State of West Virginia v. Cortez L. Barefield

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2018 Term
FILED

May 17, 2018

No. 17-0227 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent

v.

CORTEZ L. BAREFIELD,

Defendant Below, Petitioner

Appeal from the Circuit Court of Wood County

The Honorable J. D. Beane, Judge

Case No. 15-F-101

REVERSED AND REMANDED

Submitted: April 11, 2018
Filed: May 17, 2018

Matthew Brummond, Esq. Patrick Morrisey, Esq.
Public Defender Services Attorney General
Charleston, West Virginia Zachary Aaron Viglianco, Esq.
Attorney for Petitioner Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.

JUSTICE LOUGHRY dissents and reserves the right to file a separate opinion.

 SYLLABUS BY THE COURT

1. “[T]he 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, 107, 468 S.E.2d 719, 722 (1996).

2. “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).

3. “Police may not use an initially lawful search as a pretext and means

to conduct a broad warrantless search.” Syl. Pt. 4, State v. Lacy, 196 W. Va. 104, 107, 468

S.E.2d 719, 722 (1996).

4. An “all persons” warrant may validly authorize a search of all persons

present on the premises to be searched insofar as the supporting affidavit demonstrates a

detailed factual nexus among the criminal activity, the place of the activity, and the persons

i
reasonably likely to be present on the premises. In addition to a factual nexus, the

supporting affidavit must more specifically demonstrate 1) that the area to be searched is

small, confined, and private; 2) the nature of the suspected criminal activity is such that

participants constantly shift and/or change, making it difficult to predict who may be

present on the premises at any given time; and 3) that the items which are subject of the

search are of a size or kind which renders them easily concealed and/or destroyed.

5. “Searches conducted outside the judicial process, without prior

approval by judge or magistrate, are per se unreasonable under the Fourth Amendment and

Article III, Section 6 of the West Virginia Constitution—subject only to a few specifically

established and well-delineated exceptions. The exceptions are jealously and carefully

drawn, and there must be a showing by those who seek exemption that the exigencies of

the situation made that course imperative.” Syl. Pt. 1, State v. Moore, 165 W.Va. 837, 272

S.E.2d 804 (1980), overruled in part on other grounds by State v. Julius, 185 W.Va. 422,

408 S.E.2d 1 (1991).

6. “A warrantless search of the person and the immediate geographic

area under his physical control is authorized as an incident to a valid arrest.” Syl. Pt. 6,

State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980).

7. “An officer, with authority to conserve the peace, may, without a

warrant, arrest any person who he, upon probable cause, believes has committed or is

ii
committing a felony, though it afterwards appears that no felony was actually perpetrated.”

Syl. Pt. 2, State v. Duvernoy, 156 W.Va. 578, 195 S.E.2d 631 (1973).

8. “‘Probable cause to make an arrest without a warrant exists when the

facts and the circumstances within the knowledge of the arresting officers are sufficient to

warrant a prudent man in believing that an offense has been committed.’” Syl. Pt. 3, State

v. Duvernoy, 156 W.Va. 578, 195 S.E.2d 631 (1973).

9. “Under 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, State v. Flippo, 212

W. Va. 560, 575 S.E.2d 170 (2002).

10. “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.”

Syl. Pt. 4, State v. Flippo, 212 W. Va. 560, 575 S.E.2d 170 (2002).

iii
 11. “Failure 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 v. Blair, 158 W. Va. 647, 648, 214 S.E.2d 330, 331 (1975).

iv

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

1

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

2

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.

1
Also in the room were Isaiah Ocee, Michaela Butcher, and Nathan Casto (Kalem’s
brother who is now deceased). Mr. Casto testified that all three purchased drugs from him
and were drug abusers.
3

 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

4

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.

5

 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

2
The parties focus primarily on the cash, pay stub, and identification card. There is
little to no discussion of the VISA debit card or social security card, as neither were
characterized as probative evidence of drug trafficking at trial.
3
The State apparently abandons its “officer safety” argument since petitioner had
been patted down and was handcuffed at the time of the search. In a footnote in its brief,
however, the State claims that it “does not concede” the officer safety exception is
inapplicable, referencing Officer Pifer’s testimony that he conducted the search for
“weapons and contraband.” However, other than this sentence in a footnote, the State
makes no further argument in support.
6

 [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 and the things or persons to be seized.”); State v. Ayala,

762 P.2d 1107, 1111 (Utah Ct. App. 1988) (“[A] warrant authorizing the search of premises

does not authorize officers to search an individual merely because that person is present on

the premises[.]”). Moreover, “[p]olice may not use an initially lawful search as a pretext

and means to conduct a broad warrantless search.” Syl. Pt. 4, Lacy, 196 W. Va. 104, 468

S.E.2d 719. See also Ybarra v. Illinois, 444 U. S. 85, 91 (1979) (“[A] person’s mere

propinquity to others independently suspected of criminal activity does not, without more,

give rise to probable cause to search that person”).

As indicated, petitioner argues that the face of the warrant neither authorized

a search of petitioner, who was a mere visitor at the home, nor did it authorize the search

of all persons on the premises. The State maintains that the warrant permitted law

enforcement to validly search all persons present on the premises pursuant to a so-called

“all persons” warrant, which purports to grant authority to search all persons found at a

particular location. While West Virginia has not yet addressed the validity of such a

warrant, we note that a majority of states, as well as the Fourth Circuit, have determined

7

that such a warrant “is not unconstitutional per se” but may be found to be valid as long as

there is sufficient probable cause to justify the search of all persons located on the premises.

State ex rel. Owens v. Lott, 372 F.3d 267, 275 (4th Cir. 2004) (emphasis in original); see U.

S. v. Guadarrama, 128 F. Supp.2d 1202 (E. D. Wis. 2001) (analyzing cases and tallying

jurisdictions permitting “all persons” warrants). Of the approximate eight jurisdictions that

have rejected the warrants as facially unconstitutional, most have done so on the basis that

they are “uncomfortabl[y] similar[]” to general warrants, which the Fourth Amendment

was designed to address. Id. at 1207. Notably, the United States Supreme Court has

expressly declined to opine on the validity of such a warrant. See Ybarra, 444 U.S. at 92

n.4 (“Consequently, we need not consider situations where the warrant itself authorizes the

search of unnamed persons in a place and is supported by probable cause to believe that

persons who will be in the place at the time of the search will be in possession of illegal

drugs.”).

Among the states recognizing the potential validity of such warrants, there is

unwavering consensus that the constitutionality of the search rises or falls with whether the

search warrant affidavit provides a “sufficient nexus among the criminal activity, the place

of the activity, and the persons in the place to establish probable cause.” People v. Johnson,

805 P.2d 1156, 1159 (Colo. Ct. App. 1990). In one of the first cases to recognize such a

warrant, the New Jersey Supreme Court attempted to debunk the ostensible fear that “all

persons” warrants were tantamount to general warrants by reasoning that “there is none of

the vice of a general warrant if the individual is [] identified by physical nexus to the on-

8

going criminal event itself,” particularly where “the place is so limited and the illegal

operation so overt that it is likely that everyone present is party to the offense.” State v.

DeSimone, 288 A.2d 849, 850 (N. J. 1972).

The necessity of a factual nexus to establish probable cause to search is

hardly new ground in this Court or elsewhere: “There must be a nexus between the criminal

activity and the place or person searched and thing seized.” Lilly, 194 W. Va. at 602, 461

S.E.2d at 108 (citing 1 Franklin D. Cleckley, Handbook on West Virginia Criminal

Procedure I-358 (1994)). The precise contours of this nexus as pertains to an “all persons”

warrant, however, is a bit blurry at the edges. For instance, the Fourth Circuit has held that

the nexus among criminal activity, the premises, and its occupants is insufficient if there is

not “probable cause to believe that everyone found on the premises being searched is

involved in the illegal activity and that evidence of the crime would be found on their

person.” Owens, 372 F.3d at 275 (emphasis in original). The Owens court explained that

the supporting affidavit requires “information that would [] permit[] the magistrate to

reasonably conclude that there was a fair probability that any person seen by officers on

the premises was there to partake in one side of a drug transaction or another.” Id. at 276

(emphasis added). Under those circumstances, “presence becomes the descriptive fact

satisfying the aim of the Fourth Amendment.” DeSimone, 288 A.2d at 850.4

4
However, “mere presence cannot supply the reasonable connection to the illegal
activity.” Bergeron v. State, 583 So.2d 790, 791 (Fla. Dist. Ct. App. 1991) (emphasis
added).
9

 In slight contrast, however, the South Dakota Supreme Court has cautioned

that “[t]he issuance of an ‘all persons’ search warrant does not require a guarantee that

everyone who might appear during the search must be involved in drug activity. That is

too high a burden.” State v. Jackson, 616 N.W.2d 412, 420 (S.D. 2000) (emphasis added).

Rather, the Jackson court concurred with the Pennsylvania Superior Court’s view as stated

in Commonwealth v. Graciani, 554 A.2d 560, 562-63 (Pa. Super. Ct. 1989), that

[t]hough it is certainly possible, even probable, that innocent
third parties who happen to be at the wrong place at the wrong
time may be subjected to searches under such warrants, the
nexus between the person to be searched and the nature and the
seriousness of the criminal conduct suspected on probable
cause, nonetheless, renders the probability of their culpable
participation in the crime suspected sufficient to warrant a
search of their person to prevent the destruction or concealment
of evidence of the crime suspected.

(emphasis in original). These semantical differences in describing the quantum of

probability notwithstanding, however, we agree that at its essence, “[p]robable cause is not

a technical, legalistic concept but a flexible, common-sense measure of the plausibility of

particular conclusions about human behavior.” State v. Hayes, 540 N.W.2d 1, 3 (Wis. Ct.

App. 1995). This observation is no less true simply because an “all persons” warrant is

involved.

However, courts which have recognized the potential validity of “all

persons” warrants have universally agreed that they “require greater factual support than

other warrants,” and certain have cautioned that they “do not sanction the routine use” of

such warrants. Jackson, 616 N.W.2d at 420; see also State v. Prior, 617 N.W.2d 260, 267-

10

68 (Iowa 2000) (explaining that constitutional rights require such warrants be “issued only

under constrained circumstances”). The Court of Appeals of New York comprehensively

explained that

[a]n application for this type of warrant must be
subjected to rigid scrutiny by the independent Magistrate. It
must carefully delineate the character of the premises, for
example, its location, size, the particular area to be searched,
means of access, neighborhood, its public or private character
and any other relevant fact. It must specifically describe the
nature of the illegal activity believed to be conducted at the
location, the number and behavior of persons observed to have
been present during the times of day or night when the warrant
is sought to be executed.

The application should also state whether any person
apparently unconnected with the illegal activity has been seen
at the premises. The warrant itself must limit the locus of the
search to the area in which the criminal activity is believed to
be confined and, according to the circumstances, may also
specify the time for the search.

In determining the reasonableness of a particular
warrant application, it is also appropriate to consider the
necessity for this type of search, that is, the nature and
importance of the crime suspected, the purpose of the search
and the difficulty of a more specific description of the persons
to be searched. The risk that an innocent person may be swept
up in a dragnet and searched must be carefully weighed.

People v. Nieves, 330 N.E.2d 26, 34 (N. Y. Ct. App. 1975) (footnote omitted). Particular

scrutiny has been given to whether the warrant is executed during the day when legitimate

visitors may be present or at night when those present are likely to be involved in the

criminal activity. See Jackson, 616 N.W.2d at 419 (favoring nighttime search “making it

improbable that innocent people would show up by happenstance”); State v. Wynne, 552

N.W.2d 218, 221 (Minn. 1996) (suppressing evidence on basis of warrant which was to be

11

served only during daytime hours when “relatives, guests or hired workpeople could have

been present on the residential premises to be searched”). With respect specifically to

search warrants for residences used for drug trafficking, many courts have focused on

whether surveillance has revealed short-term comings and goings indicative of drug trade

and whether there is a history of controlled buys or confidential informant verification of

ongoing drug trafficking. This heightened factual requirement is particularly necessary

when the search takes place in a private residence: “There is no question but that activities

which take place within the sanctity of the home merit the most exacting Fourth

Amendment protection.” Lacy, 196 W. Va. at 111, 468 S.E.2d at 726 (footnote omitted).5

Although “[w]hat amount of evidence is required to form probable cause is

not a question susceptible to formulaic solutions[,]” tests have emerged to ensure that the

context of the search aids in combatting constitutionally impermissible overbreadth.

Jackson, 616 N.W.2d at 420.6 For example, the Massachusetts Supreme Court has held

5
As a result, with respect to “all persons” warrants, there is an inevitable tension
between the preeminent protection afforded to private residences and the countervailing
fact that “[t]he more public a place, the less likely a search of all persons will be sustained.”
Guadarrama, 126 F. Supp.2d at 1212. We believe that this simply underscores the very
limited circumstances under which such a warrant will be deemed constitutionally valid.
6
This Court has instructed generally, however:

Under the Fourth Amendment to the United States
Constitution and Article III, Section 6 of the West Virginia
Constitution, the validity of an affidavit for a search warrant is
to be judged by the totality of the information contained in it.
Under this rule, a conclusory affidavit is not acceptable nor is

12

that for an “all persons” warrant to be valid, the following requirements must be met: 1)

that the area to be searched is “small, confined and private”; 2) that “the nature of the

criminal activity is such that participants (in general) constantly shift or change” making it

“practically[] impossible” to predict who may be there specifically at any given time; and

3) that the items being seized “are of a size or kind which renders them easily and likely to

be concealed on the person.” Commonwealth v. Smith, 348 N.E.2d 101, 107 (Mass. 1976);

see State v. Covington, 904 P.2d 209, 212 (Utah Ct. App. 1995) (approving Smith factors).

In view of the foregoing, we agree that, under appropriate circumstances, an

“all persons” warrant may validly authorize a search of all persons present on the premises

to be searched. For such a warrant to survive constitutional muster, however, the

supporting affidavit must demonstrate a particularly detailed factual nexus among the

criminal activity, the place of the activity, and the persons reasonably likely to be present

on the premises. In addition to a factual nexus, the supporting affidavit must more

specifically demonstrate 1) that the area to be searched is small, confined, and private; 2)

the nature of the suspected criminal activity is such that participants constantly shift and/or

change, making it difficult to predict who may be present on the premises at any given

time; and 3) that the items which are the subject of the search are of a size or kind which

an affidavit based on hearsay acceptable unless there is a
substantial basis for crediting the hearsay set out in the
affidavit which can include the corroborative efforts of police
officers.

Syl. Pt. 4, State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762 (1986).
13

renders them easily concealed and/or destroyed. In reaching this holding, we are mindful

of the considerable constitutional interests at stake as evidenced by the particularized

showing required. Nevertheless, we offer the following observation, as well-stated by the

Iowa Supreme Court:

This standard protects individual rights, while recognizing the
interests of law enforcement. It does not mean, however, that
police must know with certainty that all persons in the premises
will possess evidence of criminal activity at the time of the
search. It also does not mean that innocent people will never
be caught in the middle of an “all persons” search. The Fourth
Amendment only protects people “against unreasonable search
and seizure.” Moreover, probable cause does not require
absolute certainty, but a probable determination through the
eye of a reasonably prudent person.

Prior, 617 N.W.2d at 268 (citations omitted).

The foregoing notwithstanding, however, it is clear that the search warrant at

issue did not permit Officer Pifer’s search of petitioner’s person. It is indisputable that the

warrant and affidavit in no way reference petitioner. “It is a fundamental rule of law that a

warrant must name or describe with particularity the property to be seized and the person

or place to be searched.” Commonwealth v. Eichelberger, 508 A.2d 589, 592 (Pa. Super.

Ct. 1986). In fact, because the police had arrest warrants for Mr. Salyers, his wife, and Mr.

Casto, the warrant did not even reference searching these specific individuals, who owned

and/or lived in the house. The warrant authorizes a search of 925 Lynn Street and nothing

more. Petitioner’s mere presence at the home at the time the warrant was executed

subjected him only to detention while the search was being conducted. “[A] warrant

14

authorizing a search of a building does not authorize a search of those present when the

warrant is executed.” Commonwealth v. Wilson, 631 A.2d 1356, 1359 (Pa. Super. Ct.

1993); see also Michigan v. Summers, 452 U. S. 692, 692 (1981) (“[A] warrant to search

for contraband founded on probable cause implicitly carries with it the limited authority to

detain the occupants of the premises while a proper search is conducted”).

For much the same reasons, the warrant in the present case fails to qualify as

a valid “all persons” warrant. The only reference to “all persons” is contained in the

officer’s affidavit which, in the final paragraph, states: “This warrant requested shall also

cover search of any vehicles and persons located on this property.” However, as petitioner

notes, simply because the officer requested to search all persons does not mean the

magistrate granted him authority to do so; in fact, the search warrant does not.7 As the

Fourth Circuit has observed, “the particularity requirement of the Fourth Amendment is

7
The State does not address the distinction between the officer’s “request” for an
all persons warrant in the affidavit and the fact that the language of the warrant itself
authorizes no such search. Nor does the State offer any argument that the affidavit was
somehow “incorporated by reference” into the warrant itself. The sole reference to the
affidavit contained on the face of the search warrant is in the section stating: “[G]rounds
for probable cause of the issuance of this warrant are as follows: See Affidavit[.]”

The State also does not frame an argument around the fact that the magistrate signed
the affidavit as potential evidence of incorporation by reference. It appears, however, that
the magistrate’s signature is in the nature of a sworn acknowledgment since the affidavit
otherwise bears no notarial seal or otherwise states that it was “sworn and/or subscribed
to” before anyone qualified to give an oath. See Adkins, 176 W. Va. at 619, 346 S.E.2d at
768 (“Both the Fourth Amendment to the United States Constitution and Article III,
Section 6 of our Constitution provide that no warrant shall issue except upon probable
cause supported by oath or affirmation.”).

15

directed at the warrant as opposed to the supporting affidavit.” Owens, 372 F.3d at 274

(citing Groh v. Ramirez, 540 U. S. 551, 557 (2004). The search warrant itself only

commands the officer “to search forthwith the premises above described and all

appurtenances thereto for the property above specified[.]” We therefore conclude that the

search conducted of petitioner was indeed a warrantless search inasmuch as the subject

warrant neither identifies petitioner nor qualifies as a valid “all persons” warrant. See

Wilson, 631 A.2d at 1359 (“The section of the warrant which identified the person or place

to be searched described only the residence at E-25 Lloyd Street. It did not anywhere

mention Robert Wilson. This warrant, therefore, was insufficient to authorize a search of

appellant[.]”); cf. Jackson, 616 S.W.2d at 422 (Sabers, J., dissenting) (observing that

defendant “was not a particularized target of the warrant and was not specifically

mentioned in the affidavit supporting the warrant.”).

B. EXCEPTIONS TO THE WARRANT REQUIREMENT

Having determined that the search of petitioner was warrantless, we must

then determine whether the search falls into one of the well-recognized exceptions to the

necessity of a warrant:

Searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment and Article III,
Section 6 of the West Virginia Constitution—subject only to a
few specifically established and well-delineated exceptions.
The exceptions are jealously and carefully drawn, and there
must be a showing by those who seek exemption that the
exigencies of the situation made that course imperative.

16

Syl. Pt. 1, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980), overruled in part on

other grounds by State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991). As indicated above,

petitioner maintains that the search warrant exceptions identified by the circuit court—

officer safety and inevitable discovery—are inapplicable. 8 The State, offering no

substantive argument in support of the officer safety exception,9 appears to rely solely on

the inevitable discovery rule. “When the State seeks to introduce evidence that was seized

during a warrantless search, it bears the burden of showing the need for an exemption from

the warrant requirement and that its conduct fell within the bounds of the exception.” Lacy,

196 W. Va. at 111, 468 S.E.2d at 726.

The State contends that upon discovering the drugs inside the home, the

police then had probable cause to arrest petitioner and perform a search incident to arrest.

Accordingly, the evidence would have been “inevitably discovered.” Petitioner counters

8
The State likewise makes no argument in support of the “good faith exception”:
“[The] ‘good faith’ exception ‘is based on the premise that the exclusion of evidence under
the Fourth Amendment is not warranted where a police officer acts in good faith reliance
on the warrant issued by the magistrate.’” State v. Hlavacek, 185 W. Va. 371, 379, 407
S.E.2d 375, 383 (1991) (quoting Adkins, 176 W.Va. at 624, 346 S.E.2d at 774). Here,
Officer Pifer testified that he believed that he had a valid warrant to search all persons on
the premises. However, the exception is not applicable where the warrant is “so facially
deficient—i.e., in failing to particularize the place to be searched or the things to be
seized—that the executing officers cannot reasonably presume it to be valid.” U. S. v.
Leon, 468 U.S. 897, 923 (1984).
9
It is clear, however, that the officer safety exception would not apply inasmuch as
petitioner had already been patted down for weapons and was handcuffed at the time of the
search, posing no appreciable officer safety risk.

17

that 1) the police never had probable cause to arrest him, therefore any search stemming

from an unlawful arrest is likewise illegal; and 2) the police were not pursuing a valid line

of investigation which would permit them to search petitioner, as required by State v.

Flippo, 212 W. Va. 560, 575 S.E.2d 170 (2002).

1. Probable cause to arrest

To determine whether the evidence may have been inevitably discovered

pursuant to a search incident to arrest, we must first determine if the arrest was validly

supported by probable cause. “A warrantless search of the person and the immediate

geographic area under his physical control is authorized as an incident to a valid arrest.”

Syl. Pt. 6, Moore, 165 W.Va. 837, 272 S.E.2d 804 (emphasis added). Therefore, for a

search incident to arrest to be lawful, the arrest must be valid. “The predicate for a

[warrantless search incident to arrest], however, is an initial lawful arrest.” Id., 165 W. Va.

at 851, 272 S.E.2d at 813.10

With regard to warrantless arrests, the Court has held that “[a]n officer, with

authority to conserve the peace, may, without a warrant, arrest any person who he, upon

probable cause, believes has committed or is committing a felony, though it afterwards

appears that no felony was actually perpetrated.” Syl. Pt. 2, State v. Duvernoy, 156 W.Va.

578, 195 S.E.2d 631 (1973). “‘Probable cause to make an arrest without a warrant exists

10
Overruled on other grounds by State v. Julius, 185 W. Va. 422, 408 S.E.2d 1
(1991), and abrogated on other grounds by Horton v. California, 496 U. S. 128 (1990).
18

when the facts and the circumstances within the knowledge of the arresting officers are

sufficient to warrant a prudent man in believing that an offense has been committed.’” Syl.

Pt. 3, Id.

Petitioner argues that his mere proximity to the drugs discovered in the

bedroom in which he was located, along with three other people, is insufficient to establish

probable cause to arrest him. The State counters that the discovery of controlled substances

in a small room where petitioner was located, coupled with Officer Pifer’s “prior

knowledge” of petitioner’s involvement in a controlled purchase, is sufficient to create

probable cause.

Clearly, “[w]hen executing a warrant to search a residence, the police have

authority to detain individuals who happen to be present. However, in order to search or

arrest them, the police must establish independent probable cause.” Wilson, 631 A.2d 1356

at 1359. In that regard, courts nationwide have made clear that “mere proximity” to

contraband is insufficient to establish probable cause. See, e.g. People v. Reynolds, 518

N.Y.S.2d 551, 552 (N.Y. Crim. Ct. 1987) (“The mere presence of the defendant in the

company of persons engaged in narcotics transactions does not constitute probable cause

for arrest[.]”); United States v. Boone, No. 02 CR 1185(RPP), 2003 WL 841088, at *5

(S.D.N.Y. Mar. 6, 2003) (“[M]ere presence in an apartment where drugs and a firearm are

found is insufficient to establish probable cause to arrest a person when there is no reason

to link that person to the illegal items.”).

19

 At best, then, the information giving rise to probable cause in the instant case

was that petitioner 1) was known to the officer as having been “involved” in a prior

controlled buy; and 2) was found in a house, along with several other drug dealers and/or

abusers, where drugs were discovered. Significantly, however, there were three other

people in the bedroom with petitioner where the drugs were found and two to three other

adults elsewhere in the small house—any of whom could have been the owner and/or

possessor of the drugs. In fact, that drugs were found on premises has a particularly tenuous

connection to petitioner individually, where the entire purpose of the search warrant was

to search for drugs and other contraband as evidence of the drug dealing of the three other

people who were the actual subject of the investigation. Therefore, that drugs were found

is hardly surprising and in fact what police believed they would find as evidence of Mr.

and Mrs. Salyers’ and Mr. Casto’s drug activities. Attributing those drugs to petitioner

then, as opposed to any other individual in the house and/or specifically the bedroom where

they were found—particularly those who were the target of the investigation—is devoid of

logic. Moreover, little weight is added to the probable cause analysis on the basis of Officer

Pifer’s prior “familiarity” with petitioner. The record lacks any indication as to what

particular beliefs or conclusions Officer Pifer had drawn about petitioner as result of his

involvement in the prior controlled buy.11

11
In fairness, however, Officer Pifer did not give great detail about petitioner’s role
in this other incident because it had been determined to have involved use of an illegal
electronic intercept. He testified merely that he recognized petitioner from the other

20

 2. Application of the Inevitable Discovery Rule

However, even assuming arguendo that probable cause did exist to arrest

petitioner, West Virginia’s iteration of the inevitable discovery rule is not satisfied here

such as to render the evidence admissible. “Under 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. However,

[t]o 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.

Syl Pt. 4, Id. (emphasis added).

In comparing the majority and minority views on inevitable discovery, the

Flippo Court explained that under the majority rule, “‘if the government establishes that

the police, following routine procedures, would inevitably have uncovered the evidence,’”

incident and that he went by the name of “C. J.” Regardless, however, of the reason why
the record lacks additional information about petitioner’s involvement in the prior
controlled buy, this Court cannot speculate about the circumstances of petitioner’s
involvement in that incident, much less the reasonableness of the conclusions Officer Pifer
may have drawn, if any, about petitioner’s propensity to be involved in drug trafficking as
a result.
21

the evidence is admissible. Id. at 580, 575 S.E.2d at 190 (quoting U. S. v. Vasquez De

Reyes, 149 F.3d 192, 195 (3d Cir. 1998)). The Court then concluded that only the minority

rule set forth above was consistent with our Constitution: “In adopting the minority view,

we do so with a practical realization that ‘[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.’” Id. (quoting State v. Hatton, 389

N.W.2d 229, 234 (Minn. Ct. App. 1986)). Therefore, it is insufficient to simply argue that

police would have inevitably discovered the drugs while following their “routine

procedures” upon arresting petitioner. This is the position taken by the State in this matter

and represents precisely the majority approach which the Court rejected in Flippo.

Accordingly, even if one accepts the State’s argument that it had probable

cause to arrest petitioner, necessitating a search incident to arrest and that there was

therefore a “reasonable probability” that the evidence would have been discovered, the

State must still prove the two remaining elements of Flippo: that the leads making the

discovery inevitable were possessed by the police at the time of the misconduct; and that

the police were actively pursuing a lawful alternative line of investigation to seize the

evidence prior to the time of the illegal search. The State contends the “lead” making the

discovery inevitable was the search warrant; however, a reasonable argument could be

made that the “lead” was actually the discovery of the drugs in the bedroom where

22

petitioner was located, which discovery occurred subsequent to Officer Pifer’s illegal

search.

However, we need not engage in a theoretical debate about which of these

positions is more compelling inasmuch as the final requirement of Flippo is demonstrably

lacking. Clearly, the police were not “actively pursuing a lawful alternative line of

investigation to seize” the items from petitioner because they believed their existing

warrant permitted them to search petitioner. Police were not pursuing, nor did they at any

time, pursue a warrant to search or arrest petitioner. It is this final requirement of Flippo

which most markedly separates West Virginia’s more restrictive view of the inevitable

discovery doctrine from the more lax, majority view permitting mere “routine procedure”

to pave a pathway toward discovery, and therefore admissibility, of the evidence.

Therefore, we conclude that the evidence seized from petitioner and admitted

as evidence at trial was obtained pursuant to an unlawful warrantless search and should

have been suppressed. The circuit court’s failure to do so, therefore, constitutes reversible

error: “Failure 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 v. Blair,

158 W. Va. 647, 648, 214 S.E.2d 330, 331 (1975). Accordingly, we are left only to

determine if the illegal search and the evidence adduced therefrom was harmless beyond a

reasonable doubt.

23

 3. Harmless Error

In asserting that the introduction of illegally-seized evidence was not

harmless, petitioner highlights that, even with this evidence, he was acquitted of two out

of three counts of possession with intent to deliver. Petitioner maintains that without the

illegally-seized evidence the jury would have been left with nothing more than the

inherently suspect testimony of two drug dealers who “cut deals” to testify against him in

exchange for leniency. The State, for reasons that are not clear, does not make an argument

in support of harmless error, ostensibly choosing to rest on the strength of their argument

in support of the validity of the search.12

Viewing the evidence even in the light most favorable to the prosecution as

required by Lilly, we cannot conclude that the error was harmless. 194 W. Va. 595, 461

S.E.2d 101. Aside from the evidence unlawfully seized from petitioner, the prosecution

offered only the testimony of two admitted drug dealers and abusers who were also arrested

and were in fact the actual targets of the same raid, both of whom agreed to testify against

petitioner as a condition of their pleas. More importantly, however, the jury ostensibly

found one of those witnesses—Mr. Salyers—entirely incredible regarding petitioner’s

possession of methamphetamine and oxycodone inasmuch as he was acquitted of those

charges. Mr. Salyers’ testimony was the only evidence as to petitioner’s possession of

12
See W. Va. Rule of Appellate Procedure 10(d) (“If the respondent’s brief fails to
respond to an assignment of error, the Court will assume that the respondent agrees with
the petitioner’s view of the issue.”).

24

those two illegal substances. Therefore, when the remaining witness’ testimony about

summoning petitioner to the house to sell crack cocaine is coupled with the seizure of a

large sum of cash from petitioner’s person—evidence which is consistent with and

supportive of the prosecution’s theory of the case and the testimony of the primary

witness—we cannot conclude that the admission of the unlawfully seized evidence was

harmless beyond a reasonable doubt.

IV. CONCLUSION

Therefore, based upon the foregoing, we reverse petitioner’s conviction and

remand for a new trial.

Reversed and remanded.

25