STATE of West Virginia, Plaintiff Below, Appellee, v. Bruce Allen LILLY, Defendant Below, Appellant, and STATE of West Virginia, Plaintiff Below, Appellee, v. Cecil Wayne LILLY, Defendant Below, Appellant.
Nos. 22541, 22542
Supreme Court of Appeals of West Virginia
July 17, 1995
461 S.E.2d 101
Submitted May 16, 1995. Concurring Opinion of Justice Cleckley July 19, 1995.
[w]hen dealing with the wrongful admission of evidence, we have stated that the appropriate test for harmlessness is whether, after stripping the erroneous evidence from the whole, we can say with fair assurance that the remaining evidence independently was sufficient to support the verdict and the jury was not substantially swayed by the error. State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).
The majority then concludes that “[a]fter excluding all the impermissible evidence, we cannot say the jury would have arrived at the same result considering the pervasive nature of the evidence admitted[,]” without any real examination of the totality of the evidence the State presented in this case.
To arrive at its conclusion, the majority simply ignores the weight of the evidence introduced at trial. The State offered the testimony of a neighbor, Mrs. Harris, who contradicted the Defendant‘s story that he accidentally shot his wife with a shotgun in the living room of his home, then immediately called 911 and ran out of the house. Mrs. Harris testified that she did not hear a shotgun blast at the time the Defendant alleged he shot his wife. Further, Mrs. Harris, as well as another witness testified that they had observed the Defendant arriving home the morning his wife was shot wearing camouflage clothing, but no such clothing was ever recovered from the crime scene. Further, the Defendant claimed that his wife‘s body was found where she was shot while lying on the sofa; however, the State‘s forensic evidence showed that the body had been moved and gunpowder stippling patterns on the victim‘s body indicated that she had not been lying down at the time of the gunshot. Moreover, the Defendant testified that he had returned home from turkey hunting the morning of the shooting after he shot at a turkey and missed, expelled a shell, and the gun jammed. The Defendant further testified that when he returned home, he began to run shells through the chamber and that the gun suddenly discharged killing his wife. The gun, however, was examined by the manufacturer and determined not to be defective. Thus, even without considering any of the statements, there was certainly ample evidence to sustain the Defendant‘s conviction due to the inconsistencies between the Defendant‘s statement to the police and what the evidence actually showed.
It is difficult to understand how Justice Cleckley, as West Virginia‘s leading expert on evidence, could have reasoned this opinion in this manner. I must conjecture that he wanted an opportunity to write on Rule 803, and the law he sets forth is excellent in the abstract. But on re-trial, the State will not have the benefit of the whole line of cases cited herein (and not overruled or declined to be followed by the majority) in presenting to the jury perfectly good and admissible evidence of the Defendant‘s motive.
For the foregoing reasons, I dissent.
Paul S. Detch, Lewisburg, for appellant, Bruce Allen Lilly.
Barry L. Bruce, Barry L. Bruce & Associates, Lewisburg, for appellant, Cecil Wayne Lilly.
FRED L. FOX, II, Judge:1
The issue before us, brought in the context of a proceeding pursuant to
I.
FACTS AND PROCEDURAL HISTORY
On 13 April 1993, Greenbrier County Deputy Sheriff Corporal D.L. Livingston requested a warrant to search the residence of the appellants, Bruce Allen Lilly and Cecil Wayne Lilly. This request was based on information received from a supposedly confidential and reliable informant who said the appellants were growing marijuana at their residence.
Following a search of their residence, the appellants were arrested and charged with violations relating to the manufacture and possession of controlled substances and alcoholic liquors. Prior to trial, the appellants moved to suppress the seized evidence on the grounds the search warrant affidavit was “bare bones and conclusory” and insufficient to establish probable cause. The affidavit provided, in relevant part:
“A reliable confidential informant informed Cpl. H. Whisman, that accused was growing marijuana plants in above residence. Cpl. Livingston spoke to informant and was advised by informant that accused has 30-50 plants in residence and also advised Cpl. Livingston that informant has seen the plants within the last 5 days and accused told informant that the plants were marijuana.” /s/ Corporal D.L. Livingston.
An evidentiary hearing on the motion to suppress was held on 22 November 1993. The focus of this hearing concerned the sufficiency and truthfulness of the search warrant affidavit. At the hearing, counsel for Cecil Lilly called the magistrate who issued the search warrant to testify. The magistrate stated she did not electronically record any testimony regarding the affidavit nor was a court reporter present. On cross-examination, the prosecuting attorney asked the magistrate if she could recall any of the circumstances surrounding the issuance of the warrant. Specifically, he asked if she believed Corporal Livingston had a “follow-up conversation” with the informant in addition to the original tip that the appellants were growing marijuana in their house. Counsel for Cecil Lilly objected to the testimony and argued it was impermissible to take additional evidence beyond the “four corners” of the affidavit. The objection was overruled. The magistrate responded by stating she “issued the warrant based upon the wording in there that said the informant had been in the residence and did know and was informed by the accused that that was marijuana ... that was the reason that I felt the informant was reliable.”
The prosecuting attorney called Corporal Livingston to testify. On cross-examination, Corporal Livingston indicated that he had no personal knowledge of the informant‘s reliability or veracity and his prior statement about the informant‘s reliability was based on information furnished by Corporal Jake Whisman to the effect that he (Whisman) had previously used the informant. According to Corporal Livingston, Corporal Whisman told him the informant “basically wasn‘t playing with a full deck, but all the information he
After hearing the testimony, the circuit court scheduled another hearing to be held on 14 December 1993, to rule on the motion to suppress. At the conclusion of that hearing, the circuit court denied the motion. Thereafter, the appellants accepted a conditional plea agreement whereby they were to plead guilty to the felony offense of manufacturing a controlled substance. On appeal, the appellants assert the circuit court erred when it denied their motion to suppress.
II.
DISCUSSION
The appellants in this appeal raise several important Fourth Amendment issues: (1) whether the magistrate violated the “four-corner” doctrine when she allegedly relied and used information outside the affidavit to find probable cause3; (2) whether the police intentionally or recklessly gave false information to the magistrate to secure the search warrant; and (3) whether the information given to the magistrate was sufficient. The prosecuting attorney asks this Court to decide the vitality of the “good faith” exception to West Virginia proceedings. We find only two of the appellants’ contentions merit discussion. After a brief discussion as to the standard of review applicable to this case, we address both contentions seriatim.4
A. Standard of Review
The standard of review of a circuit court‘s ruling on a motion to suppress is now well defined in this State. See State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994) (discussing at length the standard of review in a suppression determination). By employing a two-tier standard, we first review a circuit court‘s findings of fact when ruling on a motion to suppress evidence under the clearly erroneous standard. Second, we review de novo questions of law and the circuit court‘s ultimate conclusion as to the constitutionality of the law enforcement action. Under the clearly erroneous standard, a circuit court‘s decision ordinarily will be affirmed unless it is unsupported by substantial evidence; based on an erroneous interpretation of applicable law5; or, in light of the entire record, this Court is left with a firm and definite conviction that a mistake has been made. See State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886, 891 (1994). When we review the denial of a motion to suppress, we consider the evidence in the light most favorable to the prosecution.
B. Intentional Use of False Information
First, the appellants argue the magistrate was misled by information that
The reviewing court then must determine whether, either absent the false material or supplemented with the omitted material, the remaining content of the affidavit is sufficient to establish probable cause. See Franks, 438 U.S. at 156, 98 S.Ct. at 2676-77, 57 L.Ed.2d at 672; State v. George, 185 W.Va. 539, 547, 408 S.E.2d 291, 299 (1991). If the remaining content is insufficient to establish probable cause, the warrant must be voided and the evidence or statements gathered pursuant to it excluded. State v. Thompson, 178 W.Va. 254, 256, 358 S.E.2d 815, 817 (1987). Mere negligence or innocent mistake is insufficient to void a warrant. Franks, 438 U.S. at 171, 98 S.Ct. at 2684, 57 L.Ed.2d at 682.
Under Franks/Walls, a statement in a warrant is not false, however, merely because it summarizes facts in a particular way; if a statement can be read as true, it is not a misrepresentation. In Wood, this Court emphasized the degree of deference to be given to the findings of a circuit court where there is conflict. Such deference also is appropriate where two interpretations reasonably may be drawn from the facts and one of the interpretations supports the circuit court‘s determination. Clearly, Wood establishes the proposition that findings of a circuit court concerning whether an affidavit contains deliberately falsified information are not subject to reversal unless they are clearly wrong. 177 W.Va. at 354-55, 352 S.E.2d at 105-06 (1986); see also United States v. Fawole, 785 F.2d 1141 (4th Cir.1986). Again, a search warrant affidavit is not invalid even if it contains a misrepresentation, if, after striking the misrepresentation, there remains sufficient content to support a finding of probable cause. Probable cause is evaluated in the totality of the circumstances.
Specifically, the appellants argue the affiant officer, Corporal Livingston, permitted the inclusion of inconsistent statements and false impressions in the affidavit and concealed or overstated other information with regard to the informant‘s reliability and veracity; however, this statement was based on Corporal Whisman‘s comment that he previously used the informant. As we have previously reasoned, in considering the findings of a circuit court under the Franks/Walls standard of review, we only look to determine whether the record as a whole supports the findings. In this case, we only need to determine whether there is evidence that supports the statement that the informant was credible and reliable and whether the affiant discussed the informant with Cor-
C. Lack of Probable Cause to Support Issuance of Warrant
The appellants launch a two-pronged attack on the probable cause finding in this case. First, they argue the magistrate could not have made an informed decision because the allegations in the affidavit concerning the informant‘s veracity were “bare bones and conclusory[.]” Second, at oral argument, the appellants contended the affiant officer provided the magistrate with no independent information or proof that there was any independent corroboration of the highly unilluminating statements of the informant.
Probable cause for the issuance of a search warrant exists if the facts and circumstances provided to a magistrate in a written affidavit are sufficient to warrant the belief of a prudent person of reasonable caution that a crime has been committed and that the specific fruits, instrumentalities, or contraband from that crime presently may be found at a specific location.10 It is not enough that a magistrate believes a crime has been committed. The magistrate also must have a reasonable belief that the place or person to be searched will yield certain specific classes of items. There must be a nexus between the criminal activity and the place or person searched and thing seized. Franklin D. Cleckley, Handbook on West Virginia Criminal Procedure I-358 (1994). The probable cause determination does not depend solely upon individual facts; rather, it depends on the cumulative effect of the facts in the totality of circumstances.
Here, the issue of probable cause is impacted by the use of a confidential informant. A key issue in determining whether information provided by an informant is sufficient to establish probable cause is whether the information is reliable. An informant may establish the reliability of his information by establishing a track record of providing accurate information. Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527, 545 (1983). However, where a previously unknown informant provides information, the informant‘s lack of a track record requires some independent verification to establish the reliability of the information. See State v. Hlavacek, 185 W.Va. 371, 407 S.E.2d 375 (1991); State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762 (1986); State v. Schofield, 175 W.Va. 99, 331 S.E.2d 829 (1985). Independent verification occurs
We begin by observing that Corporal Livingston‘s affidavit did not disclose why the informant could be considered “reliable.” It failed to disclose whether any information previously provided by the informant related to an investigation of his own narcotic or drug-related activities or similar activities by other persons; whether his information was important or incidental in other criminal investigations; or whether the information of the informant ever resulted in any search warrants, arrest warrants, or convictions. Here, there is not even an averment that the informant provided reliable information in the past—which obviously is preferable to the mere statement in the affidavit that the person supplying the information “is reliable.” The malady of this general averment is that it still “leaves the nature of that [past] performance undisclosed, so that the judicial officer making the probable cause determination has no basis for judging whether the [affiant‘s] characterization of [the informant as reliable] is justified“—the magistrate remains relegated, albeit in a more attenuated sense, to relying on an affiant‘s reliability judgment. 1 Wayne R. LaFave, Search and Seizure § 3.3(b) at 636 (2nd ed. 1987). Therefore, the allegation of reliability in Corporal Livingston‘s affidavit should have been “entitled to only slight weight.” United States v. Miller, 753 F.2d 1475, 1480 (9th Cir.1985).
Discounting the affidavit‘s allegation of the informant‘s reliability, however, does not end our inquiry. “[E]ven if we entertain some doubt as to the informant‘s motives, [an informant‘s] explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case.” Gates, 462 U.S. at 234, 103 S.Ct. at 2330, 76 L.Ed.2d at 545. Furthermore, under the totality of the circumstances announced in Gates, “veracity” and “basis of knowledge” are no longer viewed as independent prerequisites to a finding of probable cause: “[A] deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability” such as corroborating evidence gathered by law enforcement. Gates, 462 U.S. at 233, 103 S.Ct. at 2329, 76 L.Ed.2d at 545.11 In the instant case, the affidavit states the “informant had seen the plants within the last 5 days and accused told informant that the plants were marijuana.” Considering the discretionary nature of the magistrate‘s determination, we find the informant‘s statement, although general and generally vague, was based on firsthand observations and demonstrated an adequate “basis in knowledge.”12 As a result, the central question becomes whether there was sufficient
The appellants’ second argument goes precisely to this issue of corroboration. Their argument is both appealing and persuasive. There are several different ways for the police to corroborate an informant‘s “veracity.” One way is to independently confirm what the informant said is true.13 Another way is to create circumstances under which the informant is unlikely to lie. Here, the magistrate was not provided with any information as to why and how the informant made his observations. For example, such information may include whether the informant made his observations in the context of a controlled surveillance operation and reported intermittently to a supervising police officer who was able to corroborate the informant‘s access to the appellants.14 Relevant information also may include whether a questionably reliable report given by an informant consists of facts readily verifiable so, if the warrant is issued, lies likely would be discovered quickly and favors falsely curried would dissipate rapidly. Accord 1 LaFave, supra, § 3.3(f) at 686-87. Finally, the corroboration requirement could be met by information contained in police files about the appellants. See United States v. Scalia, 993 F.2d 984, 988 (1st Cir.1993) (corroboration may derive from second-hand information in the police intelligence files).
Even considering the discretionary nature of a magistrate‘s determination and our limited task on appeal only to ensure that there is a “substantial basis” for the conclusion, under the totality of circumstances presented before the magistrate in this case, we are compelled to say the finding of probable cause was without such a “substantial basis.” Indeed, no aspects of the informant‘s prediction were corroborated by independent observations of the police. Thus, the value of the information was diminished because of the complete lack of corroboration. As we stated in Adkins, “[t]here are no facts in the affidavit indicating that police investigation had tended to corroborate the informant‘s tip such as existed in the Gates’ affidavit.” State v. Adkins, 176 W.Va. 613, 624, 346 S.E.2d 762, 774 (1986). Moreover, the reliability of the information was not enhanced by the fact that the informant was able to describe some factual details that were not easily discovered.15 See Gates, 462 U.S. at 245, 103 S.Ct. at 2335, 76 L.Ed.2d at 552-53. To the contrary, the information in the affidavit was “bare bones” at best and standing alone hardly could support a finding of probable cause under either Gates or Adkins.
Accordingly, we hold that the issuance of the search warrant was not supported by probable cause and, therefore, violated the Fourth Amendment to the United States Constitution and Section 6 of Article III of the West Virginia Constitution.16
III.
CONCLUSION
For the foregoing reasons, we find the Circuit Court of Greenbrier County erred by denying the appellants’ motion to suppress. Therefore, we reverse the order of the circuit court denying the motion and remand this case for further proceedings.
Reversed and remanded.
BROTHERTON and RECHT, JJ., did not participate.
MILLER, Retired J. and FOX, Judge, sitting by temporary assignment.
CLECKLEY, J., concurs and reserves the right to file a concurring opinion.
I agree entirely with another of Judge Fox‘s fine and scholarly opinions. I write only to applaud the trial court, the litigants, the prosecuting attorney, and defense counsel below for their use of
As a general rule, an unconditional plea of guilty or nolo contendere, intelligently and
In West Virginia, conditional pleas are authorized by
“Conditional Pleas. With the approval of the court and the consent of the state, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.”
Prior to our adoption of
Although a conditional guilty plea can only be used in limited circumstances,4 as done in the case sub judice, it spares the taxpayers and the court the expense of a potentially time consuming trial.
The procedure for following
It is important for the defendant to understand that
On the other hand, “[t]he conditional plea is susceptible to abuse ... unless its use is carefully limited to significant issues the determination of which on appeal is likely to be dispositive of the case.” State v. Madera, 198 Conn. 92, 101, 503 A.2d 136, 141 (1985). Therefore, as an appellate court, we will review with caution the entire record to determine whether the litigants or the court below offered satisfactory justification as to why the procedure under
“The inherent power of the trial court to reject such a plea where it is clearly inappropriate affords some protection against misuse of the statutory procedure, but the court is not in a position to evaluate such prosecutorial concerns as the significance of a particular ruling to the ultimate disposition of a case or the problems entailed by delaying a trial for the period necessary to obtain appellate relief. The prosecutor is ordinarily much more familiar with the evidence to be presented that may not be affected by the ruling and also with the effect of delay incident to an appeal upon the availability of witnesses. Even where the prosecutor looks favorably on the conditional plea ... the parties, as well as the trial court, must be sure that the issues reserved can properly be reviewed on the record available.”
In the case sub judice, the record made by the trial court was exemplary and this Court did not hesitate to approve the conditional plea procedure. I conclude by again applauding the participants below and particularly the trial court for making this system of criminal justice work as it should.
Notes
Pleas. (a) Alternatives....
(2) Conditional Pleas. With the approval of the court and the consent of the state, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.
Under the terms of the conditional plea, the appellants pleaded guilty to the felony offense of manufacturing a controlled substance, but specifically reserved their right to appeal the circuit court‘s denial of the motion to suppress the evidence found in their residence.
Conditional pleas are frequently confused with “Alford” pleas, named after the decision in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); but, as the court in note 1 of State v. Hodge, 118 N.M. 410, 412, 882 P.2d 1, 3 (1994), noted, the purpose and effect of the two are different:“In Alford, the United States Supreme Court held that courts do not violate due process when they accept guilty pleas from defendants who continue to protest their innocence ... so long as the court is satisfied that there is a factual basis for the plea independent of the defendant‘s statements.... An Alford plea, however, does not in itself reserve any issue for appeal.
“A conditional guilty plea, on the other hand, conditions the plea on reservation of one or more specific issues for appellate review. An Alford plea could be conditioned on review of a specific issue, as it was in the case involved here ...; but it is a conditional guilty plea only if it comports with the requirements for such a plea. Otherwise, appellate review of Alford pleas is conducted under the same standards as are applicable to review of unconditional guilty pleas.” (Citations omitted).
Thompson, 178 W.Va. at 257, 358 S.E.2d at 818 (citations omitted).In Gates the [C]ourt reasoned that different elements of probable cause should not be understood as separate, independent, mechanical requirements that have a technical, talismanic quality. Rather, the [C]ourt held, all aspects of a warrant application should be viewed as part of a bundle of tightly intertwined issues that may usefully illuminate the common sense, practical question of whether there is “probable cause.”
170 W.Va. at 424, 294 S.E.2d at 277.The fact that the affidavit did not detail the facts supporting the reliability of the informant does not render it invalid. We addressed this problem in State v. White, 167 W.Va. 374, 280 S.E.2d 114 (1981), where we said in Syllabus Point 1:
“‘A valid search warrant may issue upon an averment that an unnamed informant was an eyewitness to criminal activities conducted on premises described in the warrant.‘”
462 U.S. at 245, 103 S.Ct. at 2335, 76 L.Ed.2d at 552-53 (footnote omitted). Thus, the amount of detail provided by the informant may alone be enough to make the information trustworthy. On the other hand, general information when coupled with anonymity severely undercuts the reliability of the information.[T]he anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.... If the informant had access to accurate information of this type it was not unlikely that he also had access to reliable information of the ... alleged illegal activities.