State v. Adkins

• Decision Date: 05 June 1986
• Docket Number: No. 16251,16251
• Citation: 346 S.E.2d 762,176 W.Va. 613
• Parties: STATE of West Virginia v. Danny Ray ADKINS, Defendant.
• Court: West Virginia Supreme Court

Page 762

346 S.E.2d 762

176 W.Va. 613

STATE of West Virginia v. Danny Ray ADKINS, Defendant.

No. 16251.

Supreme Court of Appeals of West Virginia.

June 5, 1986.

Concurring and Dissenting in Part June 19, 1986.

[176 W.Va. 614] Syllabus by the Court

1. A defendant who is more than a casual visitor to an apartment or dwelling in which illegal drugs have been seized has the right under the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution to challenge the search and seizure of the illegal drugs which he is accused of possessing.

2. Under Rule 41(c) of the West Virginia Rules of Criminal Procedure, it is improper for a circuit court to permit testimony at a suppression hearing concerning information not contained in the search warrant affidavit to bolster the sufficiency of the affidavit unless such information had been contemporaneously recorded at the time the warrant was issued and incorporated by reference into the search warrant affidavit.

3. Both the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution provide that no warrant shall issue except upon probable cause supported by oath or affirmation. There is virtual unanimity that a warrant may not issue on unsworn testimony.

4. Under the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution, the validity of an affidavit for a search warrant is to be judged by the totality of the information contained in it. Under this rule, a conclusory affidavit is not acceptable nor is an affidavit based on hearsay acceptable unless there is a substantial basis for crediting the hearsay set out in the affidavit which can include the corroborative efforts of police officers.

Harry P. Waddell, Steptoe & Johnson, Clarksburg, for appellant.

Mary Rich Maloy, Asst. Atty. Gen., for appellee.

MILLER, Chief Justice:

Danny Ray Adkins appeals from his felony conviction of possession with intent to deliver a controlled substance, marijuana, W.Va.Code, 60A-4-401(a). His principal contention is that the contraband introduced against him was seized under an invalid search warrant in that the warrant affidavit failed to establish probable cause. ¹

On April 6, 1983, an investigator employed by the City of Clarksburg and a sergeant of the Harrison County Sheriff's Department presented a sworn affidavit and complaint for a search warrant to a Harrison County magistrate. They alleged that on April 6, 1983, and prior to making their complaint, the defendant "Danny Atkins" (sic) did "[h]ave in his possession with intent to deliver marijuana, a schedule 1 controlled substance over 15 gms." and that "Marijuana and any other evidence of the crime" would be found at a particularly described residence in Clarksburg. The factual basis for their belief was: "A confidential informant, who fears for their (sic) life should their (sic) identity be known, observed marijuana inside the af ormentioned (sic) structure and in the controll (sic) of Danny Atkins (sic)."

I. RIGHT TO CHALLENGE THE SEARCH

The State argues that the defendant does not have the right to challenge the search and seizure because he had no legitimate expectation of privacy in the premises from which the contraband was seized. ² The search was made of a house rented to the defendant's girlfriend, where he frequently stayed. The State relies on State v. Tadder, 173 W.Va. 187, 313 S.E.2d 667 (1984), where we held that a passenger in a truck which he did not own had no legitimate expectation of privacy in the truck. Consequently, he had no constitutional basis to object to a search of the truck. We relied on Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), one of several decisions by the United States Supreme Court relating to a defendant's right to challenge a search and seizure. See also Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

These opinions have had the effect of narrowing the holding of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), overruled on other grounds, United States v. Salvucci, supra, which had accorded to a guest of the apartment's owner the right to challenge the search of the apartment. The owner had let him temporarily use the apartment. We recognized the principle of Jones in Spaulding v. Warden, West Virginia State Penitentiary, 158 W.Va. 557, 212 S.E.2d 619 (1975), but declined to apply it to the search of an automobile "where the defendant had no interest in the vehicle and was not present when it was searched." Syllabus Point 2, in part. ³

In Jones, the Supreme Court also accorded "automatic standing" to challenge the validity of a search and seizure to defendants charged with an offense involving possession of the seized evidence, which in the case of Jones was narcotics. This was premised on the theory that if the defendant had to acknowledge a possessory interest in the seized contraband to claim standing under the Fourth Amendment to challenge the validity of the search and seizure, he would be incriminating himself under the Fifth Amendment. ⁴ See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).

However, in Salvucci the Supreme Court abolished this automatic standing rule, concluding that "defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated," 448 U.S. at 85, 100 S.Ct. at 2549, 65 L.Ed.2d at 623, and summarized the nature of the inquiry as follows:

"While property ownership is clearly a factor to be considered in determining whether an individual's Fourth Amendment rights have been violated, see Rakas, [439 U.S. at 144 n. 12, 99 S.Ct. at 431 n. 12, 58 L.Ed.2d at 401 n. 12], property rights are neither the beginning nor the end of this Court's inquiry. In Rakas, this Court held that an illegal search only violates the rights of those who have 'a legitimate expectation of privacy in the invaded place.' [439 U.S. at 143, 99 S.Ct. at 430, 58 L.Ed.2d at 401.]"

Earlier in Rakas, the Supreme Court, although reaffirming Jones on its facts, rejected a second holding in Jones which had accorded automatic standing to "anyone legitimately on the premises where a search occurs...." 362 U.S. at 267, 80 S.Ct. at 734, 4 L.Ed.2d at 706. By way of example, the Rakas Court indicated that a casual visitor to another person's kitchen at the time of the search would not have a legitimate expectation of privacy in the other person's basement. Moreover, a casual visitor, who walked into another person's home just before the search and left shortly thereafter, could not object to the legality of the search. 439 U.S. at 142, 99 S.Ct. at 429-30, 58 L.Ed.2d at 400. ⁵

We believe that under the foregoing United States Supreme Court cases a defendant who is more than a casual visitor to an apartment or dwelling in which illegal drugs have been seized has the right under the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution to challenge the search and seizure of the illegal drugs which he is accused of possessing. Other courts have arrived at much the same conclusion. E.g., United States v. Lyons, 706 F.2d 321 (D.C.Cir.1983); United States v. Perez, 700 F.2d 1232 (8th Cir.1983); United States v. Pollock, 726 F.2d 1456 (9th Cir.1984); People v. Hamilton, 168 Cal.App.3d 1058, 214 Cal.Rptr. 596 (1985); State v. Whitehead, 229 Kan. 133, 622 P.2d 665 (1981); People v. Wagner, 104 Mich.App. 169, 304 N.W.2d 517 (1981); State v. Isom, 196 Mont. 330, 641 P.2d 417 (1982).

We think Mr. Adkins meets this test. As we have previously stated, the evidence was seized from a house rented by the defendant's girlfriend. He had access to all parts of the residence and was present when the police searched the home and seized the evidence. Although the defendant lived in Charleston with his mother, he had stayed with his girlfriend in her house on and off for six years and was there as long as two and three weeks at a time. From these facts, it is clear that he was more than a casual visitor to the residence and, therefore, had a legitimate expectation of privacy in the residence while he was there. The facts in the present case are rather similar to those in State v. Whitehead, supra, where the Kansas Supreme Court found standing based on the fact that the defendant lived with his girlfriend "on an irregular basis." 229 Kan. at 133, 622 P.2d at 667.

II. THE FOUR CORNERS REQUIREMENT

The defendant contends the trial court erred in considering at the suppression hearing facts other than those set out in the affidavit in order to determine if there was sufficient probable cause for the issuance of the search warrant. At the suppression hearing, testimony was taken from the magistrate who had issued the search warrant and from one of the affiant police officers. The suppression hearing occurred some two and one-half months after the issuance of the search warrant. The magistrate testified that, in addition to the search warrant affidavit, he questioned the affiant police officers to determine whether the confidential informant was reliable before issuing the challenged search warrant. He did not place the officers under oath. One of the affiant police officers confirmed the magistrate's testimony.

The officers' testimony was not in any manner contemporaneously recorded and incorporated by reference into the search warrant affidavit. The trial court judge concluded that probable cause had existed for the issuance of the search warrant based on the affidavit and the testimony of the magistrate and one of the affiant police officers.

The question presented is whether it is proper for a court to look outside the ...