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State v. Barefield

Supreme Court of West Virginia

May 17, 2018

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent
CORTEZ L. BAREFIELD, Defendant Below, Petitioner

          Submitted: April 11, 2018

          Appeal 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

          CHIEF JUSTICE WORKMAN delivered the Opinion of the Court. JUSTICE LOUGHRY dissents and reserves the right to file a separate opinion.


         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 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');">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 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).

         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).

          WORKMAN C. JUDGE.

         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.


         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 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 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.

         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 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 ...

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