State v. Clark, No. 11–0643.

CourtSupreme Court of West Virginia
Writing for the CourtJustice WORKMAN and Justice LOUGHRY concur and reserve the right to file concurring opinions.
Citation752 S.E.2d 907,232 W.Va. 480
PartiesSTATE of West Virginia, Plaintiff Below, Respondent v. Joshawa CLARK, Defendant Below, Petitioner.
Docket NumberNo. 11–0643.
Decision Date26 November 2013

232 W.Va. 480
752 S.E.2d 907

STATE of West Virginia, Plaintiff Below, Respondent
v.
Joshawa CLARK, Defendant Below, Petitioner.

No. 11–0643.

Supreme Court of Appeals of
West Virginia.

Submitted Sept. 25, 2013.
Decided Nov. 26, 2013.


[752 S.E.2d 910]



Syllabus by the Court

1. “When reviewing a ruling on a motion to suppress, an appellate court should construe all facts in the light most favorable to the State, as it was the prevailing party below. Because of the highly fact-specific nature of a motion to suppress, particular deference is given to the findings of the circuit court because it had the opportunity to observe the witnesses and to hear testimony on the issues. Therefore, the circuit court's factual findings are reviewed for clear error.” Syllabus Point 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

2. “Both ‘[t]he Fourth Amendment of the United States Constitution and Article III, Section 6 of the West Virginia Constitution protect an individual's reasonable expectation of privacy.’ ” Syllabus Point 7, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).

3. Individuals possess no reasonable expectation of privacy in the telephone numbers they dial under Article III, Section 6 of the West Virginia Constitution.

4. It is the inherent authority of the Supreme Court of Appeals to protect the integrity of the Court and the judicial process, and to regulate the type of evidence that is admitted into judicial proceedings when the integrity of the criminal justice system is threatened by the improper or unlawful acts of the State.

[752 S.E.2d 911]

5. In acting to protect and preserve the integrity of the judicial system, the Court should weigh a number of factors in considering whether improperly obtained evidence should be suppressed. Where evidence is obtained improperly by the State from a third party, the Court should balance between the societal interest in maintaining a prosecution and the need of a court system to maintain public respect and integrity. Factors such as deterring and/or discouraging similar misconduct in the future, the overall procedural fairness for the criminal defendant and the animus of the State in acting improperly are integral to this inquiry.


Jason D. Parmer, Esq., Kanawha County Public Defender's Office, Charleston, WV, for Petitioner.

Patrick Morrisey, Esq., Attorney General, Laura Young, Esq., Assistant Attorney General, Charleston, WV, for Respondent.


BENJAMIN, Chief Justice:

Petitioner Joshawa Clark, defendant below, appeals his first degree robbery and conspiracy convictions, for which he was sentenced to serve 52–60 years in prison for twice robbing the Marquee Cinemas in Huntington. Clark alleges that 1) his phone records were obtained in violation of his legitimate expectation of privacy guaranteed by Article III, § 6 of the West Virginia Constitution and thus, the evidence obtained from the subpoena should have been suppressed as fruit of the poisonous tree; 2) even if West Virginians do not enjoy a legitimate expectation of privacy in their cellular phone records, he should have standing to challenge the investigative subpoena; and 3) his phone records were seized pursuant to an illegal subpoena. This Court issued a Memorandum Decision on November 16, 2012, holding Clark's appeal in abeyance to permit the circuit court to conduct an evidentiary hearing and enter an appropriate order on the issues of 1) whether the Drug Enforcement Administration (“DEA”) properly issued the administrative subpoena under 21 U.S.C. § 8761 by providing sufficient evidence that the requested information was material and relevant to a drug-related investigation, and 2) whether the DEA properly released and/or shared that information with members of the Huntington Police Department (“HPD”) who were required to be engaged in the enforcement of laws related to controlled substances under 28 C.F.R. § 0.103.2 In the

[752 S.E.2d 912]

Memorandum Decision, this Court found that the circuit court had not sufficiently developed the facts at the suppression hearing to make a determination regarding these issues.

In accordance with the direction of the Memorandum Decision upon remand, the circuit court conducted an evidentiary hearing on February 5, 2013, and entered an amended order denying Clark's motion to suppress on February 13, 2013. In his supplemental brief following the circuit court's entry of the amended order on remand, Clark additionally alleges 1) that his phone records were unlawfully subpoenaed under West Virginia law because there was no legal proceeding against Clark; and 2) that his phone records were unlawfully transferred to HPD Officer Cass McMillian because he was not engaged in the enforcement of the law related to controlled substances. Conversely, the State contends that DEA Special Agent Tom Bevins properly issued the administrative subpoena. The State asserts that even if this Court finds that the subpoena was not properly issued, Clark has no reasonable expectation of privacy in the phone records at issue under the Fourth Amendment, and thus, he lacks standing to challenge the subpoena, and that he has failed to state why the exclusionary rule applies. Upon reviewing the supplemental briefs of the parties, the submitted appendix, and the arguments of counsel, this Court concludes that, for the reasons set forth more fully below, the circuit court's amended order denying Clark's motion to suppress should be affirmed.

I.
FACTUAL AND PROCEDURAL BACKGROUND

On July 13, 2009, the Marquee Cinema in Huntington was robbed at approximately 12:40 a.m.3 Clark and another theater employee, Zachary Lewis, had finished their shift and were about to leave the cinema when a robber suddenly appeared. Video surveillance of the robbery shows that the robber instructed Clark to use a phone located within the cinema to call the manager and to have him open the door to the count room. Once inside, the robber pointed his gun at the manager and instructed him to fill a bag with money from the safe. Afterwards, the robber was seen exiting down the hallway to the Tenth Street Exit.

HPD Officer Cass McMillian was assigned to investigate the July robbery. Ten days later, on July 24, 2009, DEA Agent Bevins used a DEA administrative subpoena to obtain Clark's cell phone records from Sprint for two days only: July 12–13, 2009. Clark received no notice of this record request or production. The records showed that Clark repeatedly called the phone number of his friend, Dustin Shaver, both immediately before and after the July robbery.4 The records were limited to the telephone numbers of Clark's incoming and outgoing calls and texts from his cell phone. They did not contain recordings of the calls or texts. Neither Clark nor Shaver were aware that the DEA had obtained this information.

Three months later, the theater was robbed a third time on October 19, 2009, at 11:19 p.m. Clark was also working at the time of the third robbery. Apparently, the robber first went to a movie. When the movie was over, the robber forced, at gunpoint, an employee who was cleaning the theater to go to the concession stand where Clark was working. The robber then made Clark and the worker call the manager and have him open the locked count room. The manager let them in, and after making everyone bind themselves with zip ties, the robber took money from the safe and left the theater. The robber obtained about $5,000. On a video later obtained from Marcum Terrace, the government-subsidized community where Clark and Shaver both lived, both individuals were seen together a few hours

[752 S.E.2d 913]

later in the early-morning hours of October 20, 2009.

The next day, Officer McMillian showed Jay Maynard, the employee who had been cleaning the theater the night before, and Felicia Gross, who had been working the ticket counter, photo line-ups containing Shaver. Although Maynard was unable to identify any of the photos, Gross identified Shaver. Based upon the information gathered, McMillian sought an arrest warrant charging Shaver with robbery.5 Two days after the robbery, Clark came into the Huntington Police Station at Officer McMillian's request to speak with him. Clark gave his account of the events but denied involvement in the robberies. On October 21, 2009, the State executed a search warrant on Clark's home and recovered a safe which contained the pink Nike bag used by Shaver in the October 2009 robbery. The safe also contained $4,600, and the certificate of title for Clark's new motorcycle. The title revealed that Clark purchased the motorcycle on July 21, 2009, one week after the earlier robbery. Clark paid $2,750.00 cash for the motorcycle.

At the preliminary hearing held on October 29, 2009, Officer McMillian testified that after determining that Clark had worked on the night of both the July 2009 robbery and the October 2009 robbery, he obtained Clark's cell phone records for two dates through a subpoena. He testified that the police department began looking at the numbers that Clark had called on July 12, 2009, and July 13, 2009, and determined that there was one number that was reoccurring within minutes of each other on the night of the robbery. After obtaining another subpoena for the number in question, the number was found to belong to Dustin Shaver. McMillian testified that following that, the police department started an investigation of Clark and Dustin Shaver to determine how they were connected. The police department learned that they were good friends in school. McMillian testified that the police department also began following Clark periodically to see where he was going, but nothing of any value was learned from their observations until the third robbery in October 2009.

On January 14, 2010, Clark and Shaver were indicted on two counts of first degree robbery, two counts of conspiracy, and two counts of kidnapping based upon the July 2009 and October 2009 robberies of the movie theater.6 On...

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16 practice notes
  • State ex rel. Justice v. King, No. 19-1132
    • United States
    • Supreme Court of West Virginia
    • November 24, 2020
    ...tasks and that these constitutionally assigned tasks will be performed properly within the governmental branch itself. State v. Clark , 232 W. Va. 480, 498, 752 S.E.2d 907, 925 (2013).Furthermore, no constitution is a living document. It is the people and their chosen representatives who br......
  • State ex rel. Workman v. Carmichael, No. 18-0816
    • United States
    • Supreme Court of West Virginia
    • October 11, 2018
    ...tasks and that these constitutionally assigned tasks will be performed properly within the governmental branch itself. State v. Clark , 232 W. Va. 480, 498, 752 S.E.2d 907, 925 (2013). Further, the "separation of powers doctrine ensures that the three branches of government are distinct unt......
  • State v. Mixton, No. 2 CA-CR 2017-0217
    • United States
    • Court of Appeals of Arizona
    • July 29, 2019
    ...unreasonable searches and seizures."); State v. Thompson , 810 P.2d 415, 418 (Utah 1991) (rejecting Miller ). But see State v. Clark , 232 W.Va. 480, 752 S.E.2d 907, 921 n.13 (2013) (declining to depart from Smith and citing cases in eight states that follow Miller and Smith ).¶26 For examp......
  • State v. Mixton, No. CR-19-0276-PR
    • United States
    • Supreme Court of Arizona
    • January 11, 2021
    ...state courts have applied the third-party doctrine or similar reasoning under their respective constitutions. See State v. Clark , 232 W.Va. 480, 752 S.E.2d 907, 921 n.13 (2013) (noting that Alabama, Georgia, Kansas, Maryland, North Carolina, North Dakota, Oklahoma, and South Carolina have ......
  • Request a trial to view additional results
16 cases
  • State ex rel. Justice v. King, No. 19-1132
    • United States
    • Supreme Court of West Virginia
    • November 24, 2020
    ...tasks and that these constitutionally assigned tasks will be performed properly within the governmental branch itself. State v. Clark , 232 W. Va. 480, 498, 752 S.E.2d 907, 925 (2013).Furthermore, no constitution is a living document. It is the people and their chosen representatives who br......
  • State ex rel. Workman v. Carmichael, No. 18-0816
    • United States
    • Supreme Court of West Virginia
    • October 11, 2018
    ...tasks and that these constitutionally assigned tasks will be performed properly within the governmental branch itself. State v. Clark , 232 W. Va. 480, 498, 752 S.E.2d 907, 925 (2013). Further, the "separation of powers doctrine ensures that the three branches of government are distinct unt......
  • State v. Mixton, No. 2 CA-CR 2017-0217
    • United States
    • Court of Appeals of Arizona
    • July 29, 2019
    ...unreasonable searches and seizures."); State v. Thompson , 810 P.2d 415, 418 (Utah 1991) (rejecting Miller ). But see State v. Clark , 232 W.Va. 480, 752 S.E.2d 907, 921 n.13 (2013) (declining to depart from Smith and citing cases in eight states that follow Miller and Smith ).¶26 For examp......
  • State v. Mixton, No. CR-19-0276-PR
    • United States
    • Supreme Court of Arizona
    • January 11, 2021
    ...state courts have applied the third-party doctrine or similar reasoning under their respective constitutions. See State v. Clark , 232 W.Va. 480, 752 S.E.2d 907, 921 n.13 (2013) (noting that Alabama, Georgia, Kansas, Maryland, North Carolina, North Dakota, Oklahoma, and South Carolina have ......
  • Request a trial to view additional results

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