give substantial weight to the results of related criminal proceedings involving the same person who is the subject of the administrative proceeding before the commissioner, when evidence of such results is presented in the administrative proceeding.
Syllabus Point 3, Choma v. West Virginia Division of Motor Vehicles, 210 W.Va. 256, 557
S.E.2d 310 (2001). (See footnote 12) Quite obviously, Choma is immediately distinguishable here by the fact
that in the present case, the acquittal of Ms. Ullom on criminal charges happened after the
license revocation hearing and thus the information could not have been considered in the
administrative proceeding. (See footnote 13) Since the criminal case had yet to be resolved, there was
nothing therein to which the Commissioner was required to give substantial weight.
Accordingly, the circuit court erred in its ruling to the contrary.