State v. Lilly

Decision Date19 July 1995
Docket Number22542,Nos. 22541,s. 22541
Citation461 S.E.2d 101,194 W.Va. 595
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Bruce Allen LILLY, Defendant Below, Appellant, and STATE of West Virginia, Plaintiff Below, Appellee, v. Cecil Wayne LILLY, Defendant Below, Appellant.

1. To successfully challenge the validity of a search warrant on the basis of false information in the warrant affidavit, the defendant must establish by a preponderance of the evidence that the affiant, either knowingly and intentionally or with reckless disregard for the truth, included a false statement therein. The same analysis applies to omissions of fact. The defendant must show that the facts were intentionally omitted or were omitted in reckless disregard of whether their omission made the affidavit misleading.

2. A search warrant affidavit is not invalid even if it contains a misrepresentation, if, after striking the misrepresentation, there remains sufficient content to support a finding of probable cause. Probable cause is evaluated in the totality of the circumstances.

3. Probable cause for the issuance of a search warrant exists if the facts and circumstances provided to a magistrate in a written affidavit are sufficient to warrant the belief of a prudent person of reasonable caution that a crime has been committed and that the specific fruits, instrumentalities, or contraband from that crime presently may be found at a specific location. It is not enough that a magistrate believes a crime has been committed. The magistrate also must have a reasonable belief that the place or person to be searched will yield certain specific classes of items. There must be a nexus between the criminal activity and the place or person searched and thing seized. The probable cause determination does not depend solely upon individual facts; rather, it depends on the cumulative effect of the facts in the totality of circumstances.

4. A key issue in determining whether information provided by an informant is sufficient to establish probable cause is whether the information is reliable. An informant may establish the reliability of his information by establishing a track record of providing accurate information. However, where a previously unknown informant provides information, the informant's lack of a track record requires some independent verification to establish the reliability of the information. Independent verification occurs when the information (or aspects of it) is corroborated by independent observations of the police officers.

Richard H. Lorenson, Pros. Atty. of Greenbrier County, Lewisburg, for appellee.

Paul S. Detch, Lewisburg, for appellant, Bruce Allen Lilly.

Barry L. Bruce, Barry L. Bruce & Associates, Lewisburg, for appellant, Cecil Wayne Lilly.

FRED L. FOX, II, Judge: 1

The issue before us, brought in the context of a proceeding pursuant to Rule 11(a)(2) of the West Virginia Rules of Criminal

[194 W.Va. 599] Procedure, 2 challenges the sufficiency of the information considered by a magistrate in determining probable cause for the issuance of a search warrant. We hold that the appellants' motion to suppress should have been granted because we find the information was insufficient to establish probable cause. Accordingly, we reverse the judgment of the circuit court.


On 13 April 1993, Greenbrier County Deputy Sheriff Corporal D.L. Livingston requested a warrant to search the residence of the appellants, Bruce Allen Lilly and Cecil Wayne Lilly. This request was based on information received from a supposedly confidential and reliable informant who said the appellants were growing marijuana at their residence.

Following a search of their residence, the appellants were arrested and charged with violations relating to the manufacture and possession of controlled substances and alcoholic liquors. Prior to trial, the appellants moved to suppress the seized evidence on the grounds the search warrant affidavit was "bare bones and conclusory" and insufficient to establish probable cause. The affidavit provided, in relevant part:

"A reliable confidential informant informed Cpl. H. Whisman, that accused was growing marijuana plants in above residence. Cpl. Livingston spoke to informant and was advised by informant that accused has 30-50 plants in residence and also advised Cpl. Livingston that informant has seen the plants within the last 5 days and accused told informant that the plants were marijuana." / s/ Corporal D.L. Livingston.

An evidentiary hearing on the motion to suppress was held on 22 November 1993. The focus of this hearing concerned the sufficiency and truthfulness of the search warrant affidavit. At the hearing, counsel for Cecil Lilly called the magistrate who issued the search warrant to testify. The magistrate stated she did not electronically record any testimony regarding the affidavit nor was a court reporter present. On cross-examination, the prosecuting attorney asked the magistrate if she could recall any of the circumstances surrounding the issuance of the warrant. Specifically, he asked if she believed Corporal Livingston had a "follow-up conversation" with the informant in addition to the original tip that the appellants were growing marijuana in their house. Counsel for Cecil Lilly objected to the testimony and argued it was impermissible to take additional evidence beyond the "four corners" of the affidavit. The objection was overruled. The magistrate responded by stating she "issued the warrant based upon the wording in there that said the informant had been in the residence and did know and was informed by the accused that that was marijuana ... that was the reason that I felt the informant was reliable."

The prosecuting attorney called Corporal Livingston to testify. On cross-examination, Corporal Livingston indicated that he had no personal knowledge of the informant's reliability or veracity and his prior statement about the informant's reliability was based on information furnished by Corporal Jake Whisman to the effect that he (Whisman) had previously used the informant. According to Corporal Livingston, Corporal Whisman told him the informant "basically wasn't playing with a full deck, but all the information he After hearing the testimony, the circuit court scheduled another hearing to be held on 14 December 1993, to rule on the motion to suppress. At the conclusion of that hearing, the circuit court denied the motion. Thereafter, the appellants accepted a conditional plea agreement whereby they were to plead guilty to the felony offense of manufacturing a controlled substance. On appeal, the appellants assert the circuit court erred when it denied their motion to suppress.

                [194 W.Va. 600] had given him had been reliable."   Corporal Whisman also testified and indicated that over the years he spoke with the informant on a number of occasions when he needed general information about people and the area where the informant lived.  He further said that approximately ten to twelve years ago the informant gave him information to apprehend a person who subsequently was institutionalized for a mental problem.  Corporal Whisman stated he had not used the informant for a case which resulted in a conviction


The appellants in this appeal raise several important Fourth Amendment issues: (1) whether the magistrate violated the "four-corner" doctrine when she allegedly relied and used information outside the affidavit to find probable cause; (2) whether the police intentionally or recklessly gave false information to the magistrate to secure the search warrant; and (3) whether the information given to the magistrate was sufficient. The prosecuting attorney asks this Court to decide the vitality of the "good faith" exception to West Virginia proceedings. We find only two of the appellants' contentions merit discussion. After a brief discussion as to the standard of review applicable to this case, we address both contentions seriatim. 3


Standard of Review

The standard of review of a circuit court's ruling on a motion to suppress is now well defined in this State. See State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994) (discussing at length the standard of review in a suppression determination). 4 By employing a two-tier standard, we first review a circuit court's findings of fact when ruling on a motion to suppress evidence under the clearly erroneous standard. Second, we review de novo questions of law and the circuit court's ultimate conclusion as to the constitutionality of the law enforcement action. Under the clearly erroneous standard, a circuit court's decision ordinarily will be affirmed unless it is unsupported by substantial evidence; based on an erroneous interpretation of applicable law 5; or, in light of the entire record, this Court is left with a firm and definite conviction that a mistake has been made. See State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886, 891 (1994). When we review the denial of a motion to suppress, we consider the evidence in the light most favorable to the prosecution.


Intentional Use of False Information

First, the appellants argue the magistrate was misled by information that The reviewing court then must determine whether, either absent the false material or supplemented with the omitted material, the remaining content of the affidavit is sufficient to establish probable cause. See Franks, 438 U.S. at 156, 98 S.Ct. at 2676-77, 57 L.Ed.2d at 672; State v. George, 185 W.Va. 539, 547, 408 S.E.2d 291, 299 (1991). If the remaining content is insufficient to establish probable cause, the warrant must be voided and the evidence or statements gathered pursuant to it excluded. State v. Thompson, 178 W.Va. 254, 256, 358 S.E.2d 815, 817 (1987...

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