IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2014 Term
____________
FILED
No. 12-1486 June 4, 2014
____________ released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
LAMAR DORSEY,
Defendant Below, Petitioner
______________________________________________________
Appeal from the Circuit Court of Logan County
Honorable Eric H. O’Briant, Judge
Civil Action No. 12-F-32-O
AFFIRMED
_________________________________________________________
Submitted: January 28, 2014
Filed: June 4, 2014
Crystal L. Walden, Esq. Patrick Morissey, Esq.
Deputy Public Defender Attorney General
Office of Public Defender Benjamin F. Yancey III, Esq.
Charleston, West Virginia Assistant Attorney General
Attorney for Petitioner Charleston, West Virginia
Attorneys for Respondent
JUSTICE LOUGHRY delivered the Opinion of the Court.
CHIEF JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
JUSTICE BENJAMIN concurs, in part, and dissents, in part, and reserves the right to file
a separate opinion.
SYLLABUS BY THE COURT
1. “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.” Syl. Pt. 1, State v. Lacy, 196 W.Va. 104, 468
S.E.2d 719 (1996).
2. “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 II 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.” Syl. Pt. 2, State v. Lacy, 196 W.Va. 104, 468 S.E.2d
719 (1996).
i
3. “The Fourth Amendment of the United States Constitution, and Article
III, Section 6 of the West Virginia Constitution protect an individual’s reasonable expectation
of privacy.” Syl. Pt. 7, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).
4. An individual who is unwelcome in the dwelling of another, or who has
procured or maintained access to the dwelling through coercion, threats of violence or
exploitation, does not have an expectation of privacy that society is willing to recognize as
reasonable and, therefore, cannot claim the protections afforded by the Fourth Amendment
of the United States Constitution and Article III, Section 6 of the West Virginia Constitution.
5. “There is no absolute right under either the West Virginia or the United
States Constitutions to plea bargain. Therefore, a circuit court does not have to accept every
constitutionally valid guilty plea merely because a defendant wishes to so plead.” Syl. Pt.
2, State ex rel. Brewer v. Starcher, 195 W.Va. 185, 465 S.E.2d 185 (1995).
6. “Where an offer of evidence is made under Rule 404(b) of the West
Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia
Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial
court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347
S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must
be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the
ii
defendant committed the acts. If the trial court does not find by a preponderance of the
evidence that the acts or conduct was committed or that the defendant was the actor, the
evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the
trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the
West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the
West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b)
evidence is admissible, it should instruct the jury on the limited purpose for which such
evidence has been admitted. A limiting instruction should be given at the time the evidence
is offered, and we recommend that it be repeated in the trial court’s general charge to the jury
at the conclusion of the evidence.” Syl. Pt. 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d
516 (1994).
iii
LOUGHRY, Justice:
This case is before this Court upon the appeal of the petitioner and defendant
below, Lamar Dorsey (hereinafter the “petitioner”), from the November 9, 2012, final order
of the Circuit Court of Logan County, sentencing him for his jury convictions of two counts
of conspiracy in violation of West Virginia Code § 61-10-31 (2010)1 and two counts of
delivery of crack cocaine, a controlled substance, in violation of West Virginia Code § 60A-
4-401 (2010).2 In this appeal, the petitioner asserts that the circuit court erred by (1) denying
his motion to suppress evidence seized from the residence where he was staying at the time
of his arrest; (2) summarily rejecting a plea agreement that the petitioner was allegedly
willing to accept; and (3) allowing the State to proffer evidence it sought to admit at trial
pursuant to Rule 404(b) of the West Virginia Rules of Evidence3 and ruling on the
admissibility of that evidence based solely on the proffer. Upon review of the record, the
parties’ briefs and oral argument, as well as the pertinent authorities, we find no reversible
error and affirm the final order.
1
West Virginia Code § 61-10-31 provides in pertinent part: “It shall be unlawful for
two or more persons to conspire (1) to commit any offense against the State[.]”
2
West Virginia Code § 60A-4-401(a) states, in relevant part, that “it is unlawful for
any person to manufacture, deliver, or possess with intent to manufacture or deliver, a
controlled substance.”
3
See infra note 9.
1
I. Factual and Procedural Background
In October 2010, the petitioner, a resident of Columbus, Ohio, began staying
intermittently with Joseph Scott Osborne, a resident of Logan County, West Virginia.
According to Mr. Osborne, the petitioner was staying with him to sell narcotics from his
residence. In exchange for allowing the petitioner to stay in his house and run his drug
operation, Mr. Osborne received crack cocaine from the petitioner. One of the petitioner’s
customers during this period was Wendi Gillespie, a neighbor of Mr. Osborne. In December
2010, the petitioner began staying with Ms. Gillespie at her trailer in Kistler, West Virginia,4
and continued to operate his drug trade from her home.5 The petitioner and Ms. Gillespie had
no prior social relationship, and their only previous interactions had occurred when Ms.
Gillespie purchased narcotics from the petitioner. In exchange for allowing the petitioner to
stay in her home, Ms. Gillespie was paid $20.00 in crack cocaine for every $100.00 of crack
cocaine sold by the petitioner. Additionally, the petitioner supplied Ms. Gillespie with other
drugs, including marijuana, and helped pay at least one of her utility bills.
In January of 2011, the West Virginia State Police received two separate tips
from known informants that the petitioner was selling crack cocaine out of Ms. Gillespie’s
4
According to Ms. Gillespie, the petitioner wanted to stay with her because she had
electricity and water in her home and Mr. Osborne did not.
5
Ms. Gillespie testified that she rented her home and that only her name was on the
lease. She further stated that when the petitioner arrived at her home to begin staying with
her, his only belongings were a jacket and the clothes he was wearing.
2
residence. Believing that the statements of the informants alone were not sufficient to secure
a warrant, the State Police decided to seek the cooperation of Ms. Gillespie by visiting her
residence and conducting a “knock and talk.”6 Trooper J. K. Harris, accompanied by three
other officers–Troopers Hensley, Dick, and Powers–drove to Ms. Gillespie’s home on
January 21, 2011, for that purpose.7
Upon arrival, the four officers took positions on both sides of Ms. Gillespie’s
home. During proceedings below, Trooper Harris testified that the three other officers
surrounded the home to cover the exits of the residence and to ensure officer safety. He then
walked onto the front porch of the home and knocked on the door. According to Trooper
Harris, no one came to the door immediately, but he heard activity inside the trailer. As
Trooper Harris knocked a second time, Trooper Hensley, who was stationed at the rear of the
residence, saw an individual run through the house, and heard the sound of a toilet flushing.
Trooper Harris knocked once again and announced that he was with the State Police and
asked Ms. Gillespie to open the door. Ms. Gillespie responded that she was coming to open
the door.
6
“A ‘knock and talk’ . . . is a procedure used by police officers to investigate a
complaint where there is no probable cause for a search warrant. The police officers knock
on the door, try to make contact with persons inside, and talk to them about the subject of the
complaints.” Murphy v. State, 898 So.2d 1031, 1032 n.4 (Fla. Dist. Ct. App. 2005).
7
According to Trooper Harris, he went to Ms. Gillespie’s home with three additional
officers because the petitioner had a previous firearms charge, and he believed that officer
safety might be an issue if the petitioner was within the residence.
3
Ms. Gillespie testified during the proceedings below that when the State Police
arrived at her residence, the petitioner ran into her bedroom where she was smoking
marijuana. The petitioner informed her that the police were outside, and then threatened to
kill her if she opened the door, making a throat-cutting motion across his neck while
delivering the threat. Ms. Gillespie stated that after a few minutes delay, she asked who was
outside. Ms. Gillespie further testified that after Trooper Harris identified himself as a police
officer, she waited a few more minutes and then opened the front door to the residence and
the officers entered her home.
With the knowledge that there were other individuals on the premises and with
their whereabouts unknown, Trooper Harris and his fellow officers proceeded to secure the
residence and the persons therein. In the bathroom of the home, Trooper Harris found the
petitioner standing in front of the toilet. While securing the petitioner, Trooper Harris
observed the toilet running and a substance believed to be marijuana floating in the water.
Additionally, one other individual, Joseph Hurley, was found on the premises. Mr. Hurley
later gave a statement admitting that he was there to purchase crack cocaine from the
petitioner.
After securing the petitioner and Mr. Hurley, Trooper Harris spoke with Ms.
Gillespie and informed her that he had received information that crack cocaine was being
sold out of her residence by the petitioner. Trooper Harris then asked Ms. Gillespie for
4
permission to search the premises, which she granted voluntarily.8 Upon searching the home,
the officers found $2,204 in cash and a digital scale and razor blade with cocaine residue on
both items in a bedroom. They also found a 9mm handgun hidden beneath a washer and
dryer. After taking statements from Ms. Gillespie and Mr. Hurley, the petitioner was
arrested. He was indicted on drug-related charges in January 2012. Prior to his trial, the
petitioner filed a motion to supress the evidence seized from Ms. Gillespie’s home at the time
of his arrest. Following a hearing, the motion was denied.
In March 2012, the circuit court conducted a pre-trial evidentiary hearing
regarding the State’s proposed submission of evidence at the petitioner’s trial pursuant to
Rule 404(b) of the West Virginia Rules of Evidence.9 The State, seeking to curtail
8
Ms. Gillespie’s signature appears on the consent to search form in the record before
this Court. The record also shows that Ms. Gillespie testified at the suppression hearing and
at trial that she consented to the search.
9
West Virginia Rule of Evidence 404(b) provides:
Other crimes, wrongs, or acts.–Evidence of other crimes,
wrongs or acts is not admissible to prove the character of a
person in order to show that he or she acted in conformity
therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident, provided
that upon request by the accused, the prosecution in a criminal
case shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to
introduce at trial.
5
unnecessary and duplicative presentation of evidence, asked the circuit court if it could
simply make a proffer of the evidence it hoped to present rather than calling witnesses to
testify during the hearing. The circuit court allowed the proffer to proceed, with the caveat
that it would consider whether the proffer was sufficient at the end of the presentation. The
petitioner’s counsel did not object to the proffer during the hearing. After the State outlined
what the evidence would be, the circuit court found the proffer sufficient and ruled that the
evidence would be admissible at trial.10
The petitioner’s trial took place in July 2012. Before the trial, the State and the
petitioner discussed a number of plea agreements. One proposal was presented to the circuit
court at a pre-trial conference, but the parties could not agree on final terms at that time and
no plea was entered. On the first day of trial, the circuit court was made aware of three
possible plea agreements, all of which the petitioner rejected. On the second day of trial, the
parties again attempted to reach a plea agreement. There were two proposals discussed that
day, and the petitioner indicated that he would be amenable to accepting one of the offers.
This proposal was presented to the circuit court on the record informally. The court then
stated that it had given the parties time to discuss a plea agreement on the first day of trial,
and it was not inclined to allow them further time to work out the proposal.
10
The petitioner objected to the admission of the 404(b) evidence at trial, and in his
Motion for a New Trial. The circuit court overruled the trial objection and denied the Motion
for a New Trial.
6
At the conclusion of the presentation of evidence, the jury returned a verdict
convicting the petitioner on two counts of conspiracy to deliver a Schedule II controlled
substance and two counts of delivery of a Schedule II controlled substance. The circuit court
sentenced the petitioner to two indeterminate terms of one-to-five years in the penitentiary
for the conspiracy counts, and two indeterminate terms of one to fifteen years for the delivery
counts. The court further ordered that all sentences were to be served consecutively. This
appeal followed.
II. Standard of Review
In syllabus point three of State v. Vance, 207 W.Va. 640, 535 S.E.2d 484
(2000), this Court explained that
[i]n reviewing challenges to findings and rulings made by
a circuit court, we apply a two-pronged deferential standard of
review. We review the rulings of the circuit court concerning a
new trial and its conclusion as to the existence of reversible
error under an abuse of discretion standard, and we review the
circuit court’s underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo
review.
Other relevant standards of review will be set forth in the discussion of each assignment of
error.
III. Discussion
As set forth above, the petitioner has asserted three assignments of error. Each
alleged error will be considered separately below.
7
A. Denial of Motion to Suppress Evidence
The petitioner first contends that the circuit court erred by refusing to suppress
the evidence seized by the police during the search of Ms. Gillespie’s residence. The
petitioner argues that the state troopers made an illegal warrantless entry into Ms. Gillespie’s
residence, rendering any consent to search she gave invalid. Therefore, the petitioner reasons
that the evidence obtained as a result of that search was tainted and inadmissible. The State
argues, however, that the petitioner has no right to challenge the search and seizure of
evidence from Ms. Gillespie’s home because he had no legitimate expectation of privacy.
We agree.
Our standards for reviewing a circuit court’s ruling on a motion to suppress
evidence were set forth in State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996). In syllabus
point one of Lacy, this Court explained that
[w]hen 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.
Id. at 107, 468 S.E.2d at 722. This Court further held in Lacy that
[i]n contrast to a review of the circuit court’s factual
findings, the ultimate determination as to whether a search or
8
seizure was reasonable under the Fourth Amendment to the
United States Constitution and Section 6 of Article II 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.
196 W.Va. at 107, 468 S.E.2d at 722, syl. pt.2.
It is axiomatic that “[t]he Fourth Amendment of the United States Constitution,
and Article III, Section 6 of the West Virginia Constitution protect an individual’s reasonable
expectation of privacy.” Syl. Pt. 7, State v. Peacher, 167 W.Va. 540, 280 S.E. 2d 559
(1981). As such, “Fourth Amendment rights are personal rights which, like some other
constitutional rights, may not be vicariously asserted.” Alderman v. United States, 394 U.S.
165, 174 (1969). Therefore, we must begin our analysis by first determining whether the
petitioner has standing to make a claim for violation of his rights under the Fourth
Amendment and Section 6 of Article III of the West Virginia Constitution as a result of the
search and seizure of evidence from Ms. Gillespie’s residence.
This Court has recognized that “[a] claim of protection under the Fourth
Amendment and the right to challenge the legality of a search depends not upon a person’s
property right in the invaded place or article of personal property, but upon whether the
person has a legitimate expectation of privacy in the invaded place or thing.” Wagner v.
9
Hedrick, 181 W.Va. 482, 487, 383 S.E.2d 286, 291 (1989) (citing Katz v. United States, 389
U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576, 583 (1967)). Therefore, “if a person is in
such a position that he cannot reasonably expect privacy, a court may find that an
unreasonable Fourth Amendment search has not taken place.” 181 W.Va. at 487, 383 S.E.2d
at 291.
“At the threshold, then, one who asserts a Fourth Amendment violation must
demonstrate a ‘reasonable expectation of privacy’ in the subject of the seizure. That
expectation is to be measured both subjectively and by an objective standard of
reasonableness.” Marano v. Holland, 179 W.Va. 156, 163, 366 S.E.2d 117, 124 (1988).
Thus, an expectation of privacy is legitimate when an individual demonstrates that he or she
personally has an expectation of privacy in the place searched, and also demonstrates that the
expectation is reasonable. Rakas v. Illinois, 439 U.S. 128, 143-44 (1978). In order for an
expectation to be “reasonable” it must have “a source outside of the Fourth Amendment,
either by reference to concepts of real or personal property law or to understandings that are
recognized and permitted by society.” 439 U.S. at 143-144 n.12. In other words, the
individual’s subjective expectation of privacy must be “one that society is prepared to
recognize as ‘reasonable.’” Id.
In this case, the petitioner argues that as an invited guest in Ms. Gillespie’s
home, he had a reasonable expectation of privacy. In support of his argument, the petitioner
10
relies upon this Court’s holding in State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762 (1986),
and the holding of the United States Supreme Court in Minnesota v. Olson, 495 U.S. 91
(1990). In Adkins, the defendant was convicted of felony possession with intent to distribute
a controlled substance. Appealing the conviction, the defendant argued that the trial court
erred by not suppressing the evidence seized from the home of his girlfriend, where he
frequently stayed, because the search warrant was invalid due to the fact that the warrant
affidavit failed to establish probable cause. Recognizing that “defendants charged with
crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth
Amendment rights have in fact been violated,”11 this Court held that
[a] defendant who is more than a casual visitor to an
apartment or dwelling in which illegal drugs have been seized
has the right under the Fourth Amendment to the United States
Constitution and Article III, Section 6 of the West Virginia
Constitution to challenge the search and seizure of illegal drugs
which he is accused of possessing.
Adkins, 176 W.Va. at 614, 346 S.E.2d at 764, syl. pt. 1.
In Olson, the United States Supreme Court considered whether an overnight
guest had standing to challenge his warrantless arrest in the home where he was staying.
Applying Katz, the Supreme Court found that Mr. Olson had both a subjective reasonable
expectation of privacy as an invited overnight guest, as well as a expectation of privacy that
11
Adkins, 176 W.Va. at 616, 346 S.E.2d at 765 (quoting United States v. Salvucci, 448
U.S. 83, 85 (1980)).
11
society is willing to recognize as legitimate. Justice White, writing for the majority,
explained that “[t]o hold that an overnight guest has a legitimate expectation of privacy in
his host’s home merely recognizes the everyday expectations of privacy that we all share.”
Olson, 495 U.S. at 98. The Supreme Court further stated:
Staying overnight in another’s home is a longstanding social
custom that serves functions recognized as valuable by society.
We stay in others’ homes when we travel to a strange city for
business or pleasure, when we visit our parents, children, or
more distant relatives out of town, when we are in between jobs
or homes, or when we house-sit for a friend. We will all be hosts
and we will all be guests many times in our lives. From either
perspective, we think that society recognizes that a houseguest
has a legitimate expectation of privacy in his host’s home.
....
That the guest has a host who has ultimate control of the
house is not inconsistent with the guest having a legitimate
expectation of privacy. The houseguest is there with the
permission of his host, who is willing to share his house and his
privacy with his guest. It is unlikely that the guest will be
confined to a restricted area of the house; and when the host is
away or asleep, the guest will have a measure of control over the
premises. The host may admit or exclude from the house as he
prefers, but it is unlikely that he will admit someone who wants
to see or meet with the guest over the objection of the guest. On
the other hand, few houseguests will invite others to visit them
while they are guests without consulting their hosts; but the
latter, who have the authority to exclude despite the wishes of
the guest, will often be accommodating.
Id. at 98-99 (emphasis added).
12
The petitioner argues that because he was “more than a casual visitor” to Ms.
Gillespie’s residence and was, in fact, an overnight guest for the three-week period preceding
his arrest, he has standing to challenge the search and seizure of evidence from her home
pursuant to Adkins and Olson. We find, however, that the petitioner’s reliance upon Adkins
and Olson is misplaced as those cases are clearly distinguishable from the facts presented
here. While the record indicates that the petitioner was initially an invited guest of Ms.
Gillespie, the record also shows that the petitioner quickly assumed total control of her
residence to operate his illegal drug trade, threatening to kill Ms. Gillespie during the three
weeks preceding his arrest when she observed his drug deals taking place and again when
the police arrived at her home on January 21, 2011. While we have not had occasion to
consider the privacy rights of an overnight guest of premises that are subjected to
government intrusion after that guest’s presence has become unwelcome or wrongful, other
jurisdictions have performed this analysis.
For example, in Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002),
the defendant, who was convicted of capital murder, argued on appeal that evidence obtained
at the crime scene–his girlfriend’s apartment–should have been suppressed. He asserted that
he had a legitimate expectation of privacy in her home because he had been staying there for
approximately a month while trying to find a permanent residence. The evidence showed,
however, that prior to his arrest, the defendant’s girlfriend had asked him to get his
belongings and leave the residence after a series of arguments. Angered by her request, the
13
defendant attacked his girlfriend with a knife, stabbing her repeatedly. In an attempt to
placate him, the defendant’s girlfriend told him that she loved him and would not call the
police if he would simply leave the premises. Subsequently, when the defendant caught his
girlfriend attempting to contact the police, he stabbed her again and then killed her child.
When the defendant’s girlfriend failed to answer phone calls from her family and did not
appear at her place of employment, the police went to her residence and ultimately broke in
and arrested the defendant.
In his appeal to the Court of Criminal Appeals of Texas, the defendant in
Granados argued that the evidence obtained by the police after they entered the apartment
was not admissible at his trial because the police did not have probable cause to believe that
a crime had been committed and their search was not justified under any exception to the
warrant requirement of the Fourth Amendment. Rejecting the defendant’s argument, the
Granados court observed that
[t]he overnight guest doctrine assumes that the guest is present
with the host’s permission when a government intrusion occurs,
and that the guest must accept the reality that the host will
permit others to intrude . . . Olson suggest that when, for
example, the host chooses to allow others, such as the police,
inside, or when the houseguest no longer has the permission of
his guest to be on the premises, the guest’s expectation of
privacy diminishes.
85 S.W.2d at 224. Accordingly, the court concluded that because the defendant’s girlfriend,
his host, no longer wished for him to be in the residence, the defendant concomitantly no
14
longer had an expectation of privacy that society would view as reasonable. The court
explained:
[W]e must consider not simply whether the appellant had some
subjective privacy interest in the premises (he almost always
will), but whether, once he had been instructed to gather his
belongings and leave the premises, society would view his claim
of privacy as reasonable . . . our social traditions–that is, the
customs and habits that characterize the relationship of guest
and host in our culture–do not favor such a broad and charitable
view of the reasonableness of one’s expectation of privacy.
85 S.W.2d at 225-26.
In State v. McCray, 583 N.W.2d 668 (Wis. Ct. App. 1998), the defendant was
convicted of possession of cocaine with intent to deliver. He appealed his conviction based
on the denial of his motion to suppress the evidence seized following the execution of a no-
knock warrant at a house belonging to someone else. The warrant was based on information
that the sons of a woman named Ella Hodges were selling drugs out of her home. When the
police executed the warrant, they found the defendant lying on a couch in the basement of
the home. Crack cocaine in a plastic bag was situated on the couch next to the defendant and
several other plastic bags containing cocaine were located in the rafters of the basement
about ten feet from the defendant. Ms. Hodges testified that she was unaware of the
defendant’s presence in her home, but one of her sons admitted that he had met the defendant
the night before the warrant was executed when the defendant came to the house with a
friend. Ms. Hodges’s son had given the defendant permission to stay in the basement until
someone came to pick him up but had also told him that if it got too late, he would need to
15
leave. Affirming the lower court’s denial of the defendant’s motion to suppress, the Court
of Appeals of Wisconsin stated:
In regard to the constitutional issue: whether one who
was permitted to use the basement of a house while waiting to
sell drugs, but who had exceeded his authorized stay at the time
of the police search, has demonstrated a reasonable expectation
of privacy in the house sufficient to establish standing to
challenge the search under the Fourth Amendment. We
conclude he does not.
583 N.W.2d at 671.
In Commonwealth v. Mallory, 775 N.E.2d 764 (Mass. App. Ct. 2002), the
defendant appealed his rape conviction asserting that evidence admitted at his trial which had
been seized without a warrant should have been suppressed. Prior to his arrest, the defendant
was staying in the second floor bedroom of a single family home rented by an individual
named Robert Burns. Although the defendant was not paying rent, he shared the food
expenses. Approximately three months after he began staying at the residence, the defendant
raped Mr. Burns’s seventeen-year-old daughter. After the rape, the defendant fled the
premises. When the police arrived, they searched the defendant’s room without a warrant
and seized various items the victim said were used in the defendant’s attack upon her.
Finding no error in the lower court’s refusal to suppress this evidence, the Appeals Court of
Massachusetts stated:
The “very limited expectation of privacy” the defendant
had in the room prior to February 16, [the date of the rape]
which was dependent upon the relationship between the
defendant and his host, disintegrated that afternoon . . . The
16
relationship between the defendant and his host was thereby
destroyed. . . .
In sum, when the searches occurred, if he had any
remaining subjective expectation of privacy regarding his room,
the defendant certainly had no expectation of privacy that
society objectively would recognize as reasonable.
775 N.E.2d at 768 (citations omitted).
These cases evince the principle that a guest in a home must be welcomed by
his host at the time of the government intrusion in order to have a reasonable expectation of
privacy. In other words, “an overnight guest’s expectation of privacy is affected by the
host’s ability to control the use of the premises and the period of time that a guest will be
permitted to stay.” Granados, 85 S.W.2d at 225. Although there is no evidence in the case
at bar that Ms. Gillespie asked the petitioner to leave, it is clear that the petitioner maintained
his presence in her home through his threats of violence toward her and his exploitation of
her drug addiction, rather than as invited guest who was welcomed. At the petitioner’s trial,
Ms. Gillespie testified about what occurred when she observed the petitioner’s drug
transactions.
Q: Now you mentioned that you saw some of those. Would
anything happen if you were present on any of these transfers?
A: He would ask me to go in another room a lot [sic] of the
transactions.
Q: How would those discussions take place? In other words,
what was Mr. Dorsey’s demeanor when he was asking you to
leave?
17
A: It wasn’t very nice. It was bitch, go back in your room. You
don’t need to be seeing this.
Q: Were there any threats ever made to you during this?
A: There was once or twice.
Q: Describe what types of threats were made to you?
A: He told me he would kill me if I didn’t go back in my room.
Q: Did you believe him?
A: At that point and time, yes I did.
Ms. Gillespie acknowledged that she was able to leave her home during the
petitioner’s stay and could have gone to the police but stated that she chose not to because
she was afraid of the petitioner and because he was her source for the drugs she needed to
feed her addiction. In that regard, she testified:
Q: Let me ask you, why didn’t you go the police?
A: I was scared to. I was afraid of turning him into the police.
I was just afraid all the way around. I didn’t know what to do.
Q: Was there another reason you might not have wanted Mr.
Dorsey to leave?
A: I was getting high too and it was my home.
Q: What was he supplying you for staying at your residence?
A: Crack, marijuana.
Q: Were you an addict at that time?
18
A: I was.
Q: At the time when Mr. Dorsey was staying at your residence
were you getting your crack from anyone else?
A: I wasn’t.
Q: Would it be fair to say with Mr. Dorsey there you had a ready
supply of crack cocaine available?
A: That’s the reason I had him there.
Although the petitioner was initially an invited guest in Ms. Gillespsie’s home,
he immediately took advantage of her drug addiction and used her dependency upon the
drugs he was supplying her to control the premises and carry out his drug operation. The
relationship between Ms. Gillespie and the petitioner is best characterized as that of drug
addict and drug supplier rather than host and guest. In any event, their relationship further
disintegrated when the State Police arrived at the residence on January 21, 2011, and
knocked on the front door. Ms. Gillespie testified that once the petitioner discovered that the
police were outside, “he told me that I best not open that door, that he was going to kill me
or things would get ugly.” Ms. Gillespie further stated that “I was relieved once the cops
came in because I knew that it was over.” She explained that she did not like the person she
had become as a result of her drug addiction and that she wanted the petitioner out of her
home.
19
Based on all the above, we are unable to find that the petitioner had an
expectation of privacy that society would characterize as reasonable. Accordingly, we now
hold that an individual who is unwelcome in the dwelling of another, or who has procured
or maintained access to the dwelling through coercion, threats of violence or exploitation,
does not have an expectation of privacy that society is willing to recognize as reasonable and,
therefore, cannot claim the protections afforded by the Fourth Amendment of the United
States Constitution and Article III, Section 6 of the West Virginia Constitution.
While we have concluded that the petitioner had no reasonable expectation of
privacy because of the manner in which he procured and maintained access to Ms. Gillespie’s
home, we further find that the petitioner could not challenge the seizure of evidence because
Ms. Gillespie consented to the search. In Olson, while finding that an overnight guest has
a legitimate expectation of privacy in a host’s home, the Supreme Court also observed that
“[f]rom the overnight guest’s perspective, he seeks shelter in another’s home precisely
because it provides him with . . . a place where [the guest] . . . and his possessions will not
be disturbed by anyone but his host and those his host allows inside.” 495 U.S. at 99
(emphasis added). Based upon this observation, other courts have concluded that an
overnight guest cannot challenge a search and seizure under the Fourth Amendment when
their host has consented to the government intrusion.
20
For example, in United States v. Oates,173 F.3d 651 (8th Cir. 1999), the
defendant, upon his release from prison, asked his friend, Vadia Smith, if he could move into
her house. The defendant then converted the house into a crack den and even brought in
another friend to help manage the operations. Smith went to the police and signed a consent
form permitting the officers to search her dwelling, which they did, after confirming with the
property manager that only Smith and her children were authorized to live in the house.
Rejecting the defendant’s argument that the police search of the bedroom he occupied in
Smith’s house was illegal despite Smith’s consent, the United States Court of Appeals for
the Eighth Circuit found that the
officers had sufficient evidence to establish that Smith had
authority to permit the search of the [defendant’s] bedroom.
This conclusion was based on the statement of Smith and the
property manager, in addition to the fact that [the defendant]
paid no rent to Smith. The evidence indicates that Oates was
only a guest in Smith’s home, and probably one that had
overstayed his welcome. Following the teachings of Olson it
cannot be said that the authorities erred in concluding that the
[defendant’s] host, Smith, could consent to a search of her entire
residence by authorities. In short, the facts available . . .
justified a reasonable officer in the belief that the consenting
party has authority over the premises.
Id. at 657 (internal quotations and citation omitted); see also United States v. Isom, 588 F.2d
858 (2d Cir. 1978) (finding no violation of defendant’s Fourth Amendment rights because
owner of home where defendant had been staying intermittently consented to search); Wigley
v. State, 44 S.W.3d 751, 754 (Ark. Ct. App. 2001) (finding that defendant, an overnight guest
in home of parolee who had executed a “consent-in- advance” form as condition of his
21
parole, did not have reasonable expectation of privacy because “an overnight guest has no
reasonable expectation of privacy when the host consents to the search”).
We reject the petitioner’s contention that the police made an illegal entry into
Ms. Gillespie’s home thereby rendering her consent to search invalid. During the
suppression hearing, Ms. Gillespie testified that by opening the door, she was inviting the
police to come into her home. Furthermore, assuming, arguendo, that the police entered Ms.
Gillespie’s home without permission, exigent circumstances justified the warrantless entry.
We have explained that “[t]he circumstances that justify warrantless searches include those
in which officers reasonably fear for their safety, where firearms are present, or where there
is a risk of a criminal suspect’s escaping or fear of destruction of evidence.” Lacy, 196
W.Va. at 113, 468 S.E.2d at 728 (internal quotations and citation omitted). In this instance,
the State Police reasonably believed that a crime was being committed and that evidence was
being destroyed when they heard a toilet flushing and other movement inside the residence.
In addition, the police had reason to fear for their safety given that the petitioner’s criminal
history included a firearms charge.12
The fact that the police knocking at the door may have prompted the petitioner
to attempt to destroy evidence of his drug operation does not render the exigent
12
See supra note 7.
22
circumstances exception to the warrant requirement inapplicable. As the United States
Supreme Court explained in Kentucky v. King, 131 S.Ct. 1849 (2011),
the exigent circumstances rule justifies a warrantless search
when the conduct of the police preceding the exigency is
reasonable in the same sense. Where, as here, the police did not
create the exigency by engaging or threatening to engage in
conduct that violates the Fourth Amendment, warrantless entry
to prevent the destruction of evidence is reasonable and thus
allowed.
131 S.Ct. at 1858. In King, the police officers chased a suspect from a controlled buy of
crack cocaine into a building at an apartment complex. The officers approached the door of
the apartment they believed the suspect had entered and banged as “‘loud as they could,’”
announcing “‘This is the police’” or “Police, police, police.” Id. at 1854. As soon as they
started banging on the door, the officers could hear persons and things moving inside the
apartment. Believing that drug-related evidence was about to be destroyed, the officers
announced that they “‘were going to make entry inside the apartment’” and then kicked in
the door and entered the apartment. Id. Upon entering the apartment they did not find the
suspect they were chasing, but instead found three other persons smoking marihuana. During
a protective sweep of the apartment, the officers observed marihuana and cocaine in plain
view. In holding that “the exigent circumstances rule applies when the police do not gain
entry to premises by means of an actual or threatened violation of the Fourth Amendment,”13
13
For purposes of the opinion, the Court assumed that exigent circumstances existed.
The case was remanded to the Kentucky Supreme Court to decide whether the sound of
persons moving inside the apartment was sufficient to establish that evidence was being
(continued...)
23
the Supreme Court observed that “[o]ccupants who choose not to stand on their constitutional
rights but instead elect to attempt to destroy evidence have only themselves to blame for the
warrantless exigent-circumstances search that may ensue.” 131 S.Ct. at 1862.
The petitioner points out that Ms. Gillespie gave two statements to the police,
one the night of January 21, 2011, and another one about a month later, claiming that the
police officers told her that if she did not open the door, they were going to kick it down.
However, Ms. Gillespie later retracted those parts of her statements, denying that the officers
threatened to kick the door down. She subsequently testified during the suppression hearing
and at trial that it was Mr. Hurley who told her that if she did not open the door, the police
would kick it in. Accordingly, we see no basis to conclude that the police gained entry into
Ms. Gillespie’s home by an actual or threatened violation of the Fourth Amendment. Once
they were inside the residence and had secured all the occupants for their safety, the police
obtained Ms. Gillespie’s consent to search.
B. Rejection of Plea Agreement
Next, the petitioner contends that the circuit court erred by rejecting a plea
agreement he reached with the State on the second day of his trial. According to the
petitioner, the trial court failed to give fair consideration to the plea agreement, summarily
13
(...continued)
destroyed.
24
rejecting it because it was not presented until the second day of trial and the court determined
that it “had given the parties more than enough time to reach an agreement the day before.”
The petitioner contends that the court’s rejection of the agreement based solely on the timing
of its presentation violates this Court’s holding in State v. Sears, 208 W.Va. 700, 542 S. E.2d
863 (2000), which provides: “When a criminal defendant and the prosecution reach a plea
agreement, it is an abuse of discretion for the circuit court to summarily refuse to consider
the substantive terms of the agreement solely because of the timing of the presentation of the
agreement to the court.” Id. at 702, 542 S.E.2d at 865, syl. pt. 5. The State maintains,
however, that the “plea agreement” was merely a plea proposal, and the court did not abuse
its discretion in refusing to allow the parties additional time to finalize the agreement. We
agree.
In Sears, the parties reached a plea agreement the day before the defendant’s
trial was scheduled to begin. Counsel for the defendant then requested that the prosecutor
attend a hearing to present the agreement to the court. At the hearing, the court did not
consider the merits of the plea agreement, but instead summarily rejected it pursuant to a
local rule of its own making that prohibited entry of plea agreements after the conclusion of
pre-trial hearings. The purpose of the local rule was to allow the court to control its docket
by avoiding cancellation of trials due to plea agreements made at the last minute. Reversing
the circuit court, this Court found that the discretion afforded a trial court to accept or reject
25
a plea agreement “should not be discarded for the sake of expediency.” Id. at 705, 542 S.E.2d
at 868.
Upon review, it is clear that Sears has no application in this instance because
the parties had not actually reached a final plea agreement. Rather, the record shows that
the parties presented a plea proposal to the court in an informal manner. While counsel for
the petitioner advised the court that the petitioner was willing to accept the plea proposal, the
State indicated that the petitioner would have to agree to certain stipulations. It is clear,
therefore, that the plea agreement had not yet been finalized.
In syllabus point two of State ex rel. Brewer v. Starcher, 195 W.Va. 185, 465
S.E.2d 185 (1995), this Court held: “There is no absolute right under either the West
Virginia or the United States Constitutions to plea bargain. Therefore, a circuit court does
not have to accept every constitutionally valid guilty plea merely because a defendant wishes
so to plead.” We further held in Brewer that “the decision whether to accept or reject a plea
agreement is vested almost exclusively with the circuit court.” Id. at 188, 465 S.E.2d at 188,
syl. pt. 3, in part. In so holding, we recognized that the court’s discretion to accept or reject
a plea agreement is tempered by the fact that “all plea agreements must be constitutionally
acceptable and in compliance with procedural rules this Court mandates.” Id. at 192, 465
S.E.2d at 192.
26
Given the circumstances of this case, we are unable to find that the trial court
abused its discretion in refusing to grant the parties additional time to finalize the plea
agreement. The record reflects that the parties had discussed multiple plea deals that the
petitioner rejected because he could not get assurance from the court that he would receive
probation. In presenting this final plea proposal to the court, the petitioner’s counsel stated
that he was bringing it to the court’s attention “out of an abundance of caution” and indicated
that he did not think the court would be inclined to accept the plea. Based on the above, we
find no merit to the petitioner’s argument.14
C. The Proffer of 404(b) Evidence
The petitioner’s final assignment of error concerns the manner in which the
court considered and ruled upon the admissibility of the evidence the State sought to
introduce at the petitioner’s trial pursuant to Rule 404(b) of the West Virginia Rules of
14
We note that the circumstances under which the trial court was approached with the
plea proposal did not invoke the procedural requirements of Rule 11 of the West Virginia
Rules of Criminal Procedure, which pertains to plea agreements. In that regard, this Court
has held that
[w]hen the parties to a criminal proceeding agree that the
trial court should be approached informally to determine
whether the court would be amenable to a proposed plea
agreement, the procedures outlined under Rule 11 of the West
Virginia Rules of Criminal Procedure do not apply to respond to
the informal inquiry.
Syl. Pt. 1, State v. Welch, 229 W.Va. 647, 734 S.E.2d 194 (2012).
27
Evidence.15 The petitioner contends that by allowing the State to make a proffer of the
404(b) evidence and ruling upon that proffer alone, rather than requiring the State to present
the actual evidence through the testimony of witnesses at the pre-trial hearing, the court
committed reversible error. The State, noting that the petitioner’s counsel failed to object to
the proffer of the 404(b) evidence during the hearing, maintains that the proffer was
sufficient to allow the trial court to determine the admissibility of the evidence. We agree.
Long ago, this Court recognized that “as the control of the scope, latitude and
method of introduction of evidence of collateral crimes and charges is vested in the trial
court, motions to introduce and motions and objections for exclusion of such evidences are
addressed to the sound discretion of the court.” Syl. Pt. 14, State v. Thomas, 157 W. Va.
640, 203 S.E.2d 445 (1974). Recognizing the potential for prejudice inherent in other-crime
evidence, this Court then held in syllabus point two of McGinnis, 193 W.Va. 147, 455 S.E2.d
516 (1994), that
[w]here an offer of evidence is made under Rule 404(b) of the
West Virginia Rules of Evidence, the trial court, pursuant to Rule
104(a) of the West Virginia Rules of Evidence, is to determine its
admissibility. Before admitting the evidence, the trial court should
conduct an in camera hearing as stated in State v. Dolin, 176 W.Va.
688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments
of counsel, the trial court must be satisfied by a preponderance of the
evidence that the acts or conduct occurred and that the defendant
committed the acts. If the trial court does not find by a preponderance
of the evidence that the acts or conduct was committed or that the
15
See supra note 9.
28
defendant was the actor, the evidence should be excluded under Rule
404(b). If a sufficient showing has been made, the trial court must then
determine the relevancy of the evidence under Rules 401 and 402 of the
West Virginia Rules of Evidence and conduct the balancing required
under Rule 403 of the West Virginia Rules of Evidence. If the trial
court is then satisfied that the Rule 404(b) evidence is admissible, it
should instruct the jury on the limited purpose for which such evidence
has been admitted. A limiting instruction should be given at the time
the evidence is offered, and we recommend that it be repeated in the
trial court’s general charge to the jury at the conclusion of the evidence.
In this case, the petitioner contends that because the trial court failed to require the State to
call witnesses to testify as to the nature of the 404(b) evidence, the court was unable to weigh
the evidence and give proper consideration to its admissibility as required by McGinnis.
We recently considered whether a proffer of 404(b) evidence by the State was
sufficient for the purpose of allowing the trial court to determine the admissibility of such
evidence in State v. Bruffey, 231 W.Va. 502, 745 S.E.2d 540 (2013). In that case, the
defendant was charged with robbery of a bank. The State gave notice that it wished to
introduce evidence at the defendant’s trial of a second robbery that occurred after the robbery
for which the defendant was charged. The defendant was suspected of committing the
second robbery, and the State sought to admit evidence related to the second robbery to show
a common plan or scheme or identity as permitted by Rule 404(b). At the 404(b) hearing,
the State, without objection from the defendant’s counsel, proffered what the evidence would
be regarding the second (uncharged) robbery the petitioner was suspected of committing.
29
Upon his conviction, the defendant filed an appeal, arguing that the court had erred by
allowing the State to make a proffer of the 404(b) evidence.
In Bruffey, this Court explained that “the purpose of a 404(b) hearing is to
allow a trial court to consider ‘the similarities and differences between the collateral offenses
and the present offenses [so it] can [apply] the balancing test to determine whether the
probative value outweighs the prejudicial effect of such evidence.’” 231 W.Va. at —, 745
S.E2.d at 550 (citation omitted). Finding no error with regard to the court’s admissibility
ruling based solely on the proffer, this Court explained that the purpose of the 404(b) hearing
was accomplished as the record showed that the court “reviewed at length the similarities
between the charged and the uncharged offenses and determined that the probative value of
the 404(b) evidence outweighed any prejudicial effect.” 231 W.Va. at —, 745 S.E.2d at 550.
The same analysis applies to the case at bar.
The 404(b) evidence the State sought to admit at the petitioner’s trial was
testimony from Ms. Gillespie, Mr. Osborne, and Mr. Hurley regarding uncharged drug
transactions that they had participated in with the petitioner and their observation of the
petitioner’s sale of cocaine to other persons. In addition, the State sought to elicit testimony
from Mr. Osborne that he had conspired with the petitioner to allow the sale of crack cocaine
out of his house and that he had an arrangement with the petitioner, like Ms. Gillespie, to
receive a certain amount of crack cocaine for every sale of crack the petitioner made to
30
another person. In addition to making a very detailed proffer of this evidence, the record
shows the State informed the trial court that both Ms. Gillespie and Mr. Osborne were
available to testify, if necessary. The State further reminded the court that Ms. Gillespie had
testified during the hearing on the petitioner’s motion to suppress the evidence seized from
her residence at the time of his arrest and that all three 404(b) witnesses had given statements
which were in the court record and had been provided to the petitioner’s counsel.
Following the State’s proffer, the trial court verified that the statements upon
which the proffer was based were given to the petitioner’s counsel in discovery. After
individually discussing each of the proposed witnesses, the court explained its reasons for
finding that the evidence was admissible pursuant to certain specified purposes under Rule
404(b).16 The court then conducted the 404(b) balancing test and concluded that the
16
The court found, specifically, that Mr. Osborne would be able to testify regarding
the sales of crack cocaine by the petitioner that Mr. Osborne witnessed while the petitioner
was staying in his home. The court found these transactions to be evidence of a common
plan and scheme, and also showed intent or lack of mistake. Ms. Gillespie was similarly able
to testify about the petitioner’s sales of crack cocaine in her home, her purchase of crack
cocaine from petitioner at Mr. Osborne’s residence, and the threats the petitioner made to her.
The court found her testimony concerning the drug transactions would constitute evidence
of a common plan or scheme, as wells as intent or lack of mistake. With regard to the
testimony about the petitioner’s threats to kill her, the court found that it was admissible for
the purpose of proving a consciousness of guilt or an attempt to avoid detection. Finally, the
court found that Mr. Hurley would be able to testify regarding the transactions that took place
when he was in Ms. Gillespie’s home on January 21, 2011, for the purpose of establishing
a common plan or scheme and intent or lack of mistake.
31
“probative value outweighed the prejudicial effect.” Finally, the court noted that it would
issue appropriate limiting instructions to the jury, which it ultimately did.
It is clear that the trial court completed all of the analytical steps necessary to
determine the admissibility of the 404(b) evidence, and we find no error in the court’s
methodology for making that determination. As in Bruffey, the proffer made here was
sufficient to allow the court to consider the similarities and differences between the charged
and uncharged acts of the petitioner and conclude that the latter was proper 404(b) evidence
which satisfied all the requirements for admissibility pursuant to McGinnis. Accordingly,
we find no merit to the petitioner’s argument.
IV. Conclusion
Having found no merit to the petitioner’s assignments of error for the reasons
discussed above, the final order of the Circuit Court of Logan County entered on November
9, 2012, is affirmed.
Affirmed.
32