Muscatell v. Cline

588 case, appears judicial proceedings. of In this defendant

public reputation Miller, 3, 7, unfortunately v. 194 W.Va. 459 Syl. pt. State concerned been a citizen who (1995). 114 S.E.2d inappropriate expressing of chose an method Although his con- point of a sincere view.15 previously deter This Court has unlawful, peace, duct was breached the 32(a)(1) Virginia mined that Rule of the West legitimate justifying prosecu- concerns raised Procedure, is similar of Rules Criminal tion, appear the conduct to be does above, “con Magistrate quoted to the Rule egregious mean-spirited of or behavior sort upon right of allocution one who is fers might apply a court the full force of for which criminal offense.” to be sentenced for a about applicable law authorized under the stat- Holcomb, 6, 455, pt. v. 178 Syl. State W.Va. Accordingly, presents an ex- utes. this case (1987). Similarly, 232 we find 360 S.E.2d example of for the defen- cellent the need 19 of the Rules of that Rule West dant, personally, opportunity to have the Magistrate Procedure for Courts Criminal right upon “speak urge himself.” confers a of allocution one for circuit for a criminal any who is about to sentenced listen with court to care reasonable note that Rule 19 is couched in offense. We appellant. allocution offered mandatory language, directing that: “[B]e- stated, 18, the reasons November For ...” sentencing magistrate shall fore of 1994 Order Circuit Court Calhoun “ ‘ speak. invite the defendant to “The word County is affirmed in far it affirms so language stat ‘shall’ the absence of Mag- convictions defendant before showing contrary part on the of ute intent County of and is re- istrate Court Calhoun legislature, should be afforded a manda respect imposition of sen- versed with 2, tory Syl. pt. Terry v. connotation.” Sen The case is remanded to the tence. Circuit cindiver, 651, 153 W.Va. 171 S.E.2d 480 County Court of Calhoun with instructions to (1969).’ 5, Hechler, Syl. pt. Rogers v. 176 affording resentence defendant after him 713, (1986).” Syllabus 348 W.Va. S.E.2d 299 right of allocution. State, 3, Secretary point Ruble v. Office of part; part; (1994). Affirmed reversed in 134, 451 192 Clear W.Va. S.E.2d 435 remanded directions. ly, procedure allowing the defendant mitigation to speak and his counsel gives authority sentencing

sentence

opportunity to review all of the circum surrounding

stances an offense. We con binding strue the direction of rule as 518 S.E.2d magistrate courts and hold that in Beverly MUSCATELL, S. Jackson magistrate the circuit and courts of this Below, Appellee, Petitioner state, shall, judge magistrate sua sponte, person afford about to be right pass Commissioner, sentenced of allocution before CLINE, Jane L. ing sentence. Respondent Below, Appellant.

“The failure of the trial court follow the proper procedures sentencing for does not No. 22945. validity of affect the the defendant’s convic- Supreme Appeals Court of situations, tion. In similar Court has Virginia. West conviction, reversed the has but remanded Lawson, resentencing. See State v. 17, Submitted 1996. Jan. 119, (1980); W.Va. S.E.2d 438 State v. Decided June 1996. Bail, (1955); 140 W.Va. 88 S.E.2d 634 Self, S.E.2d 582 (1947).” Thompson, State v. 176 W.Va. Although point viewpoint analysis we Berrill's believe Mr. is irrelevant to our sincere, opinion view was we note that our issues involved in this case. his Jones, Jones, E.

Jerald West & Clarks- burg, Appellee. for Jordan, Attorney Paul E. Senior Assistant General, Charleston, Appellant. for ALBRIGHT, Justice. Cline,

Appellant, L. Jane Commissioner of Virginia the West Division of Motor Vehicles (Commissioner), appeals a final order of the County, Circuit Court Harrison Vir- West ginia, reversing an order of the Commission- operator’s er which had revoked the license Muscatell, Beverly appellee, Jackson S. period of six months for under the influence of alcohol. For the reasons we articulate, judgment we reverse County Circuit of Harrison Court and re- mand with directions. 12,1993, August

On between 5:30 and 6:00 p.m., Trooper Senior G.L. Brown of the West patrol State Police was on road Bridgeport, Virginia, West near the intersec- tion of 1-79 U.S. Route 50. He received a radio call from the Police Communi- Shinnston, Virginia, cation Office West requesting him to be on the for a lookout small, traveling damage toward Grafton. No to the vehicle was ob- blue Clarksburg Trooper area. from the Grafton served. informed that the driver of the Brown was questioning While Ms. Museatell and ob- Museatell, Beverly named S. Jackson license, taining Brown detected might involved in a hit and run have been strong alcohol “from odor of the vehicle accident, might be under the influence of person speaking and from her as she was alcohol, might proceeding toward ”, briefly me there about the incident ... At Clarksburg from Grafton. the time of the presumably involving the events at Grafton call, Trooper radio Brown did not know the argument questioned there. He Ms. Mus- conveyed of the information to him source drinking, catell as to whether she had been anonymous. and considered it drinking and she admitted to alcoholic bever- later learned that the information came from ages. trooper The testified Ms. Musca- Trooper Ferguson1, Paul who was investi- visibly upset, apparently tell was over a fami- gating reported hit-and-run accident ly dispute place which had taken before she appears Grafton area of West trooper left Grafton. The asked Ms. Musca- actually family argument to have been a get give tell to out of her so he could which did not involve hit-and-run inci- sobriety her some field tests. He noticed dent. eyes her were red and bloodshot and she had Shortly p.m., Trooper Brown after 6:00 crying. been traveling east on U.S. Route near interchange, 1-79 when he observed a woman Trooper Brown testified that he adminis- driving west on Route 50 in a blue U.S. preliminary tered a breath test with the Aleo Horizon, Dodge Plymouth coming Omni or trooper Sensor III The device. testified that

from the direction of Grafton and headed he had on been trained the device and that Clarksburg. trooper toward The turned “approved by my department the device was around and followed the blue car west on purpose determining pre- to use for the U.S. Route 50. The car turned off U.S. liminary analysis somebody’s much of how Bridgeport Hill Route 50 onto what is called had to drink for cause to arrest 50, going Clarksburg. or old Route toward on, just them or not on the one test.” The trooper The testified on direct examination preliminary result of the test indicated Ms. that the vehicle straddled or went across the Muscatell’s blood alcohol concentration was coming center line one time before back by weight. .210 driving lane. On cross-examination the trooper further testified that he then trooper acknowledged that he earlier had sobriety administered a series of field tests. improper asserted that he observed no driv- Trooper proceeded to administer the Brown ing by appellee at the time of the walk-and-tum He administered the test. Court, During argument oral before this (HGN), gaze nystagmus horizontal test for appel- as to also became unclear whether the trained, and recited he testified he simply lee crossed the centerline or moved the indications that did not achieve from one westbound lane to another and acceptable grade Finally, on it. again. trooper back further testified testified, trooper he administered the one- observing that after the “straddle” of the leg-stand her reactions in test and described centerline, pulled he the vehicle over and testimony. During his the walk-and-tum subject Beverly. asked the if her name was test, steady stopped walking Ms. affirmative, Museatell She answered and the herself, walking, lost her balance while trooper operator’s looked at her license. pivot correctly. During did not turn and Trooper Brown advised Ms. Museatell of the test, eyes could not stop by advising that a HGN Ms. Muscatell’s reason for the her smoothly follow a stimulus at less than a 45 complaint against type had been made driving coming degree angle gaze. from forward She exhib- vehicle she was that was from Ferguson, Trooper that was transmitted to 1. Paul a State Police officer in Graf- information ton, Virginia, West contacted the communication Brown. Shinnston, Virginia, provided office in West nystagmus distinct was for offense of presence revocation ited gaze. from forward. maximum deviation motor vehicle this State under the influ- test, During one-leg-stand Ms. Muscatell ence of alcohol. It was sent to Ms. Muscatell 20, 1993, August arms for balance and lowered her used her and further advised her ground. that, § foot She became frustrated to. in accordance with 17C- W.Va.Code 5A-l(c) trooper (1994),3 she could not do the and told privilege operate her test. motor vehicle in this was revoked.4 “That would have been all the field sobri- timely requested Ms. Muscatell an admin- ety give give I me tests would 28, 1994, hearing. istrative On March my probable cause to make decision of hearing hearing was held before a examiner not,” whether to arrest her Trooper of the Division of Motor Vehicles. placed testified. He her under arrest hearing, Brown testified at and Ms. driving under the influence of alcohol at 6:20 represented by Muscatell was counsel. It p.m. transported her to’ the Harrison appears transcript from the of the adminis- County Department, where he ad- Sheriffs hearing parallel trative that in the criminal secondary breathalyzer ministered chemi- proceeding against appellee, Trooper Brown were not cal test. These results entered into had asserted that at the time he hearing at the evidence administrative be- appellee August, doing she was testify cause Brown did not he ob- any improper driving and that he had no twenty served Ms. Muscatell minutes to stop appellee reason to other than anon- food, drink, ingested ensure she had not or ymous message radioed from the Shinnston by other materials mouth. above, headquarters. State Police As noted Trooper Brown stated otherwise in the ad- rights prep- Ms. Muscatell was read her in hearing, claiming ministrative signed aration for an interview. She high- had moved across the centerline of the counsel, form and indicated she did not want way immediately being stopped by before and she would not answer the standardized trooper. ended, questions on the form. The interview transported and Ms. Muscatell to the hearing, At the administrative Ms. Musca- County Harrison Correctional Center. tell moved to exclude the results of the HGN timely test, Trooper stating Trooper Brown filed the “statement Brown did not arresting required by qualifications give officer” law establish DUI his to the test cases to be submitted to Division and arrive at a conclusion as a result his argued Motor Vehicles.2 That statement included use of the test. Ms. Muscatell secondary scientifically accepted results test which were test is under into Virginia admitted evidence the administra- West law. Ms. Muscatell also hearing. Thereupon, tive proceedings the Commissioner moved to dismiss the revocation appellee’s grounds Trooper issued a notice of revocation of on the Brown did not began proceeding probable driver’s license which cause to her vehicle. She specified argued trooper now before us. That notice that the did not have a de- 17C-5A-l(b) (1994). had, § person 2. See W.Va.Code were administered in his or blood, an alcohol concentration of ten hun- more, percent by weight, dredths of one or 17C-5A-l(c) § 3. West Code person at the time the he or states, arrested she part: in relevant alcohol, was under the influence of controlled If, (c) upon examination of written state- drugs, substances or the commissioner shall ment of the officer and the tests results de- revoking person’s make and enter an order (b) section, scribed in subsection of this operate license to a motor vehicle in this state. person commissioner shall determine that was arrested for an offense described in sec- provided: 4.The revocation notice two, chapter tion article five of this or for an months, period: eligible municipal Revocation offense described in a in 90 ordinance days, you complete which has the same and thereafter until elements as an offense five, safety program described in said section two of article and treatment and thereafter any secondary according previous and that the results of test or order issued tests indicate that at the time the test or tests division. Rather, scription anonymous or model of automobile investiga- of the make source. an only justified permissible she was but knew that he was on tive when- information, the lookout for a blue automobile with ever the as corroborated argued work, independent police driver. Ms. also female Muscatell exhibits sufficient trooper reliability provide had been told the vehicle indicia of a reasonable accident, was involved in a hit-and-run stop, for the even in- where the damage anonymous. there was no evidence of on her formant remains complained automobile. that all of the She The Commissioner’s order states that provided by information was trooper observed Ms. Muscatell’s vehicle source. roadway, cross over the centerline of the 17C-7-l(a) (1951);5 § violation of W.Va.Code above, hearing As noted em- examiner this, said, justifies the Commissioner an offi- ployed by the Division of Motor Vehicles stopping cer a vehicle under the Fourth heard the case. The record does not contain Amendment. The Commissioner said that examiner, separate hearing order from the this Court has “that held an automobile ruling discussing on the issues the case or legitimate for some state inter- and related evidence conclusions of law. est.”6 The Commissioner concluded that Rather, order, signed the record contains an Trooper Brown had cause Commissioner, findings which makes Ms. Muscatell. The Commissioner’s order of fact and conclusions of law and addresses did not discuss the difference between the by appellee the various motions made at the testimony on direct and cross- hearing. respect admissibility With regard examination with to whether or not testimony relating Brown’s any improper driving by he had observed test, HGN the Commissioner denied this mo- appellee prior stopping her vehicle. appellee objecting tion of to the consideration of such evidence. The Commissioner relied hearing, At the administrative Ms. Musca- Barker, v. State W.Va. tell also moved to exclude the results (1988), Trooper and stated that Brown secondary chemical test forwarded to the Virginia had been trained at the West State arresting Division of Motor Vehicles with the Academy Police to administer the HGN test. report because foundation was not The Commissioner further stated the results established, properly trooper did given significance of the test were undue testify as to his credentials and his com- given evidentiary and were no more value Rather, petency to conduct the test. sobriety than the results of the other field hearing judicial examiner took notice of that that, tests. The Commissioner reasoned granted fact. The Commissioner the motion Barker, pursuant “[t]he to results of field secondary to exclude the results of the chem- sobriety competent tests are evidence on the presented ical test because “no evidence was question of whether a driver is under the to that ob- [Ms. Muscatell] demonstrate influence of alcohol.” twenty prior period served for a minutes test, during to the administration of the The order of the Commissioner also denied time she had no oral intake.” appellee’s regard legality motion with motion to the results on the other exclude Trooper having stopped appellee Brown grounds was denied. anony- based on limited information and an tip. mous The order states: Ms. Muscatell also moved to dismiss the grounds investigative stop proceedings An cannot be deemed on the there revocation solely probable unreasonable because the informa- was no cause to arrest her for upon, driving tion which it is based came from an under the influence of alcohol. The (1983); Virginia syllabus, Shingleton, § W.Va. 5. West Code 17C-7-1 states: State "(a) 668, 1, Upon roadways (1983); syllabus point all of sufficient width a 301 S.E.2d 625 right shall Totten, be driven half of W.Va. 289 S.E.2d 491 roadway....” Moore, (1982); syllabus point State v. 272 S.E.2d 804 syllabus point 6. The Commissioner refers to Flint, State v. 171 W.Va. 301 S.E.2d 765 motion, ability have affected her order denied that the time could Commissioner’s tests, probable perform sobriety stating preliminary established] “the evidence arrest.” The Commission- cause the although [sic] that the Commissioner asserted she Again, the Com- er reviewed this evidence. secondary intoxilyzer had not relied on the on the evidence that Ms. missioner relies conclusions, reaching she had test and drove Muscatell crossed centerline opinion discussed the same in her to such an returning to astride it for some time before likely extent that her decision was affected proper traffic lane. After she was It is from this those results event. trooper stopped, smelled the odor of appeals. Commissioner decision the beverages person, alcoholic about her she argues The Commissioner the trial consuming beverages, alcoholic admitted by excluding court erred the results of the red, eyes. bloodshot and she exhibited test from consideration at the adminis- HGN preliminary indicat- results of the breath test hearing, by holding trative ed a blood alcohol concentration level of two probable did not have Brown cause percent one hundred ten thousandths of appellee’s finding (.210)by weight, and Ms. Muscatell could not determining lower court erred there was successfully complete any of the field sobri- not sufficient other evidence after exclusion ety tests. The Commissioner’s order con- secondary intoxilyzer test to establish cluded that the had cause to driving a vehicle while under Ms. arrest Muscatell under the the influence of alcohol. Finally, influence of alcohol. the Commis- op- sioner concluded Ms. Muscatell had THE STANDARD FOR REVIEW

erated a motor vehicle under the influence of alcohol, immediately and she was ordered to appeal is an The case before us of an her driver’s surrender license the West administrative order. Before the Circuit Division Motor Vehicles. County, Court of Harrison that review is W.Va.Code, provisions controlled appealed Ms. Muscatell the Commission- (1964), 29A-5-4(g) § er’s order to the Circuit of Harrison as follows: Court County. The circuit court concluded that the The court affirm the order or deci- results of the HGN test should not have been agency sion or remand the case for evidence, holding reliability admitted as reverse, proceedings. further It shall va- pursuant was not established to State v. modify cate the order or decision of the Barker, (1988), 179 W.Va. 366 S.E.2d 642 agency rights peti- if the substantial of the Trooper and further held Brown did not petitioners prejudiced tioner or have been probable cause to Ms. Muscatell’s findings, because the administrative infer- and, therefore, the arrest was unlaw- ences, conclusions, decision or order are: ful; secondary that after exclusion of the (1) In violation of constitutional or statu- test, chemical insufficient evidence existed to tory provisions; or by preponderance establish of the evidence (2) statutory authority In excess driving that Ms. Muscatell was under the jurisdiction agency; or or that, influence of alcohol and based on the (3) upon procedures; Made unlawful or law, applicable facts and the Commissioner plainly wrong. reaching In (4) was its conclu- law; by Affected error of or other sion, Trooper the Court below found that reliable, Clearly wrong in view of the stopped appellee had on Brown the basis of probative and substantial evidence knowledge information for which he had no record; whole or reliability, Troop- as to the source or that the (6) Arbitrary capricious or character- stopping appellee er had admitted on the by clearly ized abuse of discretion or un- basis of the information and not warranted exercise of discretion. appellee doing any improper because driving, appeal of damage appellee’s that no car was On an administrative order court, by stop, from a circuit this Court is bound the time of the observed upset crying appellee statutory condition of the standards contained W.Va. 29A-5-4(a) (1964) § ques Code and reviews allows the admission of the results of the novo; presented findings tions of law de of HGN test as evidence the driver was under fact the administrative officer are accord the influence of alcohol. nothing We find reviewing ed deference unless the court be the record that Trooper indicates Brown at- findings clearly wrong. lieves the to be Phi tempted to appellee’s estimate blood alcohol Gatson, lyaw 195 W.Va. content with the HGN test. There is no (1995), § 29A-5-4(g) W.Va.Code indication the gave any the HGN test (1964). greater value than of the other field sobriety tests he administered. In cases where the circuit court has Cline, amended result before the Boley administrative In 193 W.Va. agency, this Court reviews the final (1995), order of S.E.2d 38 HGN test results were the circuit court and the disposition ultimate admitted to appellant indicate the was under by it of an administrative law case under an the influence of though alcohol. Even much abuse of discretion standard and reviews damaging appellant evidence to the questions of law de novo. Burnside v. Burn there was excluded at the administrative lev- side, el, 460 S.E.2d 264 we affirmed the license revocation based trooper’s

on the detection of the smell of alcohol, HGN TEST observation of weaving the vehicle highway, and the HGN test which begin with the contention of the Com- appellant indicated was under the influence missioner that the trial court in ruling erred of alcohol. (HGN) gaze the horizontal nystagmus test should have been excluded as evidence case, In this Trooper we conclude that hearing. respect administrative With to the Brown properly testify allowed to re- test, HGN the court below concluded: garding the results of the HGN test as a field Nys- results of the Horizontal Gaze sobriety test. We have allowed the results to tagmus test should not have been admitted purpose be used for this past; in the there- as Respondent evidence because fore, the lower court’s rationale for exclusion there was no evidence adduced to establish Trooper error. testimony Brown’s re- its scientific reliability required by garding his administration of the HGN test 194], v. Barker [179 W.Va. 366 S.E.2d 642 and his properly conclusions from it (W.Va.1988). subject considered the trier of fact imposed by limitations Boley. Barker and Barker, the driver of an automobile was convicted third offense under trial, the influence of alcohol. At the officer THE STOPPING OF THE VEHICLE testified that “based on the results of the Next we ruling review the circuit court’s HGN test he estimated Barker’s blood alco- finding Brown did not have hol level at .20%.” 179 W.Va. at cause to and the S.E.2d at 644. The officer offered no evi- contrary. Commissioner’s conclusion to the dence to reliability demonstrate the scientific We conclude that both the Commissioner and of the HGN or principle test the scientific applied the circuit court wrong legal upon which the test is based. This Court standard in stop- their consideration of the concluded “that if reliability even of the ping of the vehicle. We conclude further demonstrated, expert’s HGN test is testi- that the Commissioner failed to make an mony performance as to a driver’s on the test adequate analysis of the facts from which only is admissible as evidence that the driver this Court or the circuit court could deter-

was under the influence. Estimates of blood mine stopping appellee’s whether the vehi- alcohol content based on the HGN test are cle proper was lawful under the standard. 198, inadmissible.” 179 W.Va. at 366 S.E.2d at 646. proper standard for determin bar,

In the case at ing propriety the trial court Brown’s holding misconstrued of Barker. appellee suspicion Barker is the reasonable stan- 596 Stuart, 6 and Section States Constitution 192 W.Va. United adopted in State

dard7 Cline, Virginia Consti (1994), of Article III of the West 428, and Hill v. 452 S.E.2d police require that the 436, In tution nevertheless 457 S.E.2d 193 W.Va. provide some mini Stuart, articulate facts which we said: mal, objective justification for the may stop a Police officers Sokolow, Specifically, in the Court stated: investigate they if have an articulable rea- course, officer, must be able to “The the vehicle is sub- suspicion that sonable something more than an ‘incho articulate person in the vehicle ject to seizure or a suspicion or unparticularized ate and committed, committing, or is about has “hunch”’_ Fourth Amendment a crime.... to commit objective requires ‘some minimal level Stuart, supra Syl. pt. part, State v. justification’ making stop.” 490 for added). holding This overruled (emphasis 7, 109 1585, 104 L.Ed.2d at at S.Ct. at U.S. Meadows, 170 W.Va. State v. (Citations omitted). The criteria 10. (1982), required probable cause to which suspicion stop a vehicle are reasonable suspicion reasonable stan- a car. The Terry. very under similar to street being: dard was defined driving, or evasive Factors such as erratic prob- demanding standard than less “[A] appearance of the vehicle or its occu only in the sense rea- able cause pants, the area where the erratic or eva suspicion sonable can be established place, experi and the sive takes quantity or information that is different significant are ence of the officers required to establish content than determining suspicion. reasonable cause, in the probable but also sense Stuart, at n. from infor- 192 W.Va. can arise reasonable n. 10. less than that re- S.E.2d at 891 mation that is reliable quired to show cause.” 496 U.S. the record and We have examined at 110 L.Ed.2d at 110 S.Ct. parties in the case sub contentions principles judice apply in an effort to these 432, 452 at 890. S.E.2d Appellee to the instant case. contends conclusion, reaching In its the Stuart know Trooper Brown testified that he did not evaluating defined the test for Court also information and the source of the observed application of the facts in the “reasonable damage appellee’s no vehicle which would suspicion” standard: allega support hit-and-run (The allegation hit-and-run later tion. evaluating particu- whether or not When Therefore, wrong.) appellee turned out to be suspicion,

lar facts establish reasonable argues quantity of the information was totality of the cir- one must examine inadequate ruling and the her vehicle cumstances, quan- includes both circuit court should be affirmed. The tity quality of the information known Commissioner, hand, argues on the other police. only made the arrest not Stuart, Syl. pt. supra. State v. because he received a “be on the lookout” Stuart, guid- this Court offered further alert, also because was observed but parameters of a ance on the constitutional § him to have violated W.Va.Code 17C-7- suspicion” stop, “reasonable as follows: 1, by straddling crossing centerline. Although suspicion is con- “[reasonable] wrongdoing by speaks directly to the issue of an siderably proof less than Stuart Stuart, evidence,” Monongalia anonymous tip. In the preponderance a of the see Sokolow, 1, 7, Emergency Centralized Communications United States v. 490 U.S. 1581, 1585, Agency anonymous stating call 104 L.Ed.2d received an 109 S.Ct. (1989), pulled into the Sab- Fourth to the that a drank driver had the Amendment probable regarding stop appel- the evidence under a cause 7. In her discussion the of evaluaté lee, the Commissioner discussed the reasonable standard. However, suspicion proceeded she to standard. police quent supported McDonald’s. caller stated the work or facts ration The other erratically reliability, thereby, anonymous in tip driver had been the its and the police wrong supplied sufficiently justify direction and the was corroborated to the investigatory type stop. of car and license number. The call was note first the Morgantown trooper to transferred the Police De- knew at least that the automobile to color, partment, police and two officers were sent watched for blue in be was as was spotted Second, area. The appellee’s. appellee’s to the officers the vehicle automobile traveling and noted the car was at 25 miles by trooper was indeed the observed to be per straight 35-mile-per- hour on a in a travelling road Clarksburg, toward gen- from the Sunday zone morning. Grafton, hour at 1:01 a.m. on reported eral direction of in the vehicle, Upon stopping approaching and the anonymous Third, call. we note that there is strong officers detected “a smell of alco- substantial confusion in the record as to subject perform The to hol.” was asked and whether the of the make or model automobile test, sobriety failed a field after which he was be watched for to under “lookout” call stop placed under arrest. The and (1) arrest trooper through communicated to challenged were because the defendant testi- anonymous by call and was verified stop he did fied at McDonald’s but rather trooper, by work, independent police to Subway get had to he sandwich. by be the same make or as that model driven police When the inventoried his Fourth, appellee. appellee’s it is clear that Subway Also, sandwich found. in vehicle had not been involved a “hit-and- stop videotaped by events were accident, by anonymous run” as advised in camera one the officers’ vehicles. How- call, and, event, any trooper did ever, court, prior proceedings in to the trial verify any damage appellee’s to automo- videotape The trial was erased.8 court investigatory effecting bile before suspi- determined the officers reasonable had that, appear solely would It on the basis cion make the but indicated the court factors, investigatory four these an only anonymous would “consider the call as justified. just appellee could not If be these having putting ‘the effect of the officers on factors were held be an sufficient make ” the scene.’ S.E.2d at investigatory stop, one could conclude that This Court 889. concluded the officers protections by afforded the Fourth suspicion had reasonable to make the investi- Amendment to the States Constitu- United stated, gatory by and in the words cited tion Section 6 of the West Con- the Commissioner her administrative or- illusory are more than real. stitution With in Stuart: der factors, respect clearly there these is al- police conclude [W]e that for officer to subsequent police no work or most other investigatory stop an make of a vehicle the reliability support facts which officer must have an articulable reasonable anonymous tip thereby sufficiently cor- committed, that a been crime has justify roborate it. To hold otherwise would committed, being about to or is be com- stopping any light blue car headed evaluation, making mitted. an such east driven a female. may rely upon anonymous However, only relies not Commissioner subsequent police if work call or other alert, on the “be on the lookout” but also on and, reliability, support thereby, it facts its trooper the observation of a sufficiently justify corroborated § 17C-7- violation of W.Va.Code investigatory stop under reasonable- 1, by straddling crossing the centerline of suspicion standard. highway “for distance before some re- 192 W.Va. at at 893. S.E.2d (Record, turning proper traffic lane”. 13.)

Accordingly, appears fact It if the p. the mere did of an indeed observe such a misdemeanor violation Brown acted the basis road”, dispositive presented. issue his would tip is not “rules question clearly justified event. we presented is whether When subse- hearing magistrate videotape previously had been viewed at a court. weighed and and not over- to find evi- been considered the record substantial examine Indeed, reviewing trooper’s or a looked concealed. support in of the observation dence violation, agency findings a the find conflict. As court cannot accord a we such they are unless noted, trooper examination deference to which entitled direct the under given to at least critical appellee’s observe vehi- such attention is the that he did testified upon agency facts the has briefly straddling crossing or the center- which acted. cle examination, however, the Upon line. cross us, the before the ease Commis appears to have testified that the trooper sioner one conclusion the record reached he time upon which relied at the information hearing prepared examiner and before the limited to the information the another. can the circuit court reached anonymous phone call. contained in the court, conclude, not did the circuit that the as Here, of the immedi- observations clearly Commissioner’s conclusion ately making the are critical to before neither, however, wrong; can we conclude It deter- legality of the must be sup conclusion is Commissioner’s justified by not that the mere mined by ported evidence when there is substantial pretext that would mock constitutional us conflict in Brown’s before a direct protections all to which citizens are entitled. testimony, critical for which we have before Nothing findings of the fact Com- by explanation no or evaluation hear us why this Court the Com- missioner advises ing or the Commissioner. Accord examiner resolved this conflict in the testi- missioner ingly, we hold that where there a direct mony trooper in favor of the of the direct conflict in evidence an the critical disregarded testimony and the cross-exami- act, agency agency may proposes to not separate have no nation. We evaluation one of the evidence elect version over the by hearing examiner who evidence conflicting unless the conflict is re version observed the demeanor witness on by decision, and articulate solved a reasoned said, before us. We have with critical issue weighing explaining the and choices made respect agen- to decisions of administrative capable rendering and its decision of review following findings of cies from fact and con- by appellate an court. by proposed opposing parties, clusions of law case, In this the circuit when court substi- agency must rule on issues judgment tuted its on the evidence in conflict by opposing parties raised with sufficient agency taking for that without either reviewing clarity a that all to assure court remanding additional or matter evidence findings have been those considered for further consider- Commissioner See, with, or dealt not overlooked concealed. ation, taking including possible of addi- Mary’s Hospital St. v. State Plan- Health evidence, did tional the court below not meet ning Development Agency, 178 W.Va. clearly wrong standard for review of the (1987). also We have agency and abused its discretion. decision requiring agency said an order an validity investigatory stop in a be of an accompanied contested case to While the law, if findings clearly “the would be established of fact conclusions of reasoned, contemplates observing makes law articulate deci- after violation law, underlying ambiguity regard- sion forth the in the record which sets eviden- tiary ing immediately agency trooper’s lead the to its con- observations facts which clusion_” Syl. pt. part, stop, before the which is resolved Citizens below, findings justifi- cannot stand Banking Bank v. W. Va. Board and Fi of fact as Institutions, investigatory stop sup- cation for or nancial totality plemental considered purpose S.E.2d 719 of these fact Accordingly, to burden an of the circumstances. we re- rules is administrative agency proving recording verse and this cause the circuit the obvi remand reviewing purpose ous. The is to court with directions matter be re- allow (and public) to manded to determine in court ascertain that the to the Commissioner propriety of agency the first the investí- critical issues before the have indeed instance stop proceedings ing gatory constitutionality investigatory and for other consis- the anof stop. opinion. tent with

First, a review of the facts: Between 5:30 INSUFFICIENT EVIDENCE p.m., trooper and 6:00 the received a radio call1 from the State Police Communication assigns The Commissioner also as error Shinnston, Virginia, request- Office in West holding court’s which “[a]fter the trial states ing small, him to be on the for a light lookout excluding intoxilyzer the the test results of traveling blue vehicle Clarksburg toward [here, given appellee, to the Petitioner the from the Grafton area. He was also in- Muscatell], not Ms. there was sufficient other formed that the driver of vehicle was preponderance evidence to establish of Beverly Muscatell, named S. Jackson and driving the evidence that she was a motor might that she have involved in been a hit vehicle under the influence of alcohol.” In accident, might and run be under the of light the remand of this case for further Next, shortly of alcohol. influence after 6:00 propriety consideration of the of the investi- p.m., trooper driving observed woman gative stop and our clarification here of car, small thought Dodge blue be a admissibility testimony regarding of Plymouth Horizon, Omni or traveling toward test, we need address HGN this issue Clarksburg. trooper The also testified that this time. We do note that the issue of the the vehicle “straddled or went across the admissibility intoxilyzer test was re- coming center line one time before back to solved below and is not our disturbed trooper lane.” pulled The then today. admissibility pre- ruling the car over and if asked the driver her liminary breath test results and field Beverly, affirmatively name was to which she sobriety dependent upon tests is now replied. Additionally, oper- he looked at her propriety investigatory With though ator’s license. Even ob- tests, respect sobriety to the field we note damage ques- served no while finding upset court the circuit tioning name, her as to her he did detect the condition at the time of con- strong odor alcohol “from the vehicle and duct those tests was considered person from speaking as she was to me assessing reliability, Commissioner in their incident_” briefly about there finding and we commend that to the Commis- upon remand, sioner time the Com- majority analyzes whether the initial may missioner deal with issue thus raised utilizing following valid law appropriate.9 such manner as is deemed syllabus point opin- enunciated five of the ion: assigned, For reasons we reverse order the Circuit Court Harrison Coun- police investiga- For a officer to make an

ty proceedings and remand the con- case tory of a officer must have opinion. sistent with this an articulable reasonable that a committed, being crime has been com- Reversed and remanded directions. mitted, or is about to be committed. evaluation, making such an WORKMAN, Justice, dissenting. rely anonymous an call if subse- respectfully majority I quent police support dissent from the work or facts other and, opinion reliability, because it if thereby, sufficiently fails address and its apply appropriate justify investigatory standard for determin- corroborated notes, majority note the distinction between reasonable 1. As the later learned suspicion justifying investigatory stop Trooper Grafton, call came from Paul probable cause to effect a lawful On arrest. Ferguson, a State Police officer West remand, appel- the issue of cause for reported Virginia, investigating a who was hit- investiga- arrest lee's will not be confronted if the ultimately and-run accident. The accident improper tory is found to be need family argument to be turned out that did not only if is found to been considered involve a hit-and-run incident. valid. 615, 9, H., Andrew Va. 621 n. reasonable-suspicion stan- v. Todd 196 W. the

stop under 545, 474 551 n. 9 S.E.2d dard. concludes, however, majority ultimately determining bright is no line for There necessary the rec- is because that a remand investigatory stop crosses the line when an inadequately developed below. This ord was constitutionally unreasonable. and becomes upon premised is the to remand decision has Supreme States Court clear- The United law, upon premised the it is above-mentioned “[mjueh ‘bright ly as a line’would stated trooper’s the majority’s determination that desirable, in an evaluating whether inves- stop subjective making for the is vital intent unreasonable, tigative detention common validity stop. the constitutional As ordinary experiences sense and human must majority stated must be determined “[i]t the rigid govern over criteria.” United States v. justified by pretext stop mere that the 685, 1568, 675, Sharpe, 470 U.S. 105 S.Ct. protec- the that would mock constitutional (1985). Therefore, 1575, L.Ed.2d 84 605 to which all citizens are entitled.”2 tions stop depends on all a is valid the whether stated, in majority the is incorrect its Simply circumstances, surrounding and each case this in the context of examination of issue Thus, facts. in must be decided on its own subjective trooper’s intent was at

what the case, present factfinder had to re- the Contrary stopped vehicle. the time he solve the abstruse issue of reasonable articu- majority opinion, an examination stop suspicion in of a a lable the context it that matters not whether the law reflects moving high- vehicle on stretch of an isolated stopped the to a traffic vehicle due way by police officer faced with individ- violation or whether he the vehicle drunk, may who have ual who been anonymous tip. ground Either based on an culprit of run and who been the a hit and support stop, is sufficient to because the personally as across officer observed Supreme very Court has re- United States line. the center turn cently should stated decision trooper’s stopping are some whether the conduct Nevertheless there standards reviewing circum- was reasonable when the that should be honored. When the vehicle objectively.3 legality stop, accept of a vehicular we are to stances of are viewed — States, U.S.-, v. factfinder’s See Whren United assessment evidence 1769, (1996); clearly 135 89 unless it is erroneous and de 116 S.Ct. L.Ed.2d State review perhaps majority's accept conduct See 2. I could ultimate with such and information. Scott v. States, 128, 137, opinion resolution of this case if the did not 436 U.S. 98 S.Ct. United pretext (1978) erroneously (stating venture into area of as 56 L.Ed.2d 168 "al- possible invalidating exception evaluating alleged for an otherwise law- basis most without vio- stop. inquiry quite focus of should be ful lations of the Fourth Amendment the Court has specific: does the record evidence demonstrate objective first undertaken an assessment of an the officer had a reasonable articulable sus- officer’s actions in of the facts and circum- majority Thus, picion him”). expanding vehicle. The resolves upon known to stances proceed inject concepts into West criminal enunciated the United States subjectivity jurisprudence newa dimension of Supreme v. Court in Scott and Whren United - already confusing States, with -, an area overburdened U.S. 116 S.Ct. opinion certainly (1996), constitutional standards. This in order to determine L.Ed.2d unnecessarily adds to the confusion. stop, only of a need find lawfulness a court (1) under the circumstances a reasonable officer purposes investigat- would vehicle for application objective 3. The standard in- law, ing specified a violation a determination of whether a reasonable volves scope responsi- detaining within the officer’s anyway, legal stop officer could have made a bility to enforce that law. A court need not apart subjective suspicions. his or her from specific question answer the more of what was subjective do not examine the motivations of specific police reason that motivated this job assign- particular individual officers their otherwise, effectuating ments, To do would subject change of which both are examination, Instead, impose particular akin to a simply sub- we time. should concentrate test, rejected jective expressly was suspect, the conduct of information stop, will be later in the possessed by Whren. As text, discussed main at the time of the standard, majority applied authority if the had and whether reasonable officer unnecessary. would to do so would the vehicle when confronted remand have been reasonably the ultimate determination of [the action] novo reason- in scope related justified ableness under our Constitution. State v. to the circumstances which the in (1995); Lilly, 194 place.” Terry, W.Va. 461 S.E.2d 101 terference in the first Stuart, 20, 88 U.S. at S.Ct. (1994); States, also see Ornelas United opinions, recent Our as well recent — U.S.-, 116 S.Ct. 134 L.Ed.2d opinions of the Supreme United States (1996). repeatedly 911 We have stated that Court, dispose of Appellant’s argument weight given to the as well evidence as stop that the of initial her vehicle was the inferences and conclusions drawn there- pretextual and therefore invalid. Under cor- from, are for matters the factfinder. Once a analysis rect constitutional a stop traffic is below, decision has been reached we inter- if stop valid is based on an observed pret coign from a vantage the evidence of police traffic violation or if the officer has side, winning most to the in favorable this suspicion reasonable to believe that the driv- LaRock, case the Commissioner. State v. er of the is in criminal involved activi- 294, 304, 613, 196 W.Va. 623 ty. is particu- It thus irrelevant whether the (1996). here, pertinent More if the lower lar stopped officer “would” have the vehicle necessary tribunal “did not make find- according general practices police of offi- ings, may the matter either be remanded police departments. cers or equally It is appropriate with [lower directions or the tri- irrelevant whether the officer have oth- suppress bunal’s] denial a motion to up- subjective er stopping motives for the vehi- if held there is reasonable view the applied trooper’s stop cle. As ap- support Lacy, evidence to it.” State v. 196 vehicle, pellee’s compel above standards 104, (1996) 110, 719, W.Va. 468 725 S.E.2d that conclusion the Commissioner was added); (emphasis Farley, see v. 192 clearly wrong not in determining that 247, W.Va. 452 S.E.2d 50 stop was valid. Unquestionably, stop a routine traffic is a ease, In the instant testified on seizure under both Fourth Amendment and direct examination that the reason he Virginia stop West Constitution. a Such Appellee’s vehicle was because analyzed detention, investigative is an “briefly straddling he observed the vehicle only supported by which need be a reason- crossing On the centerline.” cross-examina- suspicion person able and articulable tion, however, majority noted that “the engaged and vehicle is seized in criminal trooper appears to have testified that Pennsylvania Mimms, activity. 434 U.S. information which he relied at the time 106, 330, (1977) 98 S.Ct. 54 L.Ed.2d 331 was limited information (finding that a vehicular and frisk of in phone contained call.” occupant governed by car’s is reasonable sus- conflicting testimony, Based the ma- Ohio, 1, picion Terry set forth 392 U.S. jority concludes that the “observations 1868, (1968)); 88 S.Ct. 20 L.Ed.2d 889 trooper immediately before the are criti- Stuart) 431-32, at 452 S.E.2d at legality stop.” cal to the conclu- Such (finding investigative stop 889-90 that sion, brief an which translates to examination of permissible investigating is when officers stopping officer’s motivation for suspicion grounded have reasonable artic- direct contravention person stopped Supreme ulable facts and is involved or Court’s most United States recent activity).4 engaged pronouncement has been criminal on this issue in Whren. — at-, employed two-step inquiry evaluating a when See U.S. 116 S.Ct. at 1773-74; detentions, Robinson, investigative considering such see also United States v. justi- first “whether the officer’s action was 221 n. 94 S.Ct. 470 n. U.S. second, inception”, (stating fied its and “whether 38 L.Ed.2d 427 traffic- It is well-established that constitution does seizure within the federal and West Con- prohibit only requires only seizures but but all those are stitution it the officers 111-12, Lacy, specific give See unreasonable. 196 W.Va. at rise to a articulable facts person investigative stop a 468 S.E.2d at 726-27. An un- reasonable commit- has brief, Terry, police, committing der nonintrusive is a ted or crime. ap- at 1922-23. officer rendered invalid S.Ct. arrest would violation pretext for nar- investigate that it was “mere the infor- proached fact the vehicle to search”). cotics tapped on the car window report, mant’s occupant open the asked the door. Whren, plainclothes policemen patrol- window, and occupant rolled down the car drug activity in its an ling an known for area car reached into the and removed truck observed a driven unmarked car fully occupant’s from the loaded revolver waiting stop sign aat petitioner Brown waistband, informant indicated unusually long The truck where the period an time. signaling, sped off suddenly, weapon without had not been visible would be. The — —-, speed. U.S. at “unreasonable” from the vehicle. The to the officer outside stopped the policemen at 1772. The S.Ct. charged un- occupant was arrested vehicle, assertedly about to warn driver possession pistol.5 Id. at lawful approaching Upon the traffic violations. at S.Ct. 1922-23. truck, bags plastic of officer observed petitioner in crack cocaine the Whren’s argued that initial sei- respondent The the petitioners were arrested. Pri- hands. The justified pistol by the zure of the was not trial, they suppress the evi- or to moved to tip. rejecting respon- Id. informant’s In the maintaining that the had not been dence argument, Supreme the Court stated dent’s justified suspicion by either reasonable a can that reasonable cause for and frisk they to cause believe that were supplied by be based on information another activity. engaged illegal drug-dealing in Id. person. Id. at 92 S.Ct. at 1923-24. investigatory stop, upholding In the the court Specifically, the Adams stated the Supreme stated that constitutional Court indicate that “while the Court’s decisions stops reasonableness traffic does de- in- tip informant’s unverified have been pend of the indi- on the “actual motivations sufficient for a narcotics arrest or search -, vidual Id. at 116 officers involved.” warrant, enough carried indi- the information holding, In so the court S.Ct. at Whren reliability justify to the forc- cia of officer’s previously princi- relied the established (citations omit- ible of Williams.” Id. “ ple the does that: ‘the fact that ted). is hypothecated of mind which the state justi- provide legal the reasons which White, Likewise, in 496 U.S. Alabama action not in- fication for officer’s does (1990), 325, 110 L.Ed.2d 301 S.Ct. 110 long the action taken as as the cir- validate anonymous police telephone received an cumstances, objectively, justify viewed respondent leaving tip would be -, at 116 at 1774 action.’” Id. S.Ct. in a particular apartment particular at a time Scott, (quoting 436 at 98 S.Ct. at U.S. anonymous particular vehicle. The caller 1723). police respondent told motel the also ascertaining trooper’s whether con- go posses- would to and that she would be in judice case duct in the sub was reasonable immediately went police sion of cocaine. leading to the inves- when the circumstances building vehi- apartment and saw the objectively, tigatory stop are I turn to viewed ob- They cle the caller. then described Supreme factually other Court cases that are building respondent served the leave instance, analogous. For in Adams v. They proceeded to get into that vehicle. Williams, 92 S.Ct. U.S. along follow the most direct route to the (1972), officer, L.Ed.2d 612 while on caller, however, they motel described area, duty high-crime approached by just her vehicle before she reached an informant who him that an individual told car A consensual search of the motel. nearby carrying nar- seated in a vehicle was ultimately gun drugs. respondent at cotics and had a at his waist. Id. 144- revealed pant’s discovery person and U.S. at 92 S.Ct. 5. A arrest led to the car. 407 search incident to quantities at of heroin on the occu- 1922-23. substantial marijuana pleaded guilty6 possession eious or driving unlawful 327, 110 Id. and cocaine. at S.Ct. at 2414-15. exist, exigent where circumstances the situa- is tion different. While there is still a chance In deciding tip, that an as cor lie, tip Constitution does not work, by independent police can roborated require prerequisite investigative as a for an reliability exhibit sufficient indicia stop that an officer be certain. Nor should investiga furnish reasonable for an we overlook the additional factor that tory stop, Supreme reiterated that Court alleged driver was involving suspicion, have been un- cases reasonable [only] requires ‘“[t]he Fourth Amendment der the influence of alcohol. Drunk drivers objective justification” “some minimal level of dangerous are so peace welfare 329-30, stop.’” Id. making community tip person that a that a (quoting S.Ct. United States v. Soko under operating the influence while a vehicle low, 1, 7, 1581, 1585, 490 U.S. 109 S.Ct. special should be entitled to consideration. (1989)). Further, L.Ed.2d 1 the White court As a coupled realistic matter this information indicated that order to establish whether illegal driving, presents with observed a com- anonymous tip sufficiently corrobo investigative pelling case for an rated, totality ap of the circumstances Reviewing legality investigatory proach applied, “taking was to be into ac Whren, in light the instant case count the facts known officers from White, Adams and is evident that observation, personal giving anony and trooper’s stopping conduct in the vehicle was tip weight mous it of deserved its reasonable when the circumstances sur reliability indicia through as established rounding stop objectively. are viewed independent 330, police work.” 496 U.S. First, the reasonable standard was 110 S.Ct. at 2416. certainly stop since met the decision to Supreme Court concluded that clearly vehicle could on based information tip White reason- established received from State Police Communication suspicion, stating “[i]t able is true that Office Shinnston. v. See United States every by tipster not detail mentioned was (4th Moore, Cir.), 1105, 817 F.2d 1107 cert. verified, such as the name the woman denied, 965, 456, 108 484 U.S. S.Ct. 98 leaving building precise apartment or the (1987) (finding L.Ed.2d 396 that call dis left; from which she but the officers did patcher suggests existence of sus reasonable a left corroborate that woman the 235 build- picion, finding police officer is not ing got particular into the vehicle constitutionally required to be “certain” that was described the caller.” Id. at 110 stop). crime has occurred when he makes Moreover, at 2416-17. S.Ct. Court found “ contrary, police To the the failure important anonymous [tip] ‘the con appropriate officer to action take to relating just range tained a details to properly identified vehicle would constitute a easily existing facts obtained and conditions Vines, duty. 70 tip, to dereliction of See at the time of the but future actions of Taft (1995) (“Indeed parties ordinarily easily to predict third 312 ... F.3d ” (quoting ed.’ Id. at at 2417 dispatch S.Ct. on the refused act radio order Gates, 213, 245, 103 car, Illinois U.S. S.Ct. negligent would have been to be (1983)). 2317, 2335-36, 76 L.Ed.2d duties.”); in the their United States v. Randall, (7th Cir.1991) 947 F.2d anonymous tip, It is that an consid- true (finding Terry limits of not exceeded wholly regard ered to its content or without police converged and stopped when on sus context, adequate is not deemed an basis for description when pect’s vehicle car matched Stuart, Terry stop. See dispatch in radio in a However, vehicle involved tip 452 S.E.2d at 889. where the crime). Similarly, corroborated, case, trooper’s was conduct to some extent .in justified equally suspi under the fitting reasonable where observed if description tip suspi- cion of the vehicle was observed standard 327-28, respondent’s guilty plea 6. The sion 496 U.S. at 110 S.Ct. at conditioned motion. right appeal suppres- 2414-15. the denial of her of a trooper’s observation precipitated

traffic violation. trooper’s

Thus, hinge opinion on the why testimony as he

“conflicting”7 ruling to issue a based intent, subjective trooper’s which is

on the error, appellate

irrelevant. Absent clear treat factfinder’s choice of

court should testimony to what be-

which witnesses and appeal. For all conclusive on

lieve as reasons, decision

these the Commissioner’s upheld. have been

on this issue should ambigui-

remanding to resolve “the this case

ty regarding trooper’s the record ob- immediately stop,” before the

servations wrong

majority applies standard for de-

termining investigatory whether the

legal, and stretches the boundaries Section III of Constitu- Article the West inconsistent

tion to make our boundaries I must Fourth Amendment. dis-

sent.

474 S.E.2d 534 ex rel. Daniel

STATE West Jr., Petitioner, EADS,

W. DUNCIL, Warden, Huttonsville

William C. Virgi- Center, and

Correctional the West Parole,

nia Board of Re- Probation

spondents.

No. 23279. Appeals

Supreme Court Virginia.

West

Submitted March 1996.

Decided June 1996. rather, trooper's testimony expanded upon on it. cross-examination direct; testimony did not conflict with his

Case Details

Case Name: Muscatell v. Cline

Court Name: West Virginia Supreme Court

Date Published: Jun 14, 1996

Citation: 474 S.E.2d 518

Docket Number: 22945

Court Abbreviation: W. Va.