State v. Hlavacek

• Decision Date: 27 June 1991
• Docket Number: No. 19699,19699
• Citation: 185 W.Va. 371,407 S.E.2d 375
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Andrew G. HLAVACEK, Defendant Below, Appellant.

Page 375

407 S.E.2d 375

185 W.Va. 371

STATE of West Virginia, Plaintiff Below, Appellee, v. Andrew G. HLAVACEK, Defendant Below, Appellant.

No. 19699.

Supreme Court of Appeals of West Virginia.

Submitted March 5, 1991.

Decided June 27, 1991.

Syllabus by the Court

1. "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 endangered. U.S. Const. amend. IV. W.Va. Const. art. III, § 6." Syllabus point 3, State v. Choat, 178 W.Va. 607, 363 S.E.2d 493 (1987).

2. " 'Both the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution provide that no warrant shall issue except upon probable cause supported by oath or affirmation. There is virtual unanimity that a warrant may not issue on unsworn testimony.' Syllabus Point 3, State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762 (1986)." Syllabus point 2, State v. Thompson, 178 W.Va. 254, 358 S.E.2d 815 (1987).

3. " 'In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court held it constitutionally permissible under certain conditions to attack a search warrant affidavit. If such attack is successful, this will result in voiding the search warrant and rendering the property seized under such warrant inadmissible.' Syllabus Point 1, State v. Walls, W.Va. , 294 S.E.2d 272 (1982)." Syllabus point 1, State v. Thompson, 178 W.Va. 254, 358 S.E.2d 815 (1987).

4. "Under the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution, the validity of an affidavit for a search warrant is to be judged by the totality of the information contained in it. Under this rule, a conclusory affidavit is not acceptable nor is an affidavit based on hearsay acceptable unless there is a substantial basis for crediting the hearsay set out in the affidavit which can include the corroborative efforts of police officers." Syllabus point 4, State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762 (1986).

5. "To constitute probable cause for the issuance of a search warrant, the affiant must set forth facts indicating the existence of criminal activities which would justify a search and further, if there is an unnamed informant, sufficient facts must be set forth demonstrating that the information obtained from the unnamed informant is reliable." Syllabus point 1, State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (1980).

6. Generally, when information received from a confidential informant is relied upon in an affidavit for a search warrant, the affidavit must contain information which sufficiently establishes the informant's basis of knowledge and lends credibility to the informant's statements.

7. Independent police work may corroborate information contained in an affidavit for a search warrant. However, the details which are verified through further investigation must be both significant and specific in order to permit a judicial officer to impart some degree of reliability upon the confidential source of the information.

Susan H. Hewman Ikner & Hewman, L.C., Lewisburg, for appellant.

Joanna I. Tabit Sr. Asst. Atty. Gen., Charleston, for appellee.

BROTHERTON, Justice:

The appellant, Andrew G. Hlavacek, was indicted by the Grand Jury of Greenbrier County, West Virginia, on July 29, 1988, and charged with one felony count of possession of marijuana with the intent to deliver. After entering a plea of not guilty, the appellant moved to suppress the introduction of marijuana into evidence at trial. The motion was denied and the appellant was subsequently convicted of the misdemeanor offense of possession of marijuana and placed on probation. The appellant now appeals his conviction, challenging a search of his person prior to arrest, the validity of a search warrant which was subsequently obtained by the police, and the admission into evidence of marijuana seized from the trunk of his car. For the reasons discussed below, we reverse the appellant's conviction.

The facts relevant to the appellant's arrest are as follows: At approximately 8:30 a.m. on June 20, 1988, Sergeant D.K. Hylton of the West Virginia Department of Public Safety received a telephone call from State Police Communications in Beckley, West Virginia. Hylton was advised that an informant had called to speak with him about a drug run that the appellant was going to make that day. At about 9:30 a.m. Hylton met with this informant, who told him that the appellant had left his home early that morning and was going to Frankford, West Virginia, to buy marijuana. Hylton then drove by the appellant's house and, after confirming that his car was not there, he proceeded to the Lewisburg area, where he later witnessed the appellant travelling south on Route 219. The appellant turned from the southbound lane of Route 219 onto I-64 West, and Hylton followed him for approximately twelve miles until they both pulled off the interstate at the Sam Black exit of I-64 and began driving west on Route 60. When the appellant stopped at a Shell gas station, Hylton turned his vehicle around and also pulled into the gas station.

Although he did not have a search warrant, Sergeant Hylton maintains he had a reasonable suspicion that the appellant was engaged in criminal activity as a result of the informant's tip. For this reason, Hylton approached the appellant, advised him of the information he had received from the unnamed informant, and asked him to consent to a search of his vehicle. When the appellant refused, Hylton told him that he would obtain a warrant to search the vehicle. Hylton informed the appellant that he was not under arrest and was free to leave, but without his car. The appellant indicated that he would prefer to stay in the airconditioned State Police vehicle. Sergeant Hylton then asked Trooper L.P. Mullens to stay with and watch both the appellant and his car while Hylton went to the magistrate's office in Rupert, West Virginia, to obtain a search warrant.

Before he left Trooper Mullens alone to wait with the appellant, Sergeant Hylton frisked the appellant, conducting what he maintains was a protective search. During the frisk, Hylton asked the appellant to empty his pockets, which contained three marijuana cigarettes and a pair of surgical scissors. Hylton then arrested the appellant for possession of marijuana ¹ and advised him of his constitutional rights. The appellant accompanied Sergeant Hylton to Rupert, where Hylton obtained a search warrant. ² Upon searching the trunk of the appellant's car, Hylton discovered a brown paper bag, inside of which there were eight plastic baggies containing approximately one pound of marijuana.

Prior to trial, the appellant moved to suppress the introduction of the marijuana which was discovered in the trunk of his car. Arguments were heard on the suppression issues on May 1, 1989. The court then granted the parties additional time to brief the significant issues raised during these proceedings. A hearing was held on July 26, 1989, after which the trial court denied the appellant's motion to suppress.

On August 4, 1989, the appellant was tried for possession of marijuana with intent to deliver. He was convicted of the lesser offense of possession of marijuana in violation of W.Va.Code § 60A-4-401 (1971) and sentenced to three years' probation, which was conditioned upon his serving thirty days on fifteen consecutive weekends in the county jail.

On appeal, the appellant argues that the trial court erred when it permitted the introduction of the evidence obtained as a result of the unlawful frisk and allowed any reference to this evidence at trial. The appellant maintains that the "poisonous fruit" of the initial search of his person should have been omitted from the affidavit for the warrant because the search was improperly motivated and its scope was overbroad.

The State argues that the totality of the circumstances warranted Sergeant Hylton's reasonable belief that the safety of his fellow officer would be endangered if he left him alone with the appellant. The State contends that prior to frisking the appellant, Sergeant Hylton independently corroborated the information which was provided by his confidential informant and thus he reasonably suspected that the appellant was returning to Rupert after picking up a load of marijuana. However, when Sergeant Hylton advised the appellant of the information he had received, the appellant refused to consent to a search of his vehicle. Thus, the State argues that after Hylton arranged for Trooper Mullens to stay with the vehicle while he obtained a search warrant, Hylton was justified in frisking the appellant for weapons. According to Hylton, he became suspicious when he told the appellant that he was free to go, but the appellant indicated that he wanted to stay with his car. Hylton maintains that at this point he reasonably believed the appellant might attempt to evade the inevitable search and move the vehicle in his absence by resisting Trooper Mullens in some manner. The State argues that, because of the money and the danger involved in drug trafficking in this day and age, it is reasonable to believe that any individual who participates in such an endeavor would be armed.

We first address the issue of whether Sergeant Hylton's frisk of the appellant constituted an unreasonable search under the Fourth Amendment to the United States Constitution and article III, section 6 of the West Virginia Constitution. Upon review, we find that the so-called "protective search" was...