State v. Hopkins

$19,050.00 сash, large stating In amount of that it to be committed. Kaneshiro was Currency, political in 73 Haw. party. United States funds raised for a Mexican case, P.2d 256 a box was mailed from Hon- present plausible In the an even more Honolulu, Palmero, olulu to San Francisco. it was explanation was offered subjected agriculture inspection, ato routine further offer to obtain verification from Ms. it, by shaMng inspector thought it coop- Rivera. We have earlier discussed his seeds, plants, contained or other items. in consenting bag eration to the search of the opened, pep- it to contain When was found money. dog that contained the While the percorns plastic bag. around a heat-sealed may suspicious “alert” constitute a circum- $19,050 bag currency. in Inside the stance, we do find that it not constitutes contacted, Honolulu were cur- probable cause to make a substantial connec- rency by dog was sniffed a trained to detеct currency illegal drug tion between the and an dog presence narcotics. The “alerted” to the part transaction on the of Palmero. Much illegal package, substances in the but no petitioner’s the same is true of the assertion illegal drugs were found. 832 P.2d at 257. charge that Palmero onwas bond from a attempted probable The state to sustain conspiracy to distribute cocaine. It would alert, pointing dog cause that, appear information, absent additional packing concealing but to the manner of this does not create a sufficient nexus to tie currency shipment. and its method of currency illegal drug to an seized trans- rejected The court these facts as insuf- action on the of Palmero. probable ficient to establish cause: reasons, foregoing For the we find the Here, while the manner which the probable seizure be based on insufficient money packaged shipped may and, therefore, cаuse set aside the forfeiture suspicious, have been even combined with order. test, dog the results of the sniff the State Reversed. present sup- did not sufficient evidence to finding port a that a covered offense had BROTHERTON, C.J., participate. attempted, been committed or even nor to MILLER, Justice, sitting by Retired support finding probable cause for the temporary assignment. seizure. 832 P.2d at 259. $1,354,-

Similarly, in State ex rel. Means v. Currency, United States P.2d 4-50.50 Bustamante, (Okl.App.1992), a Raul 453 S.E.2d 317 brother-in-law, Medina, along with his a Mr. Virginia, Plaintiff STATE West stopped improper change on an of lane. Below, Appellee, $30,000.00 suitcase, Some was found wrapped in brown This mon- three bundles. ey subjected drug sniffing dog, to a who HOPKINS, Brian Defendant subsequent, thorough A “alerted”. more Below, Appellant. money remaining search found the No. 22079. panels ear. side and back seat of the No drugs drug paraphernalia were found Appeals party in the vehicle had the vehicle. Neither Virginia. court, drug ever had cоnviction. The Sept. Submitted statement, cryptic concluded: rather Decided Dec. proof offered no that the curren- The state Part, Dissenting Concurring in cy was connected to violation of the Part, Opinion Cleckley of Justice Act, thus, properly the trial court de- 31, 1995. Jan. nied the forfeiture.

841 P.2d at 618. Means, pointed the court out that the explanation for occupants

car had offered an

485 said, “Man, you’re

cigarettes, slick; you. you I didn’t see How see me you persons do Where were at?” The that? accompanied who told Mr. nine, Pyatt cigarettes aisle makeup spray and hair area. Pyatt Hopkins Mr. then told Mr. he was shoplifting. Hop for After Mr. under arrest cigarettes’ Pyatt kins Mr. showed loca tion, said, man, Hopkins “Okay, you got Mr. back; your go.” Hopkins let Mr. stuff me McGraw, Jr., Gen., Atty. Darrell V. Shawn Pyatt security followed Mr. to the store’s Gen., Anthony Taylor, Atty. Asst. Charles- Hopkins’ Mr. picture office where was taken ton, appellee. for cigarettes. advising with the Without Mr. McGraw, II, appel- Beekley, Warren R. for Hopkins rights Pyatt of his Miranda Mr. lant. responded questioned Hopkins, Mr. who giving a false name and address.2 Later as NEELY, front, returning Justice: were Mr. store’s Hopkins walked out of the store. The Beck- Hopkins Brian appeals his conviction for ley City Department, Police who were called shoplifting, im- third offense and the fines Hopkins stopped, recog when Mr. was first posed part appeal, as of his sentence. On Hopkins picture nized from the and Mr. ar Hopkins argues Mr. that his conviction days rested him several later. should be reversed the circuit court because Hopkins charged and Mr. convicted improperly prior shop- used his uncounseled jury shoplifting. of third At offense trial lifting convictions to enhance his sentence. Hop- the State introduced evidence Mr. sentencing prohibited Because a court is not prior for shoplifting, kins’ convictions three considering previous from valid defendant’s two of which occurred in and one in uncounseled in sen- misdemeanor convictions Hopkins pled guilty to both 1988. Mr. offense, tencing subsequent him for a pled convictions and nolo contendere to the imposed his and affirm conviction the fines conviction, 1988 conviction. For each his sentence. presented the State a witness who had seen Hopkins allegedly Mr. On October shoplift judgment Hopkins Mr. and the final shoplifted cigarette packs two from sheet. grocery Beekley, Food-4-Less store Hopkins guilty, found Mr. After Virginia. Pyatt, employed Richard who is Hopkins to a term of 1 Mr. was sentenced officer, security Hop- the store as a saw Mr. conviction, years, and fined $500 pick up cigarette put packs kins two payable mandatory penalty, as a $50 pocket. persons accompa- his After who establishment, mercantile costs of Pyatt watching Hopkins nied Mr. noticed Mr. proceeding. them, cigarette Mr. left Hopkins sales up Hopkins appeals Fi- conviction to area walked down aisle. Mr. his fоllowing nally Hopkins, paying, asserting assignments Mr. walked Court (1) counter, through Hopkins’ Mr. to Mr. the check-out after error: statements Pyatt. Pyatt improperly into stopped by Mr. When Mr. admitted evi- he (2) Hopkins dence; improperly Pyatt the two The circuit court failed asked Mr. were, prior shop- cigarette packs Hopkins responded Hopkins’ Mr. of Mr. sever evidence (3) convictions; any cigarettes. circuit court im- lifting he did not When The have Pyatt properly told the brands of allowed uncounseled convictions to Mr. Mr. Arizona, office, completed Pratt Miranda v. In the Mr. State of Hopkins’ "paper some However, work” with Mr. answers. "paper work” was admit- none of this ted at trial. warn- long held that “Miranda sentence; have man- We $50 enhance suspect has required ings are whenever taking with- datory is an unconstitutional fine subject to custodial formally arrested been process. out due nature or interrogation, regardless of the Syl. pt. severity of the offense.” Preece, 383 S.E.2d Preece, (1989).4 the sole issue In State v. Hopkins alleges that because investigation escalated when a traffic him of his Miranda Pyatt failed to advise environment, accusatory re- custodial into an Pyatt rights, to Mr. should his statement warnings. v. Preece quiring Miranda According been admitted. warnings required that Miranda held stopped asked Pyatt, shortly he after suspect’s when “a reasonable cigarettes3 and Mr. about considered his or her position would have Pyatt Hopkins the brands told Mr. degree curtailed to a asso- freedom of action said, taken, Hopkins cigarettes allegedly Mr. Syl. pt. arrest.” ciated with a formal “Man, slick; you. see How you’re didn’t part, v. Preece. you you do that? Where were did see me that Recently Supreme Court affirmed objected to hav Hopkins Mr. at?” Because only warnings required are “Miranda ing his statement to Mr. consider per a restriction on a there has been such an in camera Pyatt, the circuit cоurt held ” custody.’ him ‘in son’s freedom as to render During hearing, Pyatt Mr. tes hearing. — U.S.-,-, Stansbury California, Hopkins arrested after tified that Mr. was 1526, 1529, 128 L.Ed.2d S.Ct. “[m]an, you’re ...” his slick statement (1994) curiam), (per quoting, Oregon v. Mat Hopkins was not restrained Mr. hiason, 492, 495, they way. Pyatt said that after returned Mr. curiam). (per In L.Ed.2d area, selling Hopkins who Mr. to the store’s Stansbury, Supreme was con Court him around the store and to the had followed finding lower court’s decision cerned that the office, security simply out the store’s walked interrogation premised no custodial front arrived. door before subjective interrogating view “officer’s court, noting that Mi- The circuit first questioning is a the individual under warnings required before an inter- randa are if ... if an officer’s suspect, [or] undisclosed rogation, case that “there was person found this undisclosed assessment is that — interrogation ... of the defendant being questioned suspect.” is not a U.S. 1529-30, at-, circuit court found the state- at witness.” The Rather, Supreme spontaneous ment to and not the result at 299-300. be L.Ed.2d оbjection interrogation. Hopkin’s make clear that the initial an Mr. Court’s “decisions custody depends determination of on the ob the use of his statement was renewed interrogation, jective circuit made his decision. circumstances after the court right Pyatt safeguards protecting Although the constitutional 3. the record indicates that Mr. against compelled not to be to be a witness Hopkins stopped out, beyond check- the store’s apply in a criminal case whenever a oneself Pyatt testified that he did not touch Mr. subject to custodial citizen is any way. Hopkins The record or restrain him in statutory authority. pursuant [Footnote wearing Pyatt secu- does not reflect if Mr. omitted.] rity guard employee uniform or other identifica- argues jurisdictions do not The State that most tion. private security guards give require Miranda urges Muegge warnings overruled. Muegge, In State v. However, require us the facts of this case do not (1987) (questionnaire completed argumеnt and we decline to address the State's guard alleged shop- by private security after to do so. requested questions lifter refused to answer object Because Mr. did not to Mr. admitted), lawyer not have been we his should Pyatt’s testimony giv- the false information about stated: office, en Mr. warnings required While no constitutional to consider whether this information decline admissibility purely private suppressed the Mi- to establish the should have been because conversations, warnings procedural omitted. ... we hold that the randa were subjective regarded subjective views ei- not on harbored the court officers’ the interrogating ther officers or regarding Stansbury’s beliefs status as a sus- — questioned.” (or [Emphasis pect nonsuspect) significant added.] and of at-, themselves, 128 L.Ed.2d rather than as relevant at 298. objective extent influenced con- — surrounding interrogation.” ditions his Stansbury, Supreme at-, S.Ct. at the whether warnings decide Although acknowledged at 300. the State Stansbury’s circumstances, rеquired subjective opinions “do not bear rather, warnings but when focused on such question Stansbury [of] whether inwas required factors to be conside Miranda,” custody, purposes for the Stansbury red.5 defendant in con Supreme Court remanded case to the potential sidered a witness and not the sus California if Court to determine pect investigation in a concerning homicide objective circumstances show defendant 10-year-old girl. of a death At about in custody during have been the entire inter- p.m., plain 11:00 four clothes officers went at-, view. 114 S.Ct. at Stansbury’s trailer offi three door, surrounding cers one knocked. Stansbury they The officers told Mr. “were Court, now before this investigating Stansbury a homicide to which Hopkins stopped private by possible was a if witness asked he would guard, store, public grocery area of a accompany police them to the station an to was not touched restrained was brief- — questions.” at-, swer some ly about cigarettes. asked His “[m]аn 1527, S.Ct. at L.Ed.2d at 297. Mr. you’re ...” slick was made statement imme- Stansbury agreed to be interviewed rode diately private security guard after told police to the station in the police front of the cigarette him names of brands. informing Without Stansbury car. Mr. his of Miranda acknowledged also that “[volun Miranda rights, police questioned him any teered of kind are not statements barred night about his activities on of the mur by the Fifth Amendment their admissi Stansbury po der. After Mr. informed the bility holding today.” is not affected our lice that he left midnight his trailer “about Miranda, 478, 1630, 384 U.S. at 86 S.Ct. at his housemate’s turquoise, American-made ‍‌‌‌‌​​‌​‌‌‌‌‌‌​​​​‌‌‌‌‌​‌​​​‌​‌‌‌​​‌‌‌‌‌​​‌‌‌​​​‍Island v. (— Rhode In 16 L.Ed.2d at 726. In at-, 1528, 128 car” S.Ct. at nis, 291, 300-02, 297), officers, 446 U.S. at L.Ed.2d aware of a 1689-90, (1980), description, witness’ similar car 307-08 asked the Supreme convictions, Court what defendant about his discussed constitutes Stansbury questioning: described which included

rape, kidnapping At and child molestation. [T]he Miranda safeguards come into Stansbury point, stopped ques that Mr. play custody person whenever a is sub- tioning and an officer advised the defеndant jected express to either or its Thereafter, of his Miranda rights. equivalent. say, functional That is to Stansbury “declined to make further state “interrogation” term re- ments, requested attorney an and was arrest only express questioning, fers not but — at-, 1528, 128 ed.” S.Ct. at part words on the also to or actions of L.Ed.2d (other police normally than those at- Supreme custody)

The Court found that numerous tendant arrest and Supreme reasonably likely police statements the California know are Court’s should open interpretation response incriminating “are elicit an from the Court, Stansbury Supreme “first- instead was convicted of the California of focus murder, kidnapping, degree rape, and lewd act ing subjective and on the officers’ undisclosed age jury] on a child under the and [the objective suspicions, should have examined first-degree fixed the murder at for such circumstances and remanded consider at-, 114 S.Ct. at death.” -U.S. ation. at 297. L.Ed.2d The found Syl. pt. part, v. Preece. portion defini- arrest.” suspect. latter of this custody. not in His state- perceptions Mr. primarily tion focuses grocery public intent in a area of a suspect, rather than the of ment was made Hopkins was security guard. the fact that to a police. This focus reflects store Mir. any way designed restrained. In safeguards not touched or the Miranda were circumstances, a reason- with an added we find that suspect vest these against po- compul- protection coercive would not have felt “the measure of able objective aspect interrogation.” practices, regard to of custodial lice sive -, police. Stansbury, underlying U.S. at proof intent police quoting, know Beckwith practice A that the should 128 L.Ed.2d at States, 341, 346-47, 96 reasonably likely incriminating v. United evoke response suspect amounts from a thus to S.Ct. But, interrogation. surely since the police addition, Hopkins’ In statements for the cannot be held accountable unfore- Pyatt’s infor- spontaneous remark to Mr. —a actions, of their words or seeable results cigarettes. mation about the brands of interrogation can extend definition said, “[m]an, you’re slick When to words or actions on the ...,” answering question he was not officers should asked, ciga- are the to-wit: ‘Where reasonably likely known were to elicit an rettes?”, occurring incriminating response. omit- [Footnotes Hopkins’ was not cur- freedom action ted.] degree with a formal tailed associated Rowe, arrest. Syl. pt. State v. (1979), 593, 259 S.E.2d 26 we stated: Vance, Syl. pt. 162W.Va. a defendant Volunteered admissions 250 S.E.2d 146 stated: procedur- are not inadmissible because the regarding A trial court’s decision Arizona, safeguards al 884 of Miranda v. of a will not be voluntariness confession 436, 1602, 694 86 S.Ct. plainly wrong it is or unless disturbed (1966) followed, not unless the defen- against weight clearly the evidence. of custody being in inter- dant was both Preece, 4, Syl. pt. v. 181 Accord State W.Va. rogated time admission at the 633, (1989); 3, v. Syl. pt. 383 815 State S.E.2d uttered. (1991). 539,408 George, 291 185 S.E.2d W.Va. Garrett, Syl. pt. 6, v. 182 W.Va. See State Hopkins’ concerning Mr. Given evidence (1989) 166, (voluntary 386 S.E.2d 823 state- context, find statements and their we that ments made a defendant before circuit decision the state- court’s that any form placed and without of spontaneous ments were and not the result of admissible); Stewart, questioning v. State wrong “plainly was not (1988) 173, (per 180 W.Va. 375 S.E.2d 805 clearly against weight evidence.” curiam); Cleckley, D. Franklin Handbook of II Virginia 1-454 Criminal Procedure 1993) (“Miranda (2nd warnings assignment ed. Hopkins’ Mr. second of required voluntary, spontaneous improperly where a circuit error court given product Hopkins’ pre statement is which is not the of of failed sever evidence Mr. equivalent. shoplifting [Ci- or its functional vious convictions.6 W.Va.Code tations omitted.]”). 61-3A-3(e) ^[1981] states: Upon In this the record Third shows Mr. offense convictions. — conviction, Hopkins’ subsequent shoplifting freedom of action was not “cur- third or regardless merchandise, degree tailed to a of the value of the associated with formal 6. W.Va.Code nent if, A part: with intent person paying 61-3A-1(a) commits the merchant’s appropriate ^[1981] offense states, stated merchandise shoplifting price perti for cert with another (1) merchandise, Conceals ‍‌‌‌‌​​‌​‌‌‌‌‌‌​​​​‌‌‌‌‌​‌​​​‌​‌‌‌​​‌‌‌‌‌​​‌‌‌​​​‍the merchandise or in another manner.... such person, knowingly: person, alone or in con- his or her

489 felony pled guilty the defendant shall be of a cases and had nolo contendere to the addition, pled be fined not hun- other. In Mr. also shall less five guilty previous charge dollars more than thousand to a of third offense dred nor five dollars, shoplifting represented by he imprisoned shall be years. penitentiary one to At counsel. for ten least actually spent year one shall confine- any argues The State error was subject probation.7 ment and not object. waived the defense’s failure to Cozart, 400, 1, v. 177 n. State W.Va. 402 testimony “Error admission of (1986) 152, discussing 352 153 n. 1 S.E.2d objection which no was made will not be improperly whethеr the State evi admitted appeal considered this Court on or writ of prior dence of a defendant’s two convictions error, will but be treated as waived.” State (DUI), driving for under the influence Wheeler, v. 187 419 W.Va. S.E.2d “Obviously, prior said: where a conviction is 447, (1992). Syl. pt. 454 Accord State necessary element the current offense Davis, (1986); 176 W.Va. 345 S.E.2d 549 charged or is utilized to enhance the Syl. Michael, pt. State v. jury finding after a that the defendant has objec timely S.E.2d 595 Because a offense, prior committed such it is admissible made, tion was the State was denied the jury purposes Virginia and [State West opportunity to ask the witnesses about Mr. McAboy v.] [160 W.Va. S.E.2d Hopkins’ guilty nolo pleas contendere (1977) applicable.” is not ] State v. Bark rights. waiver Once the motion er, W.Va. n. 366 S.E.2d supple to dismiss was made the State (1988); Wilkinson, 647 n. concerning ment the record with information (per cu S.E.2d Hopkins’ guilty plea to another third riam). shoplifting represented offense where he was case, charged by counsel. оffense, shoplifting, third Hopkins alleges that a dismissal Code, required prove the State was required by holding our v. Arm- prior shoplifting. least convictions for strong, 175 W.Va. Because evidence convictions is a (1985).8 However, Hopkins’ rebanee is necessary charged, element the crime misplaced Armstrong because was based on purposes. evidence admissible for Illinois, Baldasar (1980), 64 L.Ed.2d 169 which was over- Ill Supreme ruled Court in U.S. Nichols Hopkins pre argues Mr. next that his —U.S., -, U.S. S.Ct.

vious uncounseled convictions should not Nichols, L.Ed.2d 745 Su- used his Al been to enhance sentence. preme enhancement Court allowed though Hopkins’ acquittal Mr. motion for under defendant’s sentence the United States testimony made after was closed was based Sentencing Federal Guidelines based on the alleged previ on impermissible use of his defendant’s uncounseled misdemeanor con- convictions, object Hopkins ous Mr. did not Supreme viction for DUI. The Court noted: any present to their admissiоn and did not statutes, previous showing evidence that his convic na- Enhancement whether hearing, history provisions In an tions were invalid. in camera ture of criminal such as showing presented that in the [Federal] the State evidence those contained Sentenc- Guidelines, pled ing Hopkins guilty of the or recidivist had statutes which 61-3A-3(c) Constitution, Virginia 7. con- W.Va.Code was amended in 1994 to unless an individual provide represented by for home detention as an alternative a victed of misdemeanor was sentence. knowingly intelligently counsel or waived counsel, right may such conviction Armstrong, Syl. pt. 8. imprison- be used enhance sentence 332 S.E.2d 837 states: subsequent ment offense. for Under the sixth amendment of the federal con- III, West stitution article section laws, Although Armstrong criminal S.E.2d at place state are common change imposed for to be on both the U.S. Constitu- do not claims based pointed Constitution, As out in the Virginia conviction. its earlier tion and West Baldasar, dissenting Baldasar, “[t]his rеasoning which ac- was based consistently repeat- has sustained Court Supreme created “a cording to the Court penalizing the last laws as offender among as well as Feder- conflict state courts [Ci- the defendant.” offense committed Appeals. [Footnotes omitted.]” al Courts — omitted.] tations Nichols, at-, 114 S.Ct. at U.S. — at-, Nichols, 114 S.Ct. at we L.Ed.2d at 751. Because find holding persua- in Nichols Supreme Court’s sive, Armstrong that Baldasar, and hold we overrule overruling “per noted Baldasar was a cu- the sixth amendment to U.S. Con- Court “provided III, no rationale for opinion” riam section 14 of the stitution article — Nichols, at-, Constitution, Virginia result.....” “an uncounseled Scott, 128 L.Ed.2d at 752. conviction, valid under misdemeanor rejected Supreme Court also the defendant’s prison imposed, no term is also because request warning the conviction for punishment to enhance at a valid when used purposes — might used enhancement be for Nichols, subsequent U.S. at conviction.” (1) required becausе: Most misdemeanor -, at 755. S.Ct. at place justice convictions “take Hopkins’ previous Because Mr. convictions record;” (2) A are not courts of courts which Scott, shoplifting valid under we find for change procedures” would be “drastic are also when used to these convictions valid warning;” needed “to memorialize such and, punishment in there- enhance (3) clarity concerning The lack of such fore, reject assignment Hopkins’ third degree warning’s specificity.9 The Su- error. concluded, “[a]ccordingly preme hold, consistent with Sixth Four-

Scott, when ular 25, now stated that “it is well established that onment could have been S.Ct. at id sequent teenth Amendments of an Our under Scott uncounseled misdemeanor 92 prison misdemeanor overruled Baldasar. used then that conviction S.Ct. holding conviction.” Argersinger [v. term was to enhance 2006, 59 L.Ed.2d 383 128 L.Ed.2d at 755. [v. Armstrong 32 L.Ed.2d 530 conviction for the reasons Illinois, imposed, punishment imposed Hamlin, may not Constitution, Armstrong relied conviction, if no is also valid at-, for a (1972) ] at a sub- 407 U.S. be because impris partic ] used said and val- prison 3(e) mercantile establishment.” enriched. also maintains section merchandise is that which is stated out due $50.00 mandatory In addition to the minimum ^[1994] recovered, fine is term Finally, court (d) process of the same for third offense imposed fine that because the merchandise presume the merchant was unconstitutional because the statute requiring IV by Code that the value of the W.Va.Code “the defendant shoplifting, section argues that his $500 taking fine imposes unjustly 61-3A- “allows by the with sub- to pay the to mercantile establish- part imprisonment the for as of basis dollars, fifty of ment involved amount Illi an enhancement statute. Baldasar v. 1585, of in- nois, or double value the merchandise 446 100 64 S.Ct. (1980).” 385, volved, higher.” 61- 169 Id. 175 ‍‌‌‌‌​​‌​‌‌‌‌‌‌​​​​‌‌‌‌‌​‌​​​‌​‌‌‌​​‌‌‌‌‌​​‌‌‌​​​‍whichever is W.Va.Code L.Ed.2d W.Va. waiver); showing part clarifying of is a line the absence an valid Curtis 9. Nichols of of cases U.S.,-U.S. --,-, surrounding previous use 114 S.Ct. issues of uncoun- v. (1994) purposes. (declining L.Ed.2d 528 “to ex- seled convictions for enhancement 128 U.S.-, right prior collaterаlly Raley, 113 to attack convic- See Parke v. S.Ct. tend (1993) (affording previous beyond un- used sentence 121 L.Ed.2d 391 tions for enhancement presumption regu- appointed right to counsel established counseled convictions Gideon”). larity a defendant’s which could be overcome 3A-3(d) fairness, Hopkins’ argu- dispropor- first violative of fundamental [1994].10 tionate, justification ment without the value of penological is merit because or never issue. merchandise was unnecessarily painful. be established. A similar scribe how er than W.Va.Code the value of 61-3A-3(d) fined value $50 which ^[1994] cigarette packs argument merchandise is is does not clearly high- was re- pre- and to the decision of the Circuit Court of County. Affirmed. For the above stated reasons, we affirm Raleigh jected Day, in State v. CLECKLEY, Justice, (1994) curiam). part, concurring, in (per

S.E.2d 576 dissenting. and Hopkins’ unjust argu enrichment ment it is also without merit because is based I. in civil law and not in criminal law. Al though given legislature’s deference is MIRANDA RIGHTS penalties determination of criminal neces Hambrick, In State v. sary punitive to achieve both remedi (1977), v. adopted goals, legislature’s al power is limited Arizona, 86 S.Ct. eighth amendment the U.S. Constitu L.Ed.2d 694 of our state tion, applicable through to the states jurisprudence constitutional which estab- process due clause the fourteenth a prophylactic procedural lished shield eighth amendment. The amendment states: support every citizen’s Fifth Amendment required, bail “Excessive shall nor right against compelled self-incrimination. imposed, excessive fines nor cruel unusu that, requirement Part of this shield punishments al inflicted.” See Alexander interrogation, to custodial —U.S., -, right must advise the individual of his or her (for (1993) eighth amendment right to silence and his or her to an attor- purposes, provisions RICO’s forfeiture are no ney.1 majority applica- seeks to avoid fine); than different a traditional Austin important procedural right by tion of this U.S., -, holding that the confrontation between (forfeiture L.Ed.2d 488 provisions un- defendant and the officer 881(a)(4) (a)(7) §§ der 21 U.S.C. “interrogation” “custody.” amount to monetary punishment subject eighth amendment). Although majority probably I believe 61-3A-3(d) points, wrong as to mandatory both out deference [1994]’s

~W.Va.Gode court, ruling the trial I concur as to the payable fine to the mercantile establishment warnings. appellate shoplifted of Miranda As an court where the items were is a form give findings statutory we are deference to factual restitution considers the trans- court, prosecuting costs of the trial and cannot conclude that the actional defendant. clearly custody. nothing wrong We find record indicate that trial court was as to excessive, hand, shocking, Hopkins’ fines are On other court trial 10. Both subsections W.Va.Code 3A-3 were pay This whichever is involved in the amount of ble ry penalty lifting, ment shall all cases Mandatory penalty. the a imprisonment penalty the value unchanged 61-3A-3(d) as in the court shall order the defendant conviction shall higher. entitled to the mercantile establishment of be in addition (c) the imposed by —In ^[1994] The mercantile establish- to merchandise the 1994 amendments. collect (d) addition fifty of a civil the offense provides: of W.Va.Code61- dollars, such mandato- to the mercan- to the fines section, judgment. involved, or dou- shop- to 1. Of were neering: ing, nation dy During the those situations in which the state balanced interrogation[s].” 665, tile merchandise. isolated detainee course, 676 inherently establishment's 16 L.Ed.2d at 706. Its against Cleaning its (1995). Coercive result Miranda itself addressed "custodial likelihood of the coercive. Up importance intelligently 384 U.S. at Terry Stops, rights Scope compelled Note, to recover the stolen approach of of serious demarcated 108 Harv.L.Rev. police Custodial Miranda Custo- so self-incrimi- dominated questions question- properly Engi- 492 were evi- ping questioning the defendant legal conclusion that

majority’s factual and security that he officer testified wrong. dеnt. The clearly interrogation no is there was defendant remove from observed the states, course, majority if there is Of of place pocket packs in shelves and his interroga- custody, the mere existence of security This offi- cigarettes. motivated Miranda trigger to tion is not sufficient attempt- as he cer to confront defendant Nevertheless, warnings. unless ques- premises and ed to leave the business challenged, I majority is believe that of him. tion obligated, feel short no trial court would ever arrest, for Miranda custody to find of actual majority opinion suggests, ques As the Establishing bright rules for purposes. line pur person custody in tion whether a is is not determinations custodial by “objec poses of Miranda answered desirable, always there some well but are It interrogation. of the tive circumstances” hon- recognized legal principles that must be subjective depend not view of does courts, including by ored us.2 or person interrogated the officers either the Stans interrogation. who conduct — U.S.-, bury California, v. 114 S.Ct. A. curiam). 1526, (per 128 L.Ed.2d 293 Custody Stansbury, officer’s intent not Under in affect a arrest does not itself whether Miranda defines “custody” as whether a thought him reasonable would “deprived his of action person is freedom of and thus would not affect self arrested 444, any significant way.” 384 at 86 determination on Miranda custody. 1612, at 16 L.Ed.2d 706. Custodial S.Ct. ordinarily offi interrogation is conducted Thus, objective factors there several “ ‘acutely poten cers aware of the who determining would consider crucial wheth- tially incriminating disclosures nature v. custody. See United States er there was ” Murphy, 465 Minnesota v. sought.’ (8th Cir.1990) (de- U.S. Griffin, F.2d 922 1343 420, 1136, 1143, 429, 104 79 L.Ed.2d S.Ct. tailed discussion relevant factors (1984), quoting Garner v. United below). 421 includes most of listed those States, 1178, 1184, 96 424 U.S. important and most factor is first whether (1976). custodial This suspect time the officer informed the at the setting “inherently com thought contain questioning vol- questioning that the was leave, pelling pressures untary, suspect which work to undermine that the was frеe to compel will resist suspect individual’s under Al- not arrest. speak though him to where he would not otherwise the officer did not tell defendant Miranda, freely.” do so 86 that he under or that he was not arrest away, 16 L.Ed.2d at to walk S.Ct. at 719. free the evidence shows ease, stop- tell the he could.3 It officer’s reasons for he defendant arise there is on the 2. It must be remembered that Miranda when silence Note, bright-line investigating quintessential officer takes rule. Custodial Term, Already Engineering: Cleaning Up Scope place public setting. in this defining During Terry Stops, spent time Custody we have considerable Coercive Harv. 676; Dix, Promises, separate determining custody George three cases. L.Rev. at E. Confes- sions, Wayne Bright we Rule Anal- The easiest case dealt with this Term LaFave’s Line ysis, my judg- Farley, 452 S.E.2d 50 1993 U.Ill.L.Rev. W.Va. ment, implied opinions note there like the one the ma- 10 that authored bright-line custody. jority Significantly, Farley, was no blur the rule is fundamental that he was not to the success ‍‌‌‌‌​​‌​‌‌‌‌‌‌​​​​‌‌‌‌‌​‌​​​‌​‌‌‌​​‌‌‌‌‌​​‌‌‌​​​‍the doctrine. аdvised defendant also under arrest and was free leave. See Beheler, informing simple A v. statement the officer the' California 3517, (1983) (defendant was he was not under arrest and was free 77 L.Ed.2d 1275 defendant usually preclude told he was not under arrest and was released leave would be sufficient to Mathiason, custody definitely confessing); Oregon finding after v. and would most (1977) (defen finding of de arrest. See State circumvent facto (1985); Wyant, arrest dant was informed that he was Stanley, and he left the station hindrance after he 284 S.E.2d confessed). disputed concerning cases Most surprise voluntarily acquiesce police no that suspect should come as the court the to police requests respond questions. Certainly, “the absence of advise- to states to Griffin suspect ment that the is not under formal it stopped was the officer who the arrest, suspect liberty defendant; or that the is at to and, although the defendant questions, decline to answer has been identi- pоlice conversation, engaged somewhat the fied of important as an indicium the existence voluntarily it is clear the defendant did not setting.” of a F.2d custodial at 1350. agree stop this questioning. and “objective Similarly, under even the circum- fourth The factor deals with the tactics Stansbury, stances” rule articulated used, nothing any I suggest find mis- Supreme Court stated that the officer’s sub- conduct of the officer. While jective custody only of “but if view relevant relevant, police are not tactics considered as the officer’s views or beliefs were somehow custody. determining crucial in “An interro- interroga- manifested to individual under gation though can still be custodial even no tion and would have affected how a reason- used, strong-arm tactics are but the absence position perceive able in that would of such tactics is a factor which can assist us his or her freedom to at leave.” reaching objective an conclusion -, at 128 L.Ed.2d at 300. suspect ques- could not have associated the The second factor is the absence of re- Griffin, tioning with formal arrest.” physical straints. There were no restraints (Citations omitted). F.2d at case, weighs heavily and this factor for police. fifth factor The deals whether atmosphere factor of suspect third is whether was dominat- police. Any objective initiated contact with the authorities or did ed fair and evaluating specific ago years Rather than of facts More than eleven in a unanimous basis, Neely, custody case-by-case each issue on written Justice he a I stated: question do not of judicial "We bona believe time and resources could be bet- fides is, however, police in this case. for It difficult spent. questions up ter These take an inordinate appellate principled court to make deci- disproportionate of amount time in trial and based sions on distinctions between when the appellate why I see courts. no reason this Court subjective purpose is establish- adopt bright-line mandating should not a rule suspect ing guilt allowing prove a inno- police to he is advise defendant that not under By establishing police cence. clear rule that arrest, required any that he is not to answer investigatory interrogations presentment questions, any may he leave time. magistrate only to a are allowable when the noncompliance pro- Where there is with this suspect expressly that he is not informed posed presume requirement, we should that the arrest, obligated is not to answer custody component of Miranda is satisfied and go, questions hope and is to establish free move on to the issue of whether there was inter- system sufficiently innocent flexible rogation. Any reasonable as to doubt prove are allowed to their blamelessness should be resolved in favor of the defendant. police effectively legally able rebuttable, Although presumption wоuld interrogate proven ultimately those who are its mere existence should facilitate decisionmak- guilty.” Mays, ing prompt police on this issue and would (1983). (Emphasis 307 S.E.2d add- readily comply more with the Miranda mandates. ed). giving History has shown that the of Miranda Neely Mays, merely I Justice was correct warnings has not undermined effectiveness holding. bright-line seek to enforce its Like most White, Defending law enforcement. Mi- rules, intentionally precludes case-by- Miranda Copian, Reply to randa: A 39 Vand. Professor adjudications. warnings The additional (1986) (the weight great empirical L.Rev. 1 limiting benefit detainee the actual coer- supports evidence the conclusion that Miranda’s only imposed. They cion reassure the de- impact police's ability to on the obtain confes- tainee, they stop officer but remind the that the significant). sions has been importantly, a limited seizure. Most already Today’s majority decision adds to the above, Neely offer this Justice statеs would custody requirement by uncertain breadth objective starting point Court an Fifth Miranda, jeopardizing bright-line nature by regulating review the conditions Amendment Virgi- Note, which has been vital to its success in West surrounding inquiry. and tone emphasized propose what nia. It must be Engineering: Cleaning Up Scope Custodial revolutionary Custody During Terry Stops, is not and it should come as Coercive surprise majority opinion. author 108 Harv.L.Rev. court; and, guiding principles the under that this trial reading place indicates of what took restraint, appellate security judicial court should exclusively the officer’s show. of was were made the defendant to factual determinations The statements not interfere as interrogation of the response clearly all the court was erroneous. unless lower fac- security Stuart, This leads to the sixth officer. placed defendant was of whether tor (legal conclusions involved question- the termination of under arrest at reviewed de suppressiоn determinations majority opinion concludes ing. The novo; informing those factual determinations orally placed arrest defendant was clearly reviewed under er- legal conclusions security told where the officer was once standard). facts, I can- Under these roneous Although placed. cigarettes had been I am com- pronouncement. make such “escaped,” apparent it later is defendant conclusion the awareness forted this under ar- that he was defendant understood special most conclude that absent courts security After officer retrieved the rest. (such guns drawn circumstances “Okay, man cigarettes, defendant stated: force), interrogation pub- in a physical use back; go.” you got your let me stuff is place lic not “custodial.” . objective considering all the I believe that interrogation, of this

facts circumstances B. person would conclude a reasonable within the contem defendant wаs Interrogation of this case plation of Miranda. facts custody requirement, In addition to the distinguishable in Berkemer from those suspect interrogating also must be McCarty, 468 U.S. S.Ct. warnings the need for Miranda before L.Ed.2d 317 where majori- taken arises. The facts as from questioning of a held “the roadside ty’s state: pursuant to a routine traf motorist detained interro stop” “Finally Hopkins, paying, fic did not amount “custodial Syllabus counter, As gation.” part. Point Jus through the af- walked check-out of a suggested, “detention mo Pyatt. tice Marshall stopped by Mr. ter which he was presump pursuant stop a traffic torist Hopkins Pyatt asked Mr. where When Mr. majori tively temporary and brief. The vast were, Hopkins cigarette packs the two ty of roadside detentions last few any ciga- responded that he did have 437, 104 at at minutes.” 468 U.S. Pyatt rettes. When Mr. told Also, Supreme Court 82 L.Ed.2d at 333. said, cigarettes, brands of “atmosphere surrounding an ordi stated the ‘Man, slick; you’re you. I didn’t see How substantially ‘police nary stop traffiс less you you me do that? see Where surrounding than that the kinds dominated’ added). (Emphasis at?”’ itself, interrogation at issue in above, majority Based concludes subsequent cases in which we have my interrogation. opinion, there applied Miranda.” U.S. at interrogation that no the conclusion took (Citation at L.Ed.2d at 334. clearly wrong legally both and com- place omitted). pur judice, sub In the ease asking shoplift- monsensically. stopped If pose stop investigate of the criminal shoplifted ing suspect merchandise security “proba had conduct officer is located does not amount to place. had ble cause” to know taken There officer, imagine it is hard no chance this defendant would re would, degree. what short third charged. leased without issue, earlier, however, analyzing I there suggested resolution believe As majority’s initially problems reasoning. of this issue falls the hands warning major- cepted requirement. logical See Mi- It would been more had the from randa, ity on the notion that some based its decision at spontaneous, resembles on-the-scene general inquiry itself field that Miranda ex- First, assessing majority suggests in whether there was inter- The that the defendant’s agree rogation, a court should look at the entire statements were I volunteered. While conversation, just not one isolated sentence. with the notion that volunteered statements only majority they The seems concerned with the are not barred the fact that not are portion preceded by warnings, latter of the above statement a volun- emphasized. approach usually This seems to exception, teered statement is not Normally, miss the forest for the The trees. better the rule. a volunteered statement (a) way “objective an suspect to assess the facts under police is where the walks into the exchange confession, is to immediately reasonable” standard view gives station context, eye in an Connelly, its full with toward wheth- see Colorado v. 479 U.S. 107 incriminating (1986); er information from the sus- S.Ct. 93 L.Ed.2d 473 v. State pect Stewart, in sought light of all the circum- 180 375 805 W.Va. S.E.2d (b) sequence (1988); in police stances. Artificial division the where comments are suspect, conversation does aid a court’s evalua- to directed see Rhode v. Island (c) interrogation Innis, tion of whether It supra; merely existed. police where the seems far better in these to present, directly cases frame the but not involved in oral interrogation larger per- exchange, Mauro, in a determination see Arizona v. 481 U.S. spective, all evaluating parts (1987); relevant of the 95 L.Ed.2d 458 (d) any conversation rather than one in suspect sentence response to greetings isolation. or salutations to law enforcement inculpatory statement, makes an officers see Second, even if we looked isolation to McFarland, v. W.Va. conversation, emphasized portion of the (1985). only S.E.2d 217 Not police only rеasonable conclusion is that specific case, question ask a in this but after response interrogation. came as the result of denial, the defendant’s it officer followed It must be remembered that the defendant’s description with a detailed what be- he initial denial was followed an effort lieved defendant stole. security identify officer to the merchandise. light, I Viewed this have no doubt Obviously, the trying officer to place what took its clas- knowledge demonstrate his of the theft to sical and traditional form. See United States to convince defendant come clean. His Green, (D.D.C.1991) F.Supp. v. clearly interroga- statement seems to be an (threat drugs found in the car would be Innis, tion under Rhode Island v. attributed the defendant constituted inter- 291, 300-01, 1682, 1689-90, rogation). (1980): 307-08 conclude that “We Miranda safe- II. guards play come into whenever a subjected express to either SENTENCE ENHANCEMENT junctional equivalent. or its opinion, majority Part Under II of the say, ‘interrogation’ That is to the term priоr shoplifting concludes convictions express under Miranda refers not Virginia shoplifting are elements of the West questioning, but also to words or ac- W.Va.Code, provision, enhancement 61-3A- police tions on the ... that the 3(e) (1994), and, such, as are admissible be- reasonably police likely should know Thus, I shoplifting fore case. incriminating response elicit an from the dissent. portion suspect. The latter of this defini- Cozart, primarily perceptions majority tion focuses cites State suspect, rather than the intent of W.Va. a DUI case, practice police.... proposition. A that the enhancement for this reasonably likely wrong. Allowing know think ad- should evoke this case is response incriminating suspect from a in this mission convictions merits, elements, interrogation.” (Empha- ostensibly thus amounts to conflicts added). 404(b) policies sis all behind Kule operate Evidence. See State under our other recidivist statutes. Virginia Rules McGinnis, W.Va.Code, (1994); W.Va.-, S.E.2d 516 61-11-18 Code, (1943);

(1994). II D. Cleck jury -will 61-11-19 Franklin Unquestiоnably, a be more Virginia ley, Handbook on West Criminal underlying charge on the inclined convict suggested proce been twice Procedure has This if know the defendant 404(b) In order dure ensures fairness avoids Rule convicted of similar conduct. 404(b), only way majority problems is Rule reasonable application of avoid prior shoplifting enhancement stat suggests that convictions are DUI crime. See present of the utes can be construed. material elements Cuong, Trong v. Tran United States 18 F.3d Finally, although I would not have voted Cir.1994) (the (4th prohibitions 1132 of Rule States, v. United Nichols majority in with the 404(b) inappli- against are collateral evidence -, 1921, 128 114 S.Ct. L.Ed.2d prove is offered to cable when evidence (1994), particularly I am 745 troubled charge). emphat- essential elements of Baldasar overruling Supreme Court’s ically reject holding as a torture sound Illinois, 222, 1585, v. 446 100 64 legal prior The convictions reasoning. (1980). Thus, 169 I concur with the charge; they of the elements current me, of Nichols. adoption To majority’s elements of enhancement.5 of Baldasar vitality fuss is over over quite nothing. It seems debatable whether The trial these eases should be bifurcat- jury guilt on ‍‌‌‌‌​​‌​‌‌‌‌‌‌​​​​‌‌‌‌‌​‌​​​‌​‌‌‌​​‌‌‌‌‌​​‌‌‌​​​‍uncounseled misdemeanor convictions are re- ed. The should first determine Often, if, underlying charge; only enough to used. much less and then liable be arrests, if, found, guilt gossip, such is evidence should be received reliable information resulting in a prior pur- activities not even of the convictions for enhancement other trial, My way sentencing. poses. legislative during This is the directives is considered dise, statutory guilty felony determining particular shall whether a is of a provision is an "essential element the offense” be fined not less than five hundred dollars nor enhancement,” "sentencing legisla dollars, or is a than five thousand and shall be more of the of an offense ture's definition elements imprisoned penitentiary for not less than Patterson, 139, controls. United States v. 38 F.3d years.” year nor than one more ten Cross, Cir.1994); (4th 143 United States v. 916 majority's analysis Not is the inconsistent denied, (11th Cir.1990), cert. 499 F.2d as re- with the United States 111 S.Ct. 113 L.Ed.2d 263 McMillan, supra, a can be flected of conflict (1991), citing Pennsylvania, McMillan Farmer, found in our recent decision of State v. 2415-16, 79, 84-85, 106 S.Ct. 91 L.Ed.2d — --, W.Va. S.E.2d Patterson, (1986). In 75-76 United States v. Farmer, purposes the Court held that for of deter- stated; F.3d court mining twen1y-year whether ten- or sentence McMillan, principles "Under out in laid statute, applicable kidnapping is under the analysis, we conclude that from a close textual Code, (1965), judge may 61-2-14a trial make provision mandatory the § minimum harm, etc., bodily necessary findings as to 841(b)(1)(C) sentencing is a enhancement violating process the defendant’s due provision. plain language The contained in rights right explic- to a trial. The Court 841(b)(1)(C) clearly punish- § indicates that itly sen- held that these matters are relevant for upon predicated an- is conviction under ment tencing and are not elements the crime. 841(a). § statute —21 other U.S.C. is Farmer is better reasoned and' 841(b) ('any person § who sub- U.S.C. violates consistent with McMillan. (a) be section follows'); of this section shall sentenced as Finally, an overlooked consideration Vasquez-Olvera, United States cf majority by declaring is that the enhancement (5th Cir.1993) (in 999 F.2d determin- offense, provision to be an element statutory provision ing separate whether of- prosecution prove trigger- prerequisites must enhancement, fea- fense or sentence ‘foremost ing beyond the enhancement a reasonable doubt. provision’ ture of a sentence enhancement majority Neither the Cozart, nor the Court in State v. 'predicates punishment that it conviction cert, n. S.E.2d section'), denied, under another -U.S. (1986), whether -, (1994).” n. 1 discussed 127 L.Ed.2d 82 proved beyond had be convictions reason- sepa- penalty provisions shoplifting are evidentiary W.Va.Code, 61-3A-3(c) able doubt or a lesser standard. rately set out in crime, states, By holding they are elements of the part; proved beyond "Upon subsequent shoplifting its clear must con- seems third viction, regardless of the value of the merchan- reasonable doubt. merely feeling evi- Nichols allows ordinarily

dence that is no worse than what sentencing

comes before the decisionmakers. Virginia

STATE of West ex rel. the WEST

VIRGINIA DEPARTMENT OF TRANS-

PORTATION, DIVISION, HIGHWAYS Virginia Entity,

a West Governmental

Petitioner, MADDEN, Judge

Honorable John T. County,

Circuit Court of Marshall McLaughlin, Incompe- E.

Patricia

tent, By Through Who Sues Her

Duly Appointed Committee, Cynthia J.

Ward, Respondents.

No. 22497. Appeals Court of Virginia. Nov.

Submitted Dec.

Decided

Case Details

Case Name: State v. Hopkins

Court Name: West Virginia Supreme Court

Date Published: Jan 31, 1995

Citation: 453 S.E.2d 317

Docket Number: 22079

Court Abbreviation: W. Va.