State v. Boswell, 15099

Citation294 S.E.2d 287,170 W.Va. 433
Decision Date15 July 1982
Docket NumberNo. 15099,15099
PartiesSTATE of West Virginia v. Steven Lee BOSWELL. West Virginia
CourtWest Virginia Supreme Court
procedure and must originate from some suspicious circumstance involving the defendant. In determining the threshold question of whether the defendant has been seized, we look to the intensity of the initial inquiry. The less intense the initial inquiry the less likely that a seizure will be found. The intensity of the inquiry will determine whether the initial threshold of "seizure" has been crossed. This is because the intensity of the inquiry will govern when a reasonable person would believe that he was not free to leave the initial police encounter

George W. Stokes, Asst. Atty. Gen., Charleston, for appellee.

H. John Rogers, New Martinsville, for appellant.

MILLER, Chief Justice:

We consider two issues in this criminal appeal: 1) whether the trial court was correct in refusing to suppress evidence seized by the police during a search of the defendant's vehicle incident to his arrest; and 2) whether the State's instruction number five, defining reasonable doubt, was erroneous and, if so, was it cured by other instructions. 1 We find that the trial court was correct in refusing to suppress evidence seized by the police; but we reverse the defendant's conviction and remand this case for a new trial on the basis of an erroneous State's instruction, which was the only instruction defining reasonable doubt.

The defendant, Steven Lee Boswell, was indicted in the Circuit Court of Wetzel County on the felony charge of possession with intent to deliver cocaine, a Schedule II controlled substance, in violation of W. Va. Code, 60A-4-401(a)(1)(i). The defendant was tried and found guilty of the lesser included misdemeanor charge of possession of cocaine.

On April 2, 1978, at approximately 2:00 a. m., the Chief of Police of the City of New Martinsville was on a routine patrol in the vicinity of the E & M Bar and the S and S Feed Store. He was accompanied by a former city policeman. The Chief testified that the police department had received numerous complaints about the E & M Bar, which was located across the street from the S and S Feed Store. Furthermore, the S and S Feed Store had been the object of a fire involving arson. For these reasons, the police patrolled the area frequently and were alert to any suspicious circumstances.

As the Police Chief drove by the bar and feed store, he observed a van parked about The Chief made a preliminary search of the van, including the passenger compartment in the back of the van, and a zippered pouch on the driver's seat's armrest. He found twelve aluminum packets containing suspected cocaine, more suspected marijuana, scales, two guns and three machetes. A warrant was later obtained from a magistrate to make a complete search of the van. In the later search, the police found six unidentified white pills, a pocket scale, aluminum foil and a spoon.

fifteen feet from the curb, down an alley, beside the feed store's parking lot. The light was on inside the van and two people were moving around. The Chief decided to investigate, and, as he approached the van, one of the people inside turned out the light and locked the doors. The Chief tapped on the window, and requested some identification. The defendant, Boswell, who was then in the driver's seat, turned on the inside light, and then got out of the van. While Boswell was getting his identification with the van's light still on, the Chief looked inside the van. On the top of the console, used as a cover for the engine, the Chief spotted in plain view a yellow pipe and a clear plastic bag containing what he believed to be marijuana. Both occupants of the van were placed under arrest and advised of their rights.

The defendant contends that all the evidence found by the Chief of Police during his preliminary search of the vehicle should have been suppressed because the search was conducted without a warrant. We disagree.


The defendant's primary contention, with regard to the conduct of the police during the search of defendant's van, is that if the Police Chief had an opportunity to obtain a search warrant the following day to search the defendant's van, he should have waited and conducted the entire search at that time. The defendant concedes, however, that a warrantless search of a motor vehicle can be made in certain circumstances. In support of the proposition that the mere involvement of a motor vehicle does not automatically negate the requirement of a search warrant unless there is a showing of "exigent circumstances," the defendant cites both Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The defendant contends that such "exigent circumstances" were absent in the present case.

The State, however, argues that the warrantless search of the defendant's van and the seizure of the contraband therein was constitutionally permissible as a search incident to a lawful custodial arrest, as recently delineated in the case of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

In Belton, the Supreme Court attempted to set out a "bright line" rule regarding the permissible scope of a contemporaneous search incident to a lawful arrest. The Court held that an officer, who has made a lawful custodial arrest of "recent" occupants of an automobile, may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile and examine the contents of any containers found within. In note 4 of Belton, the following statement was made:

" 'Container' here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. Our holding encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk." 453 U.S. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 775.

In Belton, a police officer stopped an automobile for speeding. In the course of checking the driver's identification, he smelled burnt marijuana and observed an envelope on the floor of the vehicle which he associated with marijuana. Upon placing the occupants of the car under arrest for the possession of marijuana, the policeman searched the passenger compartment of the car. In the zippered pocket of a black leather jacket located in the car, the policeman found cocaine. 2

It must be emphasized that Belton was not predicated on the automobile exception first enunciated in Carroll v. United States, supra. Belton is related to the principle which we discussed in State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980), to the effect that a permissible warrantless search requires a lawful stop of the vehicle and the subsequently arising probable cause to believe that the vehicle is carrying contraband or evidence of the commission of a crime. Under Belton, this probable cause can justify the arrest of the occupant of the car and, as an incident to the lawful custodial arrest, the entire passenger compartment of the car can be searched--including containers located therein. Belton in effect extended the permissible area of a warrantless search to the entire passenger compartment. In both Carroll and Moore there was no custodial arrest prior to the initial search and both cases analyzed the warrantless search in regard to exigent circumstances furnished by the mobility of the automobile. 3

Belton, however, does not provide the complete answer to the instant case, as its rule relates only to the search of a motor vehicle after the occupant has been placed under a lawful custodial arrest. Belton's principle serves only to justify the search of the motor vehicle after Boswell was arrested initially for possession of the marijuana seen on the console and seized by the arresting officer.

The preliminary question in this case is whether the activities of the Chief of Police, in tapping on the window and asking the defendant to identify himself, constituted an impermissible seizure. The Chief's conduct produced the defendant's reaction of opening the van door...

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