State v. Parr

• Citation: 207 W.Va. 469,534 S.E.2d 23
• Decision Date: 07 July 2000
• Docket Number: No. 26898.,26898.
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Jason Anthony PARR, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

534 S.E.2d 23

207 W.Va. 469

STATE of West Virginia, Plaintiff Below, Appellee, v. Jason Anthony PARR, Defendant Below, Appellant.

No. 26898.

Supreme Court of Appeals of West Virginia.

Submitted April 12, 2000.

Decided July 7, 2000.

Steven K. Mancini, Assistant Public Defender, Welch, West Virginia, Attorney for the Appellant.

Darrell V. McGraw, Jr., Attorney General, Leah Perry Macia, Assistant Attorney General, Charleston, West Virginia, Attorneys for the Appellee.

PER CURIAM:

Jason Anthony Parr (hereinafter referred to as "Mr. Parr"), appellant/defendant, appeals his conviction and sentence for the crime of possession with intent to deliver a controlled substance. The Circuit Court of McDowell County sentenced Mr. Parr to imprisonment for one to fifteen years. In this appeal, the following errors have been assigned: (1) the denial of Mr. Parr's motion to suppress evidence, (2) the denial of his identity defense evidence, (3) the failure to establish the identity of an arrested suspect, and (4) the calling of Mr. Parr's twin brother, Mark, as a witness. After a review of the briefs submitted and the record in this case, we affirm the conviction and sentence.

I. FACTUAL AND PROCEDURAL HISTORY

On the afternoon of October 1, 1998, a confidential informant advised Deputy Michael Brooks that "one of the Parr twins" was selling drugs on McDowell Street in Welch, West Virginia.¹ Deputy Brooks, accompanied by Deputy Virgil Green, immediately drove in an unmarked car to the area of the alleged drug trafficking.

Upon arriving at the scene of the alleged crime, the officers observed Mr. Parr leaving a building and getting into the front passenger seat of a nearby parked car. Both officers approached the car. Deputy Brooks testified at the suppression hearing that as he approached the car he "observed Jason, kindly, slumping down in the seat and going into his right trouser pocket[.]" Deputy Brooks immediately reached through the open window of the car and grabbed Mr. Parr's right arm. Deputy Brooks grabbed Mr. Parr's arm because he thought Jason was getting a weapon. Deputy Brooks proceeded to pull Mr. Parr's arm out of his pocket and after doing so, reached into the pocket and pulled out a plastic bag containing crack cocaine. Mr. Parr was then placed under arrest and transported to police headquarters.

When the officers arrived at police headquarters, Mr. Parr gave a confession, on video-tape, to possessing crack cocaine with the intent to sell. Subsequently, an indictment was returned charging Mr. Parr with one count of possession with intent to deliver crack cocaine in violation of W. Va.Code § 60A-4-401(a) (1983). A jury trial was held on February 4-5, 1999. The jury convicted Mr. Parr of the charged offense. Thereafter, the trial court thereafter sentenced Mr. Parr to imprisonment for one to fifteen years. It is from this conviction and sentence that Mr. Parr now appeals.

II. DISCUSSION

A. Denial of Mr. Parr's Motion to Suppress Evidence

The first assignment of error advanced by Mr. Parr is that the trial court committed error by failing to suppress evidence of the crack cocaine taken from him.² Mr. Parr contends that all such evidence was taken in violation of state and federal constitutional prohibitions of unreasonable searches and seizures. In Syllabus point 1 of State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996), this Court set forth the following standard to be used in reviewing issues raised concerning motions to suppress:

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.

We further noted in Syllabus point 2 of Lacy:

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.

Mr. Parr argues that Deputy Brooks engaged in an unlawful evidentiary search of his right trouser pocket in that Deputy Brooks' action was not a protective frisk as allowed under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (permitting a limited frisk of a suspect's outer clothing to discover weapons during an investigative stop). Similarly, this Court has stated, in Syllabus point 3 of State v. Choat, 178 W.Va. 607, 363 S.E.2d 493 (1987), we state that:

Where a police officer making a lawful investigatory stop has reason to believe that an individual is armed and dangerous, that officer, in order to protect himself and others, may conduct a search for concealed weapons, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be certain that the individual is armed; the inquiry is whether a reasonably prudent man would be warranted in the belief that his safety or that of others was endangered.

In State v. Hlavacek, 185 W.Va. 371, 407 S.E.2d 375 (1991), this Court recognized a limitation to a Terry-Choat protective frisk. Hlavacek involved the detention of a suspect based upon an anonymous tip that the suspect was engaged in drug trafficking. While the suspect was being detained, a police officer required the suspect empty his pockets. When the suspect complied, he pulled out three marijuana cigarettes from his pockets. This Court found such a search unconstitutional. The Court stated, "[i]n this case, Sergeant Hylton stated that requiring the appellant to empty his pockets made the frisk `more complete.' While this is undeniably true, we conclude that the extent of the intrusion also made the frisk unconstitutional." Hlavacek, 185 W.Va. at 376, 407 S.E.2d at 380.

Mr. Parr argues that Deputy Brooks testified that one of the reasons prompting him to make the search was his belief that Mr. Parr had drugs in his pocket. However, during questioning by the trial court, Deputy Brooks gave two reasons for making the search:

TRIAL COURT: So, you were reaching in his front pocket to see if there was a weapon there?

DEPUTY BROOKS: Yes, Sir, a weapon and/or drugs. Again, I felt that I couldn't get him out of the car. By the time I could open the door, he could possibly break free or possibly retrieved this out his pocket if it was a weapon or drugs, and especially, drugs being the size and what we were looking for, he could have got rid of it.

This Court would have little problem in applying Hlavacek to disapprove of the search of Mr. Parr's pocket, were the only basis for the search to prevent the destruction of the drug evidence.³ However, the unique facts of this case require a different outcome.⁴

In resolving the legality of this search, we are guided by this Court's decision in Wagner v. Hedrick, 181 W.Va. 482, 383 S.E.2d 286 (1989). In Wagner, the defendant was involved in a motorcycle accident and taken to a hospital. While in the hospital, a police officer searched the trousers of the defendant for identification. During the search the officer discovered a gold coin. The gold coin eventually formed the basis for connecting the defendant to an unsolved murder and robbery. On appeal, the defendant argued that the search of his trousers was unlawful without a warrant. This Court rejected the argument. In doing so, we first noted that "[w]hile the word `search' is capable of many definitions, the United States Supreme Court has stated that `a search ordinarily implies an intrusive "quest by an officer of the law."' J.W. Hall, Search and Seizure § 1:6 (1982). However, `when there is no intrusion on an expectation of privacy, there is no search.' Id." Wagner, 181 W.Va. at 487,

383 S.E.2d at 291. This Court went on to reason as follows:

Given the facts evident from the record, we cannot find that Wagner could have exhibited a reasonable expectation of privacy in his personal effects in this hospital emergency room on this particular night. Rather, we believe Wagner's expectation of privacy was necessarily diminished by the circumstances under which he was brought into the hospital. Any expectation of privacy which Wagner may have had could not be termed "reasonable" because he was in a hospital emergency room, one which many people had access to and in which many people, particularly medical personnel, were constantly moving around. The area was freely accessible to law enforcement officers, and Trooper Pinion had a right to be there that night by virtue of his duty to investigate this particular accident. It is apparent that Wagner had very little control over what happened in the emergency room area and that he and his personal effects could be placed wherever the hospital staff chose to put them.

Wagner, 181 W.Va. at 487, 383 S.E.2d at 291.⁵ In the instant case, Mr. Parr's expectation of privacy regarding the contents of his right trouser pocket was not a reasonable expectation under the circumstances.

Deputy Brooks was responding to a tip by a confidential informant that "one of the Parr twins" was engaged in drug trafficking.⁶ When Deputy Brooks approached the car in which Mr. Parr was seated, Deputy Brooks had no knowledge of whether Mr. Parr was armed with a dangerous weapon. Deputy Brooks testified that when Mr. Parr saw him approaching...