State v. Buzzard, 22531

• Court: Supreme Court of West Virginia
• Citation: 194 W.Va. 544,461 S.E.2d 50
• Decision Date: 13 July 1995
• Docket Number: No. 22531,22531
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Henry Donovan BUZZARD, Defendant Below, Appellant.

Page 50

461 S.E.2d 50

194 W.Va. 544

STATE of West Virginia, Plaintiff Below, Appellee, v. Henry Donovan BUZZARD, Defendant Below, Appellant.

No. 22531.

Supreme Court of Appeals of

West Virginia.

Submitted May 2, 1995.

Decided July 11, 1995.

Dissenting Opinion of Judge Fox

July 13, 1995.

Syllabus by the Court

1. "The general rule is that the voluntary consent of a person who owns or controls premises to a search of such premises is sufficient to authorize such search without a search warrant, and that a search of such premises, without a warrant, when consented to, does not violate the constitutional prohibition against unreasonable searches and seizures." Syl.Pt. 8, State v. Plantz, 155 W.Va. 24, 180 S.E.2d 614 (1971), overruled in part on other grounds by State ex rel. White v. Mohn, 168 W.Va. 211, 283 S.E.2d 914 (1981).

2. " 'Whether a consent to a search is in fact voluntary or is the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.' Syllabus Point 8, State v. Craft, 165 W.Va. 741, 272 S.E.2d 46 (1980)." Syl.Pt. 4, State v. Worley, 179 W.Va. 403, 369 S.E.2d 706, cert. denied, 488 U.S. 895, 109 S.Ct. 236, 102 L.Ed.2d 226 (1988).

3. The circuit court, and this Court on review, should consider the following six criteria when evaluating the voluntariness of a defendant's consent: 1) the defendant's custodial status; 2) the use of duress or coercive tactics by law enforcement personnel; 3) the defendant's knowledge of his right to refuse to consent; 4) the defendant's education and intelligence; 5) the defendant's belief that no incriminating evidence will be found; and 6) the extent and level of the defendant's cooperation with the law enforcement personnel. While each of these criteria is generally relevant in analyzing whether consent is given voluntarily, no one factor is dispositive or controlling in determining the voluntariness of consent since such determinations continue to be based on the totality of the circumstances.

4. "A trial court has the authority to reconsider and set aside its prior order granting a defendant's motion to suppress a confession when presented with new or additional evidence that would have a substantial effect on the court's ruling." Syllabus, Thompson v. Steptoe, 179 W.Va. 199, 366 S.E.2d 647 (1988).

Virginia Jackson Hopkins, Pros. Atty., for appellee.

Anthony J. Sabatino, Morgantown, for appellant.

WORKMAN, Justice:

This case is before the Court upon the appeal of Henry Donovan Buzzard, from the January 13, 1994, final order of the Circuit Court of Preston County, sentencing the Appellant for his jury convictions of breaking and entering, grand larceny and conspiracy to commit breaking and entering. ¹ The Appellant asserts that the trial court committed the following errors when it: 1) refused to grant the Appellant's pre-trial motion to suppress evidence obtained pursuant to the Appellant's unlawful arrest and subsequent unlawful and lawful searches; 2) admitted evidence unlawfully obtained pursuant to the warrantless arrest and subsequent warrantless search and seizure of the Appellant in violation of the Fourth Amendment and article III, section 6 of the West Virginia Constitution when, absent exigent circumstances, law enforcement officers failed to preserve the status quo to make reasonable efforts to obtain warrants; 3) refused to grant the Appellant's pre-trial motion to exclude evidence of the results of the State's latent print and footwear examiner's second test of footprints allegedly belonging to the Appellant when such results and evidence were not timely disclosed to defense counsel contrary to the court-ordered discovery; ² and 4) refused to grant the Appellant's motion for a new trial. Based upon a review of the record, the parties' briefs and all other matters submitted before the Court, we find that the trial court erred in upholding the warrantless entry into the Appellant's motel room ³ and, accordingly, we reverse and remand for further proceedings consistent with this opinion.

I.

Around 9:50 p.m. on January 2, 1992, George Pifer, a night watchman at Volkstone Company (hereinafter referred to as "the plant"), ⁴ an industrial facility located in Preston County, West Virginia, observed a van with a light colored door and one headlight pass in front of the plant. Mr. Pifer also heard a beating or pecking noise coming from the back part of the plant. When he went toward the area to investigate, he observed what appeared to be two shining flashlights. He returned to his office and notified the Preston County Sheriff's Department, as well as one of the plant owners.

James D. Fields, Sheriff of Preston County, responded to Mr. Pifer's telephone call. Upon his arrival at the plant, Sheriff Fields noticed a van parked alongside the roadway. Two men were seated in the front seats of the van. They were identified as Teddy Lee Workman and Tommy Mitchell White, both from Boone County, West Virginia. Directly beside the van, leaning against a concrete abutment, was a industrial-size circuit breaker box affixed with a Chemetals identifying tag.

The sheriff entered one of the plant buildings which Mr. Pifer identified as the one he had observed several individuals enter. The sheriff first observed an open door and a dangling chain. He also heard individuals running and observed three separate designs of shoe prints in the dust-covered floor, as well as other foot prints, which were created when individuals had traveled through a damp area near the entrance of the building. The sheriff was unable to locate anyone in the building. Sheriff Fields also testified that he found numerous cigarette butts near the van and near the area in the plant where the circuit breakers where located. Additionally, in one of the rooms of the building, the sheriff observed a circuit breaker box partially disconnected from the wall and another circuit breaker box completely disconnected from the wall sitting on the floor.

Teddy Workman and Tommy White were placed under arrest at the scene. The sheriff ascertained that the van in which the two men were found was registered to Mr. James Buzzard, also from Boone County. Sheriff Fields testified that he continued searching the area around the plant for additional suspects. As part of this continuing investigation, the sheriff checked the Heldreth Motel, the only motel in Kingwood, West Virginia, to determine if any guests had checked in recently. Sheriff Field was told by the desk clerk that a Mr. Henry Buzzard had checked into the motel at approximately 1:03 a.m. and was in room 210. According to the sheriff's testimony, when the Appellant checked in, he told the night clerk that the sheriff had sent him to the motel. The sheriff knew that this was untrue.

At approximately 2:20 a.m., the sheriff, Deputy Bob Bailor ⁵ and Trooper Rick Brown went to room 210 and knocked on the door. The Appellant opened the door and the officers entered the room which was occupied by not only the Appellant but also by Danny Ray Griffy. ⁶ No written consent to search was obtained by the sheriff. When the sheriff told the Appellant what he was investigating, and that it involved Mr. White and Mr. Workman, the Appellant informed the sheriff that they had been with those two men earlier in the evening, but that Mr. White and Mr. Workman had dropped the Appellant and Mr. Griffy off and had not come back for them. Additionally, the sheriff noticed that there were shoes on the floor with the soles visible. The sheriff testified that the tread design of the shoes was similar to the tread designs he saw on the floor at the plant site. The sheriff seized the shoes ⁷ and transported the Appellant and Mr. Griffy to the sheriff's department where they were placed under arrest.

Additional evidence introduced by the State included the testimony of John Richard Giacalone, a chemist with the West Virginia State Police, who offered testimony regarding the presence of trace amounts of manganese, which his testing found on Tommy White's tennis shoes and jackets ⁸ belonging to Mr. Griffy and the Appellant. Also, William Tobin, a forensic metallurgist with the Federal Bureau of Investigation in Washington, D.C., testified that he found a high concentration of manganese on the Appellant's gloves, as well as Mr. Griffy's gloves. Further, Sergeant Mark Neal of the West Virginia State Police Criminal Identification Bureau testified that footwear impressions contained in a set of photographs taken at the crime scene were consistent with the Appellant's shoe sole design.

The Appellant did not testify. The only witness for the defense was John Penn, an associate professor in the Department of Chemistry at West Virginia University. Mr. Penn's testimony essentially indicated that the manganese found on the Appellant's gloves and clothing could have originated from sources other than the plant, such as a mine or a car.

II.

The only issue before the Court is whether the trial court erred in failing to suppress evidence obtained pursuant to the warrantless entry of the Appellant's motel room. A suppression hearing was conducted to ascertain whether the evidence obtained as a result of the officers' warrantless entry into the hotel room should be suppressed. First, the circuit court, without a timely objection from the Appellant, agreed to the prosecutor's request to make the transcript of the joint suppression hearing which occurred on April 9, 1994, in the State's case against the Appellant's co-defendants, Mr. Workman, Mr. White and Mr. Griffy, a part of the record in the Appellant's case. ⁹ In the April 9, 1994, hearing, Sheriff Fields' testimony concerning the issue of the Appellant's consent was that the sheriff, accompanied by two other officers, went to the motel room and the sheriff knocked on the door. Sheriff Fields testified that the knock was

answered from inside by someone....