No. 13-0821 – Steven O. Dale, Acting Commissioner of the West Virginia Department of
Motor Vehicles v. Anthony Ciccone
                                                                           FILED
                                                                        July 18, 2014
                                                                      RORY L. PERRY II, CLERK
                                                                    SUPREME COURT OF APPEALS
Benjamin, Justice, dissenting:                                          OF WEST VIRGINIA




             I write separately because I disagree with the majority’s conclusion that the

traffic stop in this case was lawfully accomplished by Sergeant James Davis.



             The stop was made solely pursuant to the information provided by Sharon

Marks during a telephone call to the police department. Ms. Marks told the police that

she had observed a vehicle with Delaware registration driving erratically and proceeding

South on Route 119. Sergeant Davis drove to the area described by Ms. Marks, observed

a vehicle matching Ms. Marks’s description, and without observing any suspicious or

erratic driving, Sergeant Davis stopped the vehicle. Following the stop, respondent

Anthony Ciccone was arrested.



             The majority relies on Syllabus Points 1 and 2 of State v. Stuart, 192 W.

Va. 428, 452 S.E.2d 886 (1994), which state:

             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

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              of the circumstances, which includes both the quantity and
              quality of the information known by the police.


In determining whether a police officer has reasonable suspicion to stop a vehicle on the

sole basis of a tip, the tip must be sufficiently reliable to justify a reasonable and

articulable suspicion. The majority finds that Ms. Marks’s call “provided Sergeant Davis

with sufficient indicia of reliability to warrant his articulable reasonable suspicion of

unlawful activity and to justify the investigatory stop” because of the information she

provided during her call to the police. I disagree with the majority; I do not believe Ms.

Marks’s call was sufficiently reliable to justify the stop.



              In determining whether an informant has provided sufficiently reliable

information to justify a reasonable and articulable suspicion, “an informant’s ‘veracity,’

‘reliability,’ and ‘basis of knowledge’ [are] ‘highly relevant in determining the value of

his report.’” Alabama v. White, 496 U.S. 325 (1990) (quoting Illinois v. Gates, 462 U.S.

213, 230 (1983)). Ms. Marks’s identification of herself lends little weight to her

reliability. The majority cites to Commonwealth v. Love, 775 N.E.2d 1264 (Mass. App.

Ct. 2002) for the proposition that an informant who identifies herself is more reliable

because “[i]dentified and readily identifiable individuals expose themselves to charges of

filing false reports, and they risk reprisal from those they accuse.” Under this reasoning,

by the time it is determined whether the tip is a fabrication that may open the informant

up to liability—if it can be determined at all—the unjustified encroachment on a driver’s

rights will have already occurred. Thus, merely identifying oneself, in the absence of any

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other dealings with the police that might lend support to the informant’s reliability,

contributes very little to the determination of whether reasonable suspicion for a stop

exists.



              The quality of the information in the tip in this case also lends little support

to its veracity or reliability. The majority looks to Navarette v. California, 2014 WL

1577513 (April 22, 2014), in support of its position that Ms. Marks’s tip was reliable. In

Navarette, an anonymous caller1 phoned a California 911 dispatch team to report that she

had been run off of the roadway by another driver. The tip was relayed by the 911

dispatcher to police as follows: “Showing southbound Highway 1 at mile marker 88,

Silver Ford 150 pickup. Plate of 8-David-94925. Ran the reporting party off the roadway

and was last seen approximately five minutes ago.” Navarette, 2014 WL 1577513 at *2.

An investigating police officer located and stopped the vehicle described by the 911

dispatcher. Id. The State did not present evidence that the officer observed any suspicious

or illegal behavior prior to the stop. Id. at *12 (Scalia, J., dissenting). An additional

officer arrived, and the officers approached the stopped vehicle. The officers smelled

marijuana, and a subsequent search of the truck revealed thirty pounds of marijuana. Id.

at *2.


          1
         The U.S. Supreme Court noted in Navarette that the parties did not dispute that
the tipster identified herself by name in the 911 call. 2014 WL 1577513 at *2 n.1.
However, because neither the caller nor the 911 dispatcher were present at the
suppression hearing, the recording of the 911 call was not introduced into evidence. Id.
Therefore, the lower courts in this case treated the call as anonymous. Id.

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              In evaluating the legality of the stop in Navarette, the U.S. Supreme Court

examined two of its prior cases: Alabama v. White, 496 U.S. 325 (1990), and Florida v. J.

L., 529 U.S. 266 (2000).



              In White, an anonymous tipster alerted police officers that a woman

carrying cocaine would drive a brown Plymouth station Wagon with a broken right tail

light from a particular apartment building to a particular motel. 496 U.S. at 327. The

officers observed the vehicle, stopped it before it reached the motel, and discovered

cocaine. Id. at 331. The U.S. Supreme Court found that the stop in White was lawful. The

U.S. Supreme Court said of White in Navarette, “By accurately predicting future

behavior, the tipster demonstrated a special familiarity with respondent’s affairs, which in

turn implied that the tipster had access to reliable information about that individual’s

legal activities.” Navarette, 2014 WL 1577513 at *3 (internal quotations omitted).



              In J. L., a tipster informed police officers that a young black male in a plaid

shirt standing at a bus stop was carrying a gun. 529 U.S. at 268. This tip was found

insufficient to justify a stop because the tipster did not explain how he knew about the

gun, his familiarity with the young man’s affairs, or any knowledge regarding future

behavior that could corroborate the tip. Id. at 271–72. In Navarette, the U.S. Supreme

Court recognized that the tip in J. L. “was insufficiently reliable to justify a stop.” 2014

WL 1577513 at *3.

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              The U.S. Supreme Court then went on to evaluate the reliability of the tip in

Navarette. In a 5–4 decision, the U.S. Supreme Court found that the officer conducted a

valid stop, which was based only on the anonymous call, because the “call bore adequate

indicia of reliability for the officer to credit the caller’s account.” Id. at *4. The U.S.

Supreme Court concluded that “the 911 caller’s report of being run off the roadway

created reasonable suspicion of an ongoing crime such as drunk driving as opposed to an

isolated episode of past recklessness,”2 allowing the police to conduct a legal stop. Id. at

*6.



              The case at bar is distinguishable from Navarette. Ms. Marks was not run

off of the roadway like the driver in Navarette; she only observed what she deemed to be

“erratic” driving. The “erratic” driving may have been the driver’s attempt to avoid

hitting an animal in the roadway, or a temporary swerve resulting from the driver’s

attempt to pick up a dropped object in the vehicle.3 Without more information, it is

impossible to conclude that the driving witnessed by Ms. Marks was likely the result of

intoxication. Additionally, her information about the vehicle was far less specific than the


       2
         Navarette states, “[R]unning another car off the highway . . . bears too great a
resemblance to paradigmatic manifestations of drunk driving to be dismissed as an
isolated example of recklessness.” 2014 WL 1577513 at *6.
       3
         Although Mr. Ciccone admitted to driving the vehicle earlier that night, it is
unclear whether Mr. Ciccone was driving the vehicle when Ms. Marks made her call to
police, and whether Mr. Ciccone was intoxicated when he drove the vehicle.

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information provided in Navarette. Further, Ms. Marks’s call did not indicate a

familiarity with the driver’s affairs like the informant in White. Thus, even if this Court

interpreted West Virginia’s constitutional protections against unreasonable searches and

seizures in a manner identical to the U.S. Supreme Court’s interpretation of the federal

constitution in Navarette,4 the totality of the information provided in this case is too

tenuous to provide reasonable suspicion to support a lawful stop.



              The majority’s approach in this case of not requiring the officer to

personally observe and personally articulate a proper basis for a stop opens the door to

troubling scenarios. For instance, tips of drunk driving may be used by spurned lovers or

vengeful drivers as a tool to abuse others with, as discussed above, little likelihood of

repercussion. Lest the State become complicit in such abuse, it must carefully examine

the reliability of the tips police officers receive. The best indicator of an informant’s

reliability is police corroboration, either through familiarity with the informant or

witnessing the suspect’s suspicious behavior. See syl. pt. 4, Stuart, 192 W. Va. 428, 452

S.E.2d 886 (“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


       4
         The primary tenant of federalism permits West Virginia to place higher standards
on its police pursuant to its own laws—such as a stricter standard for reasonable
suspicion—than those required by the federal government, see, e.g., syl. pt. 2, Pauley v.
Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979) (“The provisions of the Constitution of the
State of West Virginia may, in certain instances, require higher standards of protection
than afforded by the Federal Constitution.”).


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justify the investigatory stop under the reasonable-suspicion standard.”). Because I

believe reasonable suspicion to justify a stop requires more than what was found by the

majority in this case, I dissent.5




       5
         As I said in my dissent in Miller v. Toler, 229 W. Va. 302, 313 n.3, 729 S.E.2d
137, 148 n.3 (2012), in no way through this dissent do I intend to lessen the gravity of the
great harm and danger drunk drivers pose to the people of West Virginia. I firmly believe
that there is a “very valid public policy concern to rid our highways of drunken drivers”
and that the government has a strong interest in doing just that. Fishbein v. Kozlowski,
252 Conn. 38, 743 A.2d 1110, 1126 (1999) (Norcott, J., dissenting). While the goal of
eliminating drunk drivers from our roadways is an admirable one, the goal should not be
achieved by subjecting our citizens to the violation of their constitutional rights.

       Likewise, I do not through this dissent intend to disrespect the important and often
difficult efforts of our law enforcement personnel. There is no assertion herein that the
officers in question deliberately sought to violate any rights of the driver. The
enforcement of individual constitutional rights does no more disservice to law
enforcement officers than does the existence of the rights themselves.

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