State v. Moore, 14009

• Court: Supreme Court of West Virginia
• Citation: 272 S.E.2d 804,165 W.Va. 837
• Docket Number: No. 14009,14009
• Parties: STATE of West Virginia v. Michael Patrick MOORE.
• Decision Date: 25 November 1980

Page 804

272 S.E.2d 804

165 W.Va. 837

STATE of West Virginia v. Michael Patrick MOORE.

No. 14009.

Supreme Court of Appeals of West Virginia.

Nov. 25, 1980.

Syllabus by the Court

1. 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.

2. The burden rests on the State to show by a preponderance of the evidence that the warrantless search falls within an authorized exception.

3. 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.

4. An automobile may be stopped for some legitimate state interest. Once the vehicle is lawfully stopped for a legitimate state interest, probable cause may arise to believe the vehicle is carrying weapons, contraband or evidence of the commission of a crime, and, at this point, if exigent circumstances are present, a warrantless search may be made.

5. A furtive gesture on the part of the occupant of a vehicle is ordinarily insufficient to constitute probable cause to search a vehicle if it is not coupled with other reliable causative facts to connect the gesture to the probable presence of contraband or incriminating evidence.

6. A warrantless search of the person and the immediate geographic area under his physical control is authorized as an incident to a valid arrest.

7. A warrantless seizure of property in plain view is constitutionally permissible provided three requirements are met: "(1) the police must observe the evidence in plain sight without benefit of a search (without invading one's reasonable expectation of privacy), (2) the police must have a legal right to be where they are when they make the plain sight observation and, (3) the police must have probable cause to believe that the evidence seen constitutes contraband or fruits, instrumentalities or evidence of crime." Syllabus Point 3, in part, State v. Stone, W.Va., 268 S.E.2d 50 (1980).

8. "An arrest cannot be justified by the fruits of an illegal search." Syllabus Point 10, in part, State v. Thomas, W.Va., 203 S.E.2d 445 (1974).

9. "Exclusion of a confession obtained as a result of an illegal arrest without a warrant is mandated unless the causal connection between the arrest and the confession has been clearly broken." Syllabus Point 3, State v. Canby, W.Va., 252 S.E.2d 164 (1979).

Thomas E. Loehr, James W. Pyles, New Martinsville, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., Gregory W. Bailey, James F. Wallington, Asst. Attys. Gen., Charleston, for defendant in error.

MILLER, Justice:

This appeal presents the question of whether a State Police officer had sufficient probable cause to seize and open a paper bag protruding from beneath the seat of an automobile he had stopped for violating our motor vehicle laws. The resolution of this issue will also determine the validity of the subsequent arrest and the admissibility of inculpatory statements made immediately following the arrest.

On May 21, 1975, at approximately 9:10 in the evening, a State Police officer observed a 1965 Rambler automobile traveling past him on State Route 2 in Wetzel County. The tail lights on the vehicle were not operating. The trooper proceeded to follow the vehicle in his cruiser and, with his headlights on, he observed two people in the Rambler. When he was approximately fifteen to twenty feet behind the automobile, he activated his blue emergency flashing light. At this point, the trooper observed the passenger lean forward. The driver of the car proceeded to pull over to the berm of the highway and stop.

The trooper stopped his vehicle behind the Rambler and got out carrying a flashlight. He walked to the driver's side of the Rambler and shined his flashlight into the interior, noting two occupants and a brown paper bag partially protruding from under the front seat on the passenger's side.

He asked the driver for his operator's license which was produced and carried the surname "Moore." This name triggered a recollection in the trooper's mind that approximately two and one-half years earlier a person by the name of "Moore" had been the subject of a drug-related arrest in Wetzel County.

The trooper then walked around to the passenger side of the vehicle and asked the passenger to step outside, which he did. The trooper reached inside the vehicle and seized the paper bag and opened it and observed a plastic bag which appeared to contain a quantity of marijuana. The passenger was arrested by the trooper on a charge of possession of marijuana and was taken back to the police cruiser where he was given his Miranda rights. The trooper interrogated the defendant who disclosed that the bag contained marijuana which he had obtained from an individual in Morgantown.

After the development of these facts in two in camera suppression hearings, the trial court ruled that the trooper had probable cause to seize the brown paper bag and open it. The trooper was also permitted to testify concerning the defendant's inculpatory statements.

The State, in an excellent brief, acknowledges that warrantless searches are per se unreasonable under the Fourth Amendment of the United States Constitution ¹ unless they fall within a limited number of carefully defined exceptions. Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412-13, 57 L.Ed.2d 290, 298-99 (1978); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971); Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 428 (1970). We adopted this principle under Article III, Section 6 of the West Virginia Constitution in State v. Duvernoy, 156 W.Va. 578, 195 S.E.2d 631 (1973): ²

" * * * The most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-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'." 156 W.Va. at 583, 195 S.E.2d at 634-35, quoting Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576. ³

As a corollary to this rule, the burden rests on the State to show by a preponderance of the evidence that the warrantless search falls within an authorized exception. Mincey v. Arizona, supra; Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). Syllabus of State v. Hacker, W.Va., 209 S.E.2d 569 (1974); E.g. Chilton v. State, 611 P.2d 53 (Alaska 1980); In re Scott K., 24 Cal.3d 395, 595 P.2d 105, 155 Cal.Rptr. 671 (1979), cert. denied, 444 U.S. 973, 100 S.Ct. 468, 62 L.Ed.2d 388; Bruce v. State, 268 Ind. 80, 375 N.E.2d 1042 (1978), cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662 (1978); People v. Calhoun, 49 N.Y.2d 398, 402 N.E.2d 1145, 426 N.Y.S.2d 243 (1980); Commonwealth v. Timko, 417 A.2d 620 (Pa.1980); State v. Robalewski, 418 A.2d 817 (R.I.1980).

These rules exist to provide constitutional protection for our citizens so that they will be secure from warrantless searches and seizures of their property and personal effects. To secure this right of privacy, the courts have historically required that a search warrant ordinarily must be obtained based on a finding of probable cause and that the person issuing the warrant be a neutral and detached magistrate. Consequently, where a search is conducted without a warrant, the burden rests on the State to demonstrate that it comes within one of the exceptions permitting a warrantless search. ⁴

I. The Automobile Exception

A.

The State contends that the search can be justified under the Carroll doctrine announced in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), where the court concluded that because of the mobility and diminished expectations of privacy surrounding a motor vehicle, warrantless searches could be made under two conditions. ⁵ First, 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. ⁶

In the ordinary case under the Carroll doctrine, it is the existence of these two factors that enable the police to stop the vehicle and search it. In other words, the Carroll doctrine generally presupposes that the police have advanced information that constitutes probable cause to believe the automobile is carrying contraband or evidence of a crime and they are confronted with the vehicle's presence without an opportunity to procure a search warrant thereby giving rise to the exigent circumstances to permit the warrantless search.

The Carroll doctrine, in its pure form, does not involve a search based on the initial arrest of the operator or occupant of the vehicle because the police officer had probable cause to believe that such person had committed a felony or is committing a misdemeanor in the presence of the arresting officer. Thus, under 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...