No. 13-0821 – Steven O. Dale, Acting Commissioner of the West Virginia Department of 

Motor Vehicles v. Anthony Ciccone 

FILED 

July 18, 2014 

RORY L. PERRY II, CLERK 

Benjamin, Justice, dissenting: SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

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

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

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

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

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

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

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

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

Anthony Ciccone was arrested. 

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

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

1. Police officers may stop a vehicle to investigate if they 

have an articulable reasonable suspicion that the vehicle is 

subject to seizure or a person in the vehicle has committed, is 

committing, or is about to commit a crime. To the extent State 

v. Meadows, 170 W.Va. 191, 292 S.E.2d 50 (1982), holds 

otherwise, it is overruled. 

2. When evaluating whether or not particular facts 

establish reasonable suspicion, one must examine the totality 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

of the circumstances, which includes both the quantity and 

quality of the information known by the police. 

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

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

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

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

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

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

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

In determining whether an informant has provided sufficiently reliable 

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

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

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

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

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

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

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

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

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

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

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

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

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

exists. 

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

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

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

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

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

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

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

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

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

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

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

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

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

at *2. 

1 The U.S. Supreme Court noted in Navarette that the parties did not dispute that 

the tipster identified herself by name in the 911 call. 2014 WL 1577513 at *2 n.1. 

However, because neither the caller nor the 911 dispatcher were present at the 

suppression hearing, the recording of the 911 call was not introduced into evidence. Id. 

Therefore, the lower courts in this case treated the call as anonymous. Id. 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WL 1577513 at *3. 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

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

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

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

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

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

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

*6. 

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

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

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

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

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

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

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

2 Navarette states, “[R]unning another car off the highway . . . bears too great a 

resemblance to paradigmatic manifestations of drunk driving to be dismissed as an 

isolated example of recklessness.” 2014 WL 1577513 at *6. 

3 Although Mr. Ciccone admitted to driving the vehicle earlier that night, it is 

unclear whether Mr. Ciccone was driving the vehicle when Ms. Marks made her call to 

police, and whether Mr. Ciccone was intoxicated when he drove the vehicle. 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

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

interpreted West Virginia’s constitutional protections against unreasonable searches and 

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

constitution in Navarette,

4 the totality of the information provided in this case is too 

tenuous to provide reasonable suspicion to support a lawful stop. 

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

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

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

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

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

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

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

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

S.E.2d 886 (“A police officer may rely upon an anonymous call if subsequent police 

work or other facts support its reliability and, thereby, it is sufficiently corroborated to 

4 The primary tenant of federalism permits West Virginia to place higher standards 

on its police pursuant to its own laws—such as a stricter standard for reasonable 

suspicion—than those required by the federal government, see, e.g., syl. pt. 2, Pauley v. 

Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979) (“The provisions of the Constitution of the 

State of West Virginia may, in certain instances, require higher standards of protection 

than afforded by the Federal Constitution.”). 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

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

majority in this case, I dissent.5 

5 As I said in my dissent in Miller v. Toler, 229 W. Va. 302, 313 n.3, 729 S.E.2d 

137, 148 n.3 (2012), in no way through this dissent do I intend to lessen the gravity of the 

great harm and danger drunk drivers pose to the people of West Virginia. I firmly believe 

that there is a “very valid public policy concern to rid our highways of drunken drivers” 

and that the government has a strong interest in doing just that. Fishbein v. Kozlowski, 

252 Conn. 38, 743 A.2d 1110, 1126 (1999) (Norcott, J., dissenting). While the goal of 

eliminating drunk drivers from our roadways is an admirable one, the goal should not be 

achieved by subjecting our citizens to the violation of their constitutional rights. 

Likewise, I do not through this dissent intend to disrespect the important and often 

difficult efforts of our law enforcement personnel. There is no assertion herein that the 

officers in question deliberately sought to violate any rights of the driver. The 

enforcement of individual constitutional rights does no more disservice to law 

enforcement officers than does the existence of the rights themselves. 

7