Hill v. Cline
Annotate this Case
January 1995 Term
_____________
No. 22080
_____________
GUY R. HILL,
Petitioner Below, Appellant
v.
JANE L. CLINE, COMMISSIONER AND
THE WEST VIRGINIA DEPARTMENT OF
MOTOR VEHICLES,
Respondent Below, Appellee
___________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Lyne Ranson, Judge
Civil Action No. 93-AA-15
AFFIRMED
___________________________________________________________
Submitted: January 18, 1995
Filed: March 24, 1995
Steven L. Miller, Esq.
Cross Lanes, West Virginia
Attorney for the Appellant
Darrell V. McGraw, Esq.
Attorney General
Paul E. Jordan, Esq.
Senior Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
CHIEF JUSTICE NEELY delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "Police officers may stop a vehicle to investigate
if they have an articulable reasonable suspicion that the vehicle
is subject to seizure or a person in the vehicle has committed, is
committing, or is about to commit a crime. To the extent State v.
Meadows, 170 W. Va. 191, 292 S.E.2d 50 (1982), holds otherwise, it
is overruled." Syllabus Point 1, State v. Stuart, ___ W. Va. ___,
452 S.E.2d 886 (1994).
2. "When evaluating whether or not particular facts
establish reasonable suspicion, one must examine the totality of
the circumstances, which includes both the quantity and quality of
the information known by the police." Syllabus Point 2, State v.
Stuart, ___ W. Va. ___, 452 S.E.2d 886 (1994).
3. "If the police merely question a suspect on the
street without detaining him against his will, Section 6 of Article
III of the West Virginia Constitution is not implicated and no
justification for the officer's conduct need be shown. At the
point where a reasonable person believes he is being detained and
is not free to leave, then a stop has occurred and Section 6 of
Article III is triggered, requiring that the officer have
reasonable suspicion that criminal activity is afoot. If the
nature and duration of the detention arise to the level of full-scale arrest or its equivalent, probable cause must be shown.
Thus, the police cannot seize an individual, involuntarily take him
to a police station, and detain him for interrogation purposes
while lacking probable cause to make an arrest." Syl. pt. 2, State
v. Jones, ___ W. Va. ___, ___ S.E.2d ___ (No. 22377, March 6,
1995).
4. "An automobile may be stopped for some legitimate
state interest. Once the vehicle is lawfully stopped for a
legitimate state interest, probable cause may arise to believe the
vehicle is carrying weapons, contraband or evidence of the
commission of a crime, and, at this point, if exigent circumstances
are present, a warrantless search may be made." Syllabus Point 4,
State v. Moore, 165 W. Va. 837, 272 S.E.2d 804 (1980), overruled on
other grounds, State v. Julius, 185 W. Va. 422, 408 S.E.2d 1
(1991).
Neely, C. J.:
Guy R. Hill appeals the order of the Circuit Court of
Kanawha County revoking his driver's license for ten years for
driving under the influence. On appeal, Mr. Hill maintains that
the Kanawha County deputy lacked probable cause to stop his
vehicle, thus tainting his arrest and its sequela. However,
because the record shows that the deputy had a reasonable suspicion
to stop Mr. Hill, we find that Mr. Hill's subsequent arrest on a
different matter was proper and affirm the circuit court.
At approximately 12:30 a.m., 1 May 1991, Deputy R. W.
Rose of the Kanawha County Sheriff's Department was called to
investigate a boyfriend/girlfriend violence complaint involving a
convenience store's clerk. While the deputy was talking to the
female clerk, she pointed to a passing car and told the deputy that
the car's driver, Mr. Hill, was her boyfriend who earlier came into
the store and committed some misdemeanor offenses against her.See footnote 1
Deputy Rose followed Mr. Hill's car. After Mr. Hill's
car turned around to return to the general area of the convenience
store, the deputy stopped Mr. Hill's car to check on Mr. Hill's attitude and general demeanor. When talking to Mr. Hill, the
deputy detected the odor of alcohol and noticed that Mr. Hill's
speech was "slurred." The deputy administered several field
sobriety tests. According to Deputy Rose's testimony, in the walk-
and-turn test, Mr. Hill failed to touch his heel to toe, lost his
balance and took an incorrect number of steps. In the Horizontal
Gaze Hystagmus test, Mr. Hill exhibited the on-set of nystagmus in
both eyes before a 45 degree angle, with distinct nystagmus at
maximum deviation. In the one-leg stand test, Mr. Hill swayed and
kept putting his foot down. Based on the sobriety tests, the
deputy arrested Mr. Hill for driving under the influence.
After his arrest Mr. Hill was transported to the
Charleston Police Duty Office, he was given his Miranda warningsSee footnote 2
and was issued an implied consent statement about taking a
secondary chemical test. Although requested twice, Mr. Hill
refused to take the breathalyzer test.
After the Division of Motor Vehicles received Deputy
Rose's statement, a Preliminary Order of Revocation was issued.
Mr. Hill requested an administrative hearing, and, thereafter, Jane
L. Cline, the Commissioner, entered a final order revoking his license for 10 years. After the circuit court upheld the
revocation, Mr. Hill appealed to this Court.
I
Mr. Hill alleges that the deputy lacked probable cause to
stop his vehicle and failed to obtain a warrant. However, probable
cause is not necessary for a pointed, brief investigative or Terry
stop.See footnote 3 Syl. pt. 1, State v. Stuart, ___ W. Va. ___, 452 S.E.2d 886
(1994) states:
Police officers may stop a vehicle to
investigate if they have an articulable
reasonable suspicion that the vehicle is
subject to seizure or a person in the vehicle
has committed, is committing, or is about to
commit a crime. To the extent State v.
Meadows, 170 W. Va. 191, 292 S.E.2d 50 (1982),
holds otherwise, it is overruled.
In State v. Stuart, the defendant was stopped for driving
under the influence, in part, based on an anonymous 911 call. We
applied the "totality of the circumstances approach" used by the
Supreme Court in Alabama v. White, 496 U.S. 325 (1990) and
concluded that "the other facts . . . corroborated [the anonymous
call] sufficiently to give it an indicia of reliability. [Footnote
omitted.]" State v. Stuart, ___ W. Va. at ___, 452 S.E.2d at 891.
Syl. pt. 2, State v. Stuart states:
When evaluating whether or not particular
facts establish reasonable suspicion, one must
examine the totality of the circumstances,
which includes both the quantity and quality
of the information known by the police.
Recently in State v. Jones, ___ W. Va. ___, ___ S.E.2d
___, (No.22377, March 6, 1995), we discussed the limited nature of
an investigative stop. We noted that because a Terry stop
"involves less intrusion on the individual's privacy, the seizure's
validity is ordinarily tested by less severe standards than the
probable cause standard that is necessary to effect an arrest."
State v. Jones, ___ W. Va. at ___, ___ S.E.2d at ___ (Slip op. at
10), quoting, State v. Boswell, 170 W. Va. 433, 438, 294 S.E.2d 287, 292 (1982). The Supreme Court in Dunaway v. New York, 442 U.S. 200, 213 (1979) said that upon a proper balance of interests,
Terry stops could be made upon "reasonable suspicion." State v.
Jones, ___ W. Va. at ___, ___ S.E.2d at ___ (Slip op. at 10).
The Supreme Court in Florida v. Royer, 460 U.S. 491, 500
(1983) noted that although the intrusion permitted varies with the
facts and circumstances of each case, "[t]his much, however, is
clear: an investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop.
Similarly, the investigative methods employed should be the least
intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. [Citations
omitted.]" Terry also required the governmental interest
justifying the particular intrusion to be based on "specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion. [Footnote
omitted.]" 392 U.S. at 21.
Syl. pt. 2, State v. Jones, supra, provides the following
summary concerning a seizure's validity:
If the police merely question a suspect on
the street without detaining him against his
will, Section 6 of Article III of the West
Virginia Constitution is not implicated and no
justification for the officer's conduct need
be shown. At the point where a reasonable
person believes he is being detained and is
not free to leave, then a stop has occurred
and Section 6 of Article III is triggered,
requiring that the officer have reasonable
suspicion that criminal activity is afoot. If
the nature and duration of the detention arise
to the level of full-scale arrest or its
equivalent, probable cause must be shown.
Thus, the police cannot seize an individual,
involuntarily take him to a police station,
and detain him for interrogation purposes
while lacking probable cause to make an
arrest.See footnote 4
In this case, Mr. Hill was identified by the store clerk
as the person who attacked her. Deputy Rose stopped Mr. Hill when Mr. Hill turned around to return "into the general vicinity of my
complainant and just for a check on the attitude and general
demeanor of the suspect." Terry recognized that the government had
an interest in effective crime prevention and detection, an
interest "which underlies the recognition that a police officer may
in appropriate circumstances and in an appropriate manner approach
a person for the purposes of investigating possibly criminal
behavior even though there is no probable cause to make an arrest."
392 U.S. at 22.
Given the totality of this case's circumstances-- namely,
the probable boyfriend/girlfriend violence complaint and Mr. Hill's
attempted return to the area of the store, we find that the officer
had reasonable suspicion to stop Mr. Hill and, therefore this
pointed, brief investigative stop did not violate Mr. Hill's rights
under W. Va. Const. art. II, § 6.
II
Mr. Hill also argues that because there was no probable
cause for a traffic stop, his subsequent arrest for driving under
the influence was not lawful and the implied consent law does not
apply.See footnote 5 However, once Mr. Hill's car was stopped for a legitimate reason (see Section I, supra), probable cause arose to believe that
Mr. Hill was driving under the influence and his subsequent arrest
for driving under the influence was lawful.
In State v. Moore, 165 W. Va. 837, 845, 272 S.E.2d 804,
810 (1980), overruled on other grounds, State v. Julius, 185 W. Va.
422, 408 S.E.2d 1 (1991), we noted that "while an automobile cannot
be arbitrarily stopped, it may be stopped for some legitimate state
interest." Once a lawful stop is made, any probable cause on a
different matter that arises may be pursued. Syl. pt. 2, State v.
Moore states:
An automobile may be stopped for some
legitimate state interest. Once the vehicle
is lawfully stopped for a legitimate state
interest, probable cause may arise to believe
the vehicle is carrying weapons, contraband or
evidence of the commission of a crime, and, at
this point, if exigent circumstances are
present, a warrantless search may be made.
In accord, Syl. pt. 2, State v. Flint, 171 W. Va. 676, 301 S.E.2d 765 (1983).
In State v. Moore, the defendant's car was initially
stopped because of a missing tail light; however, once the car was
stopped for a traffic violation, we found that the circumstances
did not constitute probable cause for the subsequent drug-related
search and seizure.
In this case, while Mr. Hill was stopped, Deputy Rose
detected the odor of alcohol and proceeded to investigate by
administering several field sobriety tests. After Mr. Hill failed
the sobriety tests, probable cause existed to arrest Mr. Hill for
driving under the influence. Based on the record, we find that Mr.
Hill's arrest for driving under the influence was lawful and that
the implied contest laws were properly applied.See footnote 6
For the above stated reasons, we affirm the decision of
the Circuit Court of Kanawha County.
Affirmed.
Footnote: 1
Mr. Hill's alleged acts against the store clerk are not
detailed; rather, Deputy Rose testified that he "met a female
complainant who stated that her boy friend had come into her place
of business and perpetrated a few misdemeanor offenses." Footnote: 2
See Miranda v. Arizona, 384 U.S. 436 (1978).Footnote: 3
See Terry v. Ohio, 392 U.S. 1 (1968).Footnote: 4
See State v. Jones, ___ W. Va. at ___ n. 17, ___ S.E.2d at
___ n. 17 (Slip op at 18-19 n. 17) for a discussion of West
Virginia's seizure cases.Footnote: 5
Syl. pt. 4, Jordan v. Roberts, 161 W. Va. 750, 246 S.E.2d 259
(1978) states:
Where the request is made to take the
ultimately designated test under the implied
consent law and the licensee by his conduct or
words manifests a reluctance to take the test
or qualifies his assent to take the test on
factors that are extraneous to the procedures
surrounding the test, proof of refusal is
sufficiently established.
See W. Va. Code 17C-5A-1 [1994] et seq.Footnote: 6 In his final assignment of error, Mr. Hill restates his other assignments of error by asserting that procedural safeguards was dispensed with because the "Commissioner vaguely concluded the petitioner was lawfully arrested." The record shows that the Commissioner's final order found that probable cause existed and that Mr. Hill's arrest was lawful.
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