State v. Buzzard

461 S.E.2d 50 Virginia, West Plaintiff

STATE of

Below, Appellee,

Henry BUZZARD, Donovan Defendant

Below, Appellant.

No. 22531.

Supreme Appeals Court of Virginia. May 2,

Submitted 1995. July

Decided

Dissenting Opinion Judge Fox 13,1995.

July

violation of the Fourth Amendment and arti- III, cle section 6 of the West Consti- when, circumstances, tution exigent absent law enforcement preserve officers failed to quo the status to make reasonable efforts to 3) warrants; grant obtain refused to Appellant’s pre-trial motion to exclude evi- print dence of the results of the State’s latent and footwear examiner’s second test of foot- prints allegedly belonging Appellant to the when such results and evidence were not timely contrary disclosed to defense counsel 4) discovery;2 to the court-ordered and re- grant Appellant’s fused to motion for upon new trial. Based a review of the rec- ord, parties’ briefs and all other matters Court, submitted before the we find that the Hopkins, Atty., Jackson Pros. for trial court upholding erred in the warrantless appellee. Appellant’s and, into the motel room3 Anthony Sabatino, Morgantown, J. ap- for accordingly, we reverse and remand for fur- pellant. proceedings ther opinion. consistent with this WORKMAN, Justice:

This ease is before the Court I. appeal Henry Buzzard, Donovan from the p.m. Around 9:50 January on January 13, final ordér of the Circuit Pifer, George night watchman at Volkstone County, Court of sentencing Preston Ap- (hereinafter Company referred to as “the pellant jury for his breaking convictions of plant”),4 facility an industrial located Pres- entering, grand and larceny conspiracy and County, ton Virginia, West observed a van breaking commit entering.1 Ap- and light with a colored headlight door and one pellant asserts that the trial court committed pass plant. in front of the Mr. Pifer also 1) following errors when it: refused to beating heard a or pecking coming noise grant Appellant’s sup- motion to pre-trial part from the back plant. of the When he press pursuant evidence Ap- obtained to the went investigate, toward the area to he ob- pellant’s unlawful subsequent arrest and un- 2) appeared served what searches; shining to be lawful and two lawful admitted evi- flashlights. unlawfully dence He returned to pursuant obtained his office and to the warrantless subsequent County arrest and notified the Preston Depart- warrant- Sheriff’s less ment, search and Appellant seizure as well plant as one of the owners. Appellant 1. The was sentenced to a term of not 3. Because we conclude that the warrantless en- years less than one nor more than fifteen for try unlawful, of the motel room was breaking entering, year and with a five enhance- Appellant’s subsequent warrantless arrest prior felony ment attached to that sentence for a probable was unlawful as well since the cause for transferring property; conviction of stolen to a predicated upon design said arrest was the shoe term of not less than one nor more than ten pursuant of the shoes seized years consecutively breaking to run with the and entry. Accordingly, officers’ unlawful we find entering grand larceny; sentence for and to a Appellee's Appellant contention that the was years conspiracy term of one five for to com- subjected to a lawful warrantless arrest to be breaking entering. mit without merit. holding, 2. Based on our we decline to address Appellant's alleged the missibility concerning error the ad- facility longer 4. The operation, was no but Sergeant testimony Neal’s with re- previously manganese pro- had been used as a gard analysis Appellant's to his shoe sole cessing plant known as Chemetals. design in photo- relation to the second set of graphs taken at the crime scene. Fields, searching Fields testified that he continued D. Sheriff of Preston Coun- James telephone ty, responded plant to Mr. Pifer’s call. the area around the for additional sus- plant, Upon arrival at the Sheriff Fields his continuing investiga- pects. part As of this roadway. parked alongside the noticed a van tion, Motel, the sheriff checked the Heldreth seated in the front seats of Two men were Kingwood, Virginia, motel in West Teddy They were identified as Lee the van. any guests if to determine had checked in White, Tommy Mitchell both Workman recently. Sheriff Field was told the desk County, Directly Virginia. from Boone Henry that a Mr. clerk Buzzard had cheeked van, against leaning a concrete beside approximately into the motel at 1:03 a.m. and abutment, a industrial-size circuit break- According was in room 210. to the sheriff’s identifying er box affixed with Chemetals in, testimony, when the checked he tag. night told the clerk that the sheriff had sent plant The sheriff entered one of the build- him to the motel. The sheriff knew that this ings which Mr. Pifer identified as the one he was untrue.

had observed several individuals enter. a.m., sheriff, approximately At 2:20 the open sheriff first observed an door and Deputy Trooper Bob Bailor5 and Rick dangling chain. He also heard individuals Brown to room 210 and knocked on the went separate designs running and observed three Appellant opened door. The the door and floor, prints in the dust-covered as shoe the officers entered the room was oc- which prints, well as other foot which were created by cupied by only Appellant not the but also through a when individuals had traveled building. Danny Ray Griffy.6 damp area near the entrance of the No written consent to anyone by The sheriff was unable to locate was obtained the sheriff. When search building. Fields also testified Appellant the Sheriff told the what he was the sheriff cigarette that he found numerous butts near investigating, it and that involved Mr. White plant van and near the area in the where Workman, the Appellant and Mr. the informed circuit where located. Addi- the breakers they sheriff that had been with those two the tionally, building, in one of the rooms of the evening, men earlier in the but that Mr. the sheriff observed a circuit breaker box dropped Mr. had the White and Workman partially the and an- disconnected from wall Griffy had not Appellant and Mr. off and completely circuit discon- other breaker box Additionally, back them. the sher- come for sitting from the wall on the floor. nected iff noticed that there were shoes on the floor with the soles visible. The sheriff testified

Teddy Tommy Workman and White were design of the shoes was similar that the tread placed under arrest at the scene. The sher- designs he saw on the floor at to the tread iff ascertained that the van which the two plant the shoes7 site. The sheriff seized registered men were found was to Mr. James Buzzard, Griffy County. transported Appellant and Mr. from Boone Sheriff also phone showing phone originating Deputy spelled Baylor call Bailor's last name is also record portions consistency, County For we Appellant’s record. to a Boone from the room spelling appears supra number, it in the text. use as telephone a beer bottle were seized. County Joseph De- of the Preston Sheriff's Stiles not either an arrest or 6. The officers did obtain warrant, partment, tes- who executed the search room; prior entering warrant how- search Appellant he believed that either the or tified that ever, Appellant the trial court found that the County Griffy someone in Boone Mr. called ruling entry. to the officer’s It is this consented Kingwood pick up person ask the to drive to present appeal the basis of the and it that forms Griffy. no and Mr. while greater II of this is discussed in detail section bottle, finger prints the beer were obtained from opinion infra. brand as beer bottles the bottle was same Finally, Griffy's crime Appellant's were the found in the van at the scene. 7. The and Mr. shoes cigarette cigarette room at this filters items seized from the motel were similar to filters scene, time. A second search of the motel room was con- the crime and the filters found at pursuant During warrant. executed search genet- genetic markers consistent with the tained search, this second a Heldreth Motel business Workman, Griffy, well Mr. Mr. ic markers of Kingwood, Virginia, directions to card with Appellant. as the located, plant where the motel and the were it, filters, cigarette a motel written on some department they prosecutor’s request transcript

to the sheriffs where were to make the placed joint suppression hearing under arrest. which oc- 9, 1994, April curred on in the State’s case by Additional evidence introduced co-defendants, against Appellant’s Mr. testimony of John Richard State included the Workman, Griffy, part Mr. White and Mr. Giacalone, a chemist with the West Appellant’s of the record in the In case.9 Police, testimony regard- who offered April hearing, Sheriff Fields’ testi- ing presence manga- amounts of trace mony concerning the issue of the nese, testing Tommy which his found on sheriff, accompanied by consent was that the jackets8 belonging tennis shoes and White’s officers, two other went to the room motel Also, Griffy Appellant. to Mr. and the Wil- and the sheriff knocked on the door. Sheriff Tobin, metallurgist liam a forensic with the that Fields testified the knock was Investigation in Washing- Federal Bureau of ton, D.C., high that testified he found con- from answered inside someone. I’m manganese centration of on the not sure which of the two answered. gloves, Griffy’s gloves. Mr. as well as Fur- I Asked who it was. told them it was the ther, Sergeant Virgi- Mark Neal of the West open Sheriff. I asked them to the door. nia State Police Criminal Identification Bu- they And within a matter of seconds impressions reau testified that footwear con- opened along door. walked in with photographs tained a set of taken at the Deputy Baylor Corporal I think and Appel- crime scene were consistent with the Griffy Mr. in Brown. was bed. Mr. Buz- design. lant’s shoe sole up. zard was He had let us in.” Appellant testify. only The did not The Further, according transcript to the of the Penn, witness for the defense was John an Appellant’s suppression hearing August on professor in Department associate the 1993, Sheriff Fields testified that “Mr. Buz- Chemistry Virginia University. at West Mr. zard answered the door and we went in.” testimony essentially Penn’s indicated that however, testified, Appellant, sup- The at the manganese Appellant’s the found on the pression hearing, that when he answered the gloves clothing originated and could have door, “[t]hey forced theirself in on [sic] me.” from plant, sources other than the such aas Appellant The further that stated at the time mine or a car. this “they” occurred he did not know who were. The circuit court found that “[h]e [the II. room, knocked, sheriff] went to the identified only The issue the before Court is (1) persons, appears himself and one of the it failing whether the trial court in erred to that Mr. person, Buzzard was fact that let suppress pursuant evidence obtained trial, him in.” At testimony Sheriff Fields’ entry Appellant’s warrantless of the motel Appellant] indicated that opened “[h]e [the suppression room. A hearing was conducted point the door and at that time entered to ascertain whether the evidence obtained the room. He asked me to in.” come as a result of entry the officers’ warrantless suppressed. into the hotel room should Appellant be The po maintains that the First, court, timely the circuit without a ob lice entered his motel room without a war jection Appellant, from agreed the to Appellant rant and without his consent. The room, jackets upon Appel- 8. The entry sheriff seized the cers’ also testified at the Griffy's lant's and Mr. arrest. Appellant's suppression hearing. A circuit court power has the inherent to administer its docket important It is to note at the outset that the judicial so as to conserve scarce resources. clearly Appellant record indicates that the nei- Thus, timely objection, absent a a circuit court objected giving ther to the trial court consider- ample deferring has discretion in to another cir- proceeding, ation to the earlier at which the (he proceeding involving cuit court co-defen- judge presided, expressed same nor a desire to duplicative dants and identical issues to avoid cross-examine the witnesses who testified in the litigation. generally Mfg. See v. Kerotest Co. C-O- Further, sheriff, prior proceeding. who the Co., 180, 183-84, Equip. Two Fire 342 U.S. 72 attempt State relied in its to establish that 219, 221, (1952). S.Ct. 96 L.Ed. 200 Appellant voluntarily consented to the offi-

549 though protection. that even the officers to the same constitutional Unit argues also 48, 51-52, Jeffers, may ed v. 342 72 able seize the States U.S. have been doctrine, 93, 95-96, (1951); plain this S.Ct. 96 L.Ed. 59 United shoes under view Burns, (7th only accomplished if the States v. 37 F.3d 278-79 could have been — Cir.1994), denied, -, entry into the motel room cert. itself U.S. 115 (1995). Thus, lawful, Appellant maintains that S.Ct. 132 L.Ed.2d 840 contrast, argues entry into Appellee it was In warrantless or search of a motel not. “ subject ‘per that to the officers’ room is se ... consented unreasonable entry exceptions.’” motel room. to a few into the well-delineated Bustamonte, Appellee contends that shoes were law- Schneckloth fully any following under three 93 S.Ct. 36 L.Ed.2d 854 seized 1) (1973) States, exceptions requirement: (quoting to the warrant Katz v. United 389 347, 357, of the shoes was incident 88 S.Ct. 19 seizure U.S. L.Ed.2d 2) Tadder, arrest;10 (1967)); plain lawful the shoes were 576 accord 173 3) (1984). view; 187, 190, the shoes seized under were W.Va. S.E.2d exception exigent One such is that a circumstances.11 warrantless if permissible and search are the au Amendment, Fourth as well as have obtained thorities consent III, 6 of article section the West person grant authorized such consent. Of Constitution, protects in their individuals against general and sei It is axiomatic homes unreasonable search that the same rule, pri general principles governing zure. warrantless to search As consent person’s premises applicable are forbidden. vate are to consent searches of home Arizona, 385, 390, premises Accordingly, Mincey v. enter the well. U.S. (1978); Plantz, 2408, 2412, syllabus point eight 57 L.Ed.2d 290 of State v. Peacher, 24, 180 (1971), overruled State v. W.Va. W.Va. S.E.2d (1981). 559, part grounds by A motel room on other ex rel. S.E.2d 574-75 State White Mohn, 211, occupied temporary a is entitled v. 168 W.Va. 283 S.E.2d 914 as residence warrant, may police that a then 10. The State contends the seizure of the time to secure enter motel, private premises, case a justified and search in this a ar shoes was incidental of lawful obtaining Michigan without warrant. See v. Although to rest. we refuse that a formal hold 499, 1942, 1949-50, 509, Tyler, 436 U.S. 98 S.Ct. always precede actual search and arrest must seizure, (1978). Exigent 56 L.Ed.2d 486 circumstances be, clear our cases are that there must many recog- may exist in situations: three well seized, probable independently of the evidence police reasonably are be- nized situations when cause arrest before a lawful seizure under this to (1) safety safety may or others lieve their Kentucky, exception Rawlings See can occur. 98, v. threatened, (2) quick necessary action is to be 2556, 448 U.S. 100 S.Ct. 65 L.Ed.2d 633 evidence, prevent potential the destruction of or 623-24, 620, (1980); Farley, v. 167 State W.Va. (3) necessary prevent action is to immediate 234, (1981). 280 236 The fruits of S.E.2d Mullins, fleeing. suspect from State v. 177 See Moore, justify the v. search cannot arrest. State 531, (1987). “exigent W.Va. 355 S.E.2d 24 837, 855-56, 804, 165 272 815-16 W.Va. S.E.2d exception has not been shown to circumstances” (1980), grounds by on other State v. overruled applicable this Fields' be to case. Sheriff testi- 422, Julius, (1991); 185 W.Va. 408 S.E.2d 1 suppression hearing mony indicated at the that 53, Thomas, 640, 157 203 State v. W.Va. 651 — any have to believe that the he did not Appellant reason 445, (1974). there S.E.2d 453-54 In this case destroying was evidence at the motel justification was after the no for arrest until prior to his arrival. The sheriff also testified that Furthermore, we that search. hold infra suspects no evidence that the at the motel he had therefore, and, illegal entry was into the motel Moreover, dangerous might be to others. any pres police were seized while the evidence testimony concerning he whether be- sheriff's poisonous ent tree.” is "fruit of Appellant might was that flee the scene lieved room had [motel] the individuals in that "[i]f recognized exceptions to the war- 11. One of the knowledge happened at Metals [sic] of what Kim exigent requirement rant where circumstances they is that have fled the ... felt would entry Mincey Finally, testimony time of the or search. exist at the re- the sheriff's scene....” 385, 2408, Arizona, 392-93, might v. 437 U.S. 98 S.Ct. his concern some evidence vealed that that 2413, (1978). Exigent destroyed suspects 290 circum- the room were to 57 L.Ed.2d be if the in entry compelling need into the motel where there is a arose his stances exist leave after for action and there is insufficient room. the official 550

(1981), recognized entry premises. that a search rized we which is the officer’s onto the voluntarily 177, to 188, is not unreasonable Rodriguez, consented Illinois v. 497 U.S. 110 and, therefore, 2793, (1990) not 2801, does violate the Fourth S.Ct. 111 L.Ed.2d 148 Amendment, stating Ohio, that 1, (quoting 21-22, Terry v. 392 U.S. 88 1868, (1968)). 1879-81, is that general voluntary

[t]he rule S.Ct. 20 L.Ed.2d 889 person who owns or Finally, consent of a controls legal we review a trial court’s conclu- premises12 premises to a of such is search sions regarding suppression determinations sufficient to authorize such search without novo, de and the factual in- determinations warrant, and that search a search of such volving legal those conclusions are reviewed premises, warrant, without when con- clearly under the standard. erroneous State to, violate sented does not the constitution- Honaker, 51, 56, 96, v. 193 454 W.Va. S.E.2d prohibition against al unreasonable (1994) (citing Farley, 101 State 192 W.Va. searches and seizures. 247, (1994) Stuart, 452 S.E.2d 50 and State v. (1994)). (footnote 428, 25, 192 W.Va. 452 S.E.2d 886 155 W.Va. at 180 S.E.2d at 616 added); 3, Justice, Syl.Pt. see State v. 191 261, (1994).

W.Va. 445 S.E.2d 202 At crux of this issue is whether the consented to the offi prov The State has the burden of room, entering merely cers or his motel ac ing by preponderance of the evidence that quiesced in the their face of authorit given the consent to voluntarily. search y.13 issue, delving In helpful into this it is 403, 410, Worley, State v. 179 W.Va. 369 identify denied, relevant that factors this Court has S.E.2d cert. (1988) previously evaluating 109 utilized the volun (citing 102 L.Ed.2d 226 Hacker, example, tariness of consent.14 For State v. W.Va. 158 209 S.E.2d “ (1974)). Mullins, “Whether a consent to a W.Va. S.E.2d (1987), relying search product part is fact or is the the custodial coercion, express implied, of duress or status of in ascertaining or is a individual question voluntary consent,15 be given fact to determined from whether he had we totality Syllabus of all the found that in custody circumstances.’ an individual as a re Craft, Point illegal State v. W.Va. 272 sult of an “in position arrest was no (1980).” Syl.Pt. S.E.2d Worley, resist an request officer’s allow his home However, W.Va. at at 709. S.E.2d to be searched.” Id. at 355 S.E.2d at in making Syl.Pt. 7, concerning part. factual assessment in order to be voluntary consent, the voluntary, existence of inqui given the the consent cannot be the ry focuses product whether the facts by available of duress law enforcement or ‘“ to the officer at moment of “inherently the “war coercive tactics —either from the rant a man of police reasonable caution the nature of questioning obtaining be [in ” ’ party voluntarily lief that the had autho- or consent] the environment which it [the Similarly, joint circumstances, person 12. submitting a who has authority control over to is the premises search, may give alternative, a valid consent to rights an individual’s are not long person as the facts establish that the had waived and a Fourth Amendment claim is not requisite authority relationship "the over or to foreclosed. premises justify to be searched to his allow 3, ing police Syl.Pt. to conduct a search." Cleckley, 14. See 1 Franklin D. Handbook on West Hambrick, part, 26, State v. 177 W.Va. 350 (2d Criminal Procedure 1-289-90 ed. (1986); S.E.2d 537 see also United States v. Mat 1993) (discussing relevant factors to be consid- lock, 164, 169-72, 988, 992-94, 94 S.Ct. consent). evaluating ered in voluntariness of (1974) (stating 39 may L.Ed.2d 242 that consent validly given by person possesses be third who 15. While the status of custodial an individual authority premises). common over giving consent a to be is factor considered when determining en, voluntarily giv- is whether consent 13. Verbal consent must be "more than ‘mere " Fellers, implication authority.’ there is no concomitant that a submission to State v. 165 738, person (1980) lawfully custody or in W.Va. 267 S.E.2d detained of 741 Thomas, 652, police (quoting, part, give voluntary 157 can W.Va. at 203 never consent to Williams, 454). 309, merely S.E.2d at Where an individual search. See State v. 162 W.Va. (1978). because, 316, acquiescence mouths words of under 249 S.E.2d 763 n. 4 Schneckloth, 412 place.” cooperation U.S. level of the defendant’s with the took consent] Justice, 2058; police. Worley, generally at at at see See 191 W.Va. 209 (finding 369 S.E.2d at 713. Consider- 445 S.E.2d at that evidence W.Va. at given also been to the defendant’s established defendant’s consent to search ation has car). right to consent as awareness of his refuse Basham, case in State 159 W.Va.

was the Accordingly, sporadically rather than re- (1976), held: 223 S.E.2d 53 where we ferring factors in above-mentioned necessary, making prerequisite It not as a determinations of whether consent is obtained, obtaining voluntary voluntarily to a noncus- circuit consent has been search, court, review, that law officers and this Court on con- todial enforcement should following six give warnings Miranda16 or similar warn- sider the criteria when evaluat- relating rights, ings ing to Fourth the voluntariness of con- Amendment a defendant’s 1) 2) status; although subject’s knowledge right sent: the defendant’s custodial by is a relevant in determin- of duress or law to refuse factor the use coercive tactics 3) ing personnel; the consent enforcement the defendant’s whether was consent; right knowledge of his knowledgeable. to refuse 4) intelligence; the defendant’s education and 404-05, 54, Syl.Pt. 2 Id. at 223 S.E.2d at 5) defendant’s belief that no incrimina- (footnote added); Schneckloth, 412 accord 6) found; ting evidence will be the extent 248-49, at 93 S.Ct. at 2058-59. Addi U.S. cooperation and level of the defendant’s with tionally, the defendant’s education and intelli personnel. enforcement each the law While gence factors this has used in are Court generally of these criteria is relevant in ana- voluntarily ascertaining whether consent was voluntarily, lyzing given whether consent is Schneckloth, given. at See U.S. dispositive controlling in no one factor is or (stating S.Ct. at 2058-59 that voluntariness determining the of consent voluntariness takes into account evidence of minimal to be since such determinations continue schooling intelligence); and low totality of based on the the circumstances.17 Williams, W.Va. S.E.2d Worley, 179 W.Va. at 369 S.E.2d at See (1978) (“The intelligence person of a consenting allegedly to search is a factor in determining be considered the voluntari case, Unfortunately, present in the search.”). Williams, of a consent In we ness court failed to its consider the circuit discuss given at also considered whether consent was any of these or to articulate ation of factors no time when the defendant believed that underlying upon which it any of the facts incriminating evidence would be found entry. to find a consensual relied evaluating the voluntariness of consent. Id. suppression hear review of the record (“[T]he 317, 249 at 763. conclusion at S.E.2d ings in this case establishes that Sheriff officers, product not of free Fields, that the consent was accompanied two other alleged by the will is reinforced fact that room at 2:20 motel went given a time when motel room consent to search at The sheriff knocked on the a.m. any “opened” in Appellant still denied involvement or “answered” the defendant and the door, investigation.”). Finally, in into under after which the officers went the crime the consent, any of evi determining we room. The record is devoid voluntariness of the presented by the which indicates given consideration to the extent and dence State have 1803-04, L.Ed.2d L.Ed.2d 111 S.Ct. 16. See 384 U.S. (1966). (1991). objective Under the reasonableness 297 standard, police only to the obtain a consent if important to the above-men- It is note that 17. enter, seize officers be able to then the would apply a criteria to the evaluation of both tioned defendant’s plain view. or contraband which was in evidence However, enter, consent to as well as a defen- proceed officers to further if the wish However, we are not dant's consent to search. suggesting excep- premises using the the consent and search gives consent to that once defendant requirement, they first must the warrant tion to enter, police officers have carte blanche consent separate the to search from obtain a consent scope premises as of the the well. The to search defendant. by objective determined of consent is a standard Jimeno, See reasonableness. Florida Appellant they that the officers asked the if ruling, reality, the favorable in the burden of room, Ap- could enter the motel or that the proof on the consent issue had not been met. pellant any voluntarily in manner told the Syllabus, Thompson Steptoe, 179 W.Va. they permission officers that had his to enter (1988). certainly S.E.2d 647 It the room. within possibilities the realm of for the State recognized to have this during flaw trial and only The State’s evidence which requested the trial reopen pre- court to the support tended to Appellant that the con suppression hearing trial in order to consider sented to the is in found Sheriff Fields’ testimony more concerning the consent issue. testimony at trial where he stated that the See id. at (stating S.E.2d at 649 n. 2 Appellant “opened point the door and at that “ability that suppression to reconsider rul- in time I entered the room. He Appel [the ings has not been confined to cases in which (Emphasis lant] asked me to come in.” add ed). reopening operate would Had the the brought to the defendant’s trial favor”). However, during court’s attention suppression the absent a motion the hearing Appellant that the had State which trigger invited the would the trial court’s room, officers to enter the duty and had the trial to revisit suppression its decision on the court determined that issue, State, invita appeal, on can not use trial voluntarily tion was made under the circum testimony to pre-trial correct an erroneous stances, then the trial court would have had ruling. support finding evidence to Appel that the Consequently, considering totality lant indeed rendered a consent to presented the circumstances to the lower However, enter. there authority is no to court, we conclude that since the State failed support position upon appel State’s that present sufficient support evidence to review, late we should consider the sheriffs finding on Appellant whether the consented testimony at upholding trial the trial entry, the officers’ the trial finding court’s ruling court’s which pre-trial arose out of the Appellant that voluntarily suppression hearing. consented to itWhile is clear that clearly Honaker, enter was authority “[a] trial court has erroneous. See to reconsid 193 W.Va. at prior er and set aside 454 S.E.2d granting Having its order at 101. defendant’s motion concluded that suppress Appellant confession did not volun- presented tarily search, when with new or consent to additional evi we also conclude dence that would have a that substantial effect on the trial court in admitting erred ruling[,]” problem the court’s this case shoes in evidence.18 all is that the State obtained a ruling favorable other derivatively evidence which was re- regard with suppression and, hearing illegal ceived as a result of entry19 is also therefore, recognize failed to inadmissible,20 that even with since that evidence falls within only way 18. that evidence could have been probable search warrant was obtained on cause properly seized under the facts of emanating this case was illegal entry from the officers’ pursuant plain exception room, to the view Appellant's to the war- motel the evidence obtained as requirement rant and the State cannot establish origins a result of the second search has its in the requirement plain the first and, therefore, view which illegal entry is that officers’ would be "the officer did not violate the Fourth Amend- Appellee inadmissible unless the can demon- arriving ment place at the exceptions from which the strate exclusionary one of the to the incriminating Syl. evidence could be rule viewed[.]” found in note 20 The excluded evi- infra. Julius, part, Pt. 185 W.Va. at dence clothing would include not ob- S.E.2d at 3. tained subsequent from the to his ar- rest, but also the evidence seized as a result of According Stiles, testimony Deputy Appellant's the second search of the motel room. he obtained the search warrant to conduct the second search illegal of the 20.Evidence obtained as a motel room result of the upon 1) police following may based conduct still be information: admissible if the State arrest; 2) Appellant's can locating demonstrate that the officers evidence was not a Motel; product "exploitation in a room at of the illegality.” the Heldreth of the and 1 3) designs Cleckley, supra the shoe sole plant by pre- left note at at the 1-210. We have perpetrators viously were held: consistent with the shoe sole designs of the Griffy’s and Mr. generally recognized shoes There are excep- three seized from motel (1) room. Since exclusionary the second tions to the rule: where evi- poisonous majority purview opinion, of the “fruit of the As set forth generally tree” issue of “... doctrine. See State Good whether a consent is in fact mon, product 170 W.Va. 290 S.E.2d or is the of duress or (1981); coercion, Cleckley, supra express implied, question note at 1-208- or ais fact to totality be determined from the all the circumstances.” As a result of the com- foregoing, Based on the of the decision panion co-defendants, cases of there were County hereby of Preston is Circuit Court several suppression hearings in camera proceed- reversed and remanded for further which dealt with the consent issue in this ings opinion. consistent with this case, during which the trial court heard and Reversed and remanded. and, pre- observed the individual witnesses sumably, opinion formed an as to the accura- RECHT, JJ., BROTHERTON and did not cy testimony. and truthfulness of Ap- their participate. pellate equal judging courts have no basis for testimony, they the witnesses’ inasmuch as MILLER, J., FOX, Judge, retired transcribed, have “cold” record at sitting by temporary assignment. disposal. suppression hearings their These POX, dissents, Judge and reserves the also opportunity afforded the trial court the right dissenting Opinion. to file a totality circumstances, to assess the of the again, opportunity easily an not so assumed FOX, Judge, dissenting:1 by appellate courts. (Filed 1995) July majority points out that the circuit respectfully I majority opin- dissent to the court failed to discuss its consideration of the ion, law, incorrectly not it because states the syllabus point criteria set forth in 3 of the Indeed, provides signifi- for it does not. it and, indeed, majority opinion, no such discus- guidance cant to both the bench and bar as part judge. sion was undertaken on the proper application to the of the criminal law However, this does not mean that the various relating to consent. not, fact, relevant criteria were considered. Rather, because, I having dissent properly by And I am somewhat concerned the ever- substantially stated clarified the law of increasing requirement placed upon trial consent, majority proceeds then to sub- courts, courts, by appellate to elucidate judgment for stitute its that of the trial court rulings questions. their on factual Such i.e., purely determination, on a factual wheth- requirement particularly is since burdensome entry er the of the law enforcement officers courts, facing trial in addition to ever-in- into the defendant’s motel room was consen- dockets, creasing must also consider factors sual. standards, speedy-trial rights, such as time question, juries. Without the evidence of the de- and the economical and efficient use of that, “voluntary realizing fendant’s consent” to the of But absent such elucidation as sparse. fact-finding, many his room was Fields it for a Sheriff testified is times difficult defendant, reviewing responding appellate that the court to determine if the Sher- knock, defendant, ruling question “... us trial iffs let in.” The court’s on of fact was hand, evidence, “[t]hey appropriate begrudg- on the other said forced their- under the ingly accept responsibility. self in on me.” [sic] this creseive sought indepen- dence to be introduced has an 1. Pursuant to an administrative order entered source, (2) this Court on 18 November the Honorable dent where the evidence would Fox, II, Judge the Sixteenth Judicial Fred L. discovered, (3) inevitably have been and where Circuit, assigned to sit as a member of the police the connection between unconstitutional Appeals Virginia Supreme Court of com- discovery conduct and the of the evidence is so continuing through mencing January 1995 and any origi- attenuated as to remove taint of the physical incapaci- because of the 31 March illegality. nal Brotherton, ty of Justice W.T. Jr. On 14 Febru- Hawkins, Syl.Pt. W.Va. subsequent ary order ex- 1995 a administrative denied, (1981), S.E.2d cert. assignment tended this until further order of said (1982). 71 L.Ed.2d 468 Court. However, case, question in the instant one, fairly simply

of fact was a and its resolu- depended entirely you

tion almost on “who

believe.” The trial court heard the witnesses

and found more credible the State’s evidence in,”

that the been “let ... officers had

opposed to the defendant’s evidence that (sic)

“they forced theirself in on me.” The

failure to individualize each of the six criteria syllabus point 3 should not be fatal to the

trial court’s factual determination. He heard witnesses, credibility, he assessed their totality

he determined what was the

circumstances, and he found the defendant voluntarily

had consented to the Sheriff’s

entry. record, disposed

On the whole I am not

conclude, majority, as does the that the State present

“failed to sup- sufficient evidence

port finding on whether the con- entry.”

sented to the I officers’ am even less

disposed to hold that trial finding court’s “clearly wrong.”

of fact on this issue was I point

need not out that there is a substantial questioning

difference between the basis for ruling finding a trial court and that it clearly wrong. case,

Bottom line: in the instant it was the call, properly would,

trial court’s made.

therefore, validate the seizures and sustain

the convictions.

461 S.E.2d 60

LAWYER DISCIPLINARY

BOARD, Respondent,

George II, B. A VIEWEG Former

Member of the West Bar, Petitioner.

No. 22777.

Supreme Appeals Court of Virginia. May

Submitted 1995. July

Decided

Case Details

Case Name: State v. Buzzard

Court Name: West Virginia Supreme Court

Date Published: Jul 13, 1995

Citation: 461 S.E.2d 50

Docket Number: 22531

Court Abbreviation: W. Va.