Everett Frazier, Commissioner, West Virginia Division of Motor Vehicles v. Steve Briscoe

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
January 2023 Term
_______________ June 15, 2023
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
Nos. 21-0990 and 21-0991 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
_______________
EVERETT J. FRAZIER, COMMISSIONER,
WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
Petitioner,
v.
STEVE BRISCOE,
Respondent.
________________________________________________________
Appeal from the Circuit Court of Putnam County
The Honorable Phillip M. Stowers, Judge
Civil Action Nos. 21-AA-1 and 21-AA-2
AFFIRMED
________________________________________________________
Submitted: March 21, 2023
Filed: June 15, 2023
Patrick Morrisey Shawn D. Bayliss, Esq.
Attorney General Bayliss Law Offices
Michael R. Williams Hurricane, West Virginia
Senior Deputy Solicitor General Counsel for the Respondent
Elaine L. Skorich
Assistant Attorney General
Charleston, West Virginia
Counsel for the Petitioner
JUSTICE HUTCHISON delivered the Opinion of the Court.
JUSTICE ARMSTEAD dissents and reserves the right to write separately.
JUSTICE BUNN concurs, in part, and dissents, in part, and reserves the right to write
separately.
SYLLABUS BY THE COURT
1. “A warrantless arrest in the home must be justified not only by
probable cause, but by exigent circumstances which make an immediate arrest imperative.”
Syl. Pt. 2, State v. Mullins, 177 W. Va. 531, 355 S.E.2d 24 (1987).
2. “The test of exigent circumstances for the making of an arrest for a
felony without a warrant in West Virginia is whether, under the totality of the
circumstances, the police had reasonable grounds to believe that if an immediate arrest
were not made, the accused would be able to destroy evidence, flee or otherwise avoid
capture, or might, during the time necessary to procure a warrant, endanger the safety or
property of others. This is an objective test based on what a reasonable, well-trained police
officer would believe.” Syl. Pt. 2, State v. Canby, 162 W. Va. 666, 252 S.E.2d 164 (1979).
3. “In the absence of any definition of the intended meaning of words or
terms used in a legislative enactment, they will, in the interpretation of the act, be given
their common, ordinary and accepted meaning in the connection in which they are used.”
Syl. Pt. 1, Miners in General Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941),
overruled, in part, on other grounds by Lee–Norse Co. v. Rutledge, 170 W. Va. 162, 291
S.E.2d 477 (1982).
i
HUTCHISON, Justice:
Respondent Steve Briscoe was arrested in his home without a warrant for a
misdemeanor committed elsewhere. Cases interpreting the United States and West
Virginia Constitutions provide that when a law enforcement officer arrests someone in their
home without a warrant, the officer must articulate some “exigent circumstance” that made
an immediate, warrantless arrest imperative. The arresting officer articulated no urgent
need to arrest Briscoe and admitted he would have obtained a warrant from an impartial
magistrate if Briscoe had not answered another officer’s knock at the door.
Evidence adduced during the arrest suggested Briscoe might have driven
while intoxicated from the scene of the misdemeanor to his home. The Petitioner, the West
Virginia Division of Motor Vehicles (“the DMV”), applied the evidence in three separate
decisions to revoke Briscoe’s driver’s license. However, now-repealed West Virginia
Code § 17C-5A-2(f)(2)(2015)1 provided that the DMV’s revocation decisions were valid
only if Briscoe had been “lawfully” arrested or “lawfully” taken into custody. It is
axiomatic that a lawful arrest is one that follows constitutional requirements. Briscoe
appealed the three revocation decisions to the circuit court.
The circuit court found that Briscoe had not been lawfully arrested without a
warrant. The circuit court reversed the DMV’s revocation decisions and found them to be
1
As we discuss below, many of the arguments in this appeal concern the
interpretation of statutory provisions that were wholly repealed by the Legislature in 2023.
See H.B. 2564.
1
clearly wrong in light of the now-repealed West Virginia Code § 17C-5A-2(f)(2). The
DMV appeals the circuit court’s rulings, but we see no error and affirm the circuit court.
I. Factual and Procedural Background
On November 28, 2019, Thanksgiving morning, the Putnam County 911
center received a call about people arguing at a residence in Hurricane, West Virginia. At
least three sheriff’s deputies were dispatched, including Deputy Joshua Warner. Upon
arriving at the residence, the deputies spoke with a woman who said she had been arguing
with respondent Briscoe. The woman alleged that the argument had turned physical, and
Deputy Warner saw a mark on the woman’s chest. Deputy Warner later wrote in a report
that the woman said Briscoe “had just left her residence” in a black car.
A search then began for Briscoe; as Deputy Warner later said, “the whole
county was looking for his car.” Minutes later, deputies found Briscoe’s black car in the
driveway of Briscoe’s home several miles away in Scott Depot, West Virginia. Believing
Briscoe was inside the home, a deputy knocked on the door. Deputy Warner later testified
that, if Briscoe “hadn’t answered the door,” he “would have got a warrant on him for
domestic battery.”
2
Briscoe answered the door, and Deputy Warner placed him under arrest for
2
misdemeanor domestic battery. Deputy Warner was adamant that he arrested Briscoe
solely for this offense. As he testified at a later DMV hearing, the deputy said he “[p]laced
him under arrest for domestic battery.” A question by the DMV’s lawyer affirmed that the
deputy’s “probable cause for placing Mr. Briscoe under arrest was based on an alleged
domestic offense.” Once the arrest was complete, Deputy Warner said he transported
Briscoe “to the Putnam County Courthouse for processing.”
The woman who alleged domestic violence told deputies that Briscoe “was
driving ‘drunk’” when he left her residence. Deputy Warner wrote in a report that “[w]hile
speaking to [Briscoe at his home] I could smell a strong odor of alcohol.” The deputy also
wrote that he asked Briscoe only one question at his home: “if he had been drinking while
he was at this location and he stated no.” Upon arriving at the courthouse, Deputy Warner
began processing Briscoe by filling out a six-page form titled “DUI Information Sheet”
related to the offense of driving under the influence (or “DUI”). Deputy Warner checked
boxes on the form that Briscoe had “slurred speech,” an “odor of alcoholic beverage,” and
“bloodshot, watery eyes.” At 11:20 a.m., Deputy Warner began speaking with Briscoe by
reading Miranda warnings from the DUI Information Sheet. The deputy then asked two
2
West Virginia Code § 61-2-28(a) (2017) provides that any person who
commits a domestic battery involving “physical contact . . . is guilty of a misdemeanor”
subject to confinement up to a year. Similarly, West Virginia Code § 61-2-28(b) creates
the offense of domestic assault, such that a person who attempts to inflict a violent injury
“is guilty of a misdemeanor” subject to confinement “not more than six months.” Deputy
Warner subsequently charged Briscoe with both of these offenses.
3
questions from the form: “were you operating a vehicle” and “where?” Briscoe answered,
“yes sir” and “Scott Depot.” The deputy wrote that, thereafter, Briscoe refused to answer
any more of the questions on the form.
Deputy Warner then turned to the portion of the DUI Information Sheet titled
“pre-arrest screening” that outlined several field sobriety tests.3 Following the outline on
the form, the deputy performed a horizontal gaze nystagmus test on Briscoe which the
deputy said showed signs of impairment. Briscoe was then instructed on how to perform
a walk and turn test; the deputy wrote that Briscoe refused to perform the test and “stated
he wanted his lawyer.” The deputy recorded, however, that Briscoe could not maintain his
balance. Finally, Deputy Warner asked Briscoe twice to take a secondary chemical test (a
breathalyzer), but Briscoe refused.
The deputy later filed a criminal complaint against Briscoe for three charges:
misdemeanor domestic battery; misdemeanor domestic assault; and driving under the
influence. At oral argument, counsel represented that these criminal charges were later
dismissed for reasons not apparent from the record. However, for purposes of this appeal,
the deputy also forwarded the DUI Information Sheet and other documents to the DMV.
3
In their brief to this Court, counsel for the DMV incorrectly claim that
Deputy Warner first conducted the “pre-arrest screening” sobriety tests, and thereafter read
Briscoe his Miranda warnings and asked questions. However, Deputy Warner was clear
in his testimony below that the sobriety tests “were conducted after the Miranda Rights
portion.”
4
After receiving these documents, in two separate orders dated December 11,
2019, the DMV suspended Briscoe’s driver’s license. The first order suspended his license
for driving under the influence, the second for refusing to submit to the designated
secondary chemical test. Asserting that his warrantless arrest in his home had been
unlawful, Briscoe objected to the DMV’s orders and requested a hearing before the DMV’s
Office of Administrative Hearings (“OAH”). A hearing was held before the OAH on
August 7, 2020. Deputy Briscoe was the sole witness to testify, and he testified that he
never saw Briscoe operate his vehicle and that he encountered Briscoe “inside his
residence.”4
The OAH affirmed the DMV’s two orders suspending Briscoe’s license in a
decision dated April 9, 2021 (and which, by its terms, took effect on April 23, 2021). The
OAH found that Briscoe had been “lawfully arrested” and that a preponderance of the
4
Counsel for the parties made arguments to this Court based on the mistaken
notion that, before Briscoe’s arrest, Deputy Warner spent 40 minutes speaking with Briscoe
at his home and therein leisurely developed evidence to support a DUI arrest. Counsel
seem to have based this notion on a lone, erroneous statement by the deputy. A written log
by the 911 center indicates that deputies were dispatched to the woman’s residence at 10:21
in the morning and arrived at 10:22. The search began for Briscoe and his car around
10:26, and the written log records deputies were “on scene” at Briscoe’s home at 10:43.
Deputy Warner testified that another deputy arrived at Briscoe’s home first. The written
log shows someone had Briscoe under arrest at 11:02 or 11:03 (there are two different
entries) and began transporting him at 11:03. In sum, the 911 log seems clear that about
40 minutes elapsed between the deputies’ arrival at the woman’s residence and their arrest
of Briscoe. This written log was provided to the DMV by Deputy Warner. However, on
the DUI Information Sheet, Deputy Warner noted that his “time of initial contact” was at
10:22. Confusingly, Deputy Warner subsequently testified that he first made contact with
Briscoe at 10:22. Deputy Warner’s testimony, and the arguments of counsel based on that
testimony, are clearly belied by the written log contained in the record.
5
evidence showed Briscoe had driven a vehicle while under the influence of alcohol and
had refused to take a secondary chemical test.
Five days later, on April 14, 2021, Briscoe appealed the OAH’s decision to
the circuit court, and he again asserted that the deputy’s warrantless arrest of him in his
home had been unlawful. Briscoe also filed a motion asking the circuit court for a stay of
5
the OAH’s decision; a hearing on the motion was held on May 20, 2021. Briscoe testified
to the circuit court that his livelihood rested on his job as a delivery driver for a pizza
restaurant. Counsel for the DMV reminded Briscoe about the effective date of the OAH
decision, and asked if Briscoe had “been driving since April 23rd of this year?” Briscoe
answered that he had, but said he was unaware he could not drive because his lawyer left
him “under the impression that until we had this motion hearing” he could keep driving.
Briscoe’s lawyer then intervened and said, “if it’s an error, blame it on me.” At the
conclusion of the hearing, the circuit court granted Briscoe’s motion to stay the OAH’s
decision upholding the DMV’s first two suspension orders.
It appears that, following the May 20th hearing, counsel for the DMV sent a
copy of the hearing transcript to her client. On June 24, 2021, the DMV entered a third
suspension order declaring that the DMV’s “evidence shows that you drove on May 20,
5
W. Va. Code § 17C-5A-2(s) provided that a circuit court could grant a stay
of an OAH order for up to 150 days upon a finding that “that there is a substantial
probability that the appellant shall prevail upon the merits and the appellant will suffer
irreparable harm if the order is not stayed[.]” See State ex rel. Miller v. Karl, 231 W. Va.
65, 743 S.E.2d 876 (2013). As discussed below, the Legislature has repealed this statute.
6
2021, while your license was suspended for driving under the influence.” This third order
declared that the DMV was suspending Briscoe’s license for a period of six months.
Briscoe promptly appealed the third suspension order to the circuit court and
again sought a stay. In an order dated July 9, 2021, the circuit court declared it was halting
the DMV’s “crusade to strip a pizza delivery driver of a license to earn a living pending
the resolution of this proceeding.” The circuit court stayed the DMV’s third suspension
order and prohibited the DMV from instituting any further suspension against Briscoe
arising from the facts of this case.
Thereafter, the circuit court heard arguments from the parties on Briscoe’s
central contention: that the deputy’s warrantless arrest in Briscoe’s home had been
unlawful. In an order dated November 8, 2021, the circuit court agreed with Briscoe and
reversed the OAH’s decision revoking Briscoe’s license. Under now-repealed West
Virginia Code § 17C-5A-2(f)(2), the OAH was required to assess whether Briscoe “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[.]”
The circuit court’s analysis centered on the Fourth Amendment to the United States
7
6 7
Constitution, and Article III, Section 6 of the West Virginia Constitution. They provide
that a warrantless arrest in the home is presumptively unlawful unless the arresting officer
shows two things: probable cause to believe an offense had been committed; and exigent
circumstances which made an immediate arrest imperative. Syl. pt. 2, State v. Mullins, 177
W. Va. 531, 355 S.E.2d 24 (1987).
The circuit court first concluded that Deputy Warner lacked probable cause
to arrest Briscoe in his home for DUI, primarily because no witness testified to seeing
Briscoe drive under the influence of alcohol. Second, and more significantly, the circuit
court found that there were no exigent circumstances to support the arrest in Briscoe’s
home without a warrant. The test for exigent circumstances involves assessing whether
the arresting law enforcement officer had reasonable grounds to believe that if an
immediate, warrantless arrest were not made, the accused would be able to destroy
6
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.
7
Section 6 of Article III 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.
8
evidence; flee; or endanger the safety of others or of property. The circuit court found that
the DMV had failed to show any of the three categories of exigent circumstances and that
Deputy Warner did not testify to any exigent circumstances. To the contrary, the deputy
testified that if Briscoe had not answered his door, then the deputy would have waited for
the approval of an arrest warrant, and then only for domestic battery and not DUI. The
deputy did not begin collecting evidence to arrest Briscoe for DUI until after he had been
arrested for domestic battery and transported to the courthouse for processing.
Accordingly, the circuit court concluded that the warrantless arrest of Briscoe
was done without probable cause and exigency, and thus, that the DMV had failed to
establish Briscoe had been “lawfully placed under arrest” for any offense. The circuit court
reversed the OAH’s decision and reinstated Briscoe’s license.
Several weeks later, on December 2, 2021, the circuit court entered an order
dismissing the DMV’s June 2021 third suspension of Briscoe’s license and listed a host of
reasons. In general, the circuit court found the latter suspension improper because the first
two suspensions had been declared invalid, and the evidence the DMV relied upon for the
third suspension stemmed directly from Briscoe’s unlawful arrest.8 Accordingly, the circuit
8
The circuit court also found that there was insufficient evidence to support
the suspension because there was absolutely no proof Briscoe “drove on May 20, 2021” as
stated in the DMV’s third suspension order; Briscoe never testified to driving on that day
or any other specific day, or to driving in West Virginia. Additionally, the DMV claimed
it had a right to automatically revoke Briscoe’s driver’s license based on any one of seven
diverse offenses listed in West Virginia Code § 17B-3-5 (1986) (ranging from negligent
homicide during the operation of a motor vehicle to failure to stop and render aid after an
Continued . . .
9
court found the DMV’s June 2021 suspension “was in clear error and not based on
sufficient evidence.”
The DMV now pursues two consolidated appeals, the first of the circuit
court’s November 8, 2021, order that reversed the OAH’s decision (No. 21-0991); and the
second of the circuit court’s December 2, 2021, order that reversed the DMV’s third
revocation order (No. 21-0990).
II. Discussion
We begin our discussion of the issues in this case with a significant caveat:
the statutes governing OAH decisions which the DMV asks us to interpret or apply in this
appeal have been repealed by the Legislature. First, in 2020, the Legislature stripped the
OAH of jurisdiction of any case arising after July 1, 2020, and it abolished the OAH
effective on July 1, 2021. See W. Va. Code § 17C-5C-1a (2020). Second, effective on
May 4, 2023, the Legislature eliminated all of the statutory guidelines used by the OAH to
issue decisions. See H.B. 2564 (“relating to repeal of administrative hearing procedures
for DUI offenses”).9 Nevertheless, despite the abolition of this government agency and its
various procedural statutes, we must still rely on those statutes to resolve the questions
presented by the DMV’s appeal.
accident to being convicted of reckless driving three times in two years). The circuit court
noted that it could “only guess” which of these seven offenses the DMV was relying upon.
9
House Bill 2564 repealed West Virginia Code §§ 17C-5A-2 and 17C-5C-1,
-1a, -2, -3-, -4, -4a, -4b, and -5.
10
Although this Court is reviewing a circuit court’s decision, at its core we are
reviewing a decision by an administrative agency. Hence, we apply the standards of review
contained in W. Va. Code § 29A-5-4(g) (2021) of the Administrative Procedures Act. Syl.
Pt. 1, Frazier v. Null, 246 W. Va. 450, 874 S.E.2d 252 (2022). West Virginia Code § 29A-
5-4(g) requires a court to reverse, vacate, or modify an administrative agency’s order or
decision if a petitioner’s substantial rights have been prejudiced because the agency’s
findings, inferences, conclusions, decision, or order (1) violates constitutional or statutory
provisions; (2) exceeds the agency’s statutory authority or jurisdiction; (3) was made upon
unlawful procedures; (4) is affected by other error of law; (5) is clearly wrong in view of
the reliable, probative, and substantial evidence on the whole record; or (6) is arbitrary or
capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion. See also Syl. Pt. 2, Shepherdstown Volunteer Fire Dep’t v. State ex rel. State of
W. Va. Hum. Rts. Comm’n, 172 W. Va. 627, 309 S.E.2d 342 (1983).
Under the now-repealed West Virginia Code § 17C-5A-2(f), the DMV was
required to prove, and the OAH was required to find, that Briscoe was “lawfully placed
under arrest” or was “lawfully taken into custody.” The DMV’s primary argument
challenges the circuit court’s conclusion that the deputy’s warrantless arrest of Briscoe in
his home was not “lawful.” We note, however, the novelty of the facts of this case. In the
typical driving-while-intoxicated case, the impaired person is found by a law enforcement
11
10
officer actively driving and behind the wheel of a moving vehicle, or behind the wheel of
11
a parked vehicle, or near a vehicle situated in a manner such that it could only have gotten
there from the impaired person driving it.12 “Most of our case law dealing with driving
under the influence does not involve arresting someone in their home.” State v. Cheek, 199
W. Va. 21, 25, 483 S.E.2d 21, 25 (1996).
That said, as we noted earlier, both the United States and West Virginia
Constitutions proscribe warrantless arrests in one’s home. Stated simply, warrantless
arrests in a home are presumptively unreasonable:
It is axiomatic that the “physical entry of the home is
the chief evil against which the wording of the Fourth
Amendment is directed.” United States v. United States
10
See, e.g., Crouch v. W. Va. Div. of Motor Vehicles, 219 W. Va. 70, 631
S.E.2d 628 (2006) (officer stopped intoxicated driver after seeing her weaving four to five
times and drop off the side of the road into a ditch); Simon v. W. Va. Dep’t of Motor
Vehicles, 181 W. Va. 267, 382 S.E.2d 320 (1989) (officer stopped intoxicated driver after
seeing him drive off road two or three times).
11
See, e.g., Syl. Pt. 3, Carte v. Cline, 200 W. Va. 162, 488 S.E.2d 437 (1997)
(driver slumped behind steering wheel on a state road at a stop light with engine running;
Court ruled that driver can be charged with DUI “so long as all the surrounding
circumstances indicate the vehicle could not otherwise be located where it is unless it was
driven there by that person.”).
12
See, e.g., Cain v. W. Va. Div. of Motor Vehicles, 225 W. Va. 467, 694
S.E.2d 309 (2010) (intoxicated driver found asleep on the ground in front of his vehicle;
vehicle was parked in a pull-off area that officer had seen empty thirty minutes earlier, the
engine was turned off, and the keys were not in the ignition; and upon waking, driver said
he was “just trying to get home”); Carroll v. Stump, 217 W. Va. 748, 750, 619 S.E.2d 261,
263 (2005) (intoxicated driver admitted to driving one of the vehicles in two-vehicle
accident); State v. Davisson, 209 W. Va. 303, 547 S.E.2d 241 (2001) (after single vehicle
accident, witnesses saw and identified the intoxicated driver as he abandoned the vehicle;
driver was also owner of vehicle; and driver was found shortly thereafter and arrested in
his driveway).
12
District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32
L.Ed.2d 752 (1972). And a principal protection against
unnecessary intrusions into private dwellings is the warrant
requirement imposed by the Fourth Amendment on agents of
the government who seek to enter the home for purposes of
search or arrest. See Johnson v. United States, 333 U.S. 10,
13-14, 68 S.Ct. 367, 368-369, 92 L.Ed. 436 (1948). It is not
surprising, therefore, that the Court has recognized, as “a ‘basic
principle of Fourth Amendment law[,]’ that searches and
seizures inside a home without a warrant are presumptively
unreasonable.” Payton v. New York, 445 U.S. [573], 586, 100
S.Ct. [1371], 1380 [(1980)].
Welsh v. Wisconsin, 466 U.S. 740, 748-49 (1984) (emphasis added). Like the Fourth
Amendment to the United States Constitution, “Article III, § 6 of our state constitution . .
. protect[s] citizens from unreasonable searches and seizures.” State v. Stone, 165 W. Va.
266, 269, 268 S.E.2d 50, 53 (1980), overruled on other grounds by State v. Julius, 185 W.
Va. 422, 408 S.E.2d 1 (1991). As we once said, “we jealously guard a person’s right to
privacy in the home and have strictly limited the circumstances justifying a warrantless
arrest in the home.” State v. Mullins, 177 W. Va. at 533-34, 355 S.E.2d at 26. Hence,
“searches and seizures performed without a valid warrant are presumed to be unreasonable,
and will be lawful only if the search and seizure falls within a recognized exception to the
warrant requirement.” Ullom v. Miller, 227 W. Va. 1, 8, 705 S.E.2d 111, 118 (2010).
Under the federal and state constitutions, a warrantless arrest in one’s home
is presumptively unreasonable unless a law enforcement officer can show two things:
probable cause to believe that a crime has been committed; and exigent circumstances
sufficient to sidestep the requirement of procuring a warrant from an impartial magistrate.
The constitutions make clear that “[a] warrantless arrest in the home must be justified not
13
only by probable cause, but by exigent circumstances which make an immediate arrest
imperative.” Syl. pt. 2, State v. Mullins, 177 W. Va. at 532, 355 S.E.2d at 25 (emphasis
added).
As we noted earlier, the circuit court found that the DMV, first, failed to
establish that the deputy had probable cause; and second, failed to articulate exigent
circumstances that made an immediate, warrantless arrest imperative. The DMV
vigorously asserts that the circuit court erred in determining there was no probable cause,
and it argues at length that the deputy had more than a reasonable suspicion to believe that
Briscoe had driven under the influence from his paramour’s residence to his home.13 We,
13
A question that we leave to another day is the modern-day meaning of
“probable cause” in the context of an allegation of domestic violence. Generally speaking,
“[p]robable cause to make an arrest without a warrant exists when the facts and the
circumstances within the knowledge of the arresting officers are sufficient to warrant a
prudent man in believing that an offense has been committed or is being committed.” Syl.
Pt. 1, State v. Plantz, 155 W. Va. 24, 24, 180 S.E.2d 614, 616 (1971). Accord, Syl. Pt. 4,
Reed v. Hill, 235 W. Va. 1, 770 S.E.2d 501 (2015). However, misdemeanor offenses
typically trigger another problem: a law enforcement officer “has no authority, at common
law or by statute, to make a warrantless arrest for a misdemeanor of a person who does not
commit such an offense in his presence.” Syl. Pt. 3, State v. Thomas, 157 W. Va. 640, 203
S.E.2d 445 (1974). “An offense can be said to be committed in the presence of an officer
only when he sees it with his own eyes, or sees one or more of a series of acts constituting
the offense, and is aided by his other senses or by information as to the others, when it may
be said the offense was committed in his presence.” Syl. Pt. 9, State v. Lutz, 85 W. Va.
330, 101 S.E. 434 (1919).
Nevertheless, when a law enforcement officer is investigating allegations of
misdemeanor domestic abuse or battery by a person in violation of West Virginia Code §
61-2-28, the officer “has authority to arrest that person without first obtaining a warrant”
if the officer “has observed credible corroborative evidence that an offense has occurred”
and either “an oral or written allegation” of an offense or the officer sees “credible evidence
that the accused committed the offense.” W. Va. Code § 48-27-1002(a) (2010). While the
Continued . . .
14
however, decline to consider the DMV’s assertions regarding probable cause because the
case may be resolved on the other factor: the lack of exigent circumstances.
Law enforcement officers making a warrantless arrest in a home must be able
to articulate exigency. As the United States Supreme Court once said,
the Constitution requires a magistrate to pass on the desires of
the police before they violate the privacy of the home. We
cannot be true to that constitutional requirement and excuse the
absence of a search warrant without a showing by those who
seek exemption from the constitutional mandate that the
exigencies of the situation made that course imperative.
McDonald v. United States, 335 U.S. 451, 456 (1948). This Court has identified three
broad categories of exigent circumstances that may support a warrantless arrest:
parties have cited this Code section, they have not explained its interaction with
constitutional probable cause requirements for a warrantless arrest in a home, and we
decline to do so on the record of this case. Further, the DMV fails to explain how this
statute displaces the constitutional requirement for exigent circumstances that would
support a warrantless arrest in one’s home (circumstances such as a likelihood of harm to
the wellbeing of others). See generally, Brigham City v. Stuart, 122 P.3d 506, 516 (Utah
2005) (rev’d and remanded sub nom Brigham City, Utah v. Stuart, 547 U.S. 398 (2006))
(“[T]he Fourth Amendment protections afforded a dwelling and the unquestioned evils of
domestic violence are powerful forces pulling a police officer standing on the threshold of
a home in opposite directions: the Fourth Amendment pushing him toward a magistrate
and a warrant, domestic violence drawing him through the door to intervene in one of the
most common and volatile settings for serious injury or death. We are wary of making
sweeping pronouncements in the face of these important, but contradictory, concerns.”);
Deborah Tuerkheimer, Exigency, 49 Ariz. L. Rev. 801 (2007); Toni L. Harvey, Batterers
Beware: West Virginia Responds to Domestic Violence with the Probable Cause
Warrantless Arrest Statute, 97 W. Va. L. Rev. 181, 185 (1994) (discussing how all states
have “enacted some form of probable cause warrantless arrest statute, enabling law-
enforcement officers to respond more effectively to incidents of domestic violence[.]”).
See also, United States v. Davis, 290 F.3d 1239, 1244 (10th Cir. 2002) (declining to “grant[]
unfettered permission to officers to enter homes, based only upon a general assumption
domestic calls are always dangerous”); People v. Chavez, 240 P.3d 448, 451 (Colo. App.
2010) (“there is no ‘domestic violence’ exception to the Fourth Amendment”).
15
The test of exigent circumstances for the making of an
arrest . . . without a warrant in West Virginia is whether, under
the totality of the circumstances, the police had reasonable
grounds to believe that if an immediate arrest were not made,
the accused would be able to destroy evidence, flee or
otherwise avoid capture, or might, during the time necessary to
procure a warrant, endanger the safety or property of others.
This is an objective test based on what a reasonable, well-
trained police officer would believe.
14
Syllabus Point 2 of State v. Canby, W.Va., 252 S.E.2d 164 (1979). The United States
Supreme Court recently summarized the case law and offered the same categories of
exigency:
14
Although preventing the escape of a suspect is a recognized exigent
circumstance, in a footnote this Court has also included the parallel doctrine of hot pursuit
as an additional category supporting a warrantless arrest in a home. See State v. Lacy, 196
W. Va. 104, 112 n.7, 468 S.E.2d 719, 727 n.7 (1996) (“Recognized situations in which
exigent circumstances exist include: danger of flight or escape; danger of harm to police
officers or the general public; risk of loss, destruction, removal, or concealment of
evidence; and hot pursuit of a fleeing suspect.”). See also Dale Joseph Gilsinger, When Is
Warrantless Entry of House or Other Building Justified Under “Hot Pursuit” Doctrine, 17
A.L.R.6th 327 (2006) (“Courts commonly reconcile the hot pursuit doctrine with the
Fourth Amendment by reasoning that an exception to the Fourth Amendment warrant
requirement pertains when exigent circumstances exist that make it impracticable to obtain
a warrant, and characterizing hot pursuit as a specimen of such exigent circumstances.”).
We note that, during oral argument, counsel for the DMV proffered a “hot
pursuit” opinion by the United States Supreme Court (United States v. Santana, 427 U.S.
38 (1976)) for the amazing proposition that individuals who have opened their home’s door
in answer to an officer’s knock, and who are therefore standing at their home’s threshold,
are not protected by the Fourth Amendment. Santana stands for no such principle, but
rather says that if an individual is seen committing a crime from their front door and at the
threshold of their home, the officer may chase the individual into the home under the
doctrine of hot pursuit. See id. at 43 (1976) (Santana sold heroin in the doorway of her
house and ran inside when officers shouted “police” and gave chase. “This case[]
involve[es] a true ‘hot pursuit’ . . . The fact that the pursuit here ended almost as soon as it
began did not render it any the less a ‘hot pursuit’ sufficient to justify the warrantless entry
into Santana’s house. Once Santana saw the police, there was likewise a realistic
expectation that any delay would result in destruction of evidence.”)
16
The Fourth Amendment ordinarily requires that a law
enforcement officer obtain a judicial warrant before entering a
home without permission. But an officer may make a
warrantless entry when the exigencies of the situation,
considered in a case-specific way, create a compelling need for
official action and no time to secure a warrant. The Court has
found that such exigencies may exist when an officer must act
to prevent imminent injury, the destruction of evidence, or a
suspect’s escape.
Lange v. California, 594 U.S. ___, ___, 141 S. Ct. 2011, 2013 (2021) (cleaned up).
The DMV does not point to any exigent circumstance to justify the failure of
the deputy to obtain a warrant. To the contrary, the DMV’s entire argument on exigency
is found in one sentence of its opening brief: “exigent circumstances were not required
because [Briscoe] willingly answered the door and voluntarily” spoke with Deputy Warner
“without telling the officer to leave and return with a warrant.” We reject this argument
because it is squarely contradicted by our decision in State v. Cheek where this Court
addressed a similar situation. In Cheek, witnesses told police they saw the defendant
driving erratically and then enter his home. A police officer knocked on the door. When
the defendant opened the door, the officer “saw an object” in the defendant’s hand and
forcibly pulled him out of his house before arresting him for DUI. 199 W. Va. at 23, 483
S.E.2d at 23. We noted the constitutional rule that “when the government intrudes into a
person’s home, a warrantless arrest must be justified by probable cause and the presence
of exigent circumstances.” Id. at 26, 483 S.E.2d at 26. This Court set aside the arrest
because “no exigent circumstance was shown;” the defendant “was in his home, he was
not liable to flee, destroy evidence or endanger the safety or property of others; especially
17
with the two officers outside.” Id. at 26-27, 483 S.E.2d at 26-27. See also, Welsh v.
Wisconsin, 466 U.S. at 750 (1984) (finding that a warrantless arrest in a home for driving
under the influence was unreasonable: “When the government’s interest is only to arrest
for a minor offense, that presumption of unreasonableness is difficult to rebut, and the
government usually should be allowed to make such arrests only with a warrant issued
upon probable cause by a neutral and detached magistrate.”).
In the instant case, Deputy Warner recognized a lack of exigency when he
testified that, if Briscoe had not answered his door, then the deputy would have left Briscoe
in his home and procured an arrest warrant from an impartial magistrate for domestic
battery. Moreover, Briscoe was in his home and many miles away from his alleged
domestic violence victim, and the DMV points to nothing to suggest Briscoe was a threat
to the well-being of officers or others. Numerous officers were present at Briscoe’s home
(as Deputy Warner testified, “the whole county” was looking for Briscoe that Thanksgiving
morning), and the DMV offers nothing to indicate Briscoe might have fled or otherwise
eluded capture during the time necessary to procure a warrant. And lastly, the DMV failed
to identify any evidence that might have been destroyed by Briscoe during the delay in
obtaining a warrant. To the extent there is a suggestion that the mere metabolism of alcohol
in Briscoe’s bloodstream would constitute the elimination of evidence, the United States
Supreme Court has determined that the natural metabolization of alcohol does not create a
per se exigency that justifies violating the Fourth Amendment’s warrant requirement.
Missouri v. McNeely, 569 U.S. 141 (2013).
18
Under the now-repealed West Virginia Code § 17C-5A-2(f)(2), the DMV
was required to establish to the OAH that Briscoe “was lawfully placed under arrest” or
was “lawfully taken into custody.” When we weigh the Legislature’s use of a word like
“lawfully,” we note that “[i]n the absence of any definition of the intended meaning of
words or terms used in a legislative enactment, they will, in the interpretation of the act, be
given their common, ordinary and accepted meaning in the connection in which they are
used.” Syl. Pt. 1, Miners in Gen. Grp. v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941). The
definition of a “lawful” act is one that is “[n]ot contrary to law; permitted or recognized by
law; rightful[.]” Black’s Law Dictionary (11th ed. 2019). Accord, In re Adoption of
B.C.H., 22 N.E.3d 580, 585 (Ind. 2014) (“Put simply, ‘lawful’ means ‘not contrary to
law.’”); Hougum v. Valley Mem’l Homes, 574 N.W.2d 812, 821 (N.D. 1998) (“As
commonly used, the word ‘lawful’ means authorized by law and not contrary to, nor
forbidden by law.”); Dominick v. Christensen, 548 P.2d 541, 542 (Wash. 1976) (“[T]he
term, given its ordinary interpretation, means ‘allowed or permitted by law.’”). The Oxford
English Dictionary offers a number of synonyms for “lawful” that include “permissible,”
“proper,” “authorized,” “warranted,” “going by the rules,” and – significantly for our
discussion – “constitutional.”
A “lawful” arrest would, therefore, be one that complies with the dictates of
the United States and West Virginia Constitutions. Under the jurisprudence of this Court
and the United States Supreme Court, and viewing the evidence objectively and as a whole,
we see nothing that impelled the deputies to arrest Briscoe without first obtaining a warrant.
19
Briscoe’s warrantless arrest in his home in the absence of exigent circumstances was
presumptively unreasonable, contrary to decades of constitution-based case law, and
therefore was not lawful. The OAH was clearly wrong in its conclusion that the DMV’s
suspensions were valid, because Briscoe clearly was not “lawfully placed under arrest” or
“lawfully taken into custody” as required by West Virginia Code § 17C-5A-2(f)(2).
Because the arrest violated constitutional provisions, and the subsequent suspensions
violated statutory provisions, the circuit court did not err in reversing the OAH and setting
aside the DMV’s first two suspension decisions.
We now turn to the DMV’s other contention on appeal: that the circuit court
erred when it reversed the DMV’s third suspension of Briscoe’s license in June 2021. The
DMV acknowledges the circuit court’s (and now this Court’s) ruling that the first and
second suspensions were found unlawful. Still, it contends that for a period of several
weeks (between April 23 and the circuit court’s issuance of a stay on May 20, 2021) the
suspensions were unquestionably still in effect. Accordingly, the DMV argues that
Briscoe’s license could still be suspended if he drove during that period because such
suspensions are mandatory.15
15
The DMV cites to several now-repealed OAH procedural statutes in
support of a lengthy and complicated theory that the circuit court was only empowered by
the procedural guidelines to stay the OAH decision on a prospective basis, but it erred by
making the stay retroactive to the date the decision was entered. Similarly, the DMV cites
the same now-repealed statutes to assert it was entitled to a hearing at which it would have
offered evidence in support of its claim that Briscoe drove during the weeks his license was
suspended. We decline to consider these arguments.
20
We reject this position because the governing statutes show the DMV’s
argument is wholly without merit. West Virginia Code § 17B-4-3(c) (2017) provides (with
emphasis added) that a person may not drive a vehicle if “the license of that person was
lawfully suspended or revoked” for offenses like DUI.16 Upon proof the person drove while
his license was “lawfully suspended or revoked,” the DMV must suspend, restrict, or
revoke the person’s license for an additional six months. W. Va. Code § 17B-3-6(a)(1).17
16
West Virginia Code § 17B-4-3(c) provides, in part, and with emphasis
added, that:
Upon receiving a record of the first or subsequent conviction
of any person . . . upon a charge of driving a vehicle while the
license of that person was lawfully suspended or revoked, the
[DMV] shall extend the period of the suspension or revocation
for an additional period of six months which may be served
concurrently with any other suspension or revocation.
17
West Virginia Code § 17B-3-6(a)(1) (2009) provides, with emphasis
added, that the DMV is “authorized to suspend, restrict, or revoke the driver’s license of
any person without preliminary hearing upon a showing by its records or other sufficient
evidence that the licensee . . . [h]as committed an offense [under West Virginia Code §
17B-4-3] for which mandatory revocation of a driver’s license is required upon
conviction[.]” In Syllabus Point 2 of In re Petition of McKinney, 218 W. Va. 557, 625
S.E.2d 319 (2005), we interpreted this Code section to require revocation of a driver’s
license regardless of whether the driver is actually convicted of violating West Virginia
Code § 17B-4-3:
Pursuant to W.Va. Code § 17B-3-6(a)(1) (1997), the
West Virginia Division of Motor Vehicles is authorized to
suspend the driver’s license of any person without preliminary
hearing upon a showing by its records or other sufficient
evidence that the licensee committed an offense for which
mandatory revocation of a driver’s license is required upon
conviction, regardless of whether the licensee is convicted of
the offense.
West Virginia Code § 17B-3-6 was amended in 2022 but no change affects our opinion.
21
However, as we found earlier in this opinion, Briscoe’s license was not “lawfully
suspended or revoked” by the DMV in its December 2019 orders. Hence, his license could
not have been subsequently suspended, restricted, or revoked in June 2021 by the DMV
under W. Va. Code §§ 17B-3-6(a)(1) and 17B-4-3(c). Accordingly, we find no error in the
circuit court’s order reversing the DMV’s third suspension order.
IV. Conclusion
The circuit court was, and this Court is, required to reverse the DMV’s and
OAH’s administrative decisions if the record shows Briscoe’s substantial rights were
prejudiced because the decisions violated constitutional or statutory provisions, were based
upon unlawful procedures, or were affected by an error of law. We find no error in the
circuit court’s assessment that all the DMV’s suspension orders were founded upon an
unlawful arrest. Accordingly, the circuit court’s November 8, 2021, and December 2,
2021, orders that reversed the OAH’s decisions must be affirmed.
Affirmed.
22