State of West Virginia v. Charles Eric Ward

• Court: West Virginia Supreme Court
• Decided: November 9, 2023
• Docket: 22-0211
• Status: Separate

Opinion

FILED November 9, 2023 released at 3:00 p.m. State v. Charles Eric Ward, 22-0211 EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Armstead, Justice, concurring:

I concur with the majority opinion’s conclusion that Petitioner Charles Eric

Ward’s (“Petitioner”) conviction should be reversed because the State failed to make the

required showing under our plain view warrantless seizure test. However, for the reasons

explained below, I disagree with the majority opinion’s conclusion that the police officers

violated the Fourth Amendment by arriving in the basement where Petitioner’s firearm was

located. I believe the police officers’ concern for their own safety justified their entry into

the basement. While I disagree with the majority opinion’s analysis on this issue, I

nevertheless find that Petitioner’s conviction should be reversed because the State did not

make another required showing under our plain view warrantless seizure test in that it failed

to demonstrate that the incriminating nature of the firearm was immediately apparent.

The issue in this case is whether the plain view warrantless seizure was

proper. “It is well established that under certain circumstances the police may seize

evidence in plain view without a warrant.” Coolidge v. New Hampshire, 403 U.S. 443, 465

(1971). This Court set forth our test when examining a plain view warrantless seizure in

syllabus point three of State v. Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991):

The essential predicates of a plain view warrantless seizure [which] are (1) that the officer did not violate the Fourth Amendment in arriving at the place from which the incriminating evidence could be viewed; (2) that the item was in plain view and its incriminating character was also immediately apparent; and (3) that not only was the officer lawfully located in a place from which the object could be

1 plainly seen, but the officer also had a lawful right of access to the object itself.

As stated, the majority opinion concluded that the State did not satisfy the

first element of the above test. The inquiry under the first element is whether the police

officers violated Petitioner’s Fourth Amendment rights by standing in the doorway of the

basement when they viewed the firearm. The circuit court found that the officers’ conduct

was reasonable for the purposes of their safety. In syllabus point six of State v. Lacy, 196

W. Va. 104, 468 S.E.2d 719 (1996), this Court held:

Neither a showing of exigent circumstances nor probable cause is required to justify a protective sweep for weapons as long as a two-part test is satisfied: An officer must show there are specific articulable facts indicating danger and this suspicion of danger to the officer or others must be reasonable. If these two elements are satisfied, an officer is entitled to take protective precautions and search in a limited fashion for weapons.

I agree with the circuit court’s conclusion that the State satisfied the first

element of Julius based on the officers’ concern for their own safety. It is undisputed that

when the officers arrived at Petitioner’s mother’s home, they were responding to a volatile

conflict between neighbors and that Petitioner was “agitated” by the confrontation.

Because of his level of agitation, the officers reasonably found it necessary to stay close to

him and asked him for identification. Petitioner then voluntarily led the officers away from

his mother’s front porch, where his initial encounter with the officers occurred, walked

around the outside of the house, eventually arriving at the separate basement entrance. The

2 circuit court found Detective Queen’s testimony to be credible that Petitioner gave his

consent for the officers to enter as they crossed the basement threshold.

Additionally, the circuit court’s ruling is supported by Petitioner’s

cooperative actions in leaving the porch area where he spoke with the officers and entering

the interior of the basement, aware that officers were following him. There is no evidence

that Petitioner was unreasonably compelled to lead the officers as he did and, in fact,

Detective Queen testified that Petitioner was cooperative. This Court has held that

[c]onsent to search may be implied by the circumstances surrounding the search, by the person’s prior actions or agreements, or by the person’s failure to object to the search. Thus, a search may be lawful even if the person giving consent does not recite the talismanic phrase: “You have my permission to search.”

Syl. Pt. 1, State v. Flippo, 212 W. Va. 560, 575 S.E.2d 170 (2002). Because Petitioner

implied his consent by voluntarily leading the officers to the room containing the prohibited

firearm and affirmatively allowed the officers to enter the basement when they asked for

permission, I would find that the first prong of Julius is satisfied.

While I disagree with the majority opinion’s conclusion that the State did not

satisfy the first element of Julius, I agree that Petitioner’s conviction should be reversed

because the State did not demonstrate that the incriminating nature of the firearm was

immediately apparent. The second element of Julius contains two-parts: (1) was the item

in plain view and (2) was its incriminating character immediately apparent. Syl. Pt. 3, 185

W. Va. 422, 408 S.E.2d 1. There is little doubt that the firearm was in plain view from the

officers’ vantage point in the basement doorway. Therefore, the key inquiry is whether the

3 incriminating nature of the firearm was “immediately apparent.” Justice Cleckley

addressed this issue in State v. Lacy, stating:

The officers must have probable cause to believe that the item seized is contraband and there is nothing in our opinions to suggest that merely finding a weapon in someone’s private residence will always give rise to probable cause. In Hicks, the officer’s search of the stereo was improper because, based upon his knowledge and experience, he lacked probable cause to suspect that the equipment was stolen or evidence of a crime. See Hicks, 480 U.S. at 328, 107 S.Ct. at 1154, 94 L.Ed.2d at 356 (holding that “probable cause to believe the equipment was stolen was required” to justify officer’s search of stereo found in plain view).

196 W. Va. 104, fn. 22, 468 S.E.2d 719, fn. 22 (emphasis added).

In the instant case, Detective Queen did not know that Petitioner was

prohibited from having the firearm when he initially saw it in the basement. Detective

Queen described what happened when he initially saw the firearm:

I went over and retrieved the weapon, and I made a general statement, ‘You’re not allowed to have this.’ The general statement was – it could go one of two ways: If you’re an innocent person without a felony, then you’ll say, ‘I have a right to bear arms, et cetera;’ otherwise, you’ll respond with a different answer. He responded, ‘That’s not mine, that’s somebody else’s,’ and then through conversation he did admit that he was a felon.

It is clear from Detective Queen’s testimony that it was not immediately

apparent to him that Petitioner was a felon who was prohibited from owning a firearm.

Detective Queen’s “general statement” was asked with the intention of gathering that

information, i.e., whether Petitioner was a felon. Because the incriminating nature of the

firearm was not “immediately apparent” when Detective Queen entered the basement, the

4 State did not satisfy the plain view warrantless seizure test as set forth by this Court in

syllabus point three of Julius. Therefore, I would have reversed Petitioner’s conviction on

this basis.