State v. Basham

• Citation: 223 S.E.2d 53,159 W.Va. 404
• Decision Date: 16 March 1976
• Docket Number: No. 13558,13558
• Parties: STATE of West Virginia v. Richard BASHAM.
• Court: Supreme Court of West Virginia

Page 53

223 S.E.2d 53

159 W.Va. 404

STATE of West Virginia v. Richard BASHAM.

No. 13558.

Supreme Court of Appeals of West Virginia.

March 16, 1976.

Syllabus by the Court

1. Where a person voluntarily and knowingly consents to a search of his premises, such a search may be conducted in the absence of a search warrant.

2. It is not necessary, as a prerequisite to obtaining a voluntary consent to a non-custodial search, that law enforcement officers give Miranda warnings or similar warnings relating to Fourth Amendment rights, although the subject's knowledge of a right to refuse is a relevant factor in determining whether the consent was voluntary and knowledgeable.

3. Entrapment, as a defense to criminal prosecution, occurs where the design or inspiration for the offense originates with law enforcement officers who procure its commission by an accused who would not have otherwise perpetrated it except for the instigation or inducement by the law enforcement officers.

4. In a prosecution under Code, 61--3--18, for buying or receiving stolen goods, a jury must find beyond a reasonable doubt that the accused acted with a 'dishonest purpose' before it can find him guilty of the offense, and the accused is entitled to have the jury properly instructed on the question of his intent.

5. While Code, 61--3--18 provides that one who unlawfully buys or receives stolen goods shall be deemed guilty of the larceny thereof, the traditional offense of larceny and the offense created by the statute are separate and distinct offenses.

John A. Amick, Charleston, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Betty L. Caplan, Asst. Atty. Gen., Charleston, for defendant in error.

BERRY, Chief Justice:

The appellant, Richard Basham, is before this Court on appeal from a judgment of the Circuit Court of Fayette County entered on a verdict of the jury on December 4, 1974, finding him guilty of petit larceny.

In November, 1973, three young men broke and entered a company store of the Semet Solvay Division of Allied Chemical Corporation in Harewood, West Virginia, and removed, among other things, two chain saws and a stereo tape player having an aggregate retail value of $499.00. A day or two after the breaking and entering, the perpetrators approached the appellant in the late hours of the evening at his home which was adjacent to his place of business. Basham was then the owner and operator of a junk yard in Oak Hill, West Virginia where he bought and sold scrap, salvage and similar materials.

At the request of the youths, the appellant purchased the two chain saws and the tape player for $137.00. By his own admission, the appellant knew that the goods transferred were stolen, having been so advised by one of the young men. When Basham purchased the chain saws and stereo tape player, he required one of the youths to give his name and address and to sign a receipt for the goods. In addition, he recorded the make, model and color of the automobile in which the youths were traveling, along with its license number.

The appellant made no report to law enforcement officers of his purchase of the stolen goods. At some point after the transaction, the perpetrators of the breaking and entering were apprehended by members of the West Virginia State Police. As a result of the apprehension, police officers ascertained that a part of the stolen goods had been sold to the appellant. Acting on this information, on January 5, 1974, state troopers purportedly obtained a search warrant from a Fayette County justice of the peace and proceeded to the appellant's place of business. Upon arriving at the appellant's junk yard, the officers advised the appellant that they had a warrant to search the premises. At the time, Basham was not advised that he was suspected of committing a crime, nor was he given 'Miranda warnings' or advice relative to his rights under the Fourth Amendment. Basham immediately and voluntarily advised the troopers that a search warrant was not necessary and that if he had stolen goods he would give them to the officers. He then led the troopers to a building on the premises where he had put the chain saws and retrieved the tape player from his home.

The appellant was not arrested immediately on January 5th but an indictment was returned by the Fayette County grand jury on February 5, 1974, charging him with grand larceny.

Upon his plea of not guilty, the appellant was tried before a jury in the Circuit Court of Fayette County. Prior to trial, the appellant moved to suppress the evidence obtained by virtue of the police search. The appellant based his motion on the contention that the articles were illegally obtained inasmuch as he was not advised of his constitutional rights prior to consenting to a search. The motion was denied by the circuit court.

During trial, the appellant relied almost exclusively on the defense of entrapment. To support this defense, the appellant testified that he purchased the stolen goods pursuant to an agreement with Trooper T. C. Monk, a state police officer from Oak Hill, West Virginia. He stated that Trooper Monk had solicited his help in providing information about persons who sought to sell stolen goods in the area. According to the appellant's testimony, he was to purchase property which he knew or believed to be stolen and that he was to record information about the sellers of such goods, including the license number, make, model and color of their automobile as well as a name or signature of the seller or sellers. The appellant further testified that in accordance with a similar understanding he had purchased drugs from persons who offered to sell them to him and had provided information to Trooper Monk which led to the apprehension of persons engaged in the criminal transfer of controlled substances. In addition to the agreement with Trooper Monk, the appellant testified that he had an arrangement with officials of the Chesapeake and Ohio Railroad concerning the of copper wire stolen from that company; that he provided officers of that company with information necessary for the apprehension of persons who unlawfully took copper wire from its various operations.

According to the appellant's testimony, he was promised that he would not be prosecuted with regard to any activities conducted in accordance with his agreement with Trooper Monk, so long as he gave the trooper the information that he had recorded.

Called as a witness on behalf of the State, Trooper T. C. Monk denied any agreement with the appellant as testified to. Trooper Monk stated that on one occasion he had advised Basham that his record keeping was inadequate and that it would be necessary for him to record more information about persons from whom he had purchased property; that if the appellant had been approached by someone who offered to sell stolen property or property which he believed to be stolen, that he was to call Trooper Monk and advise him of the fact. The trooper testified that the appellant had never provided any information which led to the arrest of persons offering to sell stolen property. To some extent, the trooper corroborated the appellant's statements concerning an agreement to provide information about persons selling drugs. Specifically, the trooper stated that the appellant had acted as an informant in drug related matters and that the appellant had provided information which helped solve one crime.

On cross-examination, the appellant admitted that he had not on his own initiative advised law enforcement officers that he had purchased the chain saws and tape player and that if he had not been asked about the goods he would have used or sold them.

Based on the evidence developed, counsel for the appellant sought to have the court instruct the jury on the defense of entrapment. The court refused the tendered instructions as not being supported by the evidence. Further, counsel offered instructions relating to the appellant's lack of criminal intent in the transaction. These were also refused by the trial court.

The many assignments of error by the appellant can be consolidated into four general classifications:

1. The trial court erred in allowing the introduction of the stolen property because it was obtained in violation of the appellant's constitutional rights.

2. The trial court erred in refusing to instruct the jury of the defense of entrapment.

3. The trial court erred in refusing to instruct the jury on the issue of intent.

4. The trial court erred in giving and refusing certain other instructions.

I

The first argument advanced by the appellant is that the state police should have given him 'Miranda warnings' or analogous Fourth Amendment advice at the time they confronted him at his place of business. Stated more concisely, the appellant contends that he could not make a voluntary and valid consent to a search of his premises without first having been given warnings by the police with regard to his rights and the consequences of his actions. We are not persuaded by this argument. First, it appears from the evidence in this case that there was no actual search made by the police. When the police officers advised the appellant that they had a search warrant, the appellant voluntarily showed the police officers the location of the stolen goods and turned them over to the officers. Assuming Arguendo that such action may be construed as a technical search, we conclude that there was no constitutional defect in the conduct of the police officers.

It is unequivocally clear that where a person voluntarily and knowledgeably consents to a search of his premises, such a search may be conducted in the absence of a search warrant. State v. Thomas, WVa.203 S.E.2d 445 (1974); State v. Duvernoy, W.Va., 195 S.E.2d 631 (1973); State v. Angel, 154 W.Va. 615, 177 S.E.2d 562 (1970); 68 Am.Jur.2d Searches and Seizures, § 46 (1973).

Numerous courts of both federal and...