State v. Thompson

Citation178 W.Va. 254,358 S.E.2d 815
Decision Date16 June 1987
Docket NumberNo. 17071,17071
PartiesSTATE of West Virginia v. Boyd THOMPSON, Jr.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. "In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court held it constitutionally permissible under certain conditions to attack a search warrant affidavit. If such attack is successful, this will result in voiding the search warrant and rendering the property seized under such warrant inadmissible." Syllabus Point 1, State v. Walls, 170 W.Va. 419, 294 S.E.2d 272 (1982).

2. "Both the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution provide that no warrant shall issue except upon probable cause supported by oath or affirmation. There is virtual unanimity that a warrant may not issue on unsworn testimony." Syllabus Point 3, State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762 (1986).

David Johnson, Asst. Atty. Gen., for appellant.

Ray L. Hampton, II, Barrett, Chafin, Lowry & Hampton, Huntington, for appellee.

NEELY, Justice:

While investigating the theft of a number of buck stoves from Buck Stoves, Inc., of Gauley Bridge, West Virginia, Trooper John T. Morrison received information from a confidential informant with regard to the location of the stolen buck stoves. All previous anonymous tips had proved fruitless. Subsequently, Corporal Fred B. Woods accompanied the confidential informant, Iris Angel, to Mr. Boyd Thompson's property on 3 June 1982. There, Corporal Woods and Mrs. Angel spoke with an employee of Mr. Thompson, who mentioned that he had helped unload some buck stoves and that two of the stoves had been installed in the appellant's residence.

As a result of this information, Trooper Morrison executed an affidavit and complaint for a search warrant that was issued on 4 June 1982. Trooper Morrison searched Mr. Thompson's property and found two buck stoves in the house with the same serial numbers as those that had been stolen. Mr. Thompson was arrested and indicted on two counts of knowingly receiving stolen property in violation of W.Va.Code 61-3-18 [1923].

At trial, the State adduced testimony from its witnesses, David Angel, James Ray Jarvis and Fred Grosse, that they were involved in the theft of the buck stoves and a 550 John Deere Bulldozer, and that these items were transported to Pocahontas County and hidden on the farm of Mr. Thompson. In his defense, Mr. Thompson maintained that the two buck stoves that were recovered from his residence were purchased by him at a flea market in Pence Springs, West Virginia. This testimony was corroborated by three acquaintances of the appellant.

The jury returned a verdict of guilty on both counts. Mr. Thompson now asserts in this appeal that the affidavit in support of the search warrant for the buck stoves was patently false. We agree and reverse.

I

Appellant's challenge to the search warrant for the buck stoves is grounded on an insufficient affidavit; if the affidavit is defective, he argues, any evidence obtained under the warrant should have been excluded. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The law requires an affiant to establish the reliability of any confidential informant and demonstrate the basis for his assertion about the stolen property's location. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (1980).

The grounds for the search warrant for the buck stoves was "... that a confidential and reliable informant who has been reliable in the past, stated that said stolen property was located at the above listed residence of Boyd Thompson, Jr." This statement that the informant had been reliable in the past was patently false.

At the suppression hearing held Trooper Morrison admitted that he had not used the informant previously:

Q. How many times had you used this reliable informant to give you information in the past?

A. None.

Q. How many times had any of your brother police officers used this reliable informant to assist in any prosecutions in the past?

A. That, I couldn't--I wouldn't know. We are familiar with this subject but as far as any other officer using her on any case I would not be familiar with.

Q. When you made reference in your probable grounds for the issuance of the warrants, you state that, "A confidential and reliable informant who had been reliable in the past"; to what were you referring that they had been reliable in the past?

A. I really don't know right now.

Q. Did you know at the time you obtained the search warrant?

A. Any information from her in the past, no.

Q. So at the time of the search warrant you didn't have any reliable information in the past?

A. No.

Trooper Morrison later testified about his own personal knowledge of the confidential informant, Iris Angel:

Q. Did you know anything about her past conduct?

A. No, sir.

Q. Did you know her identity at the time of obtaining this search warrant?

A. Yes sir.

Q. Did you know anything about any other investigations that she participated with, that would make her reliable?

A. No, sir, I didn't.

Corporal Woods accompanied the confidential informant, Iris Angel, to appellant's property on 3 June 1982. With regard to the informant's reliability, Corporal Woods testified that he had no personal knowledge of Mrs. Angel before he saw her on 3 June 1982. He also testified that he was with Trooper Morrison when they went to the magistrate to get the search warrant and that there was no additional information beyond Trooper Morrison's affidavit submitted in this matter.

In denying suppression of the stoves seized under the search warrant, the lower court acknowledged that the informant had no previous history of reliability. The Court noted that the officers did corroborate the information provided by the informant independently, and the officers were familiar with the informant because her husband was a defendant in the original theft case.

However, Trooper Morrison testified that Mrs. Angel's husband had not yet been arrested in connection with the theft when the search warrant was issued. The fact that the troopers attempted to corroborate or did corroborate the information supplied by the informant would make her reliable in the present, not in the past. Regardless, this additional corroborating information was not provided to the magistrate at the time of the issuance of the warrant and therefore could not bolster the material submitted in the affidavit. There appears to be no U.S. Supreme Court authority for the proposition that a warrant can survive challenge when it is supported only by a false statement, even though facts could have been alleged at the time that would have justified the issuance of the warrant.

II

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court discussed the effect of false allegations in search warrant affidavits. The court made little distinction between intentional falsehoods and those made with reckless disregard for the truth. The court held that for purposes of the Fourth Amendment, false material must be excluded from an affidavit, and the affidavit's remaining contents must then be sufficient to establish probable cause. If the remaining material would not support issuance of the warrant, the search warrant must be voided and the fruits of the search excluded as we explained in Syl.Pt. 1 of State v. Walls, 170 W.Va. 419, 294 S.E.2d 272 (1982): "In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court held it constitutionally permissible under certain conditions to attack a search warrant affidavit. If such attack is successful, this will result in voiding the search warrant and rendering the property seized under such warrant inadmissible."

Applying the Franks v. Delaware, supra test, the excision of the false material about the informant's reliability in the case before us leaves the remaining probable cause to be only that a confidential informant alleged that stolen property was located at the residence of the appellant. This allegation standing alone is insufficient to establish probable cause; it does not demonstrate that the information received was reliable, or timely, or that the informant had personally seen the stolen property on the premises. State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (1980). 1

III

The State relies on Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) and the "good faith" exception established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) to save the affidavit. The Gates test was first articulated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and was later supplemented in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Both of those cases attempted to refine how hearsay involving an informant's tip should be evaluated to show probable cause. Under Aguilar, the search warrant affidavit must: (1) show the informant's "basis of knowledge", and (2) contain information that allows the magistrate to determine the informant's veracity. This veracity may be demonstrated by showing either that the informant is credible or the information supplied is otherwise reliable through some independent corroboration such as police investigation. Thus, the basis of knowledge and "veracity" became the standard two prong test under Aguilar.

In Spinelli, the court suggested that deficiencies in each prong might be repaired with corroborating information. The "veracity" prong could be satisfied if the police verified a part of the informant's story by independent investigation. The "basis of knowledge" prong could be met by a showing that the informant...

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  • Wilkes v. Young
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • July 12, 1994
    ...Mrs. Wilkes--cannot properly be considered in determining whether the warrant was supported by probable cause. See State v. Thompson, 178 W.Va. 254, 358 S.E.2d 815, 817 (1987) (there is no authority "for the proposition that a warrant can survive challenge when it is supported only by a fal......
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    ...course searching it three months later, he's taking a chance on what might or might not have been in at the time. In State v. Thompson, 178 W.Va. 254, 358 S.E.2d 815 (1987) we discussed the effect of false allegations in search warrant affidavits. Essentially, what must occur is that the "f......
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    ...facts supporting probable cause could have been alleged if they were not actually alleged in the affidavit. See State v. Thompson , 178 W.Va. 254, 358 S.E.2d 815, 817 (1987). Consistent with this authority, the trial court here suppressed the results of the first warrant after excising the ......
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