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 findings are reviewed for clear error.
Syl. Pt. 1, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996). Recently, this Court
recognized the inherently factual nature of exigent circumstances, finding that whether
exigent circumstances exist is generally a question which should be left to the finder of fact. See State v. Kendell, 219 W. Va. 686, 694, 639 S.E.2d 778, 785-6 (2006) (per curiam)
(finding that whether exigent circumstances exist to justify a warrantless entry into a home
to secure the arrest of the defendant presents question of fact for jury resolution). However,
instead of affording the appropriate deference to the trial court's factual findings, the
majority has substituted its judgment (See footnote 3) and credibility determinations for that of the trial court
and, in so doing, has failed to properly justify its findings under the applicable, established
principles of law regarding exigent circumstances, protective searches and warrantless
entries into homes.
The preeminent case of exigent circumstances or the emergency doctrine
exception to our constitutional warrant requirement is State v. Cecil, 173 W. Va. 27, 311
S.E.2d 144 (1983). Therein, this Court recognized that the warrantless entry into a mobile
home to attempt to locate a missing and possibly injured child was proper under the
“emergency doctrine” exception to the warrant requirement where the record did not indicate
the entry was motivated by an intent to make an arrest or secure evidence. Explaining the
scope of its holding in Cecil, this Court stated in Wagner v. Hedrick, 181 W. Va. 482, 489,
383 S.E.2d 286, 293 (1989), that
[w]e adopted the emergency doctrine in State v. Cecil, 173
W. Va. 27, 311 S.E.2d 144 (1983), in which we held that the
emergency doctrine permitted “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.” Id. 173 W. Va. at 32, 311 S.E.2d at
149.
The application of the emergency doctrine requires the
existence of a “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. at 150 (citing State v.
Kraimer, 99 Wis.2d 306, 315, 298 N.W.2d 568, 572 (1980)).
In the instant matter, law enforcement arrived at the Tingler residence after
having been notified of a domestic dispute with gun shots having been fired. The officers
found Ms. Tingler outside the mobile home in an agitated state. She denied anything was
wrong, asked them to leave and refused their entry into the mobile home even though she
admitted Mr. Bookheimer was inside. Having a reasonable suspicion that gunshots had been
fired based upon the 911 report, the officers were confronted with a situation where they had
knowledge of at least two people on the premises, only one of which was visible, and a
report of gunshots. In such a circumstance, I do not find the trial court was clearly wrong
in its factual determination that the officers were justified in entering the mobile home to
determine if Mr. Bookheimer was injured based upon the report of domestic violence with
a weapon fired and Ms. Tingler's demeanor. Entry into the mobile home was necessary to
determine if Mr. Bookheimer was injured and in need of assistance. There was no evidence
that entry into the mobile home was motivated by an attempt to secure evidence. (See footnote 4) Further,
there was a reasonable connection between the emergency and the area entered as Ms.
Tingler had told the officers that Mr. Bookheimer was in the mobile home. Thus, the
requirements of Cecil were met herein by the officers' entry into the mobile home.
Because the trial court was not clearly wrong in its factual determination that
exigent and emergency circumstances existed to permit the officers to enter the mobile home
without a warrant, the trial court did not err, in my opinion, in denying the motion to
suppress to the extent the evidence of the clandestine drug laboratory was in plain view in
this initial entry. (See footnote 5) Contrary to the majority's finding, I believe that a simple denial of a
reported domestic violence incident by one of the purported participants is insufficient to
remove a reasonable suspicion that there may be an injured person nearby, particularly
where gunshots fired had also been reported.
The report of gunshots being fired provides additional justification for the
initial entry into the mobile home to secure Mr. Bookheimer. In syllabus points 5-8 of State
v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996), former Justice Cleckley, writing for the
Court, set forth the parameters of law enforcement's ability to conduct a warrantless
protective sweep for weapons in light of constitutional search and seizure concerns in this
jurisdiction. Therein, this Court held:
5. Law enforcement officials may interfere with an
individual's Fourth Amendment interests with less than
probable cause and without a warrant if the intrusion is only
minimal and is justified for law enforcement purposes. To
determine whether the intrusion complained of was minimal, a
circuit court must examine separately the interests implicated
when the police feel a search for weapons is necessary to keep
the premises safe during the search and the privacy interests of
the defendant to be free of an unreasonable search and seizure
of his or her residence. Only when law enforcement officers
face a circumstance, such as a need to protect the safety of those
on the premises, and a reasonable belief that links the sought
after information with the perceived danger is it constitutional
to conduct a limited search of private premises without a
warrant.
6. Neither a showing of exigent circumstances nor probable
cause is required to justify a protective sweep for weapons as
long as a two-part test is satisfied: An officer must show there
are specific articulable facts indicating danger and this
suspicion of danger to the officer or others must be reasonable.
If these two elements are satisfied, an officer is entitled to take
protective precautions and search in a limited fashion for
weapons.
7. The existence of a reasonable belief should be analyzed
from the perspective of the police officers at the scene; an
inquiring court should not ask what the police could have done
but whether they had, at the time, a reasonable belief that there
was a need to act without a warrant.
8. 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.
The trial court specifically found that the officers responding to the domestic violence call
herein were justified in entering the mobile home to determine if Mr. Bookheimer was inside
with a weapon.
It bears repeating that the officers were responding to a call reporting gunshots
fired. I find the majority's attempt to minimize this fact unpersuasive. Under the majority's
reasoning, law enforcement would only be permitted to search for weapons if they actually
heard the gunshots fired. That is not the law of this State as set forth in Lacy. Under Lacy,
an officer is justified in conducting a protective sweep for weapons if there are “specific
articulable facts indicating danger and this suspicion of danger to the officer or others must
be reasonable.” Syl. Pt. 6, Lacy. The trial court was not clearly wrong in finding that the
report of gunshots coupled with Ms. Tingler's demeanor justified the officer's entry into the
mobile home to determine if Mr. Bookheimer was armed. To the contrary, the majority has
apparently decided this matter based upon its own view of what the officers could have done
not “whether they had, at the time, a reasonable belief that there was a need to act without
a warrant.” See, Syl. Pt. 7, Lacy. (See footnote 6) Because I believe the trial court did not err in denying the
motion to suppress based upon its factual finding of the existence of exigent circumstances
and the need for a protective sweep for weapons, I respectfully dissent.