State v. Deem

849 S.E.2d 918

STATE of West Virginia, Plaintiff Below, Respondent

v.Joshua S. DEEM, Defendant Below, Petitioner

No. 18-0608

Supreme Court of Appeals of West Virginia.

Submitted: September 22, 2020

Filed: October 20, 2020

George J. Cosenza, Esq., Cosenza Law Office, Parkersburg, West Virginia, Counsel for the Petitioner.

Patrick Morrisey, Esq., Attorney General, Mary Beth Niday, Esq., Assistant Attorney General, Caleb A. Ellis, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for the Respondent.

WALKER, Justice:

Police seized Petitioner Joshua Deem's (Deem) cell phone without a warrant while investigating the solicitation of a minor. Based primarily on evidence later obtained from the cell phone pursuant to a warrant, Deem was convicted of one count of attempting to solicit a minor using a computer. Deem now asks us to overturn his conviction and vacate his sentence because, he argues, the warrantless seizure of his cell phone was unreasonable and so violated his Fourth Amendment rights. We disagree: the seizure was reasonable under the exigent circumstances exception to the warrant requirement and did not offend the Fourth Amendment. So, we affirm the circuit court's August 9, 2018 sentencing order.

I. Facts and Procedural History

The State prevailed below on Deem's motion to suppress, so we construe all facts in its favor.¹ On December 13, 2016, the Bridgeport Police Department noticed an advertisement on Craigslist titled, "Speed for You," in which Deem sought contact with a girl or group of women. Adopting the persona of a fifteen-year old girl (Minor), Lieutenant Gary Weaver (Lt. Weaver) responded "YO 15 F BPORT," and "What's up?" through the Craigslist messaging feature. Minor and Deem conversed over Craigslist for the next few days. Deem asked Minor for explicit photographs, explaining that if she would send the photos, then he wished to meet her and have sex. At Deem's request, the conversation moved to text messages. As Deem and Minor continued to text, she received his messages from different cell phone numbers. Lt. Weaver determined that Deem was using the TextNow App to change the numbers, although he could still tell from the messages’ content that Deem was the sender. For example, in one of the messages Deem asked Minor for nude photos once again.

Lt. Weaver served an administrative subpoena on Craigslist to find out who had posted the "Speed for You" ad. Craigslist responded with the email address, joshdeem1990@****.com, and telephone number, 304-9**-1***. In January 2017, Minor started to receive text messages from 304-9**-1***. It was not hard to deduce that Deem was using that number to correspond with Minor: when she asked the user of that number to identify himself, the user responded, "Josh." Lt. Weaver later confirmed that 304-9**-1*** was a real, AT&T cell phone number used by Deem at that time.

Deem, using the 304-9**-1*** number, sent Minor a message on February 1, 2017. The next day, Lt. Weaver, Detective Travis Wolfe of the Parkersburg Police Department, and Trooper Jennifer DeMeyer of the West Virginia State Police went to Deem's home. It was cold outside, so when Deem came to the door, the officers asked if they could go into the house or talk in one of the officers’ cars. Deem let the officers inside.

Deem, his father, and the officers went to the family room. When Lt. Weaver asked Deem for his cell phone number, Deem gave him 304-4**-1***. Deem then admitted to using 304-9**-1***, but claimed that he had not used that number for a long time. Then, Deem and the officers left Deem's father and went to another room. Once there, Lt. Weaver explained "that this was [his] investigation, this is what I was looking into [sic], this is a little bit of the information that I have." He then asked Deem about email addresses. Deem stated that he used the email address, jdeem2016@****.com, but that he did not know about the joshdeem1990@****.com address. Deem admitted that he "randomly" placed some ads on Craigslist. When Lt. Weaver asked Deem if he had another cell phone, Deem said that he had another phone, but that it had stopped working some months ago.

Lt. Weaver observed a cell phone in Deem's pocket. When Lt. Weaver asked Deem about it, Deem responded that it was an AT&T Android phone. The officers asked Deem to give them the phone, but he refused. Det. Wolfe attempted to move the interview along by calling 304-9**-1*** from his cell phone. The phone in Deem's pocket rang. Deem got the phone out and Lt. Weaver, standing right beside Deem, saw "Unknown" on the phone's display. Det. Wolfe displayed his own phone and said, "Hey, that's me calling." Lt. Weaver testified that Deem returned the phone to his pocket, but not before his hand moved on to the screen of the phone.

Based on training and experience, Lt. Weaver knew that a person can easily delete information stored in a phone. Acting on that training and experience, Lt. Weaver explained to Deem, "Hey, listen, we've got to take the phone. We can't look at it. We have to do a search warrant to look at it, but we have reason to believe there's evidence on there." He asked Deem for the phone again, but Deem still refused. Lt. Weaver then seized the phone from a resistant Deem. Two days later, authorities obtained a warrant, searched Deem's phone, and found incriminating evidence.

In January 2018, a Harrison County grand jury indicted Deem on one count of using a computer to attempt to solicit a minor believed to be at least four years younger than himself in violation of West Virginia Code § 61-3C-14b (2016).² In February 2018, Deem moved to suppress all evidence obtained from the search of his cell phone. Deem argued that the plain view exception to the warrant requirement did not cover Lt. Weaver's seizure of his phone. The State responded that Lt. Weaver had not run afoul of the Fourth Amendment because the seizure was reasonable under both the plain view and exigent circumstances exceptions.³

The circuit court conducted a hearing on Deem's motion in March 2018. Deem contended that the officers should have obtained a search warrant before seizing the cell phone and that there were no exigent circumstances to justify its seizure. He also argued that before the officers went to his house, they knew that his cell phone might contain evidence of a crime and that "[t]hey had ample probable cause to go ahead and get a search warrant ...." Alternatively, Deem asserted that once the officers observed the phone in his pocket, they could have detained him while someone left to get a warrant. The State responded that Lt. Weaver had reacted to the situation before him based on his experience that the kind of evidence he suspected was in Deem's phone is frequently removed, altered, or destroyed. The State argued that the plain view exception to the warrant requirement also applied to the seizure. The circuit court denied Deem's motion from the bench, seemingly based on the plain view exception to the warrant requirement.⁴ The court entered an order reflecting that ruling on March 26, 2018.

In March 2018, Deem was convicted on the single count of the indictment after a two-day trial. The circuit court entered its Second Amended Order Following Sentencing Hearing/Order Placing Defendant on Supervised Probation on August 9, 2018,⁵ in which it ordered that Deem was to serve not less than two nor more than ten years of incarceration. The court then suspended that sentence and placed Deem on supervised probation for three years. Deem now appeals from the circuit court's August 9, 2018 Order.

II. Standard of Review

When reviewing a ruling on a motion to suppress, we take the facts in the light most favorable to the State, review the circuit court's factual findings for clear error, and conduct a de novo review of the determination of whether the search or seizure violated the Fourth Amendment. We detailed that standard of review in Syllabus Points 1 and 2 of State v. Lacy :

When reviewing a ruling on a motion to suppress, an appellate court should construe all facts in the light most favorable to the State, as it was the prevailing party below. Because of the highly fact-specific nature of a motion to suppress, particular deference is given to the findings of the circuit court because it had the opportunity to observe the witnesses and to hear testimony on the issues. Therefore, the circuit court's factual findings are reviewed for clear error.

In contrast to a review of the circuit court's factual findings, 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. Similarly, an appellate court reviews de novo whether a search warrant was too broad. 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.^[6]

III. Discussion

Deem does not challenge the circuit court's factual findings so we limit our review to the constitutional question: did the temporary warrantless seizure of his cell phone violate his Fourth Amendment rights? After analyzing the totality of the circumstances Lt. Weaver faced during his February 2, 2017, encounter with Deem, we find that his belief that he had to act quickly to secure Deem's cell phone to prevent the destruction of potential evidence was reasonable.⁷ So, we affirm the circuit court's conclusion that the seizure did not violate the Fourth Amendment.

The Fourth Amendment to the United States Constitution⁸ and the near-identical

Article III, Section 6 of the West Virginia Constitution⁹ protect against unreasonable searches and seizures. A warrant issued for probable cause is the presumptive means of ensuring that a search or seizure...