State v. White, 14434

• Decision Date: 09 July 1981
• Docket Number: No. 14434,14434
• Parties: STATE of West Virginia v. Cebert WHITE, Jr.
• Court: West Virginia Supreme Court

Page 114

280 S.E.2d 114

167 W.Va. 374

STATE of West Virginia v. Cebert WHITE, Jr.

No. 14434.

Supreme Court of Appeals of West Virginia.

July 9, 1981.

Syllabus by the Court

1. A valid search warrant may issue upon an averment that an unnamed informant was an eyewitness to criminal activities conducted on the premises described in the warrant.

2. A search warrant, valid on its face, is not made invalid if subsequent testimony shows that the issuing judicial officer had more information than was contained in the warrant or affidavit, so long as the record shows that the officer made an independent determination of probable cause.

3. Proof of knowing possession of live marijuana plants is sufficient evidence to support a conviction of possession with intent to manufacture a controlled substance.

4. Denial of discovery or non-disclosure under a discovery order "is grounds for a new trial when such non-disclosure is prejudicial. The non-disclosure is prejudicial where the defense is surprised on a material issue and where the failure to make ... (the matter) available hampers the preparation and presentation of defendant's case." Syllabus, State v. Cowan, 156 W.Va. 827, 197 S.E.2d 641 (1973).

5. " 'Where an indictment for felony is found, the accused is not entitled to a preliminary examination before a justice before trial.' Syllabus Point 1, State v. Mooney, 49 W.Va. 712, 39 S.E. 657 (1901)." Syllabus Point 2, State ex rel. Rowe v. Ferguson, W.Va., 268 S.E.2d 45 (1980).

6. "If a preliminary hearing has not been held within a reasonable time following the defendant's arrest on an offense which must be brought to the grand jury, he is entitled to enforce his statutory right to a preliminary hearing under W.Va.Code, 62-1-8 (1965), by a mandamus proceeding in the circuit court against the committing magistrate court." Syllabus Point 5, State ex rel. Rowe v. Ferguson, W.Va., 268 S.E.2d 45 (1980).

Morton & Blyler and Ernest V. Morton, Jr., Webster Springs, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., S. Clark Woodroe, Asst. Atty. Gen., Charleston, for defendant in error.

NEELY, Justice.

This is a criminal appeal from the Circuit Court of Nicholas County in which the appellant, Cebert White, Jr., was convicted by a jury of possession with intent to manufacture a controlled substance. We affirm.

The defendant was arrested on 23 May 1977 following a search of his residence. The search was under a warrant issued on that date by Magistrate Philip Conley. Deputy Jerry Simms had presented Magistrate Conley with an affidavit averring that White was in possession of and manufacturing "marihuana and other controlled substances" at the described premises. Deputy Simms's affidavit recited as its basis that:

"the facts for such belief are that on the 19th day of May, 1977, a reliable informant personally viewed a quantity of marihuana and other controlled substances in and upon the above-described premises."

This passage was quoted in the search warrant by Magistrate Conley as grounds for issuing the warrant, and these were the only grounds enumerated.

In December 1977 a hearing was held on defendant's motions to quash the search warrant and for a bill of particulars. All of the items on the bill were granted and communicated save those requesting police or investigative reports and a summary of expected prosecution trial testimony. At the same hearing, Deputy Simms and Magistrate Conley testified about the circumstances under which the affidavit was signed and the search warrant issued. Magistrate Conley's testimony was that Deputy Simms came to his house with a prepared affidavit and search warrant with spaces left for their signatures. The magistrate put Simms under oath, then asked him about the informant and the basis of his information. The officer replied that the informant had visited the defendant's residence and had seen packets of marijuana and other things he suspected were controlled substances. Magistrate Conley asked Deputy Simms about the informant's reliability and Simms indicated that the informant had provided useful information to Simms and other deputies in the past, including one tip which led to a conviction in Conley's own court.

The only material differences between Magistrate Conley's and Deputy Simms's testimony are: Simms said he knew and told Conley about only the one instance of the informant's prior reliability with which Conley was familiar; Simms said Conley put Simms under oath only after the discussion about the nature of the information and the informant's reliability; and, Simms said he volunteered the information, not that Conley solicited it. After the hearing the motion to quash the warrant was tentatively denied as was a motion to suppress the evidence gathered under the warrant, and these denials were made final at trial.

I

Defendant argues that the search warrant was defective because on its face it did not establish reasons to believe the unnamed informant was a reliable source. W.Va.Const., art. III, § 6 and U.S.Const., Amendment IV require that probable cause be established under oath before a search warrant may be validly issued. This Court held in State v. Dudick, W.Va., 213 S.E.2d 458, 465 (1975), that when the affiant is swearing to information given by an unnamed informant, the constitutional requirements are met by (1) setting forth facts to establish the existence of criminal activity to justify the search, and (2) setting forth facts to establish that the informant is reliable. We further held in that case that the magistrate or judge who issues the search warrant must make an independent evaluation of the sufficiency of both these elements, id. at 466. Defendant here argues that the warrant is defective because the affidavit merely asserts the conclusion that the informant is reliable, but provides no basis for independent evaluation of that conclusion.

While the substance of the affidavit is brief, ¹ it is sufficient in this case. The rule in Dudick was derived from a series of United States Supreme Court rulings, the last of which was United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). In Harris, the Court of Appeals for the Sixth Circuit had found an affidavit supporting a search warrant defective because the affidavit there stated that an unnamed informant was "prudent," not truthful. No other information was given purporting to establish the truthfulness of the informant, and this is what the Court of Appeals found lacking. Id. at 576, 579, 91 S.Ct. at 2078, 2080. However, the Supreme Court found that the warrant had been validly issued because "while a bare statement by an affiant that he believed the informant to be truthful would not, in itself, provide a factual basis for crediting the report of an unnamed informant," other factors would suffice, such as the type of information given and the informant's basis of knowledge, id. at 579-80, 91 S.Ct. at 2079-80. In Harris, the informant had himself purchased illegal whiskey from the defendant and the defendant had a reputation among law enforcement officials as a trafficker in illegal whiskey. The Court held this information was sufficient to make up for the inadequacies of a bare assertion of "prudence."

Harris makes it clear that there is no necessity for a magical averment of the prior reliability of an informant. Rather, the informant's reliability in the case may be inferred from the circumstances. Id. at 581-82, 91 S.Ct. at 2080-81; United States v. Branch, 565 F.2d 274, 276 (4th Cir. 1977). We can imagine that frequently citizens are eyewitnesses to illegal activities which they report to the police, and just as frequently the police will never have had any previous dealings with those informants. Moreover, such public assistance of law enforcement officers should be encouraged, not stymied. Accord, Guzewicz v. Commonwealth, 212 Va. 730, 735, 187 S.E.2d 144, 148 (1972). When such informants desire anonymity from fear of retaliation or other reasons, it would be impossible to act upon their information if it were necessary to demonstrate a record of prior reliable dealings with the police. At a minimum, then, we would distinguish cases where the informant is relaying first-hand observations from those cases where the informant's own source of information is hearsay. Therefore, we hold that an averment that the informant was an eyewitness to particular criminal activities involving particular individuals in a particular place is alone sufficient to permit the issuance of a valid search warrant.

In testing the sufficiency of the affidavit here we note the Supreme Court's admonition that "(i)f the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common sense and realistic fashion," United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). Similarly, "(a) policeman's affidavit should not be judged as an entry in an essay contest," Spinelli v United States, 393 U.S. 410, 438, 89 S.Ct. 584, 600, 21 L.Ed.2d 637 (1969) (Fortas, J., dissenting); and see United States v. Harris, 403 U.S. 573, 577-79, 91 S.Ct. 2075, 2078-80, 29 L.Ed.2d 723 (1971); State v. Dudick, W.Va., 213 S.E.2d 458, 465 (1975). With these principles to guide us we can now look to the affidavit in this case to see what it tells us. It tells us the place to be searched; that the place was owned by Cebert White, Sr. and was occupied by Cebert White, Jr.; that marijuana and other controlled substances were being kept there; and, that the criminal activities alleged were personally observed by the unnamed informant who had been in the premises four days earlier. This first-hand information places the criminal activity in the place mentioned and the fact that it is first-hand information makes it...