State v. Howells

• Decision Date: 25 February 2020
• Docket Number: No. 18-0963,18-0963
• Citation: 842 S.E.2d 205,243 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Respondent v. Raymond C. HOWELLS, Jr., Petitioner

243 W.Va. 1

842 S.E.2d 205

STATE of West Virginia, Respondent

v.Raymond C. HOWELLS, Jr., Petitioner

No. 18-0963

Supreme Court of Appeals of West Virginia.

Submitted: February 11, 2020

Filed: February 25, 2020

James Adkins, Esq., Assistant Public Defender, Fayetteville, West Virginia, Attorney for Petitioner

Patrick Morrisey, Esq., Attorney General, Benjamin F. Yancey, III, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for Respondent

Hutchison, Justice:

This appeal was brought by Raymond C. Howells, Jr. (hereinafter the "Petitioner") from an October 10, 2018, order of the Circuit Court of Fayette County sentencing him to two terms of 1 to 5 years of imprisonment.¹ The Petitioner was convicted by a jury of two counts of delivery of a controlled substance. In this appeal the Petitioner argues that the circuit court committed error in not suppressing evidence of an audio/video recording of one of the two drug transactions. The Respondent (hereinafter the "State") argues that no reversible error occurred and that the conviction should be affirmed. Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we affirm.

I.FACTUAL AND PROCEDURAL HISTORY

The record in this case indicates that on June 12, 2017, Detective S. Morris and Detective R. Callison of the Fayette County Sheriff's Department were looking for a missing confidential informant named Michelle. The Detectives were able to learn from another confidential informant that Michelle was staying at the Petitioner's home in Gauley Bridge, West Virginia and that the Petitioner sold drugs. The Detectives, operating undercover, went to Petitioner's home. When the Petitioner responded to the Detectives’ knock at his door, the Detectives asked him if Michelle was there. The Detectives also informed the Petitioner that Michelle supplied them with drugs whenever they came to town. The Petitioner informed the Detectives that he could supply them with drugs and asked how much they wanted. The Detectives informed the Petitioner that they wanted $20 worth of methamphetamine. The Petitioner told the Detectives to come back in a little while and he would have the methamphetamine for them.

The Detectives left the Petitioner and drove their car a short distance from his home and parked. It appears that while the Detectives waited in their car Detective Morris put on an audio/video recording device. The Detectives returned to Petitioner's home after about a half hour. The Petitioner invited the Detectives into his home. While inside the home Detective Callison gave the Petitioner $20 and the Petitioner gave him a baggie that contained methamphetamine. Before the Detectives left Petitioner's home, he gave Detective Callison his phone number.

On the morning of June 13, 2017, Petitioner agreed to meet Detective Callison in a Walmart parking lot for the purpose of selling the Detective one gram of methamphetamine for $100. Prior to the meeting Detective Morris obtained an electronic interception order from a magistrate, for the drug transaction that had occurred in Petitioner's home on June 12. The Detectives eventually met the Petitioner in the Walmart parking lot and got into his car. Detective Morris was wearing an audio/video recording device at the time. As Detective Morris secretly recorded the transaction inside the car, Detective Callison gave the Petitioner $100 and the Petitioner gave the Detective a bag containing methamphetamine.

On May 10, 2018, a grand jury returned a two count indictment against the Petitioner. The indictment charged the Petitioner with the delivery of a controlled substance on June 12 and 13 of 2017. A one day jury trial was held on August 24, 2018. The State called several witnesses, including Detective Callison and Morris. During the trial the State introduced into evidence the audio/video recordings of June 12 and 13. The defendant did not testify, but he did put on a case-in-chief in which he only called Detective Callison and Morris. The jury returned a verdict convicting the Petitioner of both charges in the indictment. Subsequent to the Petitioner's sentence this appeal followed.

II.STANDARD OF REVIEW

The Petitioner has couched his appeal as a challenge to the circuit court's failure to suppress evidence. We have held,

On appeal, legal conclusions made with regard to suppression determinations are reviewed de novo . Factual determinations upon which these legal conclusions are based are reviewed under the clearly erroneous standard. In addition, factual findings based, at least in part, on determinations of witness credibility are accorded great deference.

Syl. pt. 3, State v. Stuart , 192 W. Va. 428, 452 S.E.2d 886 (1994). With this review standard in mind we turn to the merits of the appeal.

III.DISCUSSION

In this appeal the Petitioner argues that the circuit court committed error by refusing to suppress all evidence related to the June 12 drug transaction, on the grounds that such evidence was "obtained as a result of a recorded transaction within the Petitioner's home without an Electronic Intercept Order issued prior to the transaction."² The Petitioner contends that this conduct violated our decision in State v. Mullens , 221 W. Va. 70, 650 S.E.2d 169 (2007) and was not in compliance with the Electronic Interception of Conduct or Oral Communications in the Home Act.³ The State argues that the evidence was properly admitted because "exigent circumstances" existed to justify entering Petitioner's home wearing an audio/video recording device without a court order.

As noted, the Petitioner contends that the decision in Mullens required the Detectives obtain an electronic intercept order before they entered his home with an audio/video recording device. In Mullens the police employed an informant to wear an audio/video device to record a drug transaction inside the defendant's home. The police did not obtain judicial authorization before using the audio/video recording device because the West Virginia Wiretapping and Electronic Surveillance Act ("Wiretapping Act"), W. Va. Code § 62-1D-1 et seq ., did not require judicial authorization when one party to the recording consented thereto. Subsequent to the drug transaction in Mullens , the defendant was indicted for delivery of a controlled substance and conspiring to deliver a controlled substance. The defendant entered a conditional plea and preserved his right to challenge the circuit court's refusal to suppress all the evidence obtained against him as a result of the audio/video recording. On appeal, the defendant argued that the police were required to obtain judicial authorization before sending an informant into his home wearing an audio/video recording device.

This Court agreed with the defendant in Mullens and reversed his conviction and remanded the case to allow him to withdraw the guilty plea. We held in Mullens that, although the one-party consent exception in the Wiretapping Act did not require the police to obtain judicial authorization to send an informant into a person's home wearing an audio/video recording device, the Search and Seizure Clause of the State Constitution required prior judicial authorization to enter the home of a non-consenting party. Accordingly, this Court held the following in syllabus points 2 and 4 of Mullens :

2. It is a violation of West Virginia Constitution article III, § 6 for the police to invade the privacy and sanctity of a person's home by employing an informant to surreptitiously use an electronic surveillance device to record matters occurring in that person's home without first obtaining a duly authorized court order pursuant to W. Va. Code § 62–1D–11 (1987) (Repl.Vol.2005). To the extent that State v. Thompson , 176 W.Va. 300, 342 S.E.2d 268 (1986), holds differently, it is overruled.

4. Article III, § 6 of the West Virginia Constitution prohibits the police from sending an informant into the home of another person under the auspices of the one-party consent to electronic surveillance provisions of W. Va. Code § 62–1D–3(b)(2) (1987) (Repl.Vol.2005) where the police have not obtained prior authorization to do so pursuant to W. Va. Code § 62–1D–11 (1987) (Repl.Vol.2005).

Mullens is not dispositive in this case because the Detectives did not act pursuant to the Wiretapping Act. The Legislature responded to the decision in Mullens during the Second Extraordinary Session of 2007, by enacting the Electronic Interception of Person's Conduct or Oral Communications in the Home by Law Enforcement Act ("Electronic Interception Act"), W. Va. Code § 62–1F–1 et seq. (2007). The Detectives’ conduct in entering the Petitioner's home wearing an audio/video recording device was governed by the Electronic Interception Act, not the Wiretapping Act under consideration in Mullens .

We have previously recognized that pursuant to the specific provisions of the Electronic Interception Act, "[e]lectronic interception by law enforcement authorities of a person's conduct or oral communications in his or her home is governed by W. Va. Code §§ 62-1F-1 to - 9." Syl. pt. 2, State v. Hoston , 228 W. Va. 605, 723 S.E.2d 651 (2012). The Electronic Interception Act requires law enforcement officials obtain a court order authorizing the use of a hidden audio/video recording device in the home of a nonconsenting person. More specifically W. Va. Code § 62–1F–2(a) (2007) provides, in part, that "[p]rior to engaging in electronic interception ... an investigative or law-enforcement officer shall ... first obtain from a magistrate or a judge of a circuit court within the county wherein the nonconsenting party's home is located an order authorizing said interception."

The Electronic Interception Act sets out an exception that permits electronic interception without a prior court order. This exception is outlined in W.Va. Code § 62-1F-9 (2007) as follows:

Notwithstanding any other provision of this article, when: (1

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