State v. Meadows

• Decision Date: 02 June 1982
• Docket Number: No. 14425,14425
• Citation: 292 S.E.2d 50,170 W.Va. 191
• Parties: STATE of West Virginia v. Dana L. MEADOWS.
• Court: West Virginia Supreme Court

Page 50

292 S.E.2d 50

170 W.Va. 191

STATE of West Virginia v. Dana L. MEADOWS.

No. 14425.

Supreme Court of Appeals of West Virginia.

June 2, 1982.

Syllabus by the Court

1. An indictment that follows the language of W.Va.Code, 60A-4-401(a), is sufficient on its face.

2. " 'Probable cause to make an arrest without a warrant exists when the facts and the circumstances within the knowledge of the arresting officers are sufficient to warrant a prudent man in believing that an offense has been committed.' ..." State v. Craft, 165 W.Va. 741, 272 S.E.2d 46 (1980), Syllabus Point 7.

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." State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980), Syllabus Point 1.

4. "The burden rests on the State to show by a preponderance of the evidence that the warrantless search falls within an authorized exception." State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980), Syllabus Point 2.

5. "In order to come within the automobile exception which authorizes a warrantless search, the police must initially have probable cause to believe that the automobile contains contraband or evidence of a crime. Second, there must be exigent circumstances which prevent the obtaining of a search warrant." State v. Moore, W.Va., 272 S.E.2d 804 (1980), Syllabus Point 3.

6. "Evidence obtained as a result of a search incident to an unlawful arrest cannot be introduced against the accused upon his trial." State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974), Syllabus Point 6.

7. Punishment cannot be increased merely because one decides to pursue his right to trial. Our law does not reward those who plead guilty and punish those who proceed to trial and are convicted by a judge or jury.

Silas B. Taylor, Asst. Atty. Gen., Charleston, for defendant in error.

Stephen A. Davis, Summersville, James H. Wolverton, Richwood, for plaintiff in error.

HARSHBARGER, Justice:

On September 29, 1977, at about 1:00 A.M., Leonard Edward Higginbotham drove into Summersville, West Virginia, in his 1974 Plymouth sedan, with passenger Dana Larry Meadows. They were followed by a Summersville police car whose driver later testified that Higginbotham's automobile crossed the center line several times. Both vehicles stopped, side-by-side in a double lane at a four-way flashing light in the center of town. A short time later (the exact amount of time varies in testimony from thirty seconds to three minutes), Higginbotham rolled down his window and asked directions to Interstate 79. Officer Brown, sitting in the passenger seat of the patrol car, responded that it was back the way Higginbotham had come. Higginbotham raised his window, then lowered it again to ask if he could proceed on a flashing red light. Brown responded affirmatively, and then Officer Norman, driving the patrol car, requested that Higginbotham pull over. There was no evidence that the auto's occupants spoke or acted abnormally. Officer Brown testified that had Higginbotham proceeded after the initial conversation, probably no further investigation of the car and its occupants would have occurred.

Norman instructed Higginbotham to get out of the car and produce his driver's license and registration. He asked Higginbotham how much he had had to drink and Higginbotham replied that he had had "a couple of beers." Norman then asked Meadows to get out of the car. The passenger door was stuck shut, so Meadows exited over the driver's seat, first moving a grey overnight bag located between the driver and passenger on the front seat, to the back seat. Meadows also admitted to having had a couple of beers.

Officer Brown saw what he thought was loose marijuana and marijuana seeds on the car floor. Norman agreed that it was probably marijuana, whereupon he arrested Meadows for public intoxication and Higginbotham for driving under the influence of alcohol. ¹ Then, the patrolmen searched both Meadows and Higginbotham and inventoried the car, finding marijuana in the glove compartment and in the overnight bag, totaling about a pound. The patrolmen were unable to search the trunk because it was locked and Higginbotham stated that he did not have the key. Meadows and Higginbotham were then placed in the Nicholas County Jail.

A search warrant was obtained the next morning and Officer Norman found two more pounds of marijuana in the trunk.

Meadows and Higginbotham were indicted for possession of a controlled substance with intent to deliver. Higginbotham pled guilty, agreeing to testify against Meadows, and the government dismissed other pending criminal charges against him. Meadows was found guilty by a jury.

Meadows argues that his indictment was invalid because it did not adequately allege intent; the initial stop and search were illegal; and the trial judge acted prejudicially by imposing a heavier sentence on Meadows because he stood trial.

I.

The indictment followed statutory language in W.Va.Code, 60A-4-401(a):

Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance.

This statute was found constitutional in State v. Frisby, 161 W.Va. 734, 245 S.E.2d 622 (1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1043, 59 L.Ed.2d 87 (1979), Syllabus Point 1, even though clear standards were not provided for juries to use to decide about intent; Meadows' indictment followed the statutory language and thus was sufficient. See State v. Barnett, 168 W.Va. 361, 284 S.E.2d 622 (1981); State v. Taylor, 130 W.Va. 74, 42 S.E.2d 549 (1947), Syllabus Point 1, rev'd. on other grounds, 160 W.Va. 497, 236 S.E.2d 431 (1977); cf. State v. Parks, 161 W.Va. 511, 243 S.E.2d 848 (1978).

II.

Meadows contends that the initial stop and seizure were illegal. The State argues that the testimony adduced at trial demonstrated that the officers had probable cause to stop and arrest the defendant. We conclude that the police officers did not have probable cause to stop the car and arrest its occupants.

The Fourth Amendment requires that a car cannot be stopped without probable cause. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Jones v. Peyton, 411 F.2d 857 (4th Cir. 1969), cert. denied sub nom. Cox v. Jones, 396 U.S. 942, 90 S.Ct. 373, 24 L.Ed.2d 243; State v. Craft, 165 W.Va. 741, 272 S.E.2d 46 (1980); State v.Duvernoy, 156 W.Va. 578, 195 S.E.2d 631 (1973).

In West Virginia, probable cause is determined by looking to the facts and circumstances within the knowledge of the arresting officers. State v. Craft, supra, Syllabus Point 7 (quoting State v. Plantz, 155 W.Va. 24, 180 S.E.2d 614 (1971), Syllabus Point 1). See also State v. Canby, 162 W.Va. 666, 252 S.E.2d 164 (1979).

Our facts do not demonstrate any probable cause for the police to stop Higginbotham's car. The car may have crossed the center line, but was not stopped then. The officers testified that they would not have stopped the car, but for the conversation at the traffic intersection. There were no words spoken nor actions described, that amount to probable cause for any official reaction except, perhaps, dispensation of directions and advice. Indeed, if asking a policeman directions and advice is sufficient to trigger one's arrest, simply being a travelling stranger will become hazardous to one's freedom. We find absolutely no evidence in the record to support a finding of probable cause. ²

Furthermore, the State posits that its search was legal under the automobile exception. ³

The United States Supreme Court announced in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), that warrantless searches of cars would be permitted if the police initially had probable cause to believe that they contained contraband or evidence of crime and if exigent circumstances existed. Carroll recognized that there is generally a lessened expectation of privacy in a car and there is easier mobility in a car, allowing easier disposal of evidence. Justice Miller, in a case with similar facts, adopted the Carroll doctrine, writing that:

[U]nder Carroll, the right to seize or detain the vehicle and to search it arises not out of any present act of unlawfulness by its operator or occupant. The right to stop the vehicle comes about because of prior probable cause to believe that the vehicle contains contraband or evidence of the commission of a crime. The exigent circumstance is that unless the vehicle is detained and searched it will be driven away and, therefore, a warrant need not be obtained. (Footnote omitted.) State v. Moore, W.Va., 272 S.E.2d 804, 810 (1980) (emphasis added).

The Carroll doctrine also acknowledged that if probable cause arises while a vehicle is lawfully stopped for a legitimate state purpose, then exigent circumstances may allow a warrantless search. See Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980); State v. Moore, supra 272 S.E.2d, at 810. However, this vehicle was not lawfully stopped.

The State does not raise any other arguments to defend its warrantless search; we will not discuss any other possible exceptions. Having found the initial stop and search illegal, the search warrant based upon that illegal seizure was also illegal. See State v....