State of WV v. Cheek
Annotate this Case
September 1996 Term
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No. 23381
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STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
PHILLIP CHEEK,
Defendant Below, Appellant
________________________________________________________________
Appeal from the Circuit Court of Cabell County
Honorable Alfred E. Ferguson, Judge
Criminal Action No. 94-APM-59
REVERSED
_________________________________________________________________
Submitted: September 17, 1996
Filed: December 5, 1996
Darrell V. McGraw, Jr., Esq. George A. Stolze, Esq.
Attorney General Huntington, West Virginia
Rex Burford, Esq. Attorney for the Appellant
Senior Assistant Attorney General
Daynus Jividen, Esq.
Senior Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUDGE RECHT sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "Both the federal and state constitutions protect citizens from
unreasonable arrests, and provide for the issuance of a warrant upon a showing of probable
cause. U.S. Const. amend. IV; W.Va. Const. art. III, § 6." Syllabus Point 1, State v.
Mullins, 177 W. Va. 531, 355 S.E.2d 24 (1987).
2. "A warrantless arrest in the home must be justified not only by probable
cause, but by exigent circumstances which make an immediate arrest imperative." Syllabus
Point 2, State v. Mullins, 177 W. Va. 531, 355 S.E.2d 24 (1987).
3. "'The test of exigent circumstances for the making of an arrest for a
felony without a warrant in West Virginia is whether, under the totality of the circumstances,
the police had reasonable grounds to believe that if an immediate arrest were not made, the
accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during
the time necessary to procure a warrant, endanger the safety or property of others. This is
an objective test based on what a reasonable, well-trained police officer would believe.'
Syl. Pt. 2, State v. Canby, 162 W.Va. 666, 252 S.E.2d 164 (1979)." Syllabus Point 3, State
v. Mullins, 177 W. Va. 531, 355 S.E.2d 24 (1987).
Per Curiam:See footnote 1
The central issue presented in this case is whether Phillip Cheek's warrantless
arrest in his home was valid. Mr. Cheek was arrested for the misdemeanor offense of driving
under the influence of alcohol, second offense; however, the alleged offense was committed
outside the presence of the arresting officer. The State maintains that they had probable
cause and that exigent circumstances, namely, the destruction of evidence through
metabolism, required an immediate arrest, but, Mr. Cheek argues that the arresting officer
lacked probable cause and that there were not exigent circumstances. Given the
circumstances as shown in the record below, we hold that because the arresting officer
lacked probable cause and there were not exigent circumstances, Mr. Cheek's arrest was
invalid, and therefore, we reverse the circuit court.See footnote 2
I.
FACTS AND BACKGROUND
Shortly after eight o'clock on the evening of August 27, 1994, two Huntington
officers on foot patrol were summoned by several women to Doulton Avenue because Mr.
Cheek had moved a barricade blocking the street and had driven his car through a crowd.
Doulton Avenue was barricaded to accommodate a church related block party. Earlier in the
day, Mr. Cheek, who lived on Doulton Avenue, moved his stereo speakers into his house
after several church members spoke to him about the music disturbing the block party.
Various witnesses testified that Mr. Cheek drove into the crowd of about 150 persons and
continued driving even though he was requested to stop. His speed was estimated between
five to ten, and twenty-five to thirty miles per hour. Mr. Cheek drove about half a block,
pulled his car into the yard or in front of his home and went inside his home. One witness
testified that Mr. Cheek was "staggering" when he left his car to go into his home; the other
witness, the pastor of the church sponsoring the block party, testified that he did not see
anything unusual about Mr. Cheek as he entered his home.
The foot patrol officers, who had visited the party several minutes before the
incident, were still in the neighborhood and were summoned back to the block party. One
of the women who summoned the officers estimated that it took about fifteen minutes for the
officers to return. The officers then spent several minutes talking to persons who were
attending the block party, and they informed the officers where Mr. Cheek lived. The
officers then knocked on Mr. Cheek's door. After somewhere between five and thirty minutes, Mr. Cheek came to door.See footnote 3 When Mr. Cheek did not immediately come to the front
door, one of the officers went to the rear door. When Mr. Cheek finally came to his front
door, because the officer at the door saw an object in Mr. Cheek's hand, he forcibly pulled
Mr. Cheek out of his home and onto the porch, causing the two to fall over the porch railing
into the yard.See footnote 4 Mr. Cheek ended on the ground, where he was handcuffed. Although the object in Mr. Cheek's hand turned out to be a telephone, the officer testified that he acted
out of concern for his personal safety. The officer testified that when he pulled Mr. Cheek
out of his home or when Mr. Cheek answered the door, he smelled alcohol on Mr. Cheek.
Thereafter because of the circumstances, the officer administered the horizontal gaze
nystagmus test, a field sobriety test. After Mr. Cheek failed the test, he was formally
arrested and was taken immediately to the waiting police cruiser. Apparently a third officer
in a cruiser arrived in time to assist.
At police headquarters, an intoxilyzer test was administered, along with two
other sobriety tests, the one-legged stand, and the walk and turn tests. Mr. Cheek failed all
three tests and the intoxilyzer reading was .20, twice the ten hundredth of one percent
required by W. Va. Code 17C-5-8 (1994) as proof of intoxication.See footnote 5 Because Mr. Cheek had
a prior conviction for driving under the influence, he was charged with violating W. Va.
Code 17C-5-2 (1996)See footnote 6, second offense driving under the influence, a misdemeanor.
The matter was first considered in magistrate court. After he was found guilty,
Mr. Cheek appealed to circuit court. After a bench trial, the circuit court found Mr. Cheek
guilty. The circuit court reasoned that Mr. Cheek's arrest was valid because although the
officers were not present when Mr. Cheek was driving, they witnessed Mr. Cheek under the
influence of alcohol, the second element of driving under the influence. Mr. Cheek then
appealed to this Court.
II.
DISCUSSION
The primary issue is whether Mr. Cheek's arrest was lawful. We note that W.
Va. Code 17C-5-4 (1994) allows the administration of a preliminary breath test when the
officer has "reasonable cause to believe" that this person was driving under the influence and
"incidental to a lawful arrest," a secondary test for intoxication shall be administered "at the direction of the arresting law-enforcement officer having reasonable grounds to believe the
person committed" driving under the influence.See footnote 7
In State v. Byers, 159 W. Va. 596, 224 S.E.2d 726 (1976), we discussed the
requirements of a lawful warrantless arrest of a person charged with a violation of W. Va.
Code 17C-1-1 et seq. Byers began by noting that generally warrantless arrests for
misdemeanors cannot be affected unless the offense is committed in the officer's presence.
Ordinarily a warrantless arrest may be made by an officer only
when he has reasonable grounds to believe that a felony has
been committed. A warrantless arrest for a misdemeanor cannot
be effected unless the offense is committed in the presence of
the officer. (Footnotes omitted.)
Byers, 159 W. Va. at 602-3, 224 S.E.2d at 731. However, because driving under the
influence, third offense is a felony, we held that "this particular offense does not have to be committed 'in the presence' of the officer in order to justify a warrantless arrest." Byers, 159
W. Va. at 603, 224 S.E.2d at 731. Syl. pt. 1 of Byers states:
Under the provisions of W. Va. Code, 17C-5A-1, as amended,
a law-enforcement officer may arrest a person and a test for
blood alcohol may be administered incident thereto at the
direction of the arresting officer who has reasonable grounds to
believe the person to have been driving a motor vehicle upon a
public highway while under the influence of intoxicating liquor.
Thus the question in the case sub judice, is did the officers know when they
arrested Mr. Cheek that he had been driving under the influence. According to Syl. pt. 2 of
Byers, one of the ways an arrest occurs is when the person is taken, seized or detained "by
touching or putting hands on him." Syl. pt. 2 of Byers provides:
An arrest is the taking, seizing or detaining of the person of
another (1) by touching or putting hands on him; (2) by any act
or speech that indicates an intention to take him into custody
and that subjects him to the actual control and will of the person
making the arrest; or (3) by the consent of the person to be
arrested.
In this case, Mr. Cheek was arrested when the officers reached through the
front door of his home to pull Mr. Cheek onto his porch, over his porch railing and into the
yard. The issue is what did the officers know about the driving under the influence offense
when Mr. Cheek was arrested; specifically, when the officer reached into Mr. Cheek's home
to grab him did the officer have reasonable grounds to believe that Mr. Cheek had been
driving under the influence.
Most of our case law dealing with driving under the influence does not involve
arresting someone in their home. In State v. Byers, the suspect was not arrested until 14 days after an accident where there was a strong odor of alcohol. In State v. Shugars, 180 W. Va.
280, 376 S.E.2d 174 (1988)(per curiam), the suspect was arrested in a hospital where he was
transported after an accident where there was alcohol present and on the suspect's breath.
In State v. Franklin, supra note 1, the suspect was again transported to the hospital and
arrested after the trooper detected the odor of alcohol on the suspect. In Franklin, 174 W.
Va. at 472, 327 S.E.2d at 452-53, we noted:
Byers, distinctly envisaged the situation presented by this case
where the drunk driver cannot be arrested at the scene of the
crime because he has been rushed to the hospital for emergency
medical care. We thus hold that since the offense of driving
under the influence of alcohol resulting in death under W. Va.
Code 17C-5-2 [1981] may be, depending on the circumstances,
either a felony or misdemeanor, a lawful, warrantless arrest may
be made, upon reasonable suspicion of probable cause, at a
hospital by an officer before whom the offense was not
committed if the suspect has been taken to the hospital from the
scene of the accident for emergency medical care.
However, this case is not the usual driving under the influence-Byers
circumstances of an accident, odor of alcohol at the accident and injuries requiring treatment.
Rather, Mr. Cheek was in his home.
In State v. Mullins, 177 W. Va. 531, 533, 355 S.E.2d 24, 26 (1987), we held
that when the government intrudes into a person's home, a warrantless arrest must be
justified by probable cause and the presence of exigent circumstances. These requirements
arise from constitutional protections. U.S. Const. amend IV; W.Va. Const. art. III, § 6. Syl.
pt. 1 of Mullins states:
Both the federal and state constitutions protect citizens from
unreasonable arrests, and provide for the issuance of a warrant
upon a showing of probable cause. U.S. Const. amend. IV;
W.Va. Const. art. III, § 6.
According to Syl. pt. 1 of State v. Plantz, 155 W. Va. 24, 180 S.E.2d 614
(1971), overruled in part on other grounds, State ex rel. White v. Mohn, 168 W. Va. 211, 283 S.E.2d 914 (1981), probable cause to arrest without a warrant exists "when the facts and the
circumstances within the knowledge of the arresting officers are sufficient to warrant a
prudent man in believing that an offense has been committed or is being committed." See
State v. Worley, 179 W. Va. 403, 369 S.E.2d 706, 715, cert. denied, 488 U.S. 895, 109 S. Ct. 236, 102 L. Ed. 2d 226 (1988).
Syl. pt. 2 of Mullins states:
A warrantless arrest in the home must be justified not only by
probable cause, but by exigent circumstances which make an
immediate arrest imperative.
See State v. Davis, 170 W. Va. 376, 294 S.E.2d 179 (1982); State v. Craft, 165 W. Va. 741,
272 S.E.2d 46 (1980).
Syl. pt. 3 of Mullins explains when exigent circumstances exist for an arrest
for a felony by stating:
"The test of exigent circumstances for the making of an arrest
for a felony without a warrant in West Virginia is whether,
under the totality of the circumstances, the police had
reasonable grounds to believe that if an immediate arrest were
not made, the accused would be able to destroy evidence, flee
or otherwise avoid capture, or might, during the time necessary
to procure a warrant, endanger the safety or property of others.
This is an objective test based on what a reasonable, well-trained police officer would believe." Syl. Pt. 2, State v.
Canby, 162 W.Va. 666, 252 S.E.2d 164 (1979).
See Bennett v. Coffman, 178 W. Va. 500, 361 S.E.2d 465 (1987), overruled in part on other
grounds, State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992) (noting that
hot pursuit can be an exigent circumstance).
In this case, when the officers knocked at Mr. Cheek's home, they knew about
Mr. Cheek's driving through the crowd; however, although the officers may have suspected
that alcohol was involved, there was no reasonable grounds for that belief until the odor of
alcohol was detected when the officer grabbed Mr. Cheek. The complaint said, in pertinent
part, "Several witness [sic] saw the suspect drive the vehicle [through the church social] [sic]
stop it. Get out of the vehicle and run into 1622 Doulton Ave." The arresting officer
testified that when he pulled Mr. Cheek from his home, the officers "were unaware of what
was going on and what his problem was as far as this incident is concerned." See supra note
4, for a more complete transcript of the officer's testimony. In this case, there was no
reasonable grounds to arrest Mr. Cheek for driving under the influence until after the officer
grabbed Mr. Cheek. The officer testified that he first smelled alcohol when he pulled Mr.
Cheek from his home or when Mr. Cheek "barely" opened the door. Even then, given the
time spent by Mr. Cheek alone in his home, there is a question as to when the alcohol was
consumed. At most, the officers may have had probable cause for a automobile
misdemeanor, requiring a warrant for an arrest.
We also note that no exigent circumstance was shown. Although the State
maintains that the metabolism of alcohol created an exigent circumstance, the officers did
not have reasonable grounds based on their investigation before the arrest to use the
metabolism of alcohol as an exigent circumstance. Because Mr. Cheek was in his home, he
was not liable to flee, destroy evidence or endanger the safety or property of others;
especially with the two officers outside. Finally, we note that although the responding
officers were on foot patrol, by the time Mr. Cheek was arrested, a third officer in a cruiser
was present. Given the communications which must have occurred to bring the additional
officer to the scene, the responding officers could have obtained an arrest warrant and
probably would have if probable cause existed at that time to arrest Mr. Cheek for driving
under the influence.
Clearly, Mr. Cheek should not have driven through the church block party. His
action angered and upset the area residents. However, neither his action nor the residents'
response is a valid justification for violating Mr. Cheek's constitutional rights. When the
evidence of what the officers knew when they knocked on Mr. Cheek's front door is
dispassionately reviewed, the lack of probable cause is apparent. The requirement of a
warrant for arrest injects such a review by an uninvolved party at a early stage, thereby
relieving the problem of determining when various knowledge was acquired.
Based on the record, we find that because the police lacked probable cause,
Mr. Cheek's warrantless arrest for driving under the influence in his home was illegal.
For the above stated reasons, we reversed the decision of the Circuit Court of
Cabell County.
Reversed.
Footnote: 1
The Honorable Arthur M. Recht resigned as Justice of the West Virginia Supreme
Court of Appeals effective October 15, 1996. The Honorable Gaston Caperton, Governor
of the State of West Virginia, appointed him Judge of the First Judicial Circuit on that same
date. Pursuant to an administrative order entered by this Court on October 15, 1996, Judge
Recht was assigned to sit as a member of the West Virginia Supreme Court of Appeals
commencing October 15, 1996 and continuing until further order of this Court.Footnote: 2
Because of our reversal for lack of probable cause, there is no need to address Mr.
Cheek's assignment of error concerning the admissibility of the breathalyser test results. See
State v. Hood, 155 W. Va. 337, 184 S.E.2d 334 (1971) and State v. Franklin, 174 W. Va.
469, 327 S.E.2d 449 (1985) for discussions of the proper foundation for the admissibility of
breathalyser test results. Footnote: 3
One witness estimated that Mr. Cheek took five minutes to answer the door, but
another witness estimated that it took "about twenty or thirty minutes [before] he came to the
door." The police officer estimated that it took about three to four minutes for Mr. Cheek
to answer the door.Footnote: 4
Officer Larry M. Zimmerman gave the following testimony about what happened
when Mr. Cheek answered their knock:
A. (Zimmerman)
When he came to the door he just kind of barely opened
it at first and I saw something in his hand. I wasn't sure
what it was. So, I just immediately grabbed him and
pulled him out on to the porch where we could, you
know, find out because at the time we still were unaware
of what was going on and what his problem was as far as
this incident is concerned.
Q. (Neal, Assistant Prosecuting Attorney for Cabell County)
Okay. So, what was your concern at the time you
grabbed him?
A. My safety.
Q. Okay. And what happened at that point?
A. As I pulled him out, you know, I could smell - - as soon
as he opened the door I could smell that he had been
drinking. As I pulled him out his - - due to his
imbalance, I guess, we kind of ended up going over his
porch banister and he ended up on the ground. We went
ahead and placed him in handcuffs. He wasn't actually
under arrest. We were just detaining and - - to -- for our
safety. That's one of the procedures we do is go ahead
and handcuff and then we checked him to see if he had
any weapons.Footnote: 5
W. Va. Code 17C-5-8 (1994) provides, in pertinent part:
(c) Evidence that there was, at that time, ten hundredths of one
percent or more, by weight, of alcohol in his or her blood, shall
be admitted a prima facie evidence that the person was under the
influence of alcohol.Footnote: 6
W. Va. Code 17C-5-2 (1996) provides, in pertinent part:
(d) Any person who:
(1) Drives a vehicle in this state while:
(A) He is under the influence of alcohol; or
* * *
(E) He has an alcohol concentration in his or her blood of ten
hundredths of one percent or more, by weight:
(2) Is guilty of a misdemeanor, and upon conviction thereof,
shall be confined in jail for not less than one day nor more than
six months, . . . and shall be fined not less than one hundred
dollars nor more than five hundred dollars.
* * *
(j) A person violating any provision of subsection . . . (d). . . of
this section shall, for the second offense under this section, be
guilty of a misdemeanor, and, upon conviction thereof, shall be
confided in jail for a period of not less than six months nor more
than one year, and the court may, in it discretion, impose a fine
of not less than one thousand dollars nor more than three
thousand dollars.Footnote: 7
W. Va. Code 17C-5-4 (1994), provides, in pertinent part:
A preliminary breath analysis may be administered in
accordance with the provisions of section five [§ 17C-5-5] of
this article whenever a law-enforcement officer has reasonable
cause to believe a person to have committed an offense
prohibited by section two [§ 17C-5-2] of this article or by an
ordinance of a municipality of this state which has the same
elements as an offense described in said section two of this
article. A secondary test of blood, breath or urine shall be
incidental to a lawful arrest and shall be administered at the
direction of the arresting law-enforcement officer having
reasonable grounds to believe the person to have committed an
offense prohibited by section two of this article or by an
ordinance of a municipality of this state which has the same
elements as an offense described in said section two of this
article.
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