Submitted: April 11, 2018
from the Circuit Court of Wood County The Honorable J. D.
Beane, Judge Case No. 15-F-101
Matthew Brummond, Esq.Attorney for Petitioner
Patrick Morrisey, Esq., Zachary Aaron Viglianco, Esq.,
Assistant Attorney General Attorneys for Respondent
JUSTICE WORKMAN delivered the Opinion of the Court. JUSTICE
LOUGHRY dissents and reserves the right to file a separate
BY THE COURT
"[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).
"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).
"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).
"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 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
"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');">185 W.Va. 422, 408
S.E.2d 1 (1991).
"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).
"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 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 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).
"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
"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
"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,
WORKMAN C. JUDGE.
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.
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.
FACTS AND PROCEDURAL HISTORY
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 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).
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
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.
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 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
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. 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.
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.
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 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