No. 11-1271 State ex rel. William R. Adkins v. Dennis Dingus
FILED
November 21, 2013
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Davis, J., concurring:
In this appeal the majority opinion affirmed the circuit court’s denial of Mr.
Adkins’ petition for habeas relief. I concur in the majority’s decision to affirm the circuit
court’s order. However, I disagree with the manner in which the majority opinion resolved
one of the issues in the case. The issue in question involved the seizure of ammunition from
Mr. Adkins’ residence. The majority opinion found that this evidence was lawfully seized.
For the reasons set out below, I believe that the ammunition was unlawfully seized but that
its introduction into evidence did not affect the outcome of the case; therefore, the error was
harmless beyond a reasonable doubt.
A. Seizure of the Ammunition was Unlawful
A central problem I have with the majority opinion’s resolution of the issue
involving seizure of the ammunition is its treatment of the doctrines that allow a search and
seizure of contraband without a warrant. In my judgment, the majority opinion may have
innocently brought about some confusion as to how the doctrines are triggered and satisfied.
As I will demonstrate below, none of the following doctrines legitimized the seizure of the
1
ammunition: exigent circumstances, emergency doctrine, protective sweep, plain view
doctrine and inevitable discovery rule.
1. Emergency Doctrine/Exigent Circumstances. Mr. Adkins argued that
exigent circumstances did not exist to justify seizure of the ammunition. The majority
opinion agreed with Mr. Adkins that the exigent circumstances did not justify seizure of the
ammunition. I agree with the majority opinion on this point. However, I do not believe that
the exigent circumstances doctrine was the doctrine that permitted Trooper Gunnoe to enter
Mr. Adkins’ home without a warrant. The precise doctrine that allowed Trooper Gunnoe to
enter the home initially was the emergency doctrine. We have explained the emergency
doctrine as follows:
the emergency doctrine may be said to permit a limited,
warrantless search or entry of an area by police officers where
(1) there is an immediate need for their assistance in the
protection of human life, (2) the search or entry by the officers
is motivated by an emergency, rather than by an intent to arrest
or secure evidence, and (3) there is a reasonable connection
between the emergency and the area in question.
State v. Cecil, 173 W.Va. 27, 32, 311 S.E.2d 144, 149 (1983) (citation omitted). We further
explained in Cecil that
“the reasonableness of a warrantless search or entry under the
emergency doctrine is established by the compelling need to
render immediate assistance to the victim of a crime, or insure
the safety of the occupants of a house when the police
reasonably believe them to be in distress and in need of
protection.”
2
Cecil, 173 W. Va. at 32, 311 S.E.2d at 150 (internal quotations and citation omitted).1
Trooper Gunnoe testified that he entered the home because he received a police
report that a shooting victim may have been in the home. Therefore it is clear that, because
of the purpose for Trooper Gunnoe’s entry into the home, the warrantless entry was permitted
by the emergency doctrine.
Although the emergency doctrine allowed Trooper Gunnoe to enter the home,
it did not provide him with authority to indiscriminately search the home. The emergency
doctrine only allowed him to search the home for and seize a crime victim or victims. See
State v. Flippo, 212 W. Va. 560, 570 n.8, 575 S.E.2d 170, 180 n.8 (2002) (“The scope of the
search conducted by the police in this case, under the implied consent exception, was greater
1
We have explained the difference between the emergency doctrine and exigent
circumstances as follows:
While the “emergency doctrine,” [and] “exigent circumstances” . . .
require a compelling and immediate need for the police to take swift action to
prevent something adverse from occurring, they are separate doctrines. The
exception for “exigent circumstances” applies when police are engaged in
crime-solving activities, such as searching for evidence or suspects. Probable
cause is necessary. The “emergency doctrine” . . . appl[ies] when police are
not acting as crime-solvers, but rather are acting in a health, safety and welfare
role. The “emergency doctrine” contemplates the existence of an actual or
reasonably perceived emergency.
Ullom v. Miller, 227 W. Va. 1, 12 n.10, 705 S.E.2d 111, 122 n.10 (2010).
3
than what would be permitted under the emergency exception.”).
2. Protective Sweep. Once Trooper Gunnoe initially entered the home , he was
authorized by the protective sweep doctrine to search for a possible attacker or weapon that
could be used against him. The protective sweep doctrine was first recognized by the United
States Supreme Court in Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276
(1990).
In Buie, the police entered the defendant’s home to execute an arrest warrant.
After the defendant was apprehended coming from the basement of the home, an officer
entered the basement to search for anyone else who might have been in the basement. In
making this search, the officer saw and seized inculpatory evidence that was in plain view.
The Supreme Court approved of the officer searching the basement for an attacker who could
injure police officers present at the scene. Consequently, the opinion in Buie held that during
an arrest, the police may conduct a protective sweep of the premises if there are “articulable
facts which, taken together with the rational inferences from those facts, would warrant a
reasonably prudent officer in believing that the area to be swept harbors an individual posing
a danger to those on the arrest scene.” Buie, 494 U.S. at 334, 110 S. Ct. at 1098, 108 L.Ed.
2d 276. The decision in Buie was careful to state that a protective sweep “is narrowly
confined to a cursory visual inspection of those places in which a person might be hiding.”
4
Buie, 494 U.S. at 327, 110 S.Ct. at 1094, 108 L. Ed. 2d. 276..
Although Buie concerned a limited search for an attacker, this Court applied
Buie to a search for weapons in State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996). We
held in Syllabus point 8 of Lacy as follows:
A protective search is defined as a quick and limited
search of premises for weapons once an officer has
individualized suspicion that a dangerous weapon is present and
poses a threat to the well-being of himself and others. This
cursory visual inspection is limited to the area where the
suspected weapon could be contained and must end once the
weapon is found and secured.
Id.
In the instant proceeding, the majority opinion recognized that Trooper Gunnoe
could conduct a protective sweep to determine if an attacker was present. Trooper Gunnoe
testified that he conducted a protective sweep and that during the sweep he saw the
ammunition in plain view.
3. Plain View Doctrine. The majority opinion pointed out that the plain view
doctrine allows the police to seize contraband when officers are lawfully present at the place
where the contraband is observed. As noted by the majority opinion, we set out the elements
of the plain view doctrine in Syllabus point 3 of State v. Julius, 185 W. Va. 422, 408 S.E.2d
5
1 (1991), as follows:
The essential predicates of a plain view warrantless
seizure 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 plainly seen, but the
officer also had a lawful right of access to the object itself.
Although Trooper Gunnoe testified that he saw the ammunition during the
protective sweep, he did not seize the ammunition when he first observed it. The majority
opinion indicates that the ammunition was seized without a warrant after Mr. Adkins’ home
had been secured and during a subsequent entry by Trooper Gunnoe. Even though the
emergency that permitted Trooper Gunnoe to enter the home and terminated, the majority
opinion found that seizure of the ammunition without a warrant was justified because “Trp.
Gunnoe could have lawfully seized the ammunition during his protective sweep.” Maj. Slip.
Op at 19. I disagree.
It is clear and unquestioned that the point at which Trooper Gunnoe could
lawfully seize the ammunition was during his protective sweep of the home. This situation
is similar to an issue this Court confronted in State v. Flippo, 212 W. Va. 560, 575 S.E.2d
170.
6
In Flippo, the defendant was convicted of murdering his wife at a cabin retreat.
During the initial police investigation into the murder, the defendant gave the police consent
to search the cabin. During the period that the police had consent to search, they did not
uncover photographs that were in a briefcase in the cabin. Instead, the photographs were
seized later after the defendant’s consent to search had been revoked. After the defendant
was convicted, he argued on appeal that the photographs had been unlawfully seized and
should not have been introduced into evidence. Even though the photographs were seized
less than two hours after the defendant’s consent to search was revoked, as determined by
this Court on appeal, we found that the seizure was unlawful. In other words, the police
could have seized the briefcase and photographs when they had consent to search, but once
the basis for the search terminated, we held in Flippo that a warrant was needed to seize the
briefcase and photographs. Ultimately, we held in Flippo that introduction of the
photographs was harmless error.
In the instant proceeding the evidence is clear to me in showing that, at the
point Trooper Gunnoe went back into the home with other police officers and the prosecutor
and began a full scale search, a search warrant was required. The reason being that the
justification for the initial entry and search had terminated. To get around this fact, the
majority opinion has carved out a heretofore unknown exception to the warrant requirement,
which permits the ammunition to be seized merely because it had previously been seen
7
during the period of the lawful entry. This ad hoc exception appears to be a diluted version
of the inevitable discovery rule. However, the seizure of the ammunition does not satisfy the
elements of the inevitable discovery rule.
In Flippo, we held that “[u]nder the inevitable discovery rule, unlawfully
obtained evidence is not subject to the exclusionary rule if it is shown that the evidence
would have been discovered pursuant to a properly executed search warrant.” Syl. pt. 3,
Flippo, 212 W. Va. 560, 575 S.E.2d 170. We set out the following in syllabus point 4 of
Flippo:
To prevail under the inevitable discovery exception to the
exclusionary rule, Article III, Section 6 of the West Virginia
Constitution requires the State to prove by a preponderance of
the evidence: (1) that there was a reasonable probability that the
evidence would have been discovered by lawful means in the
absence of police misconduct; (2) that the leads making the
discovery inevitable were possessed by the police at the time of
the misconduct; and (3) that the police were actively pursuing a
lawful alternative line of investigation to seize the evidence
prior to the time of the misconduct.
Id.
Based upon the evidence submitted in this case, Trooper Gunnoe’s seizure of
the ammunition did not satisfy the third element of the inevitable discovery rule. That is,
there was no showing that the police were pursuing a lawful alternative to seize the evidence,
8
i.e., seeking a search warrant.2 As we noted in Flippo, “[i]f police are allowed to search
when they possess no lawful means and are only required to show that lawful means could
have been available even though not pursued, the narrow ‘inevitable discovery’ exception
would ‘swallow’ the [constitutional warrant] protection.” Flippo, 212 W. Va. at 580, 575
S.E.2d at 190 (internal quotations and citation omitted).
B. Harmless Error
Even though I believe the seizure of the ammunition was unlawful, I also
believe the introduction of this evidence at trial was harmless error. This Court has observed
on numerous occasions that “[f]ailure to observe a constitutional right constitutes reversible
error unless it can be shown that the error was harmless beyond a reasonable doubt.” Syl.
pt. 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975). See also Syl. pt.
14, State v. Salmons, 203 W. Va. 561, 509 S.E.2d 842 (1998). Moreover, “‘[e]rrors
involving deprivation of constitutional rights will be regarded as harmless only if there is no
reasonable possibility that the violation contributed to the conviction.’” State v. Jenkins, 195
W. Va. 620, 629, 466 S.E.2d 471, 480 (1995) (quoting, Syl. pt. 20, State v. Thomas, 157
W. Va. 640, 203 S.E.2d 445 (1974)).
2
The police may in fact have been seeking a search warrant, but the record on appeal
is apparently silent on the issue.
9
Mr. Adkins’ contends in his brief that introduction of the ammunition was not
harmless because it was used to establish premeditation and deliberation. This argument is
not supported by the facts. It is clear that the question of who killed the victim was not in
dispute. Mr. Adkins admitted that he shot the victim. Mr. Adkins put on evidence to suggest
that the shooting was in self-defense. The jury rejected this defense. More importantly,
insofar as Mr. Adkins admitted to shooting the victim, showing the jury that extra unused
ammunition was found in the home was not relevant to any issue in the case. We have
emphasized that a party advancing a claim of ineffective assistance of counsel “must prove
there is a ‘reasonable probability’ that, absent the errors, the jury would have reached a
different result.” State v. Miller, 194 W. Va. 3, 15, 459 S.E.2d 114, 126 (1995). I cannot
discern a reasonable possibility that the admission of evidence of the ammunition affected
the jury’s conclusion.
For these reasons, I concur in the decision reached in this case.
10