State v. Choat, No. 17539

CourtSupreme Court of West Virginia
Writing for the CourtMcHUGH; NEELY
Citation178 W.Va. 607,363 S.E.2d 493
PartiesSTATE of West Virginia v. Frank CHOAT.
Docket NumberNo. 17539
Decision Date18 November 1987

Page 493

363 S.E.2d 493
178 W.Va. 607
STATE of West Virginia
v.
Frank CHOAT.
No. 17539.
Supreme Court of Appeals of
West Virginia.
Nov. 18, 1987.

Page 494

[178 W.Va. 608] Syllabus by the Court

1. "Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment and Article III, Section 6 of the West Virginia Constitution--subject only to a few specifically established and well-delineated exceptions...." Syl. pt. 1, in part, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980).

2. Where a police officer observes several individuals in a high-crime vicinity during the early morning hours and has reason to believe at least one of those individuals is violating a city ordinance, an investigatory stop conducted by the police officers is constitutionally permissible. U.S. Const. amend. IV. W.Va. Const. art. III, § 6.

3. Where a police officer making a lawful investigatory stop has reason to believe that an individual is armed and dangerous, that officer, in order to protect himself and others, may conduct a search for concealed weapons, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be certain that the individual is armed; the inquiry is whether a reasonably prudent man would be warranted in the belief that his safety or that of others was

Page 495

[178 W.Va. 609] endangered. U.S. Const. amend. IV. W.Va. Const. art. III, § 6.

4. "Penal statutes must be strictly construed against the State and in favor of the defendant." Syl. pt. 3, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970).

5. When the instrument involved in a prosecution under W.Va.Code, 61-7-1 [1975] is not one specifically enumerated in the statute, the issue as to whether it is a "dangerous or deadly weapon" is essentially a factual determination and must be submitted to the jury, unless the trial court can determine as a matter of law that under the evidence in the case the jury could not have concluded that the weapon was dangerous or deadly. To the extent that this Court's holding in Village of Barboursville ex rel. Bates v. Taylor, 115 W.Va. 4, 174 S.E. 485 (1934), is inconsistent with this opinion, it is hereby overruled.

Jill Miles, Asst. Atty. Gen., for State.

Robyn Ruttenberg, Wheeling, for Choat.

McHUGH, Justice:

This case is before this Court upon the appeal of Frank Choat. It arises from an order of the Circuit Court of Ohio County which placed the defendant on two years probation after he was found guilty by a jury of carrying a dangerous or deadly weapon without a state license in violation of W.Va.Code, 61-7-1 [1975]. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel.

I

On September 2, 1985, two Wheeling police officers, Cecil Chiplinski and Keith Brown, were patrolling the Wheeling Island area located in Ohio County. At approximately 3:00 a.m., the officers observed three individuals standing outside a van which was parked approximately thirty yards from an area bar known as Mr. Zee's. 1 Officer Chiplinski testified that he observed at least one of the individuals holding a can of beer in his hand. He testified that the individual appeared to be drinking beer because he had held the can to his lips. Officer Brown noticed that one of the individuals was carrying a brown paper bag. Upon seeing the approaching police cruiser, Brown observed the individual move toward the van.

Because drinking beer in public is in violation of a Wheeling city ordinance, the officers decided to stop and investigate. As the officers exited their cruiser, all three of the individuals moved toward the van. The officers then instructed the men to move away from the vehicle. Initially, the appellant cooperated and moved away from the van. Shortly thereafter, Officer Brown stated that the appellant leaned into the van, and at that time he had lost sight of the appellant's hands.

Officer Brown then grabbed the appellant, placed him against the van and patted down the outside pocket of his pants. Inside the appellant's right pants' pocket was a lock-blade knife with a five-and-one-half inch blade. The appellant was arrested for carrying a dangerous or deadly weapon without a license in violation of W.Va.Code, 61-7-1 [1975].

Prior to trial, the appellant sought to suppress evidence of the knife as the fruit of an illegal search. After an evidentiary hearing was held regarding the appellant's suppression motion, the trial court concluded that the search of the appellant was reasonable under the totality of the circumstances and denied the appellant's motion.

II

The first issue before us in this appeal is whether the stop and frisk of the appellant by the police officers constituted a reasonable search and seizure under the fourth amendment to the United States Constitution and article III, section 6 of the West

Page 496

[178 W.Va. 610] Virginia Constitution. 2 For the reasons hereinafter stated, we hold that under the circumstances of this case, the stop and frisk of the appellant was reasonable and thus constitutionally permissible.

It is fundamental that warrantless searches are per se unreasonable under the fourth amendment to the United States Constitution unless they fall within a limited number of carefully defined exceptions. Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290, 298-99 (1978); Schneckcloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967).

We also adopted this principle under article III, section 6 of the West Virginia Constitution in syllabus point 1 of State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980): "[s]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment and Article III, Section 6 of the West Virginia Constitution--subject only to a few specifically established and well-delineated exceptions...." See also State v. Peacher, 167 W.Va. 540, 562, 280 S.E.2d 559, 574-75 (1981); State v. Duvernoy, 156 W.Va. 578, 583, 195 S.E.2d 631, 634-35 (1973), quoting Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971).

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court carved out an exception to the general warrant requirement set forth above. 3 There, the court noted that while the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, and in most instances failure to comply with the warrant requirement can only be excused by exigent circumstances, the police "stop and frisk" procedure cannot be subjected to the warrant procedure. The court reasoned that the police "stop and frisk" is a "necessarily swift action predicated upon the on-the-spot observations of the officer on the beat" and that it would be impractical to subject such conduct to the warrant requirement. 392 U.S. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905. Instead, the court determined that the police conduct involved in a "stop and frisk" must be tested by the fourth amendment's general proscription against unreasonable searches and seizures. Id.

Pursuant to the court's ruling in Terry v. Ohio, in determining whether police conduct associated with a stop and frisk is reasonable, under the fourth amendment to the United States Constitution the inquiry is two-fold: (1) whether the police conduct is justified at its inception, 392 U.S. at 27-28, 88 S.Ct. at 1883, 20 L.Ed.2d at 909, and (2) whether the search was reasonably related in scope to the circumstances which justified the initial interference. 392 U.S. at 29, 88 S.Ct. at 1884, 20 L.Ed.2d at 910. See also State v. Joseph T., 175 W.Va. 598, 602, 336 S.E.2d 728, 732 (1985).

In Terry, the Court specifically ruled that:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that

Page 497

[178 W.Va. 611] criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

392 U.S. at 30-31, 88 S.Ct. at 1884, 20 L.Ed.2d at 911.

A brief investigative stop is therefore permissible whenever the police officer has a reasonable suspicion grounded in specific and articulable facts that the person he stopped has been or is about to be involved in a crime. United States v. Moore, 817 F.2d 1105, 1107 (4th Cir.1987); United States v. Hensley, 469 U.S. 221, 227, 105 S.Ct. 675, 680, 83 L.Ed.2d 604, 611 (1985); Terry v. Ohio, supra. See also State v. Stanley, 168 W.Va. 294, 297 n. 1, 284 S.E.2d 367, 369 n. 1 (1981). Indeed, " 'it may be the essence of good police work' to maintain the status quo with a brief stop that allows the police officer to investigate further the possibility of criminal involvement." United States v. Moore, 817 F.2d 1105, 1106-07 (4th Cir.1987), quoting Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-17 (1972).

The federal Court of Appeals for the Fourth Circuit recently discussed the principles established in Terry and determined that...

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18 practice notes
  • State v. Rahman, No. 23329
    • United States
    • Supreme Court of West Virginia
    • 20 Diciembre 1996
    ...belief that his safety or that of others was endangered. U.S. Const. amend. IV. W.Va. Const. art. III, § 6." Syl. Pt. 3, State v. Choat, 178 W.Va. 607, 363 S.E.2d 493 2. " ' "Probable cause to make an arrest without a warrant exists when the facts and circumstances within the knowledge of t......
  • State ex rel. Morgan v. Trent, Nos. 22886
    • United States
    • Supreme Court of West Virginia
    • 17 Noviembre 1995
    ...that were not intended by the legislature." State v. Brumfield, 178 W.Va. 240, 246, 358 S.E.2d 801, 807 (1987). See also State v. Choat, 178 W.Va. 607, 616, 363 S.E.2d 493, 502 (1987). The United States Supreme Court made this observation in Crandon v. United States, 494 U.S. 152, 158, 110 ......
  • State v. Parr, No. 26898.
    • United States
    • Supreme Court of West Virginia
    • 7 Julio 2000
    ...clothing to discover weapons during an investigative stop). Similarly, this Court has stated, in Syllabus point 3 of State v. Choat, 178 W.Va. 607, 363 S.E.2d 493 (1987), we state Where a police officer making a lawful investigatory stop has reason to believe that an individual is armed and......
  • State v. Morgan, No. 93-2089-CR (Wis. 11/21/1995), No. 93-2089-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • 21 Noviembre 1995
    ...(Ohio 1980); Commonwealth v. Ellis, 335 A.2d 512 (Pa. Super. Ct. 1975); State v. Halstead, 414 A.2d 1138 (R.I. 1980); State v. Choat, 363 S.E.2d 493 (W. Va. Morgan argues that the fact that Morgan was in a supposedly high-crime area should not be sufficient to justify the search, or all res......
  • Request a trial to view additional results
18 cases
  • State v. Rahman, No. 23329
    • United States
    • Supreme Court of West Virginia
    • 20 Diciembre 1996
    ...belief that his safety or that of others was endangered. U.S. Const. amend. IV. W.Va. Const. art. III, § 6." Syl. Pt. 3, State v. Choat, 178 W.Va. 607, 363 S.E.2d 493 2. " ' "Probable cause to make an arrest without a warrant exists when the facts and circumstances within the knowledge of t......
  • State ex rel. Morgan v. Trent, Nos. 22886
    • United States
    • Supreme Court of West Virginia
    • 17 Noviembre 1995
    ...that were not intended by the legislature." State v. Brumfield, 178 W.Va. 240, 246, 358 S.E.2d 801, 807 (1987). See also State v. Choat, 178 W.Va. 607, 616, 363 S.E.2d 493, 502 (1987). The United States Supreme Court made this observation in Crandon v. United States, 494 U.S. 152, 158, 110 ......
  • State v. Parr, No. 26898.
    • United States
    • Supreme Court of West Virginia
    • 7 Julio 2000
    ...clothing to discover weapons during an investigative stop). Similarly, this Court has stated, in Syllabus point 3 of State v. Choat, 178 W.Va. 607, 363 S.E.2d 493 (1987), we state Where a police officer making a lawful investigatory stop has reason to believe that an individual is armed and......
  • State v. Morgan, No. 93-2089-CR (Wis. 11/21/1995), No. 93-2089-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • 21 Noviembre 1995
    ...(Ohio 1980); Commonwealth v. Ellis, 335 A.2d 512 (Pa. Super. Ct. 1975); State v. Halstead, 414 A.2d 1138 (R.I. 1980); State v. Choat, 363 S.E.2d 493 (W. Va. Morgan argues that the fact that Morgan was in a supposedly high-crime area should not be sufficient to justify the search, or all res......
  • Request a trial to view additional results

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