656 S.E.2d 471
Daniel R. Grindo Darrell V. McGraw, Jr.
Gassaway, West Virginia Attorney General
Attorney for the Appellant, Robert D. Goldberg
Kenneth Bookheimer Assistant Attorney General
Attorneys for the Appellee,
State of West Virginia
The appellants, Kenneth Bookheimer and Jessica Marie Tingler (hereinafter
“appellants” collectively, or “Mr. Bookheimer” and “Ms. Tingler” individually), appeal from
separate sentencing orders entered May 11, 2006, by the Circuit Court of Braxton County.
In those orders, the circuit court sentenced each of the appellants to one to five years'
imprisonment on a charge of conspiracy and to two to ten years' imprisonment on a charge
of operating a clandestine drug laboratory, both sentences to be served consecutively. On
appeal, the appellants assert three common assignments of error, and Ms. Tingler asserts one
additional assignment of error. (See footnote 1) Based upon the parties' arguments, the record designated
for our consideration, and the pertinent authorities, we determine that the circuit court erred
by allowing the introduction of evidence seized as a result of an illegal search and seizure. (See footnote 2) Thus, the circuit court's denial of the motion to suppress is reversed, and the subsequent
convictions are vacated. Both cases are remanded for a new trial consistent with this
Opinion.
4. The defendant Jessica Tingler was found outside
the residence in what the officers described as an agitated state
when they arrived.[ (See footnote 5) ]
5. The defendant Jessica Tingler did not give the
officers consent to enter or search the residence and in fact
objected to a search and denied that any incident of domestic
violence had taken place.
6. The officers were aware the residence was shared
by the defendant Kenneth Bookheimer, and they did not know
if he had been injured in the reported incident of domestic
violence or if he was in the residence with a weapon.
7. That exigent and emergency circumstances existed
in that the defendant Kenneth Bookheimer could have presented
a danger to the officers or others if he had been inside the
residence with a weapon.
8. That exigent and emergency circumstances existed
in that the defendant Kenneth Bookheimer could have been
inside the residence injured based upon the report of domestic
violence with a weapon being discharged and the agitated state
in which the officers found the defendant Jessica Tingler.
9. The officers had a right to enter the residence
based on the said exigent and emergency circumstances to
determine if the defendant Kenneth Bookheimer was present
and armed with a weapon or injured.
10. The officers found what they believed to be
evidence of a clandestine methamphetamine laboratory in plain
view when they entered the residence in search of the defendant
Kenneth Bookheimer.
. . . .
12. The defendant Kenneth Bookheimer did not give
the officers consent to search the residence and in fact objected
to a search.
. . . .
14. A search warrant for the defendants' residence
was properly issued by [the magistrate court].
15. The evidence sought to be suppressed was seized
under the search warrant.
(Footnote added).
The case proceeded to a joint trial. Ms. Tingler and Mr. Bookheimer were
found guilty of all charges and were sentenced to one to five years' imprisonment on the
conspiracy charge and to two to ten years' imprisonment on the clandestine drug laboratory
charge, with both sentences to be served consecutively. They appeal their convictions and
sentencing to this Court.
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.
Further,
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 III 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, Lacy, id. We have also explained that “we review de novo questions of law and
the circuit court's ultimate conclusion as to the constitutionality of the law enforcement
action.” State v. Lilly, 194 W. Va. 595, 600, 461 S.E.2d 101, 106 (1995). Mindful of these
applicable standards, we now consider the substantive issues raised herein.
“[s]earches 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.”
Syllabus Point 1, State v. Moore, [165] W. Va. [837], 272
S.E.2d 804 (1980) [, overruled on other grounds by State v.
Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991)].
Syl. pt. 1, State v. Weigand, 169 W. Va. 739, 289 S.E.2d 508 (1982). More specific to the
present case,
[a]lthough a search and seizure by police officers must
ordinarily be predicated upon a written search warrant, a
warrantless entry by police officers of a mobile home was
proper under the “emergency doctrine” exception to the warrant
requirement, where the record indicated that, rather than being
motivated by an intent to make an arrest or secure evidence, the
police officers were attempting to locate an injured or deceased
child, which child the officers had reason to believe was in the
mobile home, because of information they received immediately
prior to the entry.
Syl. pt. 2, State v. Cecil, 173 W. Va. 27, 311 S.E.2d 144 (1983). Stated more generally,
the emergency doctrine has been defined in various ways and
must be considered upon a case by case basis. . . . [T]he
emergency doctrine may be said to permit a limited, warrantless
search or entry of an area by police officers where (1) there is an
immediate need for their assistance in the protection of human
life, (2) the search or entry by the officers is motivated by an
emergency, rather than by an intent to arrest or secure evidence,
and (3) there is a reasonable connection between the emergency
and the area in question.
Cecil, 173 W. Va. at 32, 311 S.E.2d at 149 (internal citations omitted). Thus, the case-by-
case analysis rests on the reasonableness of the actions of the police and has been explained
in the following manner:
the “reasonableness” of a warrantless search or entry under the
emergency doctrine is established by the “compelling need to
render immediate assistance to the victim of a crime, or insure
the safety of the occupants of a house when the police
reasonably believe them to be in distress and in need of
protection.”
Id., 173 W. Va. at 32, 311 S.E.2d at 150 (internal citations omitted).
Applying the above-cited legal principles to the present case, we find it
unreasonable for the officers to have conducted a warrantless entry and search. At the
suppression hearing, the responding officers testified that Ms. Tingler clearly told them that
there was no domestic dispute, they were not wanted, they were not needed, and that she
wanted them to leave. In the face of this clear rebuke, it would not be reasonable for an
officer to proceed to enter and search the premises unless there was some other condition
lending to an emergency circumstance. (See footnote 7)
While the officer testified that Ms. Tingler was acting in a “hysterical” manner,
a review of the record reveals the contrary. After listening to the officer's testimony at the
suppression hearing, the trial judge could not agree that “hysterical” was a proper
characterization of Ms. Tingler's behavior. From the bench, the judge “note[d] that upon
arriving at the scene the testimony of [the] Deputy . . . was that Ms. Tingler was yelling, and
was in a state of less than quite [sic] demeanor. I would not say that she was irrate [sic], but
it appears that there was yelling by Ms. Tingler[.]” Moreover, the order stemming from the
suppression hearing referred to Ms. Tingler's demeanor as “agitated.” Being less than “irate”
and “agitated” does not lend support to the officer's contention that Ms. Tingler was
hysterical. An objective review of the record reveals a woman who was angry and who was,
indeed, probably yelling. However, her anger and yelling were not caused by circumstances
occurring prior to the arrival of the officers. Rather, her agitation was aimed at the fact that
the officers were present on her property. Thus, Ms. Tingler's behavior did not create an
emergency or an exigent circumstance justifying entry into the residence.
The United States Supreme Court recently authored an opinion supportive of
our conclusion that the warrantless entry and search of the appellants' residence was
unconstitutional. See Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208
(2006). (See footnote 8) In Randolph, the police were called by the estranged wife to come to her aid in a
domestic dispute. Upon their arrival, the wife informed the police that the husband was a
drug addict and that there was evidence of cocaine in the house. When asked for consent to
search the house, the wife agreed, but the husband refused. The police entered with the wife
and after seeing some evidence of cocaine use, left and obtained a search warrant. The police
then returned, finished the search, and procured evidence.
The Randolph Court ultimately held “that a warrantless search of a shared
dwelling for evidence over the express refusal of consent by a physically present resident
cannot be justified as reasonable as to him on the basis of consent given to the police by
another resident.” Randolph, 547 U.S. at 120, 126 S. Ct. at 1526, 164 L. Ed. 2d at 226
(footnote omitted). The ruling determined that the evidence should have been suppressed as
illegally obtained against the husband. In drawing this conclusion, the high court determined
that there was no protective need indicated for the police to enter the home. In so deciding,
the opinion stated: “The State does not argue that she gave any indication to the police of a
need for protection inside the house that might have justified entry into the portion of the
premises where the police found the powdery straw[.]” Id., 547 U.S. at 123, 126 S. Ct. at
1528, 164 L. Ed. 2d at 227.
Likewise, neither resident in the present case indicated a need for protection
from the police. (See footnote 9) The facts of the case before this Court are even more egregious than the
facts in Randolph because the police never had consent from either co-tenant in the case sub
judice. In fact, at the suppression hearing, the officer confirmed that the responding deputies
were expressly told they were not needed, they were unwanted, and they were told to leave
by Ms. Tingler. The deputies in the present case then proceeded to enter the front door to
check on Mr. Bookheimer, who responded that he was in the bathroom and would be out
when he finished. Neither tenant exhibited any signs that would make it reasonable for the
deputies to think entry into the residence was necessary on the basis of affording protection
to any resident. Further, when asked for consent to search, Mr. Bookheimer also refused
consent. Indeed, one deputy testified that Mr. Bookheimer, while being detained outside the
residence, attempted to educate the deputies on the constitutional implications of their entry
into his place of residence.
The State argues that the entry into the home was proper as both a protective
sweep for the safety of the deputies, as well as to determine the health status of Mr.
Bookheimer. However, both arguments fail. As we have previously recognized,
[a] protective search is defined as a quick and limited search of premises for weapons once an officer has individualized suspicion that a dangerous weapon is present and poses a threat to the well-being of himself and others. This cursory visual inspection is limited to the area where the suspected weapon could be contained and must end once the weapon is found and secured.
Syl. pt. 8, Lacy, 196 W. Va. 104, 468 S.E.2d 719. In this case, the officers had no
individualized suspicion that a firearm was present, or that a firearm posed a threat to the
well-being of anyone present. As previously explained, the anonymous tip mentioned that
a domestic dispute was taking place, with shots fired. However, the deputies never heard
shots and never saw any evidence of firearms.
We have previously addressed the issue of information provided by an
informant as a basis for probable cause to issue a warrant as follows:
A key issue in determining whether information provided
by an informant is sufficient to establish probable cause is
whether the information is reliable. An informant may establish
the reliability of his information by establishing a track record
of providing accurate information. However, where a
previously unknown informant provides information, the
informant's lack of a track record requires some independent
verification to establish the reliability of the information.
Independent verification occurs when the information (or
aspects of it) is corroborated by independent observations of the
police officers.
Syl. pt. 4, Lilly, 194 W. Va. 595, 461 S.E.2d 101. In the present case, the situation did not
involve an informant whose track record could be examined. Rather, the present case
involved an even more mistrustful situation: a tip by an anonymous caller. Our case law
provides many caveats when relying on tips from an anonymous caller. See, e.g., Syl. pt. 5, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996) (“For a police officer to make
an investigatory stop of a vehicle the officer must have an articulable reasonable suspicion
that a crime has been committed, is being committed, or is about to be committed. In making
such an evaluation, a police officer may rely upon an anonymous call if subsequent police
work or other facts support its reliability, and, thereby, it is sufficiently corroborated to
justify the investigatory stop under the reasonable-suspicion standard.”); Syl pt. 4, State v.
Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994) (“A police officer may rely upon an
anonymous call if subsequent police work or other facts support its reliability and, thereby,
it is sufficiently corroborated to justify the investigatory stop under the reasonable-suspicion
standard.”). Thus, it follows that an anonymous tip requires more corroboration than the tip
of an informant whose identity is known and who may or may not have a track record. In
the present case, there was absolutely no independent evidence at the residence to
corroborate the information supplied by the anonymous tip. Indeed, all information at the
scene was in direct contravention of the information supplied in the anonymous call.
Moreover, the health status of Mr. Bookheimer was known as soon as officers called out to
him and he replied he would be out when he finished using the bathroom. There was no need
to enter the home at that time. Thus, there was no indication that a protective sweep was
warranted or justified. No emergency situation or exigent circumstance existed that would
have made the warrantless entry reasonable under the state and federal constitutions.