State v. Todd Andrew H.

• Decision Date: 14 June 1996
• Docket Number: No. 23186,23186
• Citation: 196 W.Va. 615,474 S.E.2d 545
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. TODD ANDREW H., Defendant Below, Appellant.

Page 545

474 S.E.2d 545

196 W.Va. 615

STATE of West Virginia, Plaintiff Below, Appellee, v. TODD ANDREW H., Defendant Below, Appellant.

No. 23186.

Supreme Court of Appeals of West Virginia.

Submitted May 28, 1996.

Decided June 14, 1996.

[196 W.Va. 617] Syllabus by the Court

Under W.Va.Code, 49-5-8(b)(3) (1994), a juvenile may be taken into "custody" without a warrant or court order if the law enforcement official has reasonable grounds to believe the child is a runaway without just cause from the child's parents and the health, safety, and welfare of the child is endangered. Thus, the mere fact that a juvenile is a runaway is insufficient to take a child into custody without a warrant or court order. The arresting officer also reasonably must believe the runaway's health, safety, and welfare are also in jeopardy. To satisfy this latter requirement, there must be objective evidence that the juvenile: (1) was behaving in a self-destructive way; (2) was exposed to imminent physical harm; (3) was under the influence of drugs or alcohol; or (4) was incoherent and confused. In the absence of these types of circumstances, an officer should either obtain an arrest warrant or court order or deliver the juvenile to his or her parents.

Joy M. Cavallo, Assistant Attorney General, Charleston, for Appellee.

Deborah A. Lawson, Public Defender, Martinsburg, for Appellant.

CLECKLEY, Justice:

This is an appeal by the defendant below and appellant herein, Todd Andrew H., ¹ from a delinquency adjudication in the Circuit Court of Jefferson County. ² The defendant was adjudged a juvenile delinquent by the juvenile court, sitting without a jury, for violating W. Va.Code, 49-1-4(1) (1978). ³ On appeal, we are asked to determine whether the juvenile court committed error in denying the defendant's motion to suppress evidence seized from his person. For reasons stated below, we reverse the order of the circuit court and remand this matter for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 23, 1995, at approximately 8:00 p.m., Officer Ward Sigler, Jr., of the Charles Town Police Department, was driving along Southwest Street looking for individuals against whom municipal court capias warrants had been issued. Officer Sigler noticed the defendant standing on the sidewalk of Southwest Street near Doc's Tavern. There was no capias warrant outstanding for the defendant. Officer Sigler recognized the defendant as someone to whom he had given a traffic citation in January of 1995 and who failed to appear in municipal court on the matter. Officer Sigler also vaguely recalled Upon their arrival at police headquarters, Officer Sigler had an NCIC search run on the defendant. Officer Sigler testified the NCIC search listed the defendant as a runaway. The defendant informed Officer Sigler that he had in fact returned home and was no longer a runaway. Officer Sigler informed the defendant that he was under arrest. A pat-down search of the defendant's person next ensued. During this search, Officer Sigler testified he felt an unusual "lump" near the groin area of the defendant. Officer Sigler then instructed the defendant to go to a more secluded room and thereafter told the defendant to lower his pants. When the defendant complied, Officer Sigler observed a small "baggy" containing a large white chunky substance attached to the defendant's groin area. Officer Sigler retrieved the white substance and identified it as crack cocaine. ⁴

[196 W.Va. 618] upon seeing the defendant, that a juvenile petition may have been previously filed against the defendant. With this knowledge in mind, Officer Sigler pulled over in his patrol car to where the defendant stood. Officer Sigler informed the defendant that he had to come with him to police headquarters to discuss his failure to appear in municipal court on the citation issued to him in January. The defendant complied with Officer Sigler and got into the patrol car.

A petition was filed against the defendant charging him with delinquency in possessing, with intent to deliver, a Schedule II controlled substance in violation of W. Va.Code, 60A-4-401(a) (1983). An adjudication proceeding was held, without a jury, on April 10, 1995. Counsel for the defendant moved to suppress the crack cocaine evidence on the ground that it was seized pursuant to an unlawful search. The motion to suppress was denied. The defendant was subsequently adjudged delinquent ⁵ and was committed to the Industrial Home for Youth at Salem for a period of four months to two years, with after care. On appeal, the defendant argues the crack cocaine evidence should have been suppressed as the product of an unlawful search and seizure.

II. DISCUSSION

The sole issue before this Court is whether the crack cocaine evidence should have been suppressed as the product of an unreasonable search and seizure under Section 6 of Article III of the West Virginia Constitution. ⁶ This Court reviews a circuit court's factual findings on a motion to suppress for clear error. State v. Lacy, 196 W.Va. 104, 109, 468 S.E.2d 719, 724 (1996); State v. Farley, 192 W.Va. 247, 253, 452 S.E.2d 50, 56 (1994); State v. Stuart, 192 W.Va. 428, 433, 452 S.E.2d 886, 891 (1994). We review de novo the ultimate determination of reasonableness under Section 6 of Article III. Lacy, 196 W.Va. at 109, 468 S.E.2d at 724. Additionally, in reviewing a motion to suppress on appeal, facts are construed in the light most favorable to the prevailing party below--in this case, the State. Lacy, 196 W.Va. at 109, 468 S.E.2d at 724. Where a circuit court has not made the necessary findings, the matter may be remanded with appropriate directions or "the circuit court's denial of a motion to suppress [may be] upheld if there is any reasonable Our analysis begins with a few fundamental observations. There are, of course, three basic types of encounters between police officers and individuals. Each of the three types of encounters has a distinct ramification or legally cognizant consequence under Section 6 of Article III of our Constitution and the Fourth Amendment to the United States Constitution. ⁷ The first is a consensual encounter in which an individual agrees to speak to police officers. Such contact may be initiated by the police without any objective level of suspicion and does not, without more, amount to a "seizure" implicating Section 6 of Article III. See Syl. pt. 1, State v. Mays, 172 W.Va. 486, 307 S.E.2d 655 (1983) ("[i]t is not an unreasonable seizure for police to approach an individual in a public place, ask him if he is willing to answer questions and put questions to him if he is willing to listen"); United States v. Cooper, 43 F.3d 140, 145 (5th Cir.1995) (" 'even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual's identification ...; and request consent to search his or her luggage ... as long as the police do not convey a message that compliance with their request is required' "), quoting Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398-99 (1991).

                [196 W.Va. 619] view of the evidence to support it."  Lacy, 196 W.Va. at 110, 468 S.E.2d at 725, citing Farley, supra.   In ruling that the crack cocaine evidence was admissible, the circuit court stated that the fact that Officer Sigler was aware that a juvenile petition had been filed against the defendant and that the defendant had an unpaid traffic citation formed probable cause to arrest the defendant;  therefore, the search and seizure of the contraband was justified as incident to a lawful arrest.  In formulating its ruling, the circuit court gave no consideration to the limiting standards set out in W.Va. Code, 49-5-8(b)(3) (1994).  Because we find the provisions of this statute were violated, we reverse the order of the circuit court and remand this matter
                

The second type of encounter, based on principles enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), involves a limited investigative stop. See United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605, 613 (1985); United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110, 117-18 (1983); Duvernoy, 156 W.Va. at 585, 195 S.E.2d at 636. Prior to Terry and its progeny, any restraint on the person amounting to a seizure for purposes of the Fourth Amendment was invalid unless justified by probable cause. Terry created a limited exception to this general rule: Certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime. In Terry, the Supreme Court also held that a limited frisk of the suspect's outer clothing to discover weapons was justified in light of the officer's "reasonable suspicion supported by articulable facts that criminal activity 'may be afoot.' " United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989), quoting Terry, 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911. See State v. Choat, 178 W.Va. 607, 611, 363 S.E.2d 493, 497 (1987) (the police may cause a brief investigative stop of a person "whenever the police officer has a reasonable suspicion ... that the person he stopped has been or is about to be involved in a crime").

The third type of police-citizen encounter is an arrest--plainly an Section 6, Article III "seizure" that must be based on probable cause. ⁸ In determining whether a

"seizure" under Section 6 of Article III has occurred we must consider " 'if, in view of all the circumstances surrounding the [encounter], a reasonable person would have believed that he was not free to leave.' " Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565, 572 (1988), quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509 (1980)

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