State v. Kimble

• Decision Date: 12 March 2014
• Docket Number: No. 13–0144.,13–0144.
• Citation: 759 S.E.2d 171,233 W.Va. 428
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Curtis Joseph KIMBLE, Defendant Below, Petitioner.

233 W.Va. 428

759 S.E.2d 171

STATE of West Virginia, Plaintiff Below, Respondent

v.Curtis Joseph KIMBLE, Defendant Below, Petitioner.

No. 13–0144.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 4, 2014.

Decided March 6, 2014.

Dissenting Opinion of Justice Davis

March 12, 2014.

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.” Syl. Pt. 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

2. “In contrast to a review of the circuit court's factual findings, the ultimate determination as to whether a search or seizure was reasonable under the Fourth Amendment to the United States Constitution and Section 6 of Article III of the West Virginia Constitution is a question of law that is reviewed de novo. Similarly, an appellate court reviews de novo whether a search warrant was too broad. Thus, a circuit court's denial of a motion to suppress evidence will be affirmed unless it is unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a mistake has been made.” Syl. Pt. 2, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

3. “ ‘Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment and Article III, Section 6 of the West Virginia Constitution—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.’ Syllabus Point 1, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980), overruled in part on other grounds by State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991).” Syl. Pt. 20, State v. Ladd, 210 W.Va. 413, 557 S.E.2d 820 (2001).

4. “Although a search and seizure by police officers must ordinarily be predicated upon a written search warrant, a warrantless entry by police officers of a mobile home was proper under the ‘emergency doctrine’ exception to the warrant requirement, where the record indicated that, rather than being motivated by an intent to make an arrest or secure evidence, the police officers were attempting to locate an injured or deceased child, which child the officers had reason to believe was in the mobile home, because of information they received immediately prior to the entry.” Syl. Pt. 2, State v. Cecil, 173 W.Va. 27, 311 S.E.2d 144 (1983).

5. “A protective search is defined as a quick and limited search of premises for weapons once an officer has individualized suspicion that a dangerous weapon is present and poses a threat to the well-being of himself and others. This cursory visual inspection is limited to the area where the suspected weapon could be contained and must end once the weapon is found and secured.” Syl. Pt. 8, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

6. “Neither a showing of exigent circumstances nor probable cause is required to justify a protective sweep for weapons as long as a two-part test is satisfied: An officer must show there are specific articulable facts indicating danger and this suspicion of danger to the officer or others must be reasonable. If these two elements are satisfied, an officer is entitled to take protective precautions and search in a limited fashion for weapons.” Syl. Pt. 6, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

7. “The existence of a reasonable belief should be analyzed from the perspective of the police officers at the scene; an inquiring court should not ask what the police could have done but whether they had, at the time, a reasonable belief that there was a need to act without a warrant.” Syl. Pt. 7, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

8. “ ‘In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ Point 3, Syllabus, State v. Casdorph, , 230 S.E.2d 476 (1976).” Syl. Pt. 2, State v. Foddrell, 165 W.Va. 540, 269 S.E.2d 854 (1980).

Rebecca Stollar Johnson, Esq., Charleston, WV, for Petitioner.

Patrick Morrisey, Esq., Attorney General, Julie A. Warren, Esq., Assistant Attorney General, Charleston, WV, for Respondent.

PER CURIAM:

The petitioner herein and defendant below, Curtis Joseph Kimble, appeals the January 16, 2013, order of the Circuit Court of Mason County sentencing him to a five-year term of imprisonment for his jury conviction of one count of wanton endangerment.¹ In this appeal, the petitioner contends that the circuit court erred by denying his motions to suppress certain evidence. Upon consideration of the parties' briefs, oral argument and the submitted record, as well as the applicable authorities, this Court finds no error and affirms the final order.

I. Factual and Procedural Background

On November 12, 2011, at 3:39 p.m., Daniel Granger called 911 and reported that shots had been fired at his vehicle as he was driving in the area of Poindexter Road and Ashton Upland Road ² in Mason County, West Virginia. Mr. Granger described the perpetrator as a shirtless male wearing jeans and a black hat. Deputies C.A. Rhodes and R.A. Wilson of the Mason County Sheriff's Department responded to the call. They immediately went to the home of the petitioner, which is located at the intersection of the roads where the shooting occurred. Deputy Wilson had previously responded to reports of the petitioner shooting guns near his residence.³

Upon arrival at the petitioner's residence, Deputy Wilson announced that he was from the Sheriff's Department, pulled his gun,⁴ and ordered the petitioner out of his home. The petitioner was told to lie on the ground, and after doing so, he was placed in handcuffs. At the time, the petitioner was wearing a shirt and blue jeans, but no hat. Deputy Wilson asked the petitioner where the shotgun was and the petitioner replied that it was just inside the front door. Deputy Wilson entered the petitioner's home, secured the shotgun, ⁵ and unloaded the weapon. Deputy Wilson then went back into the house and removed a black hat. Thereafter, the deputies placed the petitioner in the back of a police cruiser and drove him to Mr. Granger's residence. While the petitioner was sitting in the back of the police car, he was identified by Mr. Granger as the person who had fired shots at him.

The petitioner was indicted on one count of wanton endangerment in connection with the shooting incident. Prior to his trial, the petitioner filed motions to suppress the following evidence: the statement by Deputy Wilson inquiring about the location of the gun and the petitioner's response; the H & R single shot, twelve gauge shotgun and the black hat seized from the petitioner's residence; and the out-of-court identification of the petitioner made by the victim. At the end of the suppression hearing, the court denied the motions except with regard to the black hat.⁶ However, immediately prior to the start of the petitioner's trial, the court further ruled that the verbal exchange between Deputy Wilson and the petitioner concerning the location of the shotgun was inadmissible hearsay.⁷

The petitioner's jury trial was held on June 12, 2012, and he was found guilty of one count of wanton endangerment. He was sentenced to five years in prison, and this appeal followed.

II. Standard of Review

In syllabus point one of State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996), this Court explained that

[w]hen 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.

This Court further held in syllabus point two of Lacy that

[i]n contrast to a review of the circuit court's factual findings, the ultimate determination as to whether a search or seizure was reasonable under the Fourth Amendment to the United States Constitution and Section 6 of Article III of the West Virginia Constitution is a question of law that is reviewed de novo. Similarly, an appellate court reviews de novo whether a search warrant was too broad. Thus, a circuit court's denial of a motion to suppress evidence will be affirmed unless it is unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a mistake has been made.

196 W.Va. at 107, 468 S.E.2d at 722. With these standards in mind, we consider the parties' arguments.

III. Discussion

The petitioner raises two assignments of error. Each alleged error will be discussed, in turn, below.

A. Denial of Motion to Suppress the Shotgun

The petitioner argues that the shotgun taken from his residence...