State v. Hoston

• Decision Date: 24 February 2012
• Docket Number: Nos. 11–0120,11–0457.,s. 11–0120
• Citation: 228 W.Va. 605,723 S.E.2d 651
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Paula D. HOSTON, Defendant Below, PetitionerandState of West Virginia, Plaintiff Below, Respondent v. Reese T. Riley, Defendant Below, Petitioner.

228 W.Va. 605

723 S.E.2d 651

STATE of West Virginia, Plaintiff Below, Respondent

v.Paula D. HOSTON, Defendant Below, PetitionerandState of West Virginia, Plaintiff Below, Respondent

v.Reese T. Riley, Defendant Below, Petitioner.

Nos. 11–0120

11–0457.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 18, 2012.Decided Feb. 24, 2012.

Syllabus by the Court

1. “On appeal, legal conclusions made with regard to suppression determinations are reviewed de novo. Factual determinations upon which these legal conclusions are based are reviewed under the clearly erroneous standard. In addition, factual findings based, at least in part, on determinations of witness credibility are accorded great deference.” Syllabus Point 3, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994).

2. Electronic interception by law enforcement authorities of a person's conduct or oral communications in his or her home is governed by W. Va.Code §§ 62–1F–1 to –9.

3. Pursuant to W. Va.Code § 62–1F–2(a) (2007) (Repl.Vol.2010), an order authorizing law enforcement authorities to conduct electronic interception of conduct or oral communications in the home can be obtained from either a magistrate or a judge of a circuit court within the county wherein the non-consenting party's home is located.

Henry L. Harvey, Esq., Joseph T. Harvey, Esq., Harvey & Janutolo Law Offices, Princeton, WV, for Petitioners.

Darrell V. McGraw, Jr., Esq., Attorney General, Thomas W. Rodd, Esq., Assistant Attorney General, Charleston, WV, for Respondent.

WORKMAN, Justice:

These consolidated cases ¹ are before this Court upon appeals of final orders entered by the Circuit Court of Mercer County. By order entered on December 20, 2010, Petitioner Paula D. Hoston was sentenced to an indeterminate term of not less than one nor more than fifteen years in the penitentiary for the offense of “Delivery of a Schedule II Controlled Substance, to Wit: Cocaine” and an indeterminate term of not less than one nor more than five years in the penitentiary for the offense of “Delivery of a Non–Narcotic Schedule II Controlled Substance.” The court ordered the sentences to be served consecutively. By order entered on February 10, 2011, Petitioner Reese T. Riley was sentenced to three consecutive indeterminate terms of not less than one nor more than five years in the penitentiary for three counts of the offense of “Delivery of a Schedule III Non–Narcotic Controlled Substance.” The circuit court ordered, however, that said sentence be suspended and that Petitioner Riley be placed on parole for a period of five years with the condition that he be under home confinement for one year.

In their appeals, both petitioners challenge the circuit court's denial of their motions to suppress evidence obtained against them through the use of a “body wire” ² worn by a confidential informant into their homes which recorded the illegal drug transactions. The electronic interception was authorized in both cases by a magistrate pursuant to W. Va.Code § 62–1F–2 (2007) (Repl.Vol.2010).³ The petitioners contend that such electronic interception can only be authorized by one of five designated circuit court judges pursuant to W. Va.Code § 62–1D–7 (1987) (Repl.Vol.2010),⁴ and therefore, the evidence was illegally obtained and should have been suppressed as “fruit of the poisonous tree.” ⁵

This Court has before it the petitions for appeal, the responses thereto, and the submitted records. For the reasons set forth below, the final orders of the circuit court are affirmed.

I.FACTS

On October 7, 2009, Magistrate Roy M. Compton signed an order authorizing electronic interception in Petitioner Hoston's home upon finding probable cause that such electronic interception would provide evidence of criminal conduct. Thereafter, a confidential informant wearing a body wire went into Petitioner Hoston's home and purchased drugs from her. On October 13, 2010, Petitioner Hoston was indicted on two counts of “Delivery of a Schedule II Controlled Substance, To Wit: Cocaine” and one count of “Delivery of a Schedule II Controlled Substance, To Wit: Oxycodone.”

Similarly, on October 16, 2009, Magistrate Charles Poe signed an order authorizing electronic interception in Petitioner's Riley's home upon finding probable cause to believe that a drug transaction was going to occur. A confidential informant wearing a body wire then went into Petitioner Riley's home and purchased drugs from him. Petitioner Riley was also indicted on October 13, 2010. He was charged with three counts of “Delivery of a Schedule III Controlled Substance, To Wit: Hydrocodone,” one count of “Delivery of a Schedule II Controlled Substance, To Wit: Oxycodone,” and one count of “Possession with Intent to Deliver a Schedule III Controlled Substance, To Wit: Hydrocodone.”

Subsequently, both petitioners filed motions to suppress evidence seeking to exclude all of the audio/video recordings; telephone conversations; their statements, if any; and all physical evidence pertaining to their cases pursuant to Article III, Section 6 of the West Virginia Constitution. ⁶ In both cases, the petitioners argued that the evidence was illegally obtained as a result of the orders entered by the magistrates which authorized the police to use electronic interception. The motions to suppress were denied in both cases on November 22, 2010. Thereafter, both petitioners entered conditional guilty pleas pursuant to Rule 11(a)(2) of the West Virginia Rules of Criminal Procedure ⁷ whereby they reserved the right to appeal the circuit court's denial of their motions to suppress. These appeals followed.

II.STANDARD OF REVIEW

As set forth above, the petitioners are appealing the circuit court's denial of their motions to suppress evidence.

On appeal, legal conclusions made with regard to suppression determinations are reviewed de novo. Factual determinations upon which these legal conclusions are based are reviewed under the clearly erroneous standard. In addition, factual findings based, at least in part, on determinations of witness credibility are accorded great deference.

Syllabus Point 3, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994). In this instance, the petitioners are only challenging the legal determinations made by the circuit court in denying their motions to suppress. Therefore, the orders will be reviewed de novo.

III.DISCUSSION

In this appeal, the petitioners challenge the statutory and constitutional authority of magistrates to issue orders that allow law enforcement and/or their informants to surreptitiously use a body wire to record conduct and/or oral communications in a non-consenting party's home if probable cause is established by affidavit that such recording will provide evidence of criminal conduct. To be clear, the petitioners are not challenging the probable cause findings made in the magistrate orders issued in their cases. Rather, they contend that only a circuit judge who has been specifically designated by this Court pursuant to the provisions of the West Virginia Wiretapping and Electronic Surveillance Act, W. Va.Code §§ 62–1D–1 to –16 (hereinafter “the Wiretapping Act”), has the statutory and constitutional authority to issue orders authorizing in-home electronic interception. In particular, the petitioners rely upon W. Va.Code § 62–1D–7, which provides:

The Chief Justice of the Supreme Court of Appeals shall, on an annual basis, designate five active circuit court judges to individually hear and rule upon applications for orders authorizing the interception of wire, oral or electronic communications: Provided, That no designated circuit judge may consider any application for such an order if he or she presides as judge of the circuit court of the county wherein the applied for installation would occur or of the county wherein the communications facility, line or device to be monitored is located.

As additional support for their contention that only one of the five designated circuit court judges may authorize in-home electronic interception, the petitioners rely on this Court's holdings in State v. Mullens, 221 W.Va. 70, 650 S.E.2d 169 (2007).

In Mullens, the police employed a confidential informant wearing a hidden electronic surveillance device to make an illegal drug purchase at Mr. Mullens's home without first obtaining judicial authorization. Like the petitioners in the present case, Mr. Mullens entered a conditional plea and preserved his right to challenge the circuit court's refusal to suppress the evidence obtained against him by the confidential informant. On appeal, Mr. Mullens argued that the police were required to obtain a warrant before employing an informant to come into his home and make an audio and video recording.

Upon review, this Court reversed Mr. Mullens's conviction and remanded the case to allow him to withdraw his guilty plea. This Court found that while the one party consent exception in the Wiretapping Act ⁸ did not require the police to obtain a warrant before conducting electronic surveillance with an informant, the search and seizure provision of the West Virginia Constitution required prior authorization when the electronic surveillance was going to occur in a non-consenting party's home. Accordingly, this Court held in Syllabus Points 2 and 4 of Mullens, respectively:

It is a violation of West Virginia Constitution article III, § 6 for the police to invade the privacy and sanctity of a person's home by employing an informant to surreptitiously use an electronic surveillance device to record matters occurring in that person's home without first obtaining a duly authorized court order pursuant to W. Va.Code § 62–1D–11 (1987) (Repl.Vol.2005).⁹ To the extent that State v. Thompson, 176 W.Va. 300, 342 S.E.2d 268 (1986), holds differently, it is overruled.

Article III, § 6 of the West Virginia Constitution prohibits the police from sending an informant into the home of another person under the auspices...