State v. Ramsey

• Decision Date: 12 June 2000
• Docket Number: No. 26852.,26852.
• Citation: 209 W.Va. 248,545 S.E.2d 853
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Larry B. RAMSEY, Defendant, Appellant.
• Court: West Virginia Supreme Court

545 S.E.2d 853

209 W.Va. 248

STATE of West Virginia, Plaintiff Below, Appellee, v. Larry B. RAMSEY, Defendant, Appellant.

No. 26852.

Supreme Court of Appeals of West Virginia.

Submitted April 12, 2000.

Decided June 12, 2000.

Darrell V. McGraw, Jr., Esq., Attorney General, Silas B. Taylor Esq., Senior Deputy Attorney General, Leah Perry Macia, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for Appellee.

Damon B. Morgan, Jr., Esq., Nibert & Morgan, Point Pleasant, West Virginia, Attorney for Appellant.

PER CURIAM:

The defendant, Larry Ramsey, appeals his December 3, 1998 conviction by jury of the felony offenses of manufacturing a controlled substance and of conspiracy to manufacture a controlled substance. By order dated December 7, 1998, the Circuit Court of Jackson County entered the guilty verdicts. The defendant was sentenced to the penitentiary for a term of one to five years for each offense, with the sentences to run concurrently. The defendant now raises several assignments of error on appeal to this Court.

I. FACTS

On the morning of July 20, 1997, three law enforcement officers, Christopher Metz, a sergeant with the Jackson County Sheriff's Department, Derrick Taylor, a member of the Ripley Police Department, and Roger D. Rhodes, a deputy sheriff with the Jackson County Sheriff's Department, were conducting surveillance of a patch of 14 marijuana plants in rural Jackson County.¹ Officers Taylor and Metz watched the marijuana patch while Officer Rhodes was located about 100 yards away observing the nearby road.

Officer Rhodes testified that he first saw the defendant, Larry Ramsey, and his son, Todd Ramsey, walking on a logging road toward the marijuana patch with milk jugs containing water.² Officers Metz and Taylor videotaped the defendant and his son looking at the marijuana plants. When the defendant and his son noticed Officers Metz and Taylor, they departed in separate directions and the defendant retreated in the direction from which he had come. Officer Rhodes subsequently encountered the defendant and his son on the road, and they were arrested.³ A search of the defendant's home revealed issues of "High Times" and "Hemp Times" Magazines, and several pages of literature concerning marijuana seeds.⁴

Todd Ramsey entered a plea of guilty to manufacturing a controlled substance and was sentenced to one to five years. He testified at the defendant's trial that he had grown the marijuana plants himself and that, prior to July 20, 1997, the defendant had no knowledge of the plants. The defendant also testified that he had no knowledge of the marijuana plants prior to his discovery of them on July 20, 1997.

The defendant was found guilty of manufacturing a controlled substance and conspiracy to manufacture a controlled substance. He was acquitted of possession with intent to deliver a controlled substance and conspiracy to possess with intent to deliver a controlled substance.

II. DISCUSSION

We will now discuss the several assignments of error raised by the defendant.

Issue # 1—Validity of the Search Warrant

The defendant attacks the validity of the search warrant executed for the search of his home on two grounds.⁵ First, the defendant argues that the search warrant was invalid due to the reckless insertion of false facts. Both the affidavit and complaint for the search warrant, executed by Officer Metz, and the search warrant stated in pertinent part:

... Cpl. C.C. Metz and Dep. Roger Rhodes did observe Larry B. Ramsey and Todd Ramsey his son bringing water to and taking care of seven [7] marijuana plants located next to the residence of the suspect.

Officer Rhodes testified at the pre-trial suppression hearing and at trial that he did not observe the defendant and his son at the marijuana plants, but that he did observe the defendant and his son walking toward the area where the marijuana plants were located, and both were carrying milk jugs containing water. Officer Metz, on the other hand, testified that he did not see the defendant and his son bringing water to the plants but he did see them inspecting the plants. The defendant concludes that the warrant affidavit contains false statements because both officers did not see the defendant bringing water to the marijuana plants, and because Officer Metz testified that he saw the defendant "inspecting" the plants which, says the defendant, is different from "taking care" of them.

We recently set forth the standard governing this issue in Syllabus Point 1 of State v. Lilly, 194 W.Va. 595, 461 S.E.2d 101 (1995) where we stated in part:

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.

Thus, the defendant must show by a preponderance of the evidence both that there was a false statement in the search warrant, and that it was placed there intentionally and knowingly or with a reckless disregard for the truth. "Mere negligence or innocent mistake is insufficient to void a warrant." State v. Lilly, 194 W.Va. at 601, 461 S.E.2d at 107, citing Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667, 682 (1978)

. In determining whether a statement is false, this Court has said that "a statement in a warrant is not false ... merely because it summarizes facts in a particular way; if a statement can be read as true, it is not a misrepresentation." Lilly, 194 W.Va. at 601,

461 S.E.2d at 107. Finally, we give great deference to a trial court's findings so that "findings of a circuit court concerning whether an affidavit contains deliberately falsified information are not subject to reversal unless they are clearly wrong." Id., citing State v. Wood, 177 W.Va. 352, 354-55, 352 S.E.2d 103, 105-06 (1986).

Applying this law to the instant facts, we do not believe that the warrant affidavit contains false statements. Rather, the affidavit may be read as merely summarizing facts in a particular way. The defendant was seen by one of the officers listed in the warrant affidavit both walking toward the marijuana plants with a jug of water and inspecting the plants. Also, we believe that "inspecting" marijuana plants may fairly be characterized as "taking care" of them. Even presuming that the statements at issue constitute misrepresentations, however, the defendant has failed to prove that they are the result of more than mere negligence or mistake.

Second, the defendant attacks the validity of the search warrant on the basis that the magistrate who issued it failed to exercise independent judgment. The defendant bases this claim on Officer Metz's testimony that Deputy Sheriff Bruce DeWees wrote the warrant affidavit and the body of the search warrant, and that the magistrate signed and dated it. In addition, avers the defendant, the evidence fails to demonstrate that the magistrate questioned the police officers concerning the existence of probable cause. The defendant concludes from this that the magistrate failed to exercise independent judicial judgment.

In Syllabus Point 2 of State v. Dudick, 158 W.Va. 629, 213 S.E.2d 458 (1975), this Court stated:

The constitutional guarantee under W.Va. Const., Article III, § 6 that no search warrant will issue except on probable cause goes to substance and not to form; therefore, where it is conclusively proved that a magistrate acted as a mere agent of the prosecutorial process and failed to make an independent evaluation of the circumstances surrounding a request for a warrant, the warrant will be held invalid and the search will be held illegal.

The facts of Dudick were that during a motion to suppress the evidence seized under the search warrant, defendant's counsel called to the stand the justice of the peace who issued the warrant. The justice of the peace testified that he signed or stamped the search warrant without being aware that the search warrant was being sought upon the information of "a reliable informant," 158 W.Va. at 641, 213 S.E.2d at 466, without knowing who the informant was, and without making an independent determination as to whether the informant was reliable. This Court found that the magistrate became a mere agent of the prosecution and held the search warrant invalid.

In State v. Slonaker, 167 W.Va. 97, 280 S.E.2d 212 (1981), we reiterated our holding in Dudick. In Slonaker, as in Dudick, the magistrate who issued the search warrant was not involved in the preparation of the affidavit or the warrant. However, we found that the magistrate's subsequent questioning of the affiant was adequate to permit him to make an independent evaluation of probable cause.

Finally, in State v. Bates, 181 W.Va. 36, 380 S.E.2d 203 (1989), it was claimed that the magistrate who issued the search warrant did not direct the police officer in filling out the search warrant but merely watched the officer sign the affidavits under oath. The record revealed, however, that after reading the affidavit and warrant prepared by the officer, the magistrate requested the officer to relate the circumstances leading to his request for a search warrant. This Court concluded that, like the magistrate in Slonaker, the magistrate acted in a sufficiently independent manner, by conducting an examination of the affiant under oath, to validate the search warrant.

In the instant case, there is evidence that the search warrant was prepared by Officer DeWees and not the magistrate. But unlike Dudick, Slonaker, and Bates, the record does not reveal the process that occurred prior to the magistrate's issuance of the search warrant. "[O]rdinarily this Court will not go behind the thought processes of a judge or magistrate" when examining the validity of a search warrant. Dudick, 158 W.Va. at 641,213 S.E.2d at 465. We...