2011 WY 145, 262 P.3d 197, MARK ORCHARD v. THE STATE OF WYOMING, DEPARTMENT OF TRANSPORTATION
Case Date: 10/20/2011
Docket No: No.S-11-0084
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MARK ORCHARD v. THE STATE OF WYOMING, DEPARTMENT OF TRANSPORTATION Cite as: 2011 WY 145, 262 P.3d 197 OCTOBER TERM, A.D. 2011 MARK ORCHARD, Appellant (Plaintiff),
v.
THE STATE OF WYOMING, DEPARTMENT OF TRANSPORTATION, Appellee (Defendant)
Appeal from the District Court of Carbon County The Honorable Wade E. Waldrip, Judge
Representing Appellant: R. Michael Vang, Fleener & Vang, LLC, Laramie, Wyoming.
Representing Appellee: Gregory A. Phillips, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Michael T. Kahler, Assistant Attorney General.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
BURKE, Justice.
[1] Appellant, Mark Orchard, was arrested for driving while under the influence of alcohol. As a result, the Wyoming Department of Transportation advised him that it was suspending his drivers license pursuant to Wyo. Stat. Ann. 31-6-102. Appellant contested the suspension before the Office of Administrative Hearings (OAH), and the OAH upheld the suspension. He sought review in the district court, and the court affirmed the OAHs order. Appellant challenges the district courts order, contending that the police officer who arrested him lacked reasonable suspicion to initiate the traffic stop. We affirm.
ISSUE
[2] Appellant presents the following issue:
1. The only issue presented for appeal is whether or not the arresting officer presented sufficient facts within his Officers Signed Statement and certified record to support his claim that he received an anonymous REDDI report and observed sufficient facts while on routine traffic patrol that would allow the arresting officer to make contact with the Licensee and ultimately arrest him for driving while under the influence of alcohol (DWUI).
The Wyoming Department of Transportation (WYDOT) phrases the issues as follows:
1. Did the OAH correctly conclude that [the arresting officer] had reasonable suspicion to initiate a traffic stop on Appellant?
2. Did the OAH correctly conclude that [the arresting officer] had probable cause to arrest Appellant for driving while under the influence of alcohol?
FACTS
[3] On December 17, 2009, an officer of the Baggs Police Department received a Report Every Drunk Driver Immediately (REDDI) alert involving a purple Dodge pickup traveling north from Cowpoke Lane in Baggs, Wyoming. A short time later, the officer passed a vehicle with the same description driving south through town. According to the officers narrative report, as he was passing the pickup he observed the vehicle cross the double yellow centerline. The officer turned around to follow and noticed that the driver failed to use a turn signal when turning right into a gas station. The officer activated his emergency lights and initiated a traffic stop.
[4] As the officer exited his patrol car, Appellant left the pickup and walked toward the officer. Appellant exhibited poor balance and had difficulty walking. Upon making contact with Appellant, the officer detected a strong odor of alcohol on his breath. Appellant stated that he had been drinking at a local establishment. The officer requested that Appellant perform field sobriety maneuvers, including the horizontal gaze nystagmus, one leg stand, and walk and turn tests. Appellant stated that he would not be able to pass, but agreed to perform the tests. The officers report indicated that, during the horizontal gaze nystagmus test, Appellant lacked smooth pursuit in both eyes and sustained distinct nystagmus at maximum deviation. Appellant was unable to complete the other tests. The officer then asked Appellant to submit to a preliminary breath test, which he refused. Based on the officers observations during the traffic stop and Appellants performance on the field sobriety tests, the officer placed him under arrest for driving while under the influence of alcohol. A breath test was subsequently administered at the Carbon County jail, which showed that Appellant had a .135% blood alcohol content.
[5] WYDOT notified Appellant of its intent to suspend his drivers license for driving while under the influence, as required by Wyo. Stat. Ann. 31-6-102. Appellant requested a contested case hearing, and a hearing was held on March 4, 2010. Appellant appeared via telephone and the Department relied on its certified record, which included the arresting officers narrative report. Appellant contested the officers version of the events, arguing that the officer had not made contact with him until three to five minutes after he had parked his vehicle to get gas. Appellant presented three video recordings of the arrest, two of which were taken from the arresting officers dashboard camera, and another that was taken from an assisting officers camera. He noted that none of the recordings actually showed him driving or showed the officers initial contact with him.
[6] Each of the videos of the incident appears to have been taken after Appellant was stopped at the gas station. The first video was taken from a moveable camera that was initially inside the arresting officers vehicle. The hearing examiner noted that the video was not very helpful because the camera was continuously moving around, as if [the arresting officer] believed it was not activated. The hearing examiner also noted that, in the video, Appellant repeatedly asked if he could be given a break and repeatedly stated that he had too much to drink and would not be able to do the field sobriety maneuvers. The second video, which was taken from inside of the arresting officers vehicle, showed Appellant during transport to the detention facility after his arrest. In this video, Appellant asked the arresting officer why he was stopped, and the officer told Appellant that he stopped him for drifting over the centerline and for failing to use his turn signal when turning into the gas station. The third video was taken from the assisting officers vehicle, which arrived on the scene after the stop.
[7] Appellant also presented testimony of a witness who stated that she observed the arresting officer receive the REDDI alert at a restaurant in Baggs, and that she subsequently observed the officers vehicle with its overhead lights illuminated and Appellants pickup parked at the gas station. Appellant argued that this testimony indicated that the officer had not observed him driving his vehicle. Finally, Appellant noted that both the time of the incident and the time it was reported were listed as 8:48 p.m. on the arresting officers case report. Based on this evidence, Appellant asserted that the Department did not prove that the arresting officer had reasonable suspicion to make a traffic stop because the officer had lied about observing Appellant crossing the double yellow centerline and about observing Appellant failing to use his turn signal.
[8] The hearing examiner found the officers statements to be more credible than Appellants version of the events and explained:
14. This Office disagrees with counsel for Orchard. The alleged inconsistencies in the timing of the REDDI Report and [the arresting officers] contact with Orchard are not sufficient to refute [the arresting officers] sworn statements regarding his observation of traffic violations. In addition, Orchards testimony was less credible than [the arresting officers] more contemporaneous written report due to Orchards undisputed intoxication and [the witnesss] testimony did not have any bearing on what occurred while [the arresting officer] was driving past Orchard just prior to stopping Orchard because she was still in the restaurant. Finally, Orchard did not subpoena [the arresting officer] and did not properly challenge his sworn statements.
The hearing examiner ultimately determined that the arresting officer had reasonable suspicion to initiate the traffic stop because he properly corroborated the REDDI Report by observing driving indicative of impairment and observed Orchard commit two traffic infractions, crossing over the double yellow centerline and failing to use a turn signal while turning into the Conoco station parking lot.1
[9] The district court upheld the hearing examiners decision, finding no reason to reverse the conclusions of the Office of Administrative Hearings in determining that, based on the facts as found by the Hearing Officer, [the arresting officer] had reasonable suspicion to initiate a traffic stop of Mr. Orchard. Appellant subsequently filed this timely appeal.
STANDARD OF REVIEW
[10] When we consider an appeal from a district courts review of an administrative agencys decision, we review the case as if it had come directly from the administrative agency. Batten v. Wyo. DOT Drivers License Div., 2007 WY 173, 6, 170 P.3d 1236, 1239 (Wyo. 2007). Review of an administrative agencys action is governed by the Wyoming Administrative Procedure Act, which provides that the reviewing court shall:
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
Wyo. Stat. Ann. 16-3-114(c) (LexisNexis 2009). We apply the substantial evidence standard of review to the hearing examiners findings of fact. Batten, 12, 170 P.3d at 1241.
Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. [Bradshaw v. Wyo. Dept of Transp. Drivers License Div., 2006 WY 70, 11, 135 P.3d 612, 616 (Wyo. 2006).] Phrased another way, [f]indings of fact are supported by substantial evidence if, from the evidence preserved in the record, we can conclude a reasonable mind might accept the evidence as adequate to support the agency findings. Id.
DISCUSSION
[11] The Fourth Amendment to the United States Constitution protects persons from unreasonable searches and seizures. A routine traffic stop constitutes a seizure within the meaning of the Fourth Amendment even though the purpose of the stop is limited and the resulting detention quite brief. Damato v. State, 2003 WY 13, 9, 64 P.3d 700, 704 (Wyo. 2003). The decision to stop an automobile is justified when the officer has probable cause to believe a traffic violation has occurred or when the officer has a reasonable articulable suspicion that the particular motorist is engaged in criminal activity. Harvey v. State, 2011 WY 72, 9, 250 P.3d 167, 171 (Wyo. 2011); Frazier v. State, 2010 WY 107, 16, 236 P.3d 295, 300 (Wyo. 2010). An officers personal observation of a traffic violation provides probable cause to initiate a stop. Tiernan v. State, 2011 WY 143, 12, 262 P.3d 561, 565 (Wyo. 2011); Fertig v. State, 2006 WY 148, 27, 146 P.3d 492, 501 (Wyo. 2006).
[12] An investigatory stop may be justified by reasonable suspicion where a police officer is able to point to specific and articulable facts which, taken together with rational inferences [drawn] from those facts, reasonably warrant that intrusion. McChesney v. State, 988 P.2d 1071, 1075 (Wyo. 1999). We have said that
Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors -- quantity and quality -- are considered in the totality of the circumstances -- the whole picture, United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), that must be taken into account when evaluating whether there is reasonable suspicion.
[13] In the present case, the arresting officers narrative stated that, as he passed a vehicle matching the description in the REDDI report, he noticed that the vehicle drifted over the double yellow centerline on Hwy 789. The officer further stated that he turned around to follow the vehicle, and I then noticed that they did not activate their blinker when turning right into Sheppards Conoco.2 The officer activated his emergency overhead lights and initiated a traffic stop of Appellants vehicle.
[14] Appellant does not dispute that the officers observations, as presented in his narrative report, provide sufficient justification for a stop. He contends, however, that the officer did not see Appellant driving his vehicle. He argues that the video recordings of the traffic stop and the witness testimony indicate that the officer never saw a traffic violation and simply approached [Appellant] as he was gassing up his car for the next morning and his car happened to match a REDDI report. Appellants argument presents a question of fact. Accordingly, we determine whether substantial evidence exists to support the hearing examiners findings.
[15] The hearing examiner determined that the alleged inconsistencies in the arresting officers statement were not sufficient to disprove the States prima facie case. The hearing examiner explained that decision as follows:
First, [the arresting officer] was not subpoenaed to testify at hearing and the burden of challenging the veracity or validity of an officers testimony or sworn statements rests squarely on the driver. [Department of Revenue and Taxation v.] Hull, 751 P.2d [351,] 356 [(Wyo. 1988)]. An officer must be properly subpoenaed to testify when the decision is made to challenge such statements. Id. In general, when the driver fails to properly challenge the officers statements, this Office will not reject the officers statements or their presumption of validity as provided by statute, rules and regulations. Second, [the arresting officers] sworn statements in his Narrative were more credible than Orchards testimony because [the arresting officers] statements were made more contemporaneously and Orchards testimony was based upon his memory from an evening when he was admittedly intoxicated. Third, the alleged inconsistency in the time of the REDDI Report to the Carbon County Sheriffs Department and [the arresting officers] time of initial contact with Orchard was not sufficient to demonstrate [the arresting officer] fabricated his sworn Narrative, especially in light of the failure to call [the arresting officer] or the dispatcher from the Sheriffs Department as witnesses to attempt to explain the alleged inconsistency. Fourth, [the witnesss] testimony did not have any bearing on what occurred while [the arresting officer] was driving past Orchard just prior to stopping Orchard because she was still in the restaurant at the time. Finally, although the videos were of poor quality and not very professionally made, the videos were consistent with [the arresting officers] Narrative. In fact, during the second video, [the arresting officer] told Orchard he stopped him for drifting over the centerline and for failing to use his turn signal when he turned into the Conoco station, which corroborated [the arresting officers] Signed Statement and Narrative.
In sum, the hearing examiner considered the evidence presented by Appellant, weighed the credibility of the witnesses, and concluded that the arresting officer had, in fact, observed Appellant in his vehicle before initiating a traffic stop.
[16] We conclude that the hearing examiners findings are supported by substantial evidence, and that those findings support a determination that the stop of Appellants vehicle was reasonable under either a reasonable suspicion or probable cause analysis. As noted above, an observed violation of a traffic law, by itself, provides an officer with probable cause to initiate a traffic stop. Observation of traffic violations may also provide sufficient corroboration of a REDDI report to justify an intrusion based on reasonable suspicion that a motorist is driving while under the influence. The arresting officers signed statement indicated that he observed Appellant commit two traffic violations, and the statement was supported by the videos presented at the contested case hearing. In one of the recordings, Appellant can be heard asking the officer why he was stopped. This statement indicates that Appellant was indeed stopped by the officer, and it appears to contradict Appellants claim that he had been parked at the gas station for three to five minutes before being approached by the officer. Further, in response to Appellants inquiry as to why he was stopped, the officer stated that he stopped him for drifting over the centerline and failing to use his turn signal.
[17] In addition, the testimony from the witness who was present when the arresting officer received the REDDI alert does not contradict any material fact set forth in the arresting officers narrative. Although the witnesss statements may create a dispute as to whether the officer received the report while he was on routine patrol, this alleged inconsistency in the officers narrative does not negate the possibility that the officer observed Appellant between the time that the officer left the restaurant and stopped Appellant at the gas station.
[18] Having reviewed the entire record, we find no reason to depart from our usual deference to a lower tribunals credibility determinations. See, e.g., Hittner v. State ex rel. Wyo. DOT (In re Hittner), 2008 WY 91, 16, 189 P.3d 872, 877 (Wyo. 2008). As we have repeatedly stated, Our job is not to re-weigh the evidence or determine credibility of witnesses. That is the responsibility of the finder of fact. Batten, 20, 170 P.3d at 1243. The Department of Transportations certified record, which included the arresting officers signed statement, constitutes relevant evidence that a reasonable mind might accept as adequate to support the determination that the arresting officer had probable cause or reasonable suspicion to initiate a traffic stop of Appellants vehicle.
[19]
Finally, Appellant
contends that the arresting officer did not have probable cause to make an
arrest. Appellant, however, did not
raise this issue in the proceedings before the OAH. We recently reiterated that, With the
exception of certain jurisdictional or fundamental issues, we will not consider
issues raised for the first time on appeal. Street v. Street, 2009 WY 85, 17, 211 P.3d 495, 501
(Wyo. 2009). We have held that
This rule is equally applicable to appeals from administrative decisions as to
those from district courts. BP Am. Prod. Co. v. Dept of Revenue, 2006 WY 27, 18, 130 P.3d 438, 462 (Wyo. 2006). Appellant has made no argument and has
offered no authority indicating that he presents a jurisdictional or
fundamental issue. Consequently,
we do not address the issue of whether the officer had probable cause to arrest
Appellant. [20] Affirmed.
FOOTNOTES
1Although the hearing examiner concluded that the arresting officer had reasonable suspicion to initiate the stop, we note that the decision to stop a motorist may also be based on probable cause. See infra, 11-12.
2In his report, the officer did not indicate which statutes Appellant may have violated. However, the officers observations suggest violations of Wyo. Stat. Ann. 31-5-207, governing No-passing zones, 31-5-209, titled Driving on roadways laned for traffic, and 31-5-217, governing Turning movements and required signals. In any event, Appellant does not dispute that crossing the centerline and failing to use a turn signal are traffic violations.
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