State v. Stone

• Decision Date: 08 July 1980
• Docket Number: No. 14094,14094
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Clarence Arthur STONE.

Page 50

268 S.E.2d 50

165 W.Va. 266

STATE of West Virginia v. Clarence Arthur STONE.

No. 14094.

Supreme Court of Appeals of West Virginia.

July 8, 1980.

Syllabus by the Court

1. To constitute probable cause for the issuance of a search warrant, the affiant must set forth facts indicating the existence of criminal activities which would justify a search and further, if there is an unnamed informant, sufficient facts must be set forth demonstrating that the information obtained from the unnamed informant is reliable.

2. Property observed during an illegal or improper search cannot be subsequently seized pursuant to a lawful search warrant which was based solely upon observations made during the illegal search.

3. It is not a search for the police to discover evidence in plain sight and the warrantless seizure of such evidence is constitutionally permissible provided 1) the police observe the evidence in plain sight without the benefit of a search (without invading one's reasonable expectation of privacy); 2) the police have a legal right to be where they are when they make the plain sight observation; and, 3) the police have probable cause to believe that the evidence seen constitutes contraband or fruits, instrumentalities or evidence of crime.

4. The giving of confusing or incomplete instructions does not constitute reversible error where a reading and consideration of the instructions as a whole cure any defects in the complained of instructions.

Larry E. Losch, Charlton Heights, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., Richard W. Clonch, Asst. Atty. Gen., Charleston, for State.

CAPLAN, Justice:

The appellant, Clarence Arthur Stone, was convicted in the Circuit Court of Nicholas County of the crime of larceny and was sentenced to a term of one year in the county jail. On this appeal he assigns the following errors: (1) the refusal of the trial court to suppress certain evidence and the admission into evidence of certain items seized as a result of a search on May 6, 1975; (2) the giving of State's Instructions Nos. 3, 4, 6 and 7; and, (3) the refusal of a motion for a directed verdict of acquittal.

Principally, it is the contention of the appellant that probable cause for the issuance of the search warrant which led to the seizure of the evidence complained of (tool box with set of craftsman tools; hydraulic gauge; feed bag with assortment of hand tools) was insufficient. A warrant may be issued only if probable cause for the necessity of the search is shown. U.S. v. Pinkerman, 374 F.2d 988 (CA4 1967).

In the instant case there were two warrants. On May 5, 1975 a state trooper went before a magistrate, filed an affidavit charging the appellant with receiving and transferring a motorcycle valued at $1,077.00. He swore that the facts for such belief were "that the undersigned has received reliable information from a confidential informant that the aforesaid property belonging to Import Motorcycle, Inc. is concealed in the aforesaid dwelling, said dwelling occupied by the aforesaid Clarence A. Stone." Pursuant to the issuance of the warrant, this trooper with other police officers proceeded to Stone's residence and learned from Mrs. Stone that petitioner was not at home. The residence was searched but no motorcycle was found. Mrs. Stone, at the suppression hearing, testified that she was told by the police officers that they had a warrant to search the house for a motorcycle and mine bits but that the warrant was not shown to her. She further testified that if she had not been told by the police that they had a proper search warrant she would not have permitted any search.

During this initial search one of the police officers observed a set of craftsman tools that bore the initial "D". This officer recognized these tools as belonging to a friend, but he did not confiscate any of the property as a result of this first warrant. The officer who observed the craftsman tool set, on May 6, 1975, went before a magistrate and obtained a second warrant to search for stolen property, namely, "1 3/4" Craftsman Socket Set and Box, 1 Craftsman Tool Box, and assorted tools ". On this second search, the described items were found and confiscated along with numerous other items. These items were admitted in evidence over objection of the defendant. The appellant contends that his motion to suppress these items should have been sustained and that the trial court erred in overruling such motion. We agree.

In State v. Dudick, W.Va., 213 S.E.2d 458 (1975), discussing probable cause for the issuance of a search warrant, this Court reviewed United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), wherein it was held that it was necessary for the affidavit (as basis for a search warrant) to set forth facts indicating the existence of criminal activities which would justify a search and, further, to set forth facts demonstrating that information obtained from an unnamed informant is reliable. In the instant case no facts were set forth in the affidavit indicating criminal activity which would justify a search of the premises. The affiant simply stated that he had "received reliable information from a confidential informant" that a motorcycle belonging to a named party was being concealed in the subject dwelling. Neither were facts set forth demonstrating that the information obtained from the confidential informant was reliable. No facts were set forth as to how the reliability of the informant was established or that the informant had personally seen the stolen property on the subject premises. We therefore conclude that under Dudick, supra, and Harris, supra, the search that took place on May 5 or the early morning of May 6, 1975 was an illegal search. It was during this illegal search that information was obtained which led to the second search. A second search warrant was obtained and the affidavit filed in support of that search warrant, on its face, appears to comply with the requirements set forth in Dudick, supra. There was an error as to dates however. The affidavit indicated the stolen property was observed on March 5, 1975 when it should have said May 5, 1975. The record discloses that the property allegedly stolen was not missing on March 5, 1975 but that pursuant to the May 5, 1975 search, the stolen property was observed at that time and a warrant was subsequently issued.

Article III, § 6 of our state constitution and the Fourth Amendment of our federal constitution, protect citizens from unreasonable searches and seizures. We have held the first warrant to be bad and the search pursuant thereto to be illegal. Nothing was seized pursuant to the first warrant however. While allegedly stolen property was observed during this illegal search, this property was not seized until a new, or second, warrant was obtained. Execution of this second warrant netted the confiscation of the alleged stolen property. These circumstances raise the question of whether or not information obtained during an illegal search can be used to obtain a second warrant for a search of the same premises for the purpose of seizing the observed property.

At common law admissibility of evidence was not affected by the illegality of the means by which it was obtained. See Olmstead v. U.S., 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). Without tracing in detail the erosion of that rule, in Weeks v. U.S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) the Court held that in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure. In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) the federal rule was made applicable to the States. Since Mapp v. Ohio, supra, the rule has been that illegally obtained evidence is not admissible in either federal or state courts.

In the instant case the evidence was not seized pursuant to an invalid warrant. The evidence was observed during a search pursuant to an invalid warrant after which an apparently valid search warrant was obtained and the observed evidence was seized.

In Davidson v. Mississippi, 240 So.2d 463 (Miss. 1970), the court reversed a conviction of the defendant for the reason that evidence against the defendant was illegally obtained. The defendant had been accused of receiving stolen property and the state presented evidence by a game warden that he had observed a tractor on the land of the defendant and that he had gone onto the land to check the serial number. Obtaining the serial number, he later ascertained that the tractor had indeed been reported as having been stolen. A search warrant was obtained and the tractor was seized pursuant thereto. The Mississippi court held that the game warden committed a trespass by coming onto the land of the defendant to check the serial number of the tractor and that the subsequent search with a warrant was illegal since the warrant was based on illegally obtained information. Stated positively, a legal search must be based on preceding steps which are themselves lawful in their entirety.

In the instant case, the evidence complained of was observed while the police officers were illegally searching the defendant's premises. The initial search warrant was invalid in that probable cause was not shown for the issuance of the warrant. As in the Mississippi case, property observed during an illegal or improper search...