No. 11-1271          State ex rel. William R. Adkins v. Dennis Dingus
                                                                            FILED
                                                                     November 21, 2013
                                                                       released at 3:00 p.m.
                                                                       RORY L. PERRY II, CLERK
                                                                     SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA
Davis, J., concurring:

              In this appeal the majority opinion affirmed the circuit court’s denial of Mr.

Adkins’ petition for habeas relief. I concur in the majority’s decision to affirm the circuit

court’s order. However, I disagree with the manner in which the majority opinion resolved

one of the issues in the case. The issue in question involved the seizure of ammunition from

Mr. Adkins’ residence. The majority opinion found that this evidence was lawfully seized.

For the reasons set out below, I believe that the ammunition was unlawfully seized but that

its introduction into evidence did not affect the outcome of the case; therefore, the error was

harmless beyond a reasonable doubt.



                         A. Seizure of the Ammunition was Unlawful

              A central problem I have with the majority opinion’s resolution of the issue

involving seizure of the ammunition is its treatment of the doctrines that allow a search and

seizure of contraband without a warrant. In my judgment, the majority opinion may have

innocently brought about some confusion as to how the doctrines are triggered and satisfied.

As I will demonstrate below, none of the following doctrines legitimized the seizure of the




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ammunition: exigent circumstances, emergency doctrine, protective sweep, plain view

doctrine and inevitable discovery rule.



              1. Emergency Doctrine/Exigent Circumstances. Mr. Adkins argued that

exigent circumstances did not exist to justify seizure of the ammunition. The majority

opinion agreed with Mr. Adkins that the exigent circumstances did not justify seizure of the

ammunition. I agree with the majority opinion on this point. However, I do not believe that

the exigent circumstances doctrine was the doctrine that permitted Trooper Gunnoe to enter

Mr. Adkins’ home without a warrant. The precise doctrine that allowed Trooper Gunnoe to

enter the home initially was the emergency doctrine. We have explained the emergency

doctrine as follows:

                     the 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.

State v. Cecil, 173 W.Va. 27, 32, 311 S.E.2d 144, 149 (1983) (citation omitted). We further

explained in Cecil that

              “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.”

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Cecil, 173 W. Va. at 32, 311 S.E.2d at 150 (internal quotations and citation omitted).1



              Trooper Gunnoe testified that he entered the home because he received a police

report that a shooting victim may have been in the home. Therefore it is clear that, because

of the purpose for Trooper Gunnoe’s entry into the home, the warrantless entry was permitted

by the emergency doctrine.



              Although the emergency doctrine allowed Trooper Gunnoe to enter the home,

it did not provide him with authority to indiscriminately search the home. The emergency

doctrine only allowed him to search the home for and seize a crime victim or victims. See

State v. Flippo, 212 W. Va. 560, 570 n.8, 575 S.E.2d 170, 180 n.8 (2002) (“The scope of the

search conducted by the police in this case, under the implied consent exception, was greater


       1
       We have explained the difference between the emergency doctrine and exigent
circumstances as follows:

               While the “emergency doctrine,” [and] “exigent circumstances” . . .
       require a compelling and immediate need for the police to take swift action to
       prevent something adverse from occurring, they are separate doctrines. The
       exception for “exigent circumstances” applies when police are engaged in
       crime-solving activities, such as searching for evidence or suspects. Probable
       cause is necessary. The “emergency doctrine” . . . appl[ies] when police are
       not acting as crime-solvers, but rather are acting in a health, safety and welfare
       role. The “emergency doctrine” contemplates the existence of an actual or
       reasonably perceived emergency.

Ullom v. Miller, 227 W. Va. 1, 12 n.10, 705 S.E.2d 111, 122 n.10 (2010).


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than what would be permitted under the emergency exception.”).



              2. Protective Sweep. Once Trooper Gunnoe initially entered the home , he was

authorized by the protective sweep doctrine to search for a possible attacker or weapon that

could be used against him. The protective sweep doctrine was first recognized by the United

States Supreme Court in Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276

(1990).



              In Buie, the police entered the defendant’s home to execute an arrest warrant.

After the defendant was apprehended coming from the basement of the home, an officer

entered the basement to search for anyone else who might have been in the basement. In

making this search, the officer saw and seized inculpatory evidence that was in plain view.

The Supreme Court approved of the officer searching the basement for an attacker who could

injure police officers present at the scene. Consequently, the opinion in Buie held that during

an arrest, the police may conduct a protective sweep of the premises if there are “articulable

facts which, taken together with the rational inferences from those facts, would warrant a

reasonably prudent officer in believing that the area to be swept harbors an individual posing

a danger to those on the arrest scene.” Buie, 494 U.S. at 334, 110 S. Ct. at 1098, 108 L.Ed.

2d 276. The decision in Buie was careful to state that a protective sweep “is narrowly

confined to a cursory visual inspection of those places in which a person might be hiding.”


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Buie, 494 U.S. at 327, 110 S.Ct. at 1094, 108 L. Ed. 2d. 276..



              Although Buie concerned a limited search for an attacker, this Court applied

Buie to a search for weapons in State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996). We

held in Syllabus point 8 of Lacy as follows:

                     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.

Id.



              In the instant proceeding, the majority opinion recognized that Trooper Gunnoe

could conduct a protective sweep to determine if an attacker was present. Trooper Gunnoe

testified that he conducted a protective sweep and that during the sweep he saw the

ammunition in plain view.



              3. Plain View Doctrine. The majority opinion pointed out that the plain view

doctrine allows the police to seize contraband when officers are lawfully present at the place

where the contraband is observed. As noted by the majority opinion, we set out the elements

of the plain view doctrine in Syllabus point 3 of State v. Julius, 185 W. Va. 422, 408 S.E.2d


                                               5

1 (1991), as follows:

                      The essential predicates of a plain view warrantless
              seizure are (1) that the officer did not violate the Fourth
              Amendment in arriving at the place from which the
              incriminating evidence could be viewed; (2) that the item was in
              plain view and its incriminating character was also immediately
              apparent; and (3) that not only was the officer lawfully located
              in a place from which the object could be plainly seen, but the
              officer also had a lawful right of access to the object itself.



              Although Trooper Gunnoe testified that he saw the ammunition during the

protective sweep, he did not seize the ammunition when he first observed it. The majority

opinion indicates that the ammunition was seized without a warrant after Mr. Adkins’ home

had been secured and during a subsequent entry by Trooper Gunnoe. Even though the

emergency that permitted Trooper Gunnoe to enter the home and terminated, the majority

opinion found that seizure of the ammunition without a warrant was justified because “Trp.

Gunnoe could have lawfully seized the ammunition during his protective sweep.” Maj. Slip.

Op at 19. I disagree.



              It is clear and unquestioned that the point at which Trooper Gunnoe could

lawfully seize the ammunition was during his protective sweep of the home. This situation

is similar to an issue this Court confronted in State v. Flippo, 212 W. Va. 560, 575 S.E.2d

170.



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              In Flippo, the defendant was convicted of murdering his wife at a cabin retreat.

During the initial police investigation into the murder, the defendant gave the police consent

to search the cabin. During the period that the police had consent to search, they did not

uncover photographs that were in a briefcase in the cabin. Instead, the photographs were

seized later after the defendant’s consent to search had been revoked. After the defendant

was convicted, he argued on appeal that the photographs had been unlawfully seized and

should not have been introduced into evidence. Even though the photographs were seized

less than two hours after the defendant’s consent to search was revoked, as determined by

this Court on appeal, we found that the seizure was unlawful. In other words, the police

could have seized the briefcase and photographs when they had consent to search, but once

the basis for the search terminated, we held in Flippo that a warrant was needed to seize the

briefcase and photographs.      Ultimately, we held in Flippo that introduction of the

photographs was harmless error.



              In the instant proceeding the evidence is clear to me in showing that, at the

point Trooper Gunnoe went back into the home with other police officers and the prosecutor

and began a full scale search, a search warrant was required. The reason being that the

justification for the initial entry and search had terminated. To get around this fact, the

majority opinion has carved out a heretofore unknown exception to the warrant requirement,

which permits the ammunition to be seized merely because it had previously been seen


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during the period of the lawful entry. This ad hoc exception appears to be a diluted version

of the inevitable discovery rule. However, the seizure of the ammunition does not satisfy the

elements of the inevitable discovery rule.



              In Flippo, we held that “[u]nder 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. We set out the following in syllabus point 4 of

Flippo:

                      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.

Id.



              Based upon the evidence submitted in this case, Trooper Gunnoe’s seizure of

the ammunition did not satisfy the third element of the inevitable discovery rule. That is,

there was no showing that the police were pursuing a lawful alternative to seize the evidence,



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i.e., seeking a search warrant.2 As we noted in Flippo, “[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.” Flippo, 212 W. Va. at 580, 575

S.E.2d at 190 (internal quotations and citation omitted).



                                     B. Harmless Error

              Even though I believe the seizure of the ammunition was unlawful, I also

believe the introduction of this evidence at trial was harmless error. This Court has observed

on numerous occasions that “[f]ailure 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 ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975). See also Syl. pt.

14, State v. Salmons, 203 W. Va. 561, 509 S.E.2d 842 (1998). Moreover, “‘[e]rrors

involving deprivation of constitutional rights will be regarded as harmless only if there is no

reasonable possibility that the violation contributed to the conviction.’” State v. Jenkins, 195

W. Va. 620, 629, 466 S.E.2d 471, 480 (1995) (quoting, Syl. pt. 20, State v. Thomas, 157

W. Va. 640, 203 S.E.2d 445 (1974)).




       2
        The police may in fact have been seeking a search warrant, but the record on appeal
is apparently silent on the issue.

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              Mr. Adkins’ contends in his brief that introduction of the ammunition was not

harmless because it was used to establish premeditation and deliberation. This argument is

not supported by the facts. It is clear that the question of who killed the victim was not in

dispute. Mr. Adkins admitted that he shot the victim. Mr. Adkins put on evidence to suggest

that the shooting was in self-defense. The jury rejected this defense. More importantly,

insofar as Mr. Adkins admitted to shooting the victim, showing the jury that extra unused

ammunition was found in the home was not relevant to any issue in the case. We have

emphasized that a party advancing a claim of ineffective assistance of counsel “must prove

there is a ‘reasonable probability’ that, absent the errors, the jury would have reached a

different result.” State v. Miller, 194 W. Va. 3, 15, 459 S.E.2d 114, 126 (1995). I cannot

discern a reasonable possibility that the admission of evidence of the ammunition affected

the jury’s conclusion.



                           For these reasons, I concur in the decision reached in this case.




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