State v. Stone, No. 14094

CourtSupreme Court of West Virginia
Writing for the CourtCAPLAN
Citation268 S.E.2d 50,165 W.Va. 266
PartiesSTATE of West Virginia v. Clarence Arthur STONE.
Decision Date08 July 1980
Docket NumberNo. 14094

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.

Page 51

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

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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.

[165 W.Va. 267] 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[165 W.Va. 268] 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

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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 [165 W.Va. 269] 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...

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55 practice notes
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • 25 d2 Março d2 1986
    ...States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). 4 Unquestionably, as this Court held in Syllabus Point 2 of State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (W.Va.1980), "Property observed during an illegal or improper search cannot be subsequently seized pursuant to a lawful search w......
  • State v. Blevins, No. 11–1014.
    • United States
    • Supreme Court of West Virginia
    • 20 d1 Maio d1 2013
    ...must be set forth demonstrating that the information obtained from the unnamed informant is reliable.” Syllabus point 1, State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (1980). 9. Mr. Blevins also contends that he should have been promptly presented to a magistrate on the drug charges, which a......
  • State v. DeWeese, No. 30733.
    • United States
    • Supreme Court of West Virginia
    • 15 d2 Abril d2 2003
    ...obtained from illegal[] [conduct], constitutes `the fruit of the poisonous tree' and is ... inadmissible in evidence.'" State v. Stone, 165 W.Va. 266, 272, 268 S.E.2d 50, 54-55 (1980) (quoting French v. State, 198 So.2d 668 (Fla.Dist.Ct.App.1967)). We have observed, however, that "absent a ......
  • State v. Kilmer, No. 21504
    • United States
    • Supreme Court of West Virginia
    • 10 d5 Dezembro d5 1993
    ...forth facts indicating the existence of criminal activities which would justify a search....' Syllabus point 1, in part, State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (1980)." Syl. Pt. 5, in part, State v. Hlavacek, 185 W.Va. 371, 407 S.E.2d 375 7. "Under the Fourth Amendment to the United S......
  • Request a trial to view additional results
55 cases
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • 25 d2 Março d2 1986
    ...States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). 4 Unquestionably, as this Court held in Syllabus Point 2 of State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (W.Va.1980), "Property observed during an illegal or improper search cannot be subsequently seized pursuant to a lawful search w......
  • State v. Blevins, No. 11–1014.
    • United States
    • Supreme Court of West Virginia
    • 20 d1 Maio d1 2013
    ...must be set forth demonstrating that the information obtained from the unnamed informant is reliable.” Syllabus point 1, State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (1980). 9. Mr. Blevins also contends that he should have been promptly presented to a magistrate on the drug charges, which a......
  • State v. DeWeese, No. 30733.
    • United States
    • Supreme Court of West Virginia
    • 15 d2 Abril d2 2003
    ...obtained from illegal[] [conduct], constitutes `the fruit of the poisonous tree' and is ... inadmissible in evidence.'" State v. Stone, 165 W.Va. 266, 272, 268 S.E.2d 50, 54-55 (1980) (quoting French v. State, 198 So.2d 668 (Fla.Dist.Ct.App.1967)). We have observed, however, that "absent a ......
  • State v. Kilmer, No. 21504
    • United States
    • Supreme Court of West Virginia
    • 10 d5 Dezembro d5 1993
    ...forth facts indicating the existence of criminal activities which would justify a search....' Syllabus point 1, in part, State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (1980)." Syl. Pt. 5, in part, State v. Hlavacek, 185 W.Va. 371, 407 S.E.2d 375 7. "Under the Fourth Amendment to the United S......
  • Request a trial to view additional results

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