State v. Lacy

• Decision Date: 15 February 1996
• Docket Number: No. 23055,23055
• Citation: 468 S.E.2d 719,196 W.Va. 104
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. John A. LACY, Defendant Below, Appellant.

Page 719

468 S.E.2d 719

196 W.Va. 104

STATE of West Virginia, Plaintiff Below, Appellee, v. John A. LACY, Defendant Below, Appellant.

No. 23055.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 16, 1996.

Decided Feb. 15, 1996.

[196 W.Va. 107] 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.

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.

3. A search warrant must particularly describe the place to be searched and the things or persons to be seized. In determining whether a specific warrant meets the particularity requirement, a circuit court must inquire whether an executing officer reading the description in the warrant would reasonably know what items are to be seized. In circumstances where detailed particularity is impossible, generic language is permissible if it particularizes the types of items to be seized. When a warrant is the authority for the search, the executing officer must act within the confines of the warrant.

4. Police may not use an initially lawful search as a pretext and means to conduct a broad warrantless search.

5. Law enforcement officials may interfere with an individual's Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified for law enforcement purposes. To determine whether the intrusion complained of was minimal, a circuit court must examine separately the interests implicated when the police feel a search for weapons is necessary to keep the premises safe during the search and the privacy interests of the defendant to be free of an unreasonable search and seizure of his or her residence. Only when law enforcement officers face a circumstance, such as a need to protect the safety of those on the premises, and a reasonable belief that links the sought after information with the perceived danger is it constitutional to conduct a limited search of private premises without a warrant.

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.

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.

8. 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.

Appeal from the Circuit Court of Kanawha County; Honorable Lyne Ranson, Judge, No. 94-F-216.

Mary Beth Kershner, Assistant Prosecuting Attorney, Charleston, for Appellee.

John Sullivan, Assistant Public Defender, Charleston, for Appellant.

CLECKLEY, Justice:

The defendant below and appellant herein, John A. Lacy, appeals his conviction for three counts of receiving stolen property in violation of W.Va.Code, 61-3-18 (1923). The defendant asserts the circuit court erred in admitting certain evidence against him under the plain view exception to the warrant requirement. Holding that the Fourth Amendment issues raised in this appeal cannot be decided on this record, we return this case to the circuit court with directions and guidance.

I. FACTUAL AND PROCEDURAL HISTORY

On October 5 or 6, 1992, workmen discovered the home of Gary Turpin had been burglarized. Mr. Turpin and his family were staying with other family members while his house was being remodeled. On October 15, 1992, Mr. Turpin discussed the burglary with various neighbors because he suspected that a neighbor was involved with the robbery. Carrie Radford, the defendant's landlady, told Mr. Turpin he could look in the defendant's apartment when the defendant was not home.

Later during the day of October 15, Mr. Turpin and Ms. Radford entered the defendant's apartment. While in the apartment, Mr. Turpin discovered his television set, VCR, VCR tapes, mirrors, and wall hangings. The television and VCR were plugged in ready for use and the mirrors and wall hangings were on the walls of the defendant's apartment. After leaving the apartment, Mr. Turpin reported his findings to the Charleston Police Department.

Detectives Richard Westfall and James Rollins of the Charleston Police Department interviewed Mr. Turpin and then proceeded to the Kanawha County Magistrate Court to obtain a warrant to search the defendant's apartment. This warrant permitted the police to search for "a carton of 30 various VCR Tapes, 2 clown masks, Living Room Mirrors, [and a] Sharp Color T.V. with Remote Control[.]"

The officers located the television in the defendant's bedroom. After bullets were discovered lying on top of a dresser in the bedroom, Detective Westfall testified he and Detective Rollins searched for a weapon for security purposes. The detectives found a .38 special under a mattress. Detective Westfall requested a computer check be conducted on the serial number from the gun. The computer check revealed the gun and various other items had been reported by Mrs. Jean Johnson as stolen from her home between June 10 and 15, 1992. Detective Westfall left the defendant's apartment and returned to the station house while the rest of the search was conducted by other officers at the defendant's apartment.

Detective Westfall obtained a second warrant after learning about the burglary of Mrs. Johnson's home. Detective Westfall listed on the search warrant various items he had seen in the apartment and believed to be stolen. Under this second warrant, the police were entitled to search for a Samsung 19-inch television set, a wall clock with chimes, a Mitsubishi VCR, and six wall pictures. Before returning to the defendant's apartment with the second search warrant, the police called Mrs. Johnson. Mrs. Johnson's daughter, Judy Johnson, answered the telephone and informed the officer that her mother was not home and that her home also had been burglarized over the weekend of September 6 and 7, 1992.

After speaking with Detective Westfall, Judy Johnson called her mother and the two of them proceeded to the defendant's apartment. Mrs. Johnson saw her lamps, vacuum cleaner, Nintendo game and game cartridges, and various pictures. Judy Johnson discovered her sheets on the defendant's bed, towels, pictures, and clocks. However, Judy Johnson did not find her television or stereo.

[196 W.Va. 109] All the above items were seized. The inventory listed approximately twenty-seven items in total were seized under the second warrant. The defendant was arrested the following day for receipt of stolen property.

On September 23, 1994, a suppression hearing was held concerning the items seized from the defendant's apartment. The defendant moved to suppress most of the evidence because several of the items were seized as a result of the warrantless search. Detective Westfall was the only officer called to testify at the hearing. He was unable to testify as to how the search was actually conducted or as to what the other officers saw during the search because he left the defendant's apartment before much of the search was conducted. The circuit court denied the defendant's motion finding that all the items, with the exception of some jewelry and a telephone calling card, were admissible under the plain view exception to the warrant requirement.

Subsequently, the defendant was convicted of two felony counts of transferring and receiving stolen goods in excess of $200 and one misdemeanor, lesser included count of transferring and receiving stolen goods valued at less than $200. The defendant was sentenced to five years probation to be served concurrently on all three counts. Subsequently, his probation on count one was revoked, and the defendant was sentenced to one year in jail. The defendant now appeals these convictions.

II. DISCUSSION

On appeal the defendant maintains the search of the defendant's premises and the seizure of the items not authorized by the initial search warrant, including the firearm, was a violation of his rights under the Fourth Amendment to the United States Constitution and Section 6 of Article III of the West Virginia Constitution. The circuit court found the items complained of were admissible under the plain view exception and specifically ruled the firearm was "within the purview of the officer's search." ¹ We believe the...