State ex rel. State v. Gustke

• Decision Date: 21 May 1999
• Docket Number: No. 25403.,25403.
• Citation: 205 W.Va. 72,516 S.E.2d 283
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. the STATE of West Virginia, Petitioner, v. Honorable Arthur GUSTKE, Special Judge of the Circuit Court of Wood County, and Mikhail Braverman, Respondents.

516 S.E.2d 283

205 W.Va. 72

STATE of West Virginia ex rel. the STATE of West Virginia, Petitioner, v. Honorable Arthur GUSTKE, Special Judge of the Circuit Court of Wood County, and Mikhail Braverman, Respondents.

No. 25403.

Supreme Court of Appeals of West Virginia.

Submitted January 12, 1999.

Decided May 21, 1999.

Ginny Conley, Prosecuting Attorney, Jodie M. Boylen, Assistant Prosecuting Attorney, Parkersburg, West Virginia, Attorneys for the Petitioner.

Michele Rusen, Parkersburg, West Virginia, Attorney for Respondent Mikhail Braverman.

DAVIS, Justice:

In this original proceeding in prohibition, petitioner Ginny Conley, Prosecuting Attorney for Wood County, seeks to prohibit the Honorable Arthur Gustke, Special Judge of the Circuit Court of Wood County, from enforcing an order dismissing an indictment that charged respondent Mikhail Braverman with "Driving While Under the Influence of Alcohol, Third Offense," in violation of W. Va.Code § 17C-5-2(k) (1996) (Repl.Vol.1996), and "Driving While License Revoked for Driving While Under the Influence of Alcohol," in violation of W. Va.Code § 17B-4-3(b) (1994) (Repl.Vol.1996). Judge Gustke dismissed the indictment based upon his conclusion that Mr. Braverman was illegally arrested by an off-duty police officer who was outside of his territorial jurisdiction. Prosecutor Conley argues that Judge Gustke erred in dismissing the indictment as the off-duty officer made a proper arrest as a private citizen under the common law. We conclude that the arrest was a valid citizen's arrest. Based upon this conclusion, we grant the writ.

I. FACTUAL AND PROCEDURAL HISTORY

The facts relevant to this action in prohibition were tendered to the circuit court during a hearing on pre-trial motions and are not disputed by the parties. On the morning of August 30, 1997, Tad Wigal, a Parkersburg City Police Officer, was on his way home after completing a midnight shift. He was driving a marked Parkersburg City Police cruiser and was still wearing his uniform. While traveling on Interstate 77 outside the city limits of Parkersburg, Officer Wigal observed a vehicle that was being driven erratically and was weaving from lane to lane.

Officer Wigal contacted the Wood County Sheriff's Department, a law enforcement agency with jurisdiction in the area of Interstate-77 where the observed vehicle was being driven, and inquired whether there was an officer of that department in the area who could make a traffic stop. There was no such officer in the area. Consequently, Officer Wigal advised the Sheriff's Department that, with its authorization, he could stop the vehicle until such time as a sheriff's deputy could arrive at the scene. Officer Wigal was granted authorization to make the stop. Therefore, Officer Wigal engaged the siren and lights on his cruiser and stopped the vehicle in question. He instructed the driver to wait until a Sheriff's deputy could arrive and asked the driver for some form of identification. The driver presented a North Carolina identification card, which revealed that he was Mikhail Braverman, defendant below and respondent herein.

Shortly after Officer Wigal made the stop, Deputy Richard Rhodes of the Wood County Sheriff's Department arrived. Deputy Rhodes asked Mr. Braverman for a driver's license; but Mr. Braverman indicated that the identification card was all he had. In addition, Deputy Rhodes observed the odor of alcohol coming from the car, so he asked Mr. Braverman to step out of the vehicle. Deputy Rhodes then proceeded to conduct a series of field sobriety tests. According to Deputy Rhodes, Mr. Braverman failed each of the tests administered. Consequently, Deputy Rhodes placed Mr. Braverman under arrest for Driving Under the Influence of Alcohol. Mr. Braverman was then transported to the Sheriff's office where he was asked to take an intoxilyzer test. Braverman refused to submit to the intoxilyzer test.¹

A subsequent investigation revealed that Mr. Braverman had previously been twice convicted of driving under the influence of alcohol. It was also learned that Mr. Braverman's license to operate an automobile had been revoked for driving under the influence. Thus, Deputy Rhodes filed charges alleging that Mr. Braverman was driving while under the influence of alcohol, third offense, in violation of W. Va.Code § 17C-5-2(k) (1996) (Repl.Vol.1996), and driving while license revoked for driving while under the influence of alcohol, in violation of W. Va.Code § 17B-4-3(b) (1994) (Repl.Vol.1996). Subsequently, a Wood County Grand Jury returned an indictment against Mr. Braverman charging him with the same two offenses.

A trial on the charges was set for September 11, 1998. Several pre-trial motions were filed on Mr. Braverman's behalf, including a motion to dismiss the indictment. The basis of the motion to dismiss was that Officer Wigal was outside of his territorial jurisdiction at the time he stopped Mr. Braverman. Thus, Mr. Braverman contended, the stop was illegal. In response to this motion, the State argued that the stop was legal as Officer Wigal must be viewed as a private citizen who had the common law authority to detain a person for a breach of the peace occurring in his presence. Upon hearing the arguments of the parties, Judge Gustke commented:

Here the police officer who made the initial stop, although, outside of his jurisdiction, was operating a motor vehicle with lights and sirens that are authorized only by the state. Private people are not entitled to operate vehicles with lights and sirens, that is, the blue lights and the red lights and sirens. They are not authorized to wear uniforms. So I have to concluded [sic] that there is some state action involved in this particular case. And there isn't any issue as to whether or not he had the authority to act as a deputy. I take it the state is not even contending that.

Under the circumstances, I feel that the way that the stop was conducted, it would have been a violation of the Defendant's rights, since the police officer was acting outside of the scope of his geographical jurisdiction, but using the same procedures authorized by state law to make an arrest that he would use if he were actually acting within his jurisdiction. Therefore, I don't think that he had the authority to go ahead and make the stop as he made it. I then would exclude that testimony....

After the circuit court ruled that it would exclude all evidence that had been obtained after Mr. Braverman was stopped by Officer Wigal, based upon its conclusion that the detention by Officer Wigal was illegal and precluded the admission of any evidence flowing therefrom, the State moved for a continuance to seek review by this Court. In response to the State's motion, Mr. Braverman renewed his motion to dismiss the indictment based upon the State's inability to proceed. The circuit court denied the State's motion for a continuance, and granted Mr. Braverman's motion to dismiss. Thereafter, the State filed the instant petition for a writ of prohibition.² We granted a rule to show cause and now grant the writ.

II. STANDARD FOR WRIT OF PROHIBITION

In the case sub judice, the State seeks to prohibit the circuit court from enforcing an order dismissing an indictment. We have previously recognized that prohibition is an appropriate method for the State to challenge the dismissal of an indictment. State ex rel. Forbes v. Canady, 197 W.Va. 37, 42, 475 S.E.2d 37, 42 (1996) ("Although the State does not have the ability to appeal the dismissal of an indictment when it is not bad or insufficient, we recognize that the State is armed with another right of appellate review in the form of prohibition."). In describing the burden placed upon the State when it seeks a writ of prohibition, we have held:

"The State may seek a writ of prohibition in this Court in a criminal case where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims that the trial court abused its legitimate powers, the State must demonstrate that the court's action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction. In any event, the prohibition proceeding must offend neither the Double Jeopardy Clause nor the defendant's right to a speedy trial. Furthermore, the application for a writ of prohibition must be promptly presented." Syllabus point 5, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992).

Syl. pt. 2, State ex rel. Sims v. Perry, 204 W.Va. 625, 515 S.E.2d 582 (1999). Though not plainly expressed, we interpret the State's argument as contending that the circuit court abused its legitimate powers. Therefore, the State is charged with demonstrating "that the court's action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction." Id. Clearly, if the court's dismissal of the indictment was in error, then the court improperly interfered with the State's right to prosecute Mr. Braverman. Moreover, we have explained that "[i]f a trial court improperly interferes with a State's right to prosecute, the court, in effect, exceeds its jurisdiction." State ex rel. Forbes v. Canady at 42, 475 S.E.2d at 42.

Because the court based its decision to dismiss the indictment on the suppression of evidence, we must necessarily consider whether or not the court's decision to suppress³ the evidence was in error. In considering this issue, we will apply a de novo standard of review to the legal conclusions made by the court. State v. Honaker, 193 W.Va. 51, 56, 454 S.E.2d 96, 101 (1994) ("We review de novo legal conclusions involved in suppression determinations." (citing State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994); State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994))). Having set forth the appropriate standards for our consideration of the issues raised in connection with this petition in prohibition, we proceed to address those...