State v. Farley, 14483
| Decision Date | 14 July 1981 |
| Docket Number | No. 14483,14483 |
| Citation | 280 S.E.2d 234,167 W.Va. 620 |
| Parties | STATE of West Virginia v. Lonnie Edward FARLEY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. Syl. pt. 1, State v. Moore, W.Va., 272 S.E.2d 804 (1980).
2. "The burden rests on the State to show by a preponderance of the evidence that the warrantless search falls within an authorized exception." Syl. pt. 2, State v. Moore, W.Va., 272 S.E.2d 804 (1980).
3. "A warrantless seizure of property in plain view is constitutionally permissible provided three requirements are met: '(1) the police must observe the evidence in plain sight without benefit of a search (without invading one's reasonable expectation of privacy), (2) the police must have a legal right to be where they are when they make the plain sight observation and, (3) the police must have probable cause to believe that the evidence seen constitutes contraband or fruits, instrumentalities or evidence of crime.' " Syl. pt. 7, State v. Moore, W.Va., 272 S.E.2d 804 (1980), quoting, Syl. pt. 3, in part, State v. Stone, W.Va., 268 S.E.2d 50 (1980).
4. " 'An arrest cannot be justified by the fruits of an illegal search.' " Syl. pt. 8, State v. Moore, W.Va., 272 S.E.2d 804 (1980), quoting, Syl. pt. 10, in part, State v. Thomas, W.Va., 203 S.E.2d 445 (1974).
5. Syl. pt. 3, State v. Rissler, W.Va., 270 S.E.2d 778 (1980).
William E. Kiger, Parkersburg, for plaintiff.
Chauncey H. Browning, Atty. Gen., Gregory W. Bailey, Deputy Atty. Gen., Charleston, for defendant.
The defendant, Lonnie Edward Farley, was convicted in the Circuit Court of Wood County for possession of a controlled substance (marijuana) and was sentenced to six months in the Wood County Correctional Center. He alleges that: (1) the marijuana admitted into evidence was the product of an illegal search and should have been suppressed; and (2) the trial court erred in admitting statements made by him at the time he was arrested and shortly thereafter.
The evidence in the case discloses that during the early morning hours of April 2, 1977, the defendant left an establishment known as "Someplace Else" in downtown Parkersburg with two of his friends who were brothers, Randy Bailey and Addison Bailey. The defendant had apparently gone to Someplace Else alone, but met his friends inside and requested a ride home. The three got into the car which was parked in a nearby parking lot; Addison Bailey was driving, his brother was in the rear, and the defendant was in the passenger's seat.
The testimony indicates that the three men had been inside the vehicle for approximately one minute when a city police officer in responding to another call sighted the automobile and, not being able to determine what the three occupants were doing, approached the car. Officer Dougherty's testimony was that he walked to the passenger side of the vehicle and saw in the defendant's hand: The officer testified that as he shined his flashlight into the interior of the automobile, specifically on the green substance, the defendant wadded up the foil. The officer then opened the passenger door and twice demanded that he be given the substance, and the defendant refused.
As he started to get into the car and take the foil, the defendant said, "Okay, you can have it," and handed it to him. At this point, the police officer ordered the defendant out of the car, placed him against the vehicle, and recognizing the defendant as having an outstanding traffic warrant against him, arrested him on the traffic charge.
The officer called for a back-up unit which arrived shortly thereafter. A Sergeant Holcomb then arrived on the scene and was present and heard Officer Dougherty give defendant his Miranda rights. At this point in time, the defendant advised the arresting officer that he did not want to make a statement. Immediately thereafter, Sergeant Holcomb, without repeating the Miranda rights, asked defendant what was in the foil package and the defendant said that it was hashish.
Sergeant Holcomb then transported the defendant to the police station, and while they were waiting for defendant's brother-in-law to arrive and post bond on the traffic charge, initiated another conversation in which the defendant related how one smokes and uses hashish. 1 At no time did Sergeant Holcomb read defendant his Miranda rights, but relied on the rights given by Officer Dougherty.
After the development of these facts in an in camera suppression hearing, the trial court ruled that the defendant's inculpatory statements and the twenty-six grams of marijuana seized from him were admissible.
With respect to the admission of the marijuana, the defendant claims that the officer had no probable cause to arrest him and therefore any contraband seized was the result of an illegal arrest and constitutes the product of an unlawful search and seizure. The State, on the other hand, argues that since the contraband was seen by the arresting officer through the window of the automobile, there was no search involved in the seizure of the drug.
Searches conducted without a warrant are per se unreasonable under the Fourth Amendment and Article III, Section 6 of the West Virginia Constitution unless they fall within a limited number of carefully defined exceptions. See, Syl. pt. 1, State v. Moore, W.Va., 272 S.E.2d 804 (1980). "As a corollary to this rule, the burden rests on the State to show by a preponderance of the evidence that the warrantless search falls within an authorized exception." State v. Moore, supra, at 808. 2
We agree with the defendant's contention that the exception for a search as an incident to a lawful arrest does not justify the seizure of the marijuana in this case. This exception as set out in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), permits a warrantless search of the person and the immediate geographic area under his physical control as an incident to a lawful arrest.
"The predicate for a Chimel search ... is an initial lawful arrest." State v. Moore, supra, at 813. In the present case, there was no arrest of the appellant until after the officer had already searched the vehicle and seized the marijuana. In Syllabus Point 8 of State v. Moore, supra, we stated:
As previously noted, the State argues that the "plain view" exception to warrantless searches applies in this case to validate the seizure of the marijuana. In Syllabus Point 7, of State v. Moore, supra, citing Syl. pt. 3, in part, of State v. Stone, W.Va., 268 S.E.2d 50 (1980), we stated:
"A warrantless seizure of property in plain view is constitutionally permissible...
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