State v. Stuart, No. 22033

• Court: Supreme Court of West Virginia
• Writing for the Court: CLECKLEY; BROTHERTON; MILLER
• Citation: 452 S.E.2d 886,192 W.Va. 428
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Gail B. STUART, Jr., Defendant Below, Appellant.
• Decision Date: 08 December 1994
• Docket Number: No. 22033

Page 886

452 S.E.2d 886 192 W.Va. 428 STATE of West Virginia, Plaintiff Below, Appellee,
v.
Gail B. STUART, Jr., Defendant Below, Appellant. No. 22033. Supreme Court of Appeals of
West Virginia. Submitted Oct. 4, 1994.
Decided Dec. 8, 1994.

Page 887

[192 W.Va. 429]

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.

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.

3. On appeal, legal conclusions made with regard to suppression determinations are reviewed de novo. Factual determinations upon which these legal conclusions are based are reviewed under the clearly erroneous standard. In addition, factual findings based, at least in part, on determinations of witness credibility are accorded great deference.

4. A police officer may rely upon an anonymous call if subsequent police work or other facts support its reliability and, thereby, it is sufficiently corroborated to justify the investigatory stop under the reasonable-suspicion standard.

Silas B. Taylor, Sr. Deputy Atty. Gen., David A. Pinkowitz, Third-year law student, Charleston, for appellee.

Linda M. Gutsell, Spilman, Thomas & Battle, Morgantown, for appellant.

CLECKLEY, Justice:

The appellant and defendant below, Gail B. Stuart, Jr., appeals the final order of the Circuit Court of Monongalia County dated May 11, 1993, that sentenced him to serve six months and one day in jail and ordered him to pay a $1,000 fine and court costs for his conviction of second-offense driving under the influence. The final order also denied the defendant's motion for a new trial, but stayed the execution of the sentence pending this appeal.

On appeal, the defendant makes two assignments of error. First, the defendant asserts he was denied his constitutional right to due process by the State's failure to preserve and produce an audiotape and a videotape which may have contained exculpatory evidence. Second, the defendant claims the trial court committed reversible error by failing to apply the proper standard to determine if his vehicle was lawfully stopped.

I.

FACTS

At approximately 12:46 a.m. on Sunday, April 26, 1992, an anonymous person called 911 and reached the Monongalia Emergency Centralized Communications Agency (MECCA). According to the defendant's brief, the caller reported to the 911 operator that a drunk driver " 'pulled into the Sabraton McDonald's. (Pause) He was driving all over the road very erratically and going the wrong direction on the road.' " ¹ Determining that the area of the alleged drunk driving was within the jurisdiction of the Morgantown Police Department (MPD), the 911 operator transferred the call to the MPD dispatcher. The MPD dispatcher spoke with the caller. Subsequently, two police officers, Officer Roy Zinn and Officer Gregory Brumdage, were sent to the area. Unfortunately, the audiotape of the conversation between the caller and the MPD dispatcher was erased prior to the trial. ²

Officer Zinn testified he was in the MPD dispatch area when the call was transferred from 911. Officer Zinn stated the dispatcher told him that the caller reported a drunk driver in the Sabraton area driving a red Mercury Grand Marquis with a West Virginia license plate of 1FG-953. Officer Zinn then went to the area.

Page 888

[192 W.Va. 430] Officer Brumdage also testified the dispatcher gave him a detailed description of the vehicle over the radio, including its color, model, and license plate number. Officer Brumdage stated that he was dispatched at 1:01 a.m.; and, at the time he was dispatched, he was only a little over one-half mile away from the Sabraton area. Officer Brumdage said he was behind Officer Zinn when they saw the defendant driving a vehicle that matched the description they were given by the dispatcher.

Officer Zinn said the defendant passed by them going in the opposite direction so they made a U-turn and followed him. As the police officers followed the defendant, Officer Brumdage paced the defendant's speed at approximately 25 miles per hour. Both officers noted for the record that the road in this area is level and straight and the posted speed limit is 35 miles per hour. Officer Zinn testified that one of the "detection clues" of the behavior of a drunk driver is a vehicle moving at a slow speed. Officer Zinn also said he believed he should check into the situation based upon the defendant's slow driving, the time of day, and the day of the week. Likewise, Officer Brumdage told the trial court that even if he had just been driving down the road on his way to town, the circumstances would have caught his attention and led him to investigate the defendant. Both police officers testified that they followed the defendant approximately 200 to 300 yards before the decision was made to stop him. ³

After the defendant was stopped, the police officers approached his vehicle; and the defendant was asked to produce his driver's license, registration, and proof of insurance. Both police officers said the defendant had a strong smell of alcohol. Consequently, the defendant was asked to perform and failed a field sobriety test. He was placed under arrest and was taken to the police station where he was given a breath test. The results of the test indicated the defendant's blood alcohol content to be .215. The defendant does not challenge the accuracy of the test.

The defendant disputes the events leading up to his stop and subsequent arrest. The defendant testified he was not the person who stopped at the McDonald's restaurant as indicated by the anonymous caller. The defendant stated he stopped at a Subway sandwich shop in Sabraton and got a sandwich that was found in his vehicle when it was inventoried by the police. He contends he left the Subway shop and noticed a police cruiser going in the opposite direction. He slowed down and then observed a cruiser behind him and a second cruiser pulled up beside him.

The actual events of the stop were videotaped by a camera in Officer Zinn's car. The videotape was viewed at a previous hearing in magistrate court; however, it was erased prior to the proceedings before the trial court. ⁴ On cross-examination of Officer Brumdage, defense counsel suggested to the trial court that the time appearing on the videotape showed the cruiser pulling behind the defendant at approximately 12:55:02 a.m. and the defendant stopping at 12:55:31.

A few days after his arrest, the defendant served a "REQUEST FOR DISCOVERY" upon the Monongalia County Prosecuting Attorney. In paragraph six of the request, the defendant asked for "[a] copy of the incoming calls and dispatch logs for the period from 9:00 p.m. on April 25, 1992, until 2:00 a.m. on April 26, 1992, as well as any electronic recording of such calls." The State responded to the request on May 20, 1992, but only included "a copy of the D.W.I. Information Sheet ... [and] material relating to the defendant's prior DUI conviction[.]" According to the defendant's brief, the State agreed to supplement its discovery with the recording of the anonymous call. However, a few days later, the Prosecuting Attorney's Office advised the defendant that the audiotape of the call to the MECCA would be provided, but

Page 889

[192 W.Va. 431] the audiotape of the transfer to the MPD dispatch was destroyed.

At the conclusion of the bench trial, the trial judge ⁵ said it was his "judgment that the officers cannot rely on a statement made from a dispatcher based on an anonymous caller who has no track record with the police department and, indeed, whose name is not even named or no information about him whatever is relayed to the officers." The trial judge indicated he only would consider the anonymous call as having "the effect of putting the officers on the scene." The trial court then determined the officers had reasonable suspicion to make the stop by finding: (1) "[T]he area where the car was traveling ... is generally open and one would expect the flow of traffic to be right at the speed limit"; (2) The car was "traveling along at a speed considerably below that of what is the normal flow of traffic"; and (3) "[M]ost importantly, we have it at 1:00 A.M. at night."

II.

DISCUSSION

To decide this case, we initially must address two issues. The first issue is whether police officers need reasonable suspicion or probable cause to make an investigatory stop of a vehicle. The defendant argues the police officers needed probable cause to stop him. We disagree. We find under cases decided by the United States Supreme Court that police officers only need reasonable suspicion to make an investigatory stop. The second issue is whether police officers can rely upon an anonymous tip to establish reasonable suspicion and, if so, what weight the tip should be given. For the reasons set forth in this opinion, we hold that police officers may rely upon an anonymous tip if it is corroborated by independent police work and, thereby, sufficiently establishes reasonable suspicion.

In Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979), the Supreme Court said that to stop a vehicle and detain the driver to check the driver's license and the vehicle's registration violates the Fourth Amendment unless "there is at least [an] articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law[.]" Similarly, in Berkemer v. McCarty, 468 U.S. 420, 439, ...