State v. Boggess

• Decision Date: 10 November 1983
• Docket Number: No. 15751,15751
• Citation: 172 W.Va. 619,309 S.E.2d 118
• Parties: STATE of West Virginia v. David M. BOGGESS.
• Court: West Virginia Supreme Court

Page 118

309 S.E.2d 118

172 W.Va. 619

STATE of West Virginia v. David M. BOGGESS.

No. 15751.

Supreme Court of Appeals of West Virginia.

Nov. 10, 1983.

Syllabus by the Court

1. Where a conservation officer, employed by the West Virginia Department of Natural Resources, arrested an individual for the offense of possession of marihuana with the intent to deliver, which offense was committed in the presence of the officer, that arrest was authorized under the provisions of W.Va.Code, 20-7-4 [1971], which statute describes the authority, powers and duties of conservation officers.

2. Following a valid arrest by a conservation officer, employed by the West Virginia Department of Natural Resources, for the offense of possession of marihuana with the intent to deliver, the conservation officer was authorized under the provisions of W.Va.Code, 20-7-4 [1971], which statute describes the authority, powers and duties of conservation officers, and W.Va.Code, 62-1A-3 [1965], which statute concerns search and seizure, to execute a valid search warrant relating to the arrested individual's automobile, which automobile was found at the scene of the offense.

3. An instruction given to the jury in a case involving an alleged violation of the West Virginia Uniform Controlled Substances Act, W.Va.Code, 60A-1-101, et seq., which instruction defined "marihuana" by following verbatim the statutory definition of "marihuana" found in W.Va.Code, 60A-1-101(n) [1981], was not error.

William W. Pepper and Andrew S. Nason, Charleston, for appellant.

Chauncey H. Browning, Atty. Gen. and Micheal L. Harper, Asst. Atty. Gen., Capitol Bldg., Charleston, for appellee.

McHUGH, Justice.

This case is before this Court upon the petition of the appellant, David M. Boggess, for an appeal from his conviction in the Circuit Court of Putnam County, West Virginia, for the felony offense of possession of marihuana with the intent to deliver. ¹ Pursuant to that conviction the appellant was sentenced to the penitentiary for an indeterminate term of not less than one nor more than five years. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel.

In 1981, Kevan Ransom was a conservation officer with the West Virginia Department of Natural Resources. ² On July 17, 1981, Officer Ransom spotted an automobile parked in an area commonly used for dumping garbage near Route 35 in Putnam County. The evidence at trial revealed that the automobile was a 1980 Oldsmobile and belonged to the appellant, David Boggess. Officer Ransom walked past the automobile and along some railroad tracks to a point where he observed two men standing upon a concrete pad. Spread upon the concrete pad was a large sheet of plastic which, Officer Ransom noted, contained a substance later identified by the State as approximately 17 1/2 pounds of marihuana.

Officer Ransom testified at trial that the appellant, while standing upon the sheet of plastic, picked up handfuls of the substance, looked at the handfuls and smelled them.

The two men were placed under arrest by Officer Ransom at the scene of the offense, and $2800 to $2900, which belonged to the appellant, was found. Other officers of the West Virginia Department of Natural Resources arrived to assist Officer Ransom. The two suspects were then transported to an office of the Department of Natural Resources, and, shortly thereafter, to a Putnam County magistrate's office.

The record indicates that subsequent to the arrest of the appellant, Officer Ransom obtained from the magistrate and executed a search warrant relating to the appellant's automobile. ³ Officer Ransom with the aid of other officers of the Department of Natural Resources, retrieved from the automobile, inter alia, a bag labeled "Northern Flight Potatoes" which was similar to another bag labeled "Northern Flight Potatoes" found near the plastic sheet at the scene of the offense.

In November, 1981, the appellant was indicted for possession of marihuana with the intent to deliver.

During the appellant's trial, Trooper Murphy, a chemist employed by the West Virginia State police, testified that he conducted various tests upon the substance in question and determined the substance to be marihuana. ⁴ He further testified that the marihuana contained the element tetrahydrocannabinol, known as "THC," which, Trooper Murphy indicated, is a psychoactive substance normally found in that part of the marihuana plant other than marihuana stalks and immature seeds. On the other hand, Robert Fornay, the appellant's expert witness at trial, testified that no tetrahydrocannabinol, "THC," was present in the substance in question and that the tests Fornay conducted upon the substance were more reliable than the tests conducted by the State. The appellant asserted at trial that if the substance in question contained no THC, the appellant could not be convicted under the indictment.

On February 2, 1982, the jury found the appellant guilty of possession of marihuana with the intent to deliver. By order entered on February 25, 1982, the appellant was sentenced to the penitentiary.

I

As indicated above, Officer Ransom, after the appellant's arrest, obtained a search warrant relating to the appellant's automobile. Two bags, one of which was labeled "Northern Flight Potatoes," taken from the trunk of that automobile were admitted in evidence at trial. The appellant contends, however, that Officer Ransom's authority as a conservation officer was limited to matters concerning the West Virginia Department of Natural Resources, W.Va.Code, ch. 20, and that, consequently, inasmuch as this case related to a violation of the West Virginia Uniform Controlled Substances Act, W.Va.Code, ch. 60A, Ransom had no authority to execute the search warrant. The appellant asserts that, therefore, the evidence obtained pursuant to the search warrant should have been suppressed at trial.

The trial court considered the search warrant issue and concluded that Officer Ransom, having the authority to arrest the appellant for the marihuana violation, also had the authority to execute the search warrant in question. ⁵ We agree.

Article 1A of chapter 62 of the West Virginia Code is entitled "Search and Seizure," and section three of that article specifies those persons with authority to execute search warrants. W.Va.Code, 62-1A-3 [1965], provides, in part, that search warrants "shall be directed to the sheriff or any deputy sheriff or constable of the county, to any member of the department of public safety or to any police officer of the municipality wherein the property sought is located, or to any other officer authorized by law to execute search warrants." This Court is of the opinion that Officer Ransom, under the circumstances of this case, was an officer "authorized by law to execute search warrants" within the meaning of W.Va.Code, 62-1A-3 [1965].

Conservation officers such as Ransom are law enforcement officers of the West Virginia Department of Natural Resources. W.Va.Code, 20-1-13 [1961]; W.Va.Code, 20-7-1 [1981]. Their powers of arrest and search and seizure are described in W.Va.Code, 20-7-4 [1971], and W.Va.Code, 20-7-8 [1963]. W.Va.Code, 20-7-4 [1971], provides, in part, as follows:

Conservation officers and all other persons authorized to enforce the provisions of this chapter shall be under the supervision and direction of the director in the performance of their duties as herein provided. The authority, powers and duties of the conservation officers shall be statewide and they shall have authority to:

(1) Arrest on sight, without warrant or other court process, any person or persons committing a criminal offense in violation of any of the laws of this State, in the presence of such officer, but no such arrest shall be made where any form of administrative procedure is prescribed by this chapter for the enforcement of any of the particular provisions contained herein;

....

(3) Search and examine, in the manner provided by law, any boat, vehicle, automobile, conveyance, express or railroad car, fish box, fish bucket or creel, game bag or game coat, or any other place in which hunting and fishing paraphernalia, wild animals, wild birds, fish, amphibians or other forms of aquatic life could be concealed, packed or conveyed whenever they have reason to believe that they would thereby secure or discover evidence of the violation of any provisions of this chapter;

(4) Execute and serve any search warrant, notice or any process of law issued under the authority of this chapter or any law relating to wildlife, forests, and all other natural resources, by a justice of the peace or any court having jurisdiction thereof....

Furthermore, W.Va.Code, 20-7-8 [1963], provides, in part, as follows:

Any officer, when he arrests or otherwise takes a person into custody for violating any provision or provisions of this chapter, is hereby also authorized and empowered to take and impound any property found in the possession of the accused and susceptible of use in committing the offense of which the person is accused. Such property shall include firearms, fishing equipment, traps, boats, or any other device, appliance or conveyance, but shall not include dogs.

As W.Va.Code, 20-7-4(1) [1971], indicates, conservation officers, in addition to their authority relating to the Department of Natural Resources, have authority to "[a]rrest on sight, without warrant or other court process, any person or persons committing a criminal offense in violation of any of the laws of this State, in the presence of such officer...."

A statute similar to W.Va.Code, 20-7-4 [1971], is Florida statute 372.07 (1979). Under the Florida statute, such officers, in addition to their authority concerning fish and game matters, have authority to make arrests for violations of the laws of Florida when committed in their presence. State v. Howard, 411 So.2d 372 (Fla.App...