State v. Duvernoy

• Citation: 156 W.Va. 578,195 S.E.2d 631
• Decision Date: 03 April 1973
• Docket Number: No. 13144,13144
• Parties: STATE of West Virginia v. Henry Todd DUVERNOY.
• Court: West Virginia Supreme Court

Page 631

195 S.E.2d 631

156 W.Va. 578

STATE of West Virginia v. Henry Todd DUVERNOY.

No. 13144.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 23, 1973.

Decided April 3, 1973.

Syllabus by the Court

1. Except where authorized by law as incident to a lawful arrest, any search of a person or the area within his control on mere suspicion and the seizure of any article found as a result thereof, without an arrest warrant or a search warrant, is an unlawful search and seizure in violation of Section 6 of Article III of the Constitution of West Virginia.

2. An officer, with authority to conserve the peace, may, without a warrant, arrest any person who he, upon probable cause, believes has committed or is committing a felony, though it afterwards appears that no felony was actually perpetrated.

3. 'Probable cause to make an arrest without a warrant exists when the facts and the circumstances within the knowledge of the arresting officers are sufficient to warrant a prudent man in believing that an offense has been committed.' Point 1 Syllabus, State v. Plantz, W.Va. (180 S.E.2d 614).

4. 'The State and Federal Constitutions prohibit only unreasonable searches and seizures and there are numerous situations in which a search and seizure warrant is not needed, such as an automobile in motion, searches made in hot pursuit, searches around the area where an arrest is made, things that are obvious to the senses, and property that has been abandoned, as well as searches and seizures made that have been consented to.' Point 1 Syllabus, State v. Angel, W.Va. (177 S.E.2d 562).

5. 'Our constitutional guaranty against unreasonable searches and seizures, providing that no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person or to be seized, does not prohibit a seizure without such warrant, where there is no need of a search, but the contraband subject matter is fully disclosed and open to any one of the senses.' Point 1 Syllabus, State v. Thomas, 105 W.Va. 346 (, 143 S.E. 88).

6. When the evidence fails to show that a police officer had probable cause to make a warrantless arrest, the search of a suspect or the area under his control and the subsequent seizure of any item is an unlawful search and seizure in violation of Section 6, Article III of the Constitution of West Virginia, where the item seized was not fully disclosed and open to any of the senses and where the search was not a limited search for weapons for the protection of the officer and others in the area.

Leo Catsonis, Charleston, for plaintiff in error.

Chauncey H. Browning Jr., Atty. Gen., George E. Lantz, Deputy Atty. Gen., Richard E. Hardison, Asst. Atty. Gen., Willard A. Sullivan, Jr., Sp. Asst. Atty. Gen., Charleston, for defendant in error.

SPROUSE, Judge:

This case is before the Court upon a writ of error and supersedeas to the final judgment of the Circuit Court of Roane County, entered on March 26, 1971, upon a jury verdict finding the defendant, Henry Tod Duvernoy, guilty of possession of marijuana. By its final judgment, the circuit court sentenced the defendant to a term of not less than two years nor more than five years in the West Virginia Penitentiary pursuant to the provisions of Chapter 16, Article 8A, Section 23 of Code, 1931, as amended, prior to the effective date of the repeal of Article 8A by Chapter 54, Acts of the Legislature, Regular Session, 1971. Having properly sentenced the defendant, the circuit court suspended the sentence and placed the defendant on probation for a period of two years.

The facts from the record in this case are skimpy to say the least. The testimony presented to the jury shows only a group of state and local policemen on a night hike over the fields and through the woods in a rural area of Roane County. The purpose of their trek is not developed by their testimony before the jury or by any other evidence. The officers testified that some of them were walking through a field and some of them were coming out of the woods.

The Prosecutor asked Constable O'Brien:

'Q. Officer O'Brien, directing your attention to the 13th day of September, 1971, did you as part of your duties as constable in Walton District participate in an investigation in the area of Long Ridge here in Roane County, West Virginia?

'A. Yes, sir.

The Prosecutor asked two state police officers the same question and received affirmative answers.

What they were there to investigate is not clear. The record is completely silent concerning their purposes in the moonlit fields and forests of Roane County. They had no warrant for arrest nor a search warrant. There is no evidence they were acting on a tip from informants, nor does it appear that their suspicion had been aroused by any other information. As one of the officers crossed a field, he saw the defendant and a young lady on a blanket, or as it turned out, blankets. The defendant was lying 'on his back facing the sky'. She was sitting. She was told by one of the officers to place her hands over her head, and the defendant was told to lie still with his hands in sight. Nothing else was said to the defendant or his friend, but the defendant was brought to his feet and searched. A state police officer searched through the blankets with his hands under an inadequate light until another officer approached and assisted him with a flashlight. When the light illuminated the blanket, there was revealed close to the feet of the defendant a small package which was later identified as marijuana. After an officer picked up the package and examined it, he informed the defendant that he was 'under arrest'.

An officer of the Department of Public Safety testified briefly explaining the absence as a witness of another investigatory officer. A chemist from the Department testified briefly and identified the substance found in the package as marijuana. The blankets were introduced into evidence for the purpose of conducting a demonstration to illustrate in relation to the blankets the location of the marijuana and the position of the defendant and his friend at the time they were approached and searched.

This was all of the state's evidence. There was no evidence presented by the defense.

Counsel for the defendant makes numerous assignments of error. He contends there was an irregularity in the arraignment; that the trial court erred in not ordering the full bill of particulars requested prior to trial; that there was not sufficient evidence of possession of marijuana; that the court erred in not giving an instruction admonishing the jury not to consider a conviction of the defendant's companion returned the previous day; and that certain remarks of the prosecutor in his closing statement constituted prejudicial error. None of these assignments of error have sufficient merit to require reversal of the trial court's actions relating to them.

The principal question presented for decision requires a determination of the validity of the warrantless search of the defendant and the subsequent admission upon the trial of the case of evidence obtained as a result of that search. An important ancillary question is whether the police officers had probable cause to arrest the defendant, or in the absence of probable cause, whether the search comes within the narrow exceptions to the rule that all searches without a warrant are per se unreasonable.

The Fourth Amendment to the Constitution of the United States provides:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Article III, Section 6 of the Constitution of West Virginia provides:

'The right of the citizens to be secure in their houses, persons, papers and effects, against unreasonable searches and seizures, shall not be violated. No warrant shall issue except upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, or the person or thing to be seized.'

The language of Article III, Section 6 of the West Virginia Constitution is very similar to the Fourth Amendment to the Constitution of the United States. State v. Massie, 95 W.Va. 233, 120 S.E. 514. This Court has traditionally construed Article III, Section 6 in harmony with the Fourth Amendment. State v. Andrews, 91 W.Va. 720, pt. 2 Syl., 114 S.E. 257. The Fourth Amendment, of course, has been made specifically applicable to trials in state courts. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782.

In interpreting Section 6 of Article III of the Constitution of West Virginia, this Court held that unlawful searches and seizures are unreasonable within the meaning of this Section forbidding unreasonable searches and seizures. State v. Wills, 91 W.Va. 659, 114 S.E. 261.

'* * * The most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are Per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions'. The exceptions are 'jealously and carefully drawn', and there must be 'a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative'.' Coolidge v. New Hampshire, 403 U.S. 443, 454--455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564.

'Except where authorized by law as incident to a lawful arrest, any search of a person or his dwelling on mere suspicion and the seizure of any article found as a result thereof, without an arrest warrant or a search warrant, is an unlawful search and seizure in violation of ...