State v. Barefield

814 S.E.2d 250

STATE of West Virginia, Plaintiff Below, Respondent

v.Cortez L. BAREFIELD, Defendant Below, Petitioner

No. 17-0227

Supreme Court of Appeals of West Virginia.

Submitted: April 11, 2018

Filed: May 17, 2018

Matthew Brummond, Esq., Public Defender Services, Charleston, West Virginia, Attorney for Petitioner

Patrick Morrisey, Esq., Attorney General, Zachary Aaron Viglianco, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for Respondent

Workman, C. J.:

This is an appeal from the November 30, 2016, order of the Circuit Court of Wood County sentencing petitioner Cortez Barefield (hereinafter "petitioner") to one to fifteen years in the penitentiary on his conviction of possession of a controlled substance, cocaine, with intent to deliver. Petitioner asserts that the circuit court erred by admitting evidence seized from petitioner in violation of the Fourth Amendment to the United States Constitution and Article III, section 6 of the West Virginia Constitution. Specifically, petitioner claims that evidence seized from his person was obtained without a search warrant and that none of the exceptions to the warrant requirement are satisfied.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we find that the circuit court erroneously admitted evidence seized as the result of an unlawful, warrantless search, which fails to satisfy any of the exceptions to the warrant requirement. We therefore reverse petitioner’s conviction and remand for a new trial.

I. FACTS AND PROCEDURAL HISTORY

On January 21, 2015, Officer Michael Pifer ("Officer Pifer") of the Vienna Police Department and member of the Parkersburg Violent Crime and Narcotics Task Force unit obtained a search warrant for 925 Lynn Street, Parkersburg, West Virginia, which home was owned by Eric Salyers. Officer Pifer provided an affidavit in support of probable cause that stated that a confidential informant advised him that Mr. Salyers and his wife Keisha were selling heroin from their residence. The confidential informant then engaged in two controlled purchases of heroin at the residence from Mr. Salyers. Based upon this information, Officer Pifer’s affidavit requested a search warrant for the residence at 925 Lynn Street and that the warrant "cover all structures on this property," and "shall also cover search of any vehicles and persons located on this property ." (emphasis added).

Magistrate Brenda K. Marshall issued a form search warrant referencing a list of items to be seized from 925 Lynn Street including controlled substances, records, currency, photographs, paraphernalia, firearms, and other evidence of possession with intent to distribute controlled substances. In the section provided for "grounds for probable cause," the warrant states "See Affidavit." The warrant then states:

You are therefore, commanded in the name of the State of West Virginia to search forthwith the premises above described and all appurtenances thereto for the property above specified, to seize such property and bring the same before me to be dealt with according to law.

(emphasis added).

A SWAT team then executed the search warrant at 925 Lynn Street, removing petitioner and three other people from a bedroom in the home to search it. Arrest warrants were served on Mr. Salyers, his wife, and Kalem Casto, an acquaintance of the Salyers who was living in their guest room. Petitioner was handcuffed and removed to the front yard where he was subjected to a second pat-down and search by Officer Pifer. Officer Pifer seized approximately $865 in cash, a pay stub, an Ohio ID card belonging to petitioner, a social security card, and a VISA debit card in someone else’s name from petitioner’s person. During the search of the home, the police found three separate controlled substances in the bedroom where petitioner was found and therefore arrested petitioner and the three other individuals who were in the bedroom.

Petitioner was indicted on three counts of possession with intent to deliver, second offense; the three controlled substances were cocaine, methamphetamine, and oxycodone. At trial, Kalem Casto testified that he was at the residence at the time of the raid and had sold heroin to two individuals there; those same individuals also wanted to buy crack cocaine, but Mr. Casto had none. He contacted petitioner to bring crack cocaine to sell to the individuals. Petitioner came to the residence and waited in the bedroom for the individuals to return with more money to buy the cocaine. It was at this time that the raid occurred. Mr. Casto denied that any of the drugs found in the bedroom belonged to him or any other individuals in the room.¹ Mr. Salyers also testified that he was present at the home and saw petitioner arrive with several baggies containing crack cocaine and methamphetamine; he testified that petitioner discussed having oxycodone as well. Both Mr. Casto and Mr. Salyers agreed to give testimony against petitioner as part of their plea agreements.

Prior to trial, petitioner filed three motions to exclude all or part of the evidence seized from his person during the raid. During the evidentiary hearings on the motions, Officer Pifer testified that the individuals in the bedroom were brought outside of the home to process both the people and property and ensure no one tampered with evidence. Officer Pifer confirmed that petitioner was patted down and handcuffed by the SWAT team before he searched him outside. Importantly, Officer Pifer testified that he believed that he was acting pursuant to the search warrant when he searched petitioner’s person. He stated he was searching for both weapons and contraband. He further testified that while on the scene, due to the discovery of drugs in the bedroom where petitioner was located, he developed probable cause to arrest petitioner and typically, incident to arrest, he performs an inventory search on items on an individual. He stated that he knew the home to be one used for drug transactions and that petitioner specifically was known to him as being someone involved in a prior controlled buy at the Red Roof Inn. Officer Pifer conceded that although his search occurred before the drugs were found, he would have kept petitioner in custody until that search was completed and therefore the items seized would have been discovered on his person incident to arrest.

The circuit court denied petitioner’s motions to suppress, finding that the search of petitioner was not unreasonable because of petitioner’s presence at the home, where the police had "reliable information that the residence was being used at the time as a place from which controlled substances were being bought and sold." The circuit court further referenced Officer Pifer’s familiarity with petitioner’s involvement in drug trafficking and the need to ensure he and others were neither a safety risk nor destroyed contraband. The circuit court seemingly also referenced the inevitable discovery rule by stating that Officer Pifer could have "replace[d]" the evidence on petitioner’s person and then "seize[d] it again after unlawful drugs were found in the home."

Petitioner was found guilty of only one count: possession of a controlled substance, cocaine, with intent to deliver. He was found not guilty of possession of methamphetamine and oxycodone. The circuit court sentenced him to one to fifteen years and this appeal followed.

II. STANDARD OF REVIEW

It is well-established that

the ultimate determination as to whether a search or seizure was reasonable under the Fourth Amendment to the United States Constitution and Section 6 of Article III of the West Virginia Constitution is a question of law that is reviewed de novo .... Thus, a circuit court’s denial of a motion to suppress evidence will be affirmed unless it is unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a mistake has been made.

Syl. Pt. 2, in part, State v. Lacy , 196 W. Va. 104, 468 S.E.2d 719 (1996). "When we review the denial of a motion to suppress, we consider the evidence in the light most favorable to the prosecution." State v. Lilly , 194 W. Va. 595, 600, 461 S.E.2d 101, 106 (1995). With these principles in mind, we proceed to petitioner’s assignment of error.

III. DISCUSSION

Petitioner raises only one assignment of error: that the seizure of the items² from his person during the execution of the search warrant were the result of an illegal warrantless search and that no recognized legal exceptions to the warrant requirement apply. The State maintains that the warrant permitted the search of all persons on the premises, including petitioner, and that in any event, the evidence is admissible pursuant to the inevitable discovery doctrine since it would have been discovered during a search incident to arrest of petitioner.³ Petitioner counters that no probable cause to arrest him existed and therefore, there was no lawful arrest to which a search would have been incident. While we ultimately conclude that the warrant at issue, neither on its face nor as an "all persons" warrant, lawfully permitted the search of petitioner, we take this opportunity to address the potential validity of such a warrant as well as the requirements for its proper procurement and issuance.

A. Validity of the Search Warrant

This Court long-ago held that

[a] search warrant ... cannot be extended to authorize the arrest or search of a person not in any way connected with the place directed to be searched, who merely happens to be upon the premises, and who is not mentioned or described in the warrant or affidavit of probable cause upon which the warrant was issued.

Syl. Pt. 1, in part, State v. Massie , 95 W. Va. 233, 120 S.E. 514 (1923) ; see also Syl. Pt. 3, in part, Lacy , 196 W. Va. 104, 468 S.E.2d 719 ("A search warrant must particularly describe the place to be searched...