PER CURIAM:
This appeal by Joe E. Miller, Commissioner of the West Virginia Division of Motor Vehicles (hereinafter referred to as "Commissioner Miller"), the petitioner herein, challenges a circuit court finding that a law enforcement officer conducted an illegal stop of a driver suspected of driving under the influence of alcohol, and the circuit court's application of the exclusionary rule to an administrative driver's license revocation proceeding. Because we conclude that there was no illegal stop, we reverse the circuit court's order without reaching the issue pertaining to the exclusionary rule.
According to the appendix record submitted in connection with this appeal, during the early morning hours of May 7, 2009, Mr. Michael S. Chenoweth (hereinafter referred to as "Mr. Chenoweth"), the respondent herein, was driving his vehicle, a 1991 Mercury Grand Marquis, south on Emerson Avenue in Parkersburg, West Virginia. He made a right-hand turn onto West Virginia Avenue and then pulled off the road just past an entrance to a Fire Department. During the administrative hearing, Mr. Chenoweth testified that, after he pulled his car off the road, a State Police cruiser came around the corner and stopped in the road near Mr. Chenoweth's car. The cruiser was being operated by Trooper J.S. Pauley of the West Virginia State Police (hereinafter referred to as "Trooper Pauley"). Mr. Chenoweth stated that, after sitting in the roadway for ten or fifteen seconds, Trooper Pauley turned on his emergency lights and pulled his vehicle behind Mr. Chenoweth's car. Mr. Chenoweth was clear that Trooper Pauley did not cause him to pull off the road. Instead, he had already pulled off the road and was checking messages on his phone when Trooper Pauley approached him.
The D.U.I. Information Sheet subsequently completed by Trooper Pauley indicates that he stopped because Mr. Chenoweth's vehicle was parked in such a manner that it
Thereafter, on May 21, 2009, Commissioner Miller issued an order revoking Mr. Chenoweth's privilege to drive a motor vehicle. The revocation was to become effective on June 25, 2009. Mr. Chenoweth requested an administrative hearing, which was held on January 7, 2010. Mr. Chenoweth did not request the presence of Trooper Pauley at the administrative hearing. Following the administrative hearing, the hearing examiner proposed that Commissioner Miller conclude, as a matter of law, that Mr. Chenoweth violated W. Va.Code § 17C-5-2 (2008) (Repl. Vol.2009) by driving a motor vehicle in this State while under the influence of alcohol, and that he did so while having an alcohol concentration in his blood of .15% or more. The hearing examiner noted Mr. Chenoweth's argument that Trooper Pauley did not have any right to conduct a stop; therefore, Mr. Chenoweth's license revocation should be rescinded. Mr. Chenoweth based this argument upon his testimony that he had been legally parked when Trooper Pauley observed his vehicle on the side of the road. This testimony was contrary to Trooper Pauley's D.U.I. Information Sheet, which noted that Mr. Chenoweth's car was protruding into the roadway. After essentially observing that this conflicting evidence required a credibility determination, the hearing examiner found that the "dispute must be resolved in Trooper Pauley's favor." In addition, the hearing examiner explained that, "[f]rom the Respondent's own testimony, Trooper Pauley never initiated any investigative stop of the Respondent's 1991 Mercury, but approached it only after the Respondent had stopped of his own volition on West Virginia Avenue...." The hearing examiner observed further that, "as the record also reflects, Trooper Pauley found the Respondent's Mercury to be oddly positioned, protruding into the roadway." Commissioner Miller adopted these findings and entered a Final Order revoking Mr. Chenoweth's privilege to drive a motor vehicle for a period of forty-five days commencing July 28, 2010, and thereafter until Mr. Chenoweth fulfilled certain obligations.
Mr. Chenoweth appealed Commissioner Miller's Final Order to the Circuit Court of Wood County. By order entered December 23, 2010, the circuit court reversed and vacated the revocation of Mr. Chenoweth's driver's license based on its finding that Trooper Pauley improperly stopped Mr. Chenoweth's vehicle without an articulable reasonable suspicion. The circuit court applied the exclusionary rule relating to improper and/or illegal stops and this Court's prior analysis requiring the driver to have been "lawfully placed under arrest."
Finally, the circuit court acknowledged that this Court previously has observed that the exclusionary rule
This case is before this Court on appeal from a circuit court's order reversing an administrative order rendered by Commissioner Miller. In these circumstances, the role of the circuit court in reviewing an administrative
W. Va.Code § 29A-5-4(g) (1998) (Repl.Vol. 2007).
In the case sub judice, the circuit court reversed the administrative order. With respect to this Court's review of a circuit court's order reversing an administrative order, we have held that:
Syl. pt. 1, Clower v. West Virginia Dep't of Motor Vehicles, 223 W.Va. 535, 678 S.E.2d 41 (2009). Finally, we note that "[e]videntiary findings made at an administrative hearing should not be reversed unless they are clearly wrong." Syl. pt. 1, Francis O. Day Co., Inc. v. Director, Div. of Envtl. Prot., 191 W.Va. 134, 443 S.E.2d 602 (1994). With due regard for the foregoing standards, we proceed to analyze the instant case.
To resolve the primary issue raised by Commissioner Miller in this appeal, i.e., whether the circuit court erred in applying the exclusionary rule, it is necessary to first consider whether there was an illegal seizure. This is so because the exclusionary rule applies to exclude evidence obtained in connection with an illegal seizure. See State v. Townsend, 186 W.Va. 283, 286, 412 S.E.2d 477, 480 (1991) ("`The general rule is that where there is an illegal seizure of property, such property cannot be introduced into evidence, and testimony may not be given in regard to the facts surrounding the seizure of the property.'" (quoting Syl. pt. 1, State v. Davis, 170 W.Va. 376, 294 S.E.2d 179 (1982))). Thus, if there was no illegal seizure in the instant case, then there is no need to reach any issues pertaining to the exclusionary rule.
Commissioner Miller argues that Mr. Chenoweth admitted that he was already stopped when Trooper Pauley pulled in behind him and no action on the part of Trooper Pauley caused him to stop. See, e.g., Cain v. West Virginia Div. of Motor Vehicles, 225 W.Va. 467, 471, 694 S.E.2d 309, 313 (2010) (stating in dicta that, "[b]ecause Mr. Cain's vehicle was parked at the time the arresting officer encountered Mr. Cain, the standard governing the lawfulness of an investigatory traffic stop is clearly inapplicable to the case before us"). Therefore, Commissioner Miller contends, at best, a seizure did not occur until Trooper Pauley turned on his police lights and pulled in behind Mr. Chenoweth. Commissioner Miller asserts that there was reasonable suspicion or probable cause for the initial seizure insofar as it appeared that Mr. Chenoweth's vehicle was illegally parked. Mr. Chenoweth's inebriation that was discovered during the course of that investigation gave Trooper Pauley the right to expand the investigation to include driving while under the influence.
In response, Mr. Chenoweth argues that West Virginia cases have consistently required that a person must be properly arrested before his driving privileges can be
To analyze the preliminary issue in this case, i.e., whether there was an illegal seizure, we begin by noting this Court's prior observation that
Ullom v. Miller, 227 W.Va. 1, 7-8, 705 S.E.2d 111, 117-18 (2010) (footnotes omitted). Although,
Ullom, 227 W.Va. at 8, 705 S.E.2d at 118.
In the instant case, the circuit court concluded that Trooper Pauley's actions were clearly a stop of Mr. Chenoweth. The circuit court further concluded that the stop was
The D.U.I. Information Sheet prepared by Trooper Pauley clearly states that Mr. Chenoweth's vehicle was "stopped along roadway, protruding in roadway." The State notes that W. Va.Code § 17C-13-4(a) (1999) (Repl.Vol.2009) requires that "every vehicle stopped or parked upon a roadway where there are adjacent curbs shall be so stopped or parked with the right-hand wheels of such vehicle parallel to and within eighteen inches of the right-hand curb," and makes a violation thereof a misdemeanor. Thus, Trooper Pauley's observation that Mr. Chenoweth appeared to be parked illegally was sufficient justification for Trooper Pauley to investigate. Once he approached Mr. Chenoweth and further observed the odor of alcohol, Mr. Chenoweth's glassy and bloodshot eyes, and his slow speech, Trooper Pauley was justified in expanding his investigation to include driving under the influence of alcohol.
Notably, the factual circumstances presented by this case are similar to a case decided by the Court of Appeals of New Mexico. In New Mexico v. Finch, No. 29,350, 2009 WL 6567171 (N.M.Ct.App. June 29, 2009) (unpublished opinion), an officer observed a vehicle pull into a handicapped parking spot and watched as three individuals exited the vehicle. None of the individuals who exited the vehicle appeared to have any physical mobility limitations, so the officer informed them that they needed to move the vehicle. The vehicle occupants ignored the officer and he followed the driver of the automobile, Mr. Finch, into a bar. After observing a strong smell of alcohol, the officer asked Mr. Finch to exit the establishment to execute field sobriety testing. Mr. Finch ultimately was charged with non-aggravated driving under the influence of intoxicating liquor in violation of New Mexico law. Mr. Finch subsequently argued that the officer was without a "reasonable suspicion to detain him, where the officer claims to have initiated his investigation based on his suspicion that Defendant had illegally parked in a handicapped parking spot, and where Defendant's vehicle had a handicapped placard displayed." New Mexico v. Finch, 2009 WL 6567171, at *1. The New Mexico Court disagreed, explaining that
Finch, 2009 WL 6567171, at *1. Based upon this analysis, the court concluded that "the officer had sufficient justification to approach Defendant for further investigation." Accordingly, Mr. Finch's conviction was upheld. New Mexico v. Finch stands for the proposition that a parking violation provides sufficient justification to initiate an investigation.
Similarly, in the instant case, the evidence presented in the D.U.I. Information Sheet demonstrated that Trooper Pauley observed that Mr. Chenoweth's vehicle appeared to be illegally parked in violation of W. Va.Code § 17C-13-4(a). Mr. Chenoweth argues, however, that this evidence is insufficient in light of his own testimony that he had been legally parked, and in light of the absence of Trooper Pauley from the administrative hearing. We note that Mr. Chenoweth chose to exclude Trooper Pauley from the hearing by not subpoenaing his attendance.
Later in the questioning, Mr. Cosenza asked Mr. Chenoweth "You were legally parked?" To which Mr. Chenoweth answered "Uh huh."
There was no evidence other than Mr. Chenoweth's self-serving testimony to establish that the vehicle was legally parked. The hearing examiner recognized that the conflict in the evidence as to whether Mr. Chenoweth was legally parked required a credibility determination. The hearing examiner resolved this conflict in favor of Trooper Pauley. Credibility determinations are properly made by the trier of fact, in this case the administrative law judge, who has had the opportunity to observe, first hand, the demeanor of the witness. See, e.g., State v. Guthrie, 194 W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n. 9 (1995) ("An appellate court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact."). See also Jackson v. State Farm Mut. Auto. Ins. Co., 215 W.Va. 634, 641, 600 S.E.2d 346, 353 (2004) ("`Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge[.]'" (quoting Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 336 (1995) (additional citation omitted))); Haller v. Haller, 198 W.Va. 487, 496, 481 S.E.2d 793, 802 (1996) ("Like all triers of fact, the family law master had to balance conflicting evidence and make his ruling based on a weighing of the evidence, which necessarily involved credibility determinations."); Syl. pt. 2, State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967) ("The jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses."). Although the hearing examiner in the instant case was deprived of observing the demeanor of Trooper Pauley, he did have the opportunity to observe Mr. Chenoweth and found Mr. Chenoweth's testimony was not reliable. In these circumstances, we find the circuit court, which was essentially sitting as an appellate court, erred in reversing the factual determinations of the administrative law judge, which were subsequently adopted by Commissioner Miller in the order under review.
Simply stated, the evidence in this case was sufficient to establish that Trooper Pauley was justified in initiating an investigation into Mr. Chenoweth's illegally parked car,
For the reasons stated in the body of this opinion, we reverse the December 23, 2010, order of the Circuit Court of Wood County, and reinstate Commissioner Miller's final order revoking Mr. Chenoweth's driving privileges.
Reversed.
State v. Flippo, 212 W.Va. 560, 578 n. 20, 575 S.E.2d 170, 188 n. 20 (2002).
W. Va.Code § 17C-5A-2(f) (2008) (Repl.Vol. 2009) (emphasis added). Although not applicable to the case at hand, the statute was amended in 2010 and again in 2012, and language requiring a finding that the person was either lawfully arrested or lawfully taken into custody was restored. Our analysis will rely solely on the 2008 version of W. Va.Code § 17C-5A-2(f). The circuit court additionally relied upon this Court's decision in Clower v. West Virginia Department of Motor Vehicles, 223 W.Va. 535, 678 S.E.2d 41 (2009). The Clower opinion applied the 2004 version of W. Va.Code § 17C-5A-2, which, unlike the version of the statute applicable to the instant case, required a specific finding of "whether the person was lawfully placed under arrest for an offense involving driving under the influence of alcohol ... or was lawfully taken into custody for the purpose of administering a secondary test." W. Va.Code § 17C-5A-2(e) (2004) (Repl.Vol.2004). Therefore, the circuit court's reliance on Clower was misplaced.
