                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent,                                               FILED

                                                                      February 25, 2016
vs) No. 15-0112 (Monongalia County No. 14-M-AP-11)                         released at 3:00 p.m.
                                                                         RORY L. PERRY, II CLERK

                                                                       SUPREME COURT OF APPEALS

                                                                            OF WEST VIRGINIA

MATTHEW FEICHT,
Defendant Below, Petitioner.


                              MEMORANDUM DECISION

       The petitioner, Matthew Feicht, by counsel, Michael D. Simms, appeals the Circuit
Court of Monongalia County’s order entered January 13, 2015, through which the court
affirmed the petitioner’s magistrate court convictions for driving under the influence of
alcohol, second offense, and driving on a revoked license. The petitioner challenges the
magistrate court’s denial of his motion to suppress and the circuit court’s affirmance of that
decision. The State of West Virginia, by counsel, Assistant Attorney General Nic Dalton,
responds and asserts that the lower courts’ suppression rulings were correct and that the
petitioner’s convictions should be upheld.

       Upon review of the parties’ arguments, the appendix record, and the pertinent
authorities, we reverse the circuit court’s order. Inasmuch as this case does not present a new
or significant question of law, it satisfies the “limited circumstance” requirement of Rule
21(d) of the Rules of Appellate Procedure and is properly disposed of through this
memorandum decision.

                                           I. Facts

       At approximately 3:00 a.m. on March 15, 2013, the petitioner was arrested for driving
on a revoked license and for driving under the influence of alcohol (“DUI”), second offense.
Prior to trial in magistrate court, the petitioner filed a motion to suppress evidence and to
dismiss all charges against him, asserting a violation of his rights under the Fourth




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Amendment to the United States Constitution1 and article III, section 6 of the West Virginia
Constitution.2 The petitioner argued that all evidence gathered by law enforcement following
the stop of his vehicle was inadmissible at trial because the stop was not based on a
reasonable, articulable suspicion that he had committed, was committing, or was about to
commit a crime.

       On November 12, 2013, the magistrate court held a hearing on the motion to suppress.
No evidence was presented and, following oral arguments, the motion was denied. Because
the suppression hearing was unrecorded, a second suppression hearing was scheduled at the
petitioner’s request for the purpose of creating a record and to hear any additional motions.

        The second suppression hearing was held on January 27, 2014. Over the petitioner’s
objection, the magistrate court allowed the State to present the testimony of its only witness,
Deputy Daniel Oziemblowsky of the Monongalia County Sheriff’s Department.3 The deputy
explained that law enforcement officers were searching on the night in question for a male
suspect who had fled on foot following a reported “physical domestic dispute.” He testified
that although he did not personally observe the petitioner operate his vehicle, he heard
Deputy Steven McRobie, also of the Monongalia County Sheriff’s Department, conduct the




       1
           The Fourth Amendment to the United States Constitution provides:

              The right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable searches and seizures, shall not be violated, and
       no Warrants shall issue, but upon probable cause, supported by Oath or
       affirmation, and particularly describing the place to be searched, and the
       persons or things to be seized.
       2
           Article III, section 6 of the West Virginia Constitution provides:

              The rights of the citizens to be secure in their houses, persons, papers
       and effects, against unreasonable searches and seizures, shall not be violated.
       No warrant shall issue except upon probable cause, supported by oath or
       affirmation, particularly describing the place to be searched, or the person or
       thing to be seized.
       3
       The petitioner objected on the basis that the State had the opportunity to present
witnesses at the first suppression hearing, but failed to do so, and that the sole purpose of the
second hearing was to create a record of the first suppression hearing.

                                                2

traffic stop of the petitioner’s vehicle4 over the radio and went to the scene of the stop to
assist. It was his recollection that upon his arrival, Deputy McRobie was already at the
petitioner’s window speaking with the petitioner. When the State elicited testimony from
Deputy Oziemblowsky concerning the basis for Deputy McRobie executing the traffic stop,
the petitioner asserted a hearsay objection, which was overruled. Although Deputy
Oziemblowsky first suggested that “part of the reason” Deputy McRobie stopped the
petitioner’s vehicle was to seek information as to whether the petitioner had seen any
pedestrians in the area, he later testified that this was Deputy McRobie’s “entire reason” for
executing the stop.

       By order entered February 14, 2014, the magistrate court found that Deputy
Oziemblowsky “was not involved in, nor did he observe, the traffic stop on the Defendant’s
vehicle[;]” that Deputy McRobie, who performed the traffic stop, did not testify at the
suppression hearing; and that after hearing the arguments of counsel and considering Deputy
Oziemblowsky’s testimony, the motion to suppress was denied. This order contains no legal
analysis of the suppression issue.

        On August 13, 2014, a jury trial was held in the magistrate court on the DUI charge.5
Deputy McRobie testified that he did not observe the petitioner violating any traffic laws
before executing the traffic stop. He stated that he was searching for a suspect in a domestic
dispute who had fled on foot, and that he executed a traffic stop of the petitioner’s vehicle,
which was in the vicinity, to ask whether he had seen “anything suspicious.” Upon
approaching the petitioner’s vehicle with a flashlight, the deputy testified that he noticed for
the first time that the petitioner was wearing a black shirt and grey pants. Because this attire
matched the description of the domestic battery suspect’s clothing, he asked the petitioner
for his identification. Having been previously advised of the male suspect’s name, Deputy
McRobie readily discerned that the petitioner “wasn’t the man that we were looking for.”
Deputy McRobie nonetheless ran a status check on the petitioner’s license pursuant to
sheriff’s department policy and learned that it was revoked for a prior DUI conviction.
During cross-examination, Deputy McRobie testified that he did not suspect that the
petitioner was DUI until after he was placed inside Deputy Oziemblowsky’s vehicle for




       4
        The record reflects the petitioner was driving in the general vicinity of where the
reported domestic dispute occurred.
       5
        The issue of the petitioner’s prior conviction for first offense DUI, and the charge
against him for driving on a revoked license, were both bifurcated from the current DUI
charge.

                                               3

transport following his arrest for driving on a revoked license. It was at that time that he first
detected the odor of alcohol on the petitioner’s breath.6

       The jury returned its verdict finding the petitioner guilty of DUI. Upon returning to
the magistrate court on October 1, 2014, for sentencing,7 the petitioner stipulated to his first
DUI conviction and, with the magistrate court’s consent, entered a conditional guilty plea to
the charge of driving on a revoked license, expressly reserving his right to appeal the denial
of his motion to suppress and to dismiss the charges.

       On October 17, 2014, the petitioner filed a petition for appeal in the circuit court
seeking a reversal of the magistrate court’s suppression rulings, a vacation of his convictions,
and a dismissal of the charges with prejudice. A hearing was held before the circuit court
on November 26, 2014, solely for the purpose of receiving the parties’ oral arguments.8

       By order entered January 13, 2015, the circuit court affirmed the petitioner’s
magistrate court convictions. The circuit court found that the temporary detention of an
individual during the stop of an automobile by police constitutes a seizure within the meaning
of the Fourth Amendment and that the proponent of a motion to suppress must demonstrate
an expectation of privacy in the area searched and must establish that his Fourth Amendment
rights were violated by the challenged search and seizure.9 Although the circuit court recited
an exception to the warrant requirement–when law enforcement has a reasonable, articulable
suspicion that the vehicle is subject to seizure, or that the person in the vehicle has
committed, is committing, or is about to commit a crime–the circuit court made no finding
as to whether there was a reasonable, articulable suspicion of criminal activity in this
instance. Relying upon Deputy McRobie’s trial testimony, rather than the State’s evidence


       6
        The State’s only other witness at trial, Deputy Oziemblowsky, also testified that he
noticed the odor of alcohol coming from the petitioner’s breath as he was placing him in his
patrol vehicle. He further testified regarding the petitioner’s failure of the field sobriety tests
administered at the Sheriff’s Office, as well as the Intoximeter results that showed the
petitioner’s blood alcohol content was above the legal limit.
       7
        Although there is no sentencing order in the appendix record, the petitioner states that
he was sentenced to two concurrent six-month terms in jail, both of which were suspended,
after which he was sentenced to a period of six months on home incarceration.
       8
       “An appeal of a magistrate court criminal proceeding tried before a jury shall be
heard on the record in circuit court.” W.Va.R.Crim.Proc.Mag.Ct. 20.1(d), in part.
       9
           As explained, infra, the petitioner did not bear the burden of proof on this issue.

                                                 4

at the suppression hearing, the circuit court found that Deputy McRobie executed a valid
traffic stop for the purpose of asking the petitioner whether he had seen anyone in the area.
The circuit court also found that once Deputy McRobie observed that the petitioner’s attire
partially matched the description of the domestic battery suspect, his request for the
petitioner’s driver’s license was “reasonable under the totality of the circumstances” and the
sheriff department’s policy of “running a check on all licenses [is] legitimate and
appropriate[.]” The petitioner’s appeal to this Court followed.

                                        II. Discussion

       The petitioner asserts that the circuit court erred in affirming his magistrate court
convictions. Maintaining that the State failed to satisfy its evidentiary burden during the
magistrate court suppression hearings, the petitioner further asserts that the circuit court erred
in upholding the magistrate court’s suppression rulings and improperly considered Deputy
McRobie’s trial testimony in the process. The petitioner adds that even assuming it was
proper for the circuit court to consider trial testimony in reviewing the suppression issue, as
a matter of law, there still was no reasonable, articulable suspicion to justify the traffic stop.
Lastly, the petitioner argues that the circuit court improperly held that it was his burden to
prove that he had a reasonable expectation of privacy in the area searched or the item seized
when, as here, there was no issue as to whether he had standing to assert a violation of his
Fourth Amendment rights in his own vehicle.10

       The State responds that notwithstanding the circuit court’s reliance upon Deputy
McRobie’s trial testimony, and regardless of whether the court erred in stating that the
petitioner bore the burden of proof at the suppression hearing, Deputy Oziemblowsky’s
suppression hearing testimony satisfied the State’s burden of demonstrating that the traffic
stop was lawful under the “community caretaker” doctrine. The State concedes that this
doctrine was not raised below, but argues that this Court may affirm a circuit court’s decision
when it appears that the judgment is correct on any legal ground disclosed by the record,
regardless of the reason or theory employed by the lower court in reaching its decision.11

       In addressing the lower courts’ suppression rulings, our review is plenary. In State
v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994), we held that “[o]n appeal, legal
conclusions made with regard to suppression determinations are reviewed de novo. Factual

       10
        The petitioner also assigns as error the magistrate court’s decision to overrule his
hearsay objection raised during the second suppression hearing. While the State concedes
on appeal that this was likely error, we find the issue is mooted by our decision herein.
       11
            See note 13, infra.

                                                5

determinations upon which these legal conclusions are based are reviewed under the clearly
erroneous standard.” Id. at 429, 452 S.E.2d at 887, syl. pt. 3, in part. Further, “[w]hen
reviewing a ruling on a motion to suppress, an appellate court should construe all facts in the
light most favorable to the State, as it was the prevailing party below.” Syl. Pt. 1, in part,
State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996). With these precepts in mind, we
consider the parties’ arguments.

       It is well settled that detaining persons during a traffic stop by the police, even briefly
and for a limited purpose, is a “seizure” under the Fourth Amendment. Whren v. United
States, 517 U.S. 806, 809-10 (1994). Indeed, “[s]earches conducted outside the judicial
process . . . are per se unreasonable under the Fourth Amendment and Article III, Section 6
of the West Virginia Constitution—subject only to a few specifically established and
well-delineated exceptions.” Syl. Pt. 1, in part, State v. Moore, 165 W.Va. 837, 272 S.E.2d
804 (1980), overruled, in part, on other grounds by State v. Julius, 185 W.Va. 422, 408
S.E.2d 1 (1991). Moreover, and notwithstanding the circuit court’s finding to the contrary,
“[t]he burden rests upon the State to show by a preponderance of the evidence that [a]
warrantless search falls within an authorized exception.” Syl. Pt. 2, Moore, 165 W.Va. 837,
272 S.E.2d 804.12 In Stuart, this Court recognized the exception that “[p]olice 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.” 192 W.Va. at 429, 452 S.E.2d at 887, syl. pt. 1, in part.

       Here, the magistrate court’s order denying the petitioner’s motion to suppress contains
minimal factual findings and no legal analysis. On appeal, the circuit court affirmed the
magistrate court’s suppression ruling and, in doing so, relied upon Deputy McRobie’s trial
testimony. As we have previously explained, however, “there is no authority . . . that upon
appellate review, we should consider the . . . testimony at trial in upholding the trial court’s
ruling which arose out of the pre-trial suppression hearing” and that “absent a motion by the
State which would trigger the trial court’s duty to revisit its decision on the suppression issue,
the State, on appeal, can not use trial testimony to correct an erroneous pre-trial ruling.” State
v. Buzzard, 194 W.Va. 544, 552, 461 S.E.2d 50, 58 (1995). Consequently, the circuit court
should have restricted its examination to the State’s evidence presented during the January
24, 2014, magistrate court suppression hearing.


       12
          In finding that the petitioner bore the burden of proof at the suppression hearing, the
circuit court relied upon cases that addressed whether the person challenging a seizure had
a privacy interest in the area searched, such as a person who was a guest passenger in a
vehicle, or a guest in a home. Those cases have no application to the instant matter where
the petitioner was the owner, driver, and sole occupant of his vehicle.

                                                6

        In reviewing the evidence at the second suppression hearing, we observe that the
State’s sole witness, Deputy Oziemblowsky, testified that he did not witness the petitioner
driving his vehicle; that he did not execute the traffic stop; and that Deputy McRobie’s
“entire reasoning” for executing the stop was to seek information. Although Deputy
Oziemblowsky testified regarding the petitioner’s attire matching the description of the
clothing worn by the domestic battery suspect, it is clear that such observations were made
after the traffic stop had already been executed and were indisputably not a part of the basis
for Deputy McRobie executing the stop.

        Undoubtedly recognizing the dearth of evidence at the suppression hearing to justify
the traffic stop, the State argues for the first time on appeal to this Court that, under the
“community caretaker” doctrine,13 Deputy McRobie did not need a reasonable, articulable
suspicion of criminal activity before stopping the petitioner’s vehicle. We first recognized
this doctrine in Ullom v. Miller, 227 W.Va. 1, 705 S.E.2d 111 (2010), in which we stated that
“[t]he ‘community caretaker’ doctrine is a widely recognized exception to the general
warrant requirement of the Fourth Amendment of the United States Constitution.” 227
W.Va. at 4, 705 S.E.2d at 114, syl. pt. 6. This Court expressed its belief that it was
“appropriate to join the majority of jurisdictions who recognize the community caretaker
doctrine, formally recognizing the expectation in West Virginia that the role of law
enforcement personnel . . . also encompasses a non-investigatory, non-criminal role of police
officers to help to ensure the safety and welfare of our citizens.” Id. at 11, 705 S.E.2d at 121.
This Court concluded that

       [b]ased upon our review of the requirements established in other states, we
       believe that the requirements recently adopted by the Supreme Court of South
       Dakota in State v. Deneui, 775 N.W.2d 221 (S.D. 2009), cert. denied, U.S.
          , 130 S.Ct. 2072, 176 L.Ed.2d 422 (2010), with modification, provide


       13
         Before undertaking any analysis under this doctrine, we note our general rule that
“absent the most extraordinary circumstances, legal theories not raised properly in the lower
court cannot be broached for the first time on appeal.” State v. Miller, 197 W.Va. 588,
597,476 S.E.2d 535, 544 (1996). We have also held that “this Court may, on appeal, affirm
the judgment of the lower court when it appears that such judgment is correct on any legal
ground disclosed by the record, regardless of the ground, reason or theory assigned by the
lower court as the basis for its judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140
S.E.2d 466 (1965). However, as discussed infra, the record before this Court simply does
not support a finding that the traffic stop was valid under the community caretaker doctrine.



                                               7

       appropriate direction as we endeavor to best satisfy the reasonableness
       requirements of the Fourth Amendment and Article III, Section 6, and effect
       a necessary balance between the privacy expectations of West Virginia citizens
       and the need for police officers to properly execute their community caretaking
       duties.

Ullom, 227 W.Va. at 12, 705 S.E.2d at 122. The Court then adopted the following four-part
test:

               For an encounter to come within the “community caretaker” doctrine
       exception to the warrant requirement, the State must establish that: (1) given
       the totality of the circumstances, a reasonable and prudent police officer would
       have perceived a need to promptly act in the proper discharge of his or her
       community caretaker duties; (2) Community caretaking must be the objectively
       reasonable, independent and substantial justification for the intrusion; (3) the
       police officer’s action must be apart from the intent to arrest, or the detection,
       investigation, or acquisition of criminal evidence; and (4) the police officer
       must be able to articulate specific facts that, taken with rational inferences,
       reasonably warrant the intrusion.

Id.at 4-5, 705 S.E.2d at 114-15, syl. pt. 7. Certainly, the community caretaker doctrine is an
important exception to the general warrant requirement as it supports and recognizes the
“general safety and welfare role for police officers in helping citizens who may be in peril
or who may otherwise be in need of some form of assistance.” Id., 227 W.Va. at 10, 705
S.E.2d at 120. In fact, the community caretaking doctrine has been described as being “more
akin to a health and safety check.” Deneui, 775 N.W.2d at 239. Accordingly, it is clear from
our review of the record that the community caretaker doctrine is wholly inapplicable to the
case at bar.

       The State’s evidence at the suppression hearing demonstrated only that there had been
a report of a “physical domestic dispute.” The State offered no evidence regarding the
domestic dispute, such as whether a weapon had been used in the dispute; whether law
enforcement considered the suspect to be armed and dangerous; or whether the suspect posed
a serious threat to either the community at large or the petitioner in particular, etc.14 In other
words, there is simply no evidence from the suppression hearing that would lead us to
conclude that “citizens [might have been] in peril” or that the petitioner himself might have
been “in need of some form of assistance” so as to justify the traffic stop under the


       14
            We note that such evidence was also absent from the magistrate court trial.

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community caretaker doctrine. Ullom, 227 W.Va. at 10, 705 S.E.2d at 120. Consequently,
we are compelled to find that the suspicionless traffic stop of the petitioner’s vehicle was
invalid and that all evidence flowing from the stop should have been suppressed and the
charges dismissed. See Syl. Pt. 2, in part, State v. McNeal, 162 W.Va. 550, 251 S.E.2d 484
(1978) (“Evidence obtained as a result of an unlawful . . . seizure . . . cannot be introduced
against the accused upon his trial.”).

                                      III. Conclusion

       For the reasons set forth above, the circuit court’s January 13, 2015, order is reversed
and this case is remanded to the circuit court for entry of an order vacating the petitioner’s
magistrate court convictions and dismissing the charges with prejudice.

                                                    Reversed and remanded with directions.

ISSUED: February 25, 2016

CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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