State v. Canby

• Decision Date: 20 February 1979
• Docket Number: 13945,Nos. 13944,s. 13944
• Citation: State v. Canby, 252 S.E.2d 164, 162 W.Va. 666 (W. Va. 1979)
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Samuel Martin CANBY.

Page 164

252 S.E.2d 164

162 W.Va. 666

STATE of West Virginia v.Samuel Martin CANBY.

Nos. 13944, 13945.

Supreme Court of Appeals of West Virginia.

Feb. 20, 1979.

Syllabus by the Court

1.In order for police officers to make an arrest without a warrant, they must have had at the time of the arrest sufficient reliable evidence that they could have made a strong showing of probable cause, and, in addition, there must be exigent circumstances, not of the police officers' creation, which militate in favor of immediate arrest.In addition, a police officer may always make a warrantless arrest for a felony committed in his presence or when there is an outstanding warrant for the individual arrested, although the warrant may not be in the possession of the arresting officer.

2.The test of exigent circumstances for the making of an arrest for a felony without a warrant in West Virginia is whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others.This is an objective test based on what a reasonable, well-trained police officer would believe.

3.Exclusion of a confession obtained as a result of an illegal arrest without a warrant is mandated unless the causal connection between the arrest and the confession has been clearly broken.

Steven M. Askin, Radosh & Askin, Martinsburg, for Canby.

Chauncey H. Browning, Jr., Atty. Gen., Michael G. Clagett, Asst. Atty. Gen., Charleston, for the State.

NEELY, Justice:

These cases, consolidated on appeal, arise from the convictions of the appellant, Samuel Martin Canby, on two separate indictments for second degree arson ¹ in the Circuit Court of Berkeley County.Appellant was arrested at his home on July 16, 1975 without a warrant and was immediately taken to the Berkeley County Jail for questioning at which time he orally confessed to participation in numerous barn burnings.Not until twenty-three hours after his arrest was he taken before a Justice of the Peace.He seeks reversal in this Court contending that the oral confession was improperly admitted at his trials because it was the direct result of an illegal arrest and was obtained without compliance with W. Va. Code, 62-1-5(1965) which requires presentment of an arrested person before a justice "without unnecessary delay."We agree and reverse.

I

As a starting point in analyzing a warrantless arrest, we recognize that both the Constitution of the United States and the Constitution of West Virginia protect citizens from unreasonable arrests, searches, and seizures, U. S. Const. Amend. IV;W. Va. Const. art. III, § 6, and that the general method for implementing that protection is to require a warrant based on a showing of probable cause be obtained from a neutral magistrate before an arrest, search or seizure may be initiated.We are unable to accept the State's apparent contention that for a warrantless arrest to be legal it is only necessary that probable cause sufficient for the issuance of a warrant exist at the time of the arrest.If such were the case, the warrant requirement would be rendered meaningless.Police would never feel compelled to obtain a warrant since if they could demonstrate sufficient probable cause to get a warrant, they would not need one.Furthermore, given the clearer vision of hindsight, courts would naturally be reluctant to rule that probable cause did not exist for the arrest if the arrest produced reliable incriminating evidence; therefore, we affirm our longstanding rule that warrantless arrests, searches and seizures are generally unreasonable, State v. McNeal, --- W.Va. ---, 251 S.E.2d 484(1978);State v. Duvernoy, 156 W.Va. 578, 195 S.E.2d 631(1973), and find that in order for police officers to make an arrest without a warrant, they must have had at the time of the arrest sufficient reliable evidence that they could have made a strong showing of probable cause, and, in addition, there must be exigent circumstances, not of the police officers' creation, which militate in favor of immediate arrest.In addition, a police officer may always make a warrantless arrest for a felony committed in his presence or when there is an outstanding warrant for the individual arrested, although the warrant may not be in the possession of the arresting officer.The test of exigent circumstances for the making of an arrest for a felony without a warrant in West Virginia is whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others.²This is an objective test; its preeminent criterion is what a Reasonable, well-trained police officer would believe, not what the arresting officer actually did believe.The rarity of justifiable warrantless arrests is increased by the requirement under the new magistrate court system that a magistrate be available twenty-four hours a day.

In the present case, we need not delve into the troublesome question of what constitutes probable cause since the police officers were not faced with exigent circumstances necessary to validate the warrantless arrest even if we assume Arguendo that probable cause existed at the time of the arrest.Appellant's arrest came after a fairly long investigation of a rash of barn burnings in Berkeley County.On July 15, 1975, three investigators talked with Gerald Everhart who was incarcerated in the Berkeley County Jail.Gerald Everhart told the investigators that he and appellant had burned one barn and Mr. Everhart claimed appellant was involved in other barn burnings.On the morning of July...