          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                    January 2014 Term

                                                                     FILED

                                                                  March 6, 2014

                                       No. 13-0144                 released at 3:00 p.m.
                                                                   RORY L. PERRY II, CLERK
                                                                 SUPREME COURT OF APPEALS
                                                                     OF WEST VIRGINIA



                            STATE OF WEST VIRGINIA,

                             Plaintiff Below, Respondent


                                            v.


                                CURTIS JOSEPH KIMBLE,

                                Defendant Below, Petitioner




                    Appeal from the Circuit Court of Mason County

                         Honorable David W. Nibert, Judge

                             Criminal Action No. 12-F-20


                                       AFFIRMED



                                Submitted: February 4, 2014

                                  Filed: March 6, 2014



Rebecca Stollar Johnson, Esq.                                  Patrick Morrisey, Esq.
Charleston, West Virginia                                      Attorney General
Attorney for Petitioner                                        Julie A. Warren, Esq.
                                                               Assistant Attorney General
                                                               Charleston, West Virginia
                                                               Attorneys for Respondent

The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
                               SYLLABUS BY THE COURT




               1.     “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.” Syl. Pt. 1, State v. Lacy, 196 W.Va. 104, 468

S.E.2d 719 (1996).



               2.     “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, State v. Lacy, 196 W.Va. 104, 468 S.E.2d

719 (1996).




                                                i
              3.     “‘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.’ Syllabus Point 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,

408 S.E.2d 1 (1991).” Syl. Pt. 20, State v. Ladd, 210 W.Va. 413, 557 S.E.2d 820 (2001).



              4.     “Athough 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).



              5.     “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


                                              ii
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, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719

(1996).



              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.”

Syl. Pt. 6, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).



              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.” Syl. Pt. 7, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719

(1996).



              8.      “‘In determining whether an out-of-court identification of a defendant

is so tainted as to require suppression of an in-court identification a court must look to the


                                              iii
totality of the circumstances and determine whether the identification was reliable, even

though the confrontation procedure was suggestive, with due regard given to such factors as

the opportunity of the witness to view the criminal at the time of the crime, the witness’

degree of attention, the accuracy of the witness’ prior description of the criminal, the level

of certainty demonstrated by the witness at the confrontation, and the length of time between

the crime and the confrontation.’ Point 3, Syllabus, State v. Casdorph, [159] W.Va. [909],

230 S.E.2d 476 (1976).” Syl. Pt. 2, State v. Foddrell, 165 W.Va. 540, 269 S.E.2d 854

(1980).




                                              iv
Per Curiam:



                   The petitioner herein and defendant below, Curtis Joseph Kimble, appeals the

January 16, 2013, order of the Circuit Court of Mason County sentencing him to a five-year

term of imprisonment for his jury conviction of one count of wanton endangerment.1 In this

appeal, the petitioner contends that the circuit court erred by denying his motions to suppress

certain evidence. Upon consideration of the parties’ briefs, oral argument and the submitted

record, as well as the applicable authorities, this Court finds no error and affirms the final

order.



                              I. Factual and Procedural Background

                   On November 12, 2011, at 3:39 p.m., Daniel Granger called 911 and reported

that shots had been fired at his vehicle as he was driving in the area of Poindexter Road and

Ashton Upland Road2 in Mason County, West Virginia. Mr. Granger described the

perpetrator as a shirtless male wearing jeans and a black hat. Deputies C. A. Rhodes and R.

A. Wilson of the Mason County Sheriff’s Department responded to the call. They

immediately went to the home of the petitioner, which is located at the intersection of the




         1
             According to the State’s brief, the petitioner is currently on parole.

         2
             It appears from the record that this road is sometimes referred to as John’s Creek

Road.

                                                   1

roads where the shooting occurred. Deputy Wilson had previously responded to reports of

the petitioner shooting guns near his residence.3



                Upon arrival at the petitioner’s residence, Deputy Wilson announced that he

was from the Sheriff’s Department, pulled his gun,4 and ordered the petitioner out of his

home. The petitioner was told to lie on the ground, and after doing so, he was placed in

handcuffs. At the time, the petitioner was wearing a shirt and blue jeans, but no hat. Deputy

Wilson asked the petitioner where the shotgun was and the petitioner replied that it was just

inside the front door. Deputy Wilson entered the petitioner’s home, secured the shotgun,5

and unloaded the weapon. Deputy Wilson then went back into the house and removed a

black hat. Thereafter, the deputies placed the petitioner in the back of a police cruiser and

drove him to Mr. Granger’s residence. While the petitioner was sitting in the back of the

police car, he was identified by Mr. Granger as the person who had fired shots at him.



                The petitioner was indicted on one count of wanton endangerment in

connection with the shooting incident. Prior to his trial, the petitioner filed motions to


       3
           The perpetrator was never identified by name to Mason County 911.
       4
           Deputy Rhodes also drew his gun.
       5
        During the petitioner’s trial, Deputy Rhodes testified that the barrel of the gun was
warm when it was recovered, indicating that it had recently been fired. Deputy Wilson did
not testify at the trial as he had left his employment with the Mason County Sheriff’s
Department and moved out of state.

                                              2

suppress the following evidence: the statement by Deputy Wilson inquiring about the

location of the gun and the petitioner’s response; the H&R single shot, twelve gauge shotgun

and the black hat seized from the petitioner’s residence; and the out-of-court identification

of the petitioner made by the victim. At the end of the suppression hearing, the court denied

the motions except with regard to the black hat.6 However, immediately prior to the start of

the petitioner’s trial, the court further ruled that the verbal exchange between Deputy Wilson

and the petitioner concerning the location of the shotgun was inadmissible hearsay.7



              The petitioner’s jury trial was held on June 12, 2012, and he was found guilty

of one count of wanton endangerment. He was sentenced to five years in prison, and this

appeal followed.



                                  II. Standard of Review

              In syllabus point one of State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996),

this Court explained that

              [w]hen 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

       6
       The court ruled that any evidence obtained after the recovery of the shotgun was not
admissible.
       7
       The State sought to admit this evidence through the testimony of Deputy Rhodes
because Deputy Wilson was not available to testify. See supra note 5.

                                              3

              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.

This Court further held in syllabus point two of Lacy that

              [i]n 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.

196 W.Va. at 107, 468 S.E.2d at 722. With these standards in mind, we consider the parties’

arguments.



                                      III. Discussion

              The petitioner raises two assignments of error. Each alleged error will be

discussed, in turn, below.



                       A. Denial of Motion to Suppress the Shotgun

              The petitioner argues that the shotgun taken from his residence should not have

been admitted into evidence at his trial because he was subjected to an unlawful arrest and

an unreasonable search and seizure. In support of his argument, the petitioner relies upon

                                              4

this Court’s holdings in State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). In syllabus

point six of Thomas, this Court stated that “[e]vidence obtained as a result of a search

incident to an unlawful arrest cannot be introduced against the accused upon his trial.” Id.

at 641, 203 S.E.2d at 448. This Court further held in Thomas that “‘[e]xcept where

authorized by law as incident to a lawful arrest, any search of a person or his dwelling on

mere suspicion and the seizure of any article found as a result thereof, without an arrest

warrant or a search warrant, is an unlawful search and seizure in violation of Section 6,

Article 3 of the Constitution of West Virginia.’ Syllabus Point 1, State v. Smith, [156] W.Va.

[385], 193 S.E.2d 550 (1972).” 157 W.Va. at 640-41, 203 S.E.2d at 448, syl. pt. 5. The

petitioner maintains that he was under arrest the moment the deputies put him in handcuffs

and that the deputies had no probable cause to believe that he had committed the alleged

offense at that time because he was not identified by name as the perpetrator during the 911

call and there were at least three other houses in the vicinity of where the shooting occurred.



              Conversely, the State contends that the petitioner was not arrested until the

shotgun was retrieved from his residence. The State says that given the nature of the alleged

offense, the deputies detained the petitioner as a safety precaution and further conducted a

search based on their belief that a dangerous weapon was present and posed a threat to

themselves as well as anyone else who might have been in the area at that time. In other




                                              5

words, the State argues that exigent circumstances, or more particularly, the emergency

exception to the warrant requirement, applies in this instance. We agree.



              In syllabus point twenty of State v. Ladd, 210 W.Va. 413, 557 S.E.2d 820

(2001), this Court explained that

              “[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 in part on
              other grounds by State v. Julius, 185 W.Va. 422, 408 S.E.2d 1
              (1991).

We have noted that

              [e]xamples of recognized exceptions to the general warrant
              requirement include certain brief investigatory stops, searches
              incident to a valid arrest, seizures of items in plain view,
              searches and seizures justified by exigent circumstances,
              consensual searches, and searches in which the special needs of
              law enforcement make the probable cause and warrant
              requirements impracticable.

State v. Farley, 230 W.Va. 193, 197, 737 S.E.2d 90, 94 (2012). We have also stated “‘[t]he

circumstances that justify warrantless searches include those in which officers reasonably

fear for their safety, where firearms are present, or where there is risk of a criminal suspect’s




                                               6

escaping or fear of destruction of evidence.’” Lacy, 96 W.Va. at 113, 468 S.E.2d at 728

(quoting United States v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th Cir.1992)).



              “[T]he emergency doctrine has been defined in various ways and must be

considered upon a case by case basis.” State v. Cecil, 173 W.Va. 27, 32, 311 S.E.2d 144, 149

(1983). Generally,

              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.

Id. More simply stated, “‘[t]he Fourth Amendment does not require police officers to delay

in the course of an investigation if to do so would gravely endanger their lives or the lives

of others.’” State v. Bookheimer, 221 W.Va. 720, 729, 656 S.E.2d 471, 480 (2007)

(Maynard, J., dissenting) (quoting Warden v. Hayden, 387 U.S. 294, 298-299 (1967)).

Consequently, this Court held in syllabus point two of Cecil that

              [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.

                                             7

173 W.Va. at 28, 311 S.E.2d at 146.



              In this case, the deputies went to the intersection of the roads where it was

reported that the shooting took place. While there are other homes in the same general

vicinity, only the petitioner’s residence is located at that intersection. The record indicates

that the deputies approached the petitioner’s residence with their weapons drawn not only

because of the nature of the reported crime, but because Deputy Wilson had previously

investigated reports of the petitioner discharging firearms outside of his residence. Thus, in

order to protect themselves, as well as any other person in the area, the deputies notified the

petitioner of their presence and requested that he come outside of his home. For the same

reasons, the deputies immediately detained the petitioner and conducted a search for the

shotgun.



              Upon review, we find that these circumstances satisfied the emergency doctrine

exception thereby allowing the deputies to conduct a warrantless search. Moreover, we

further find that even absent the existence of exigent circumstances, the police officers were

entitled to conduct a protective search.

                     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


                                              8

              suspected weapon could be contained and must end once the
              weapon is found and secured.

Lacy, 196 W.Va. at 107, 468 S.E.2d at 722, syl. pt. 8. This Court explained in Lacy that

              [n]either 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.

Id. at 107, 468 S.E.2d at 722, syl. pt. 6. We further held that

              [t]he 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.

Id. at 107, 468 S.E.2d at 722, syl. pt. 7.



              While the petitioner was detained when Deputy Wilson conducted his search,

at that juncture, the officers had no basis to know whether there was anyone else present,

either inside or outside of the petitioner’s residence. Further, they were responding to reports

of gunfire in that area. At the suppression hearing, Deputy Rhodes testified as follows in

response to questioning by the State:

              Q: On [November 12, 2011], you had occasion to respond to a
              dispatch from a 911 center to Ashton Upland Road, Milton area,
              Mason County?

              A: Yes.

                                               9

Q: What was your reason for responding to that lotion [sic]?

A: Shots fired. Supposedly shots was [sic] fired at a person
driving by in a vehicle.

Q: Did they tell you where and give you any indication
regarding the person suspect [sic] of doing that?

A: They did. They said it was in the area of Curtis Kimble’s
residence. . . .

       ....

Q: What happened when you got there?

A: Deputy Wilson actually ordered him out of the trailer onto
the ground.

Q: What do you mean ordered him out?

A: Mr. Kimble was inside the trailer.

Q: I understand that. What was said?

A: Mr. Kimble, come out of the trailer, this is the sheriff’s
department. Once he came out–

Q: In response to Deputy Wilson asking–

A: Mr. Kimble did come out.

Q: –Mr. Kimble to come out, he came out?

A: Yes.

Q: What happened when Mr. Kimble exited the trailer?

A: Deputy Wilson then ordered him to get on the ground, which
he did and then after he did lay on the ground, I then cuffed him


                               10

               just to secure the scene until we could figure out exactly what
               was going on.

Deputy Rhodes’s testimony clearly satisfied the two-part test established in syllabus point six

of Lacy. See 196 W.Va. at 107, 468 S.E.2d at 722. Accordingly, based on all the above, the

circuit court did not err in refusing the petitioner’s motion to suppress the shotgun.



                       B. Denial of Motion to Suppress Identification

               The petitioner also argues that the circuit court erred by allowing the jury to

hear testimony regarding the out-of-court identification of the petitioner by the victim. This

Court has held:

                       “In determining whether an out-of-court identification of
               a defendant is so tainted as to require suppression of an in-court
               identification a court must look to the totality of the
               circumstances and determine whether the identification was
               reliable, even though the confrontation procedure was
               suggestive, with due regard given to such factors as the
               opportunity of the witness to view the criminal at the time of the
               crime, the witness’ degree of attention, the accuracy of the
               witness’ prior description of the criminal, the level of certainty
               demonstrated by the witness at the confrontation, and the length
               of time between the crime and the confrontation.” Point 3,
               Syllabus, State v. Casdorph, [159] W.Va. [909], 230 S.E.2d 476
               (1976).

Syl. Pt. 2, State v. Foddrell, 165 W.Va. 540, 269 S.E.2d 854 (1980).



               The petitioner argues that when the totality of the circumstances is considered

in his case, it is clear that the identification was not reliable and should have been suppressed.

                                               11

In that regard, the petitioner notes that Mr. Granger testified at the suppression hearing that

he saw the perpetrator make an obscene hand gesture at him as he drove by. He then heard

a bang and looked in his rearview mirror and saw the perpetrator shooting at him. The

petitioner points out that Mr. Granger did not specify how long he looked at the perpetrator

or with what degree of attention; that Mr. Granger stated he had never seen the shooter

before when he was questioned by the police, even though he had driven past the petitioner’s

home every day on his way to and from work; and that Mr. Granger did not describe the

shooter with any great detail when he called 911 as he only reported that it was “ a guy . . .

wearing jeans, black hat no shirt . . . .” In addition, while acknowledging that the

identification occurred within thirty minutes of the shooting, the petitioner contends that

consideration must be given to the fact that he was presented to the victim exactly as the

person described to 911, i.e., a man wearing jeans; the only difference was that he was sitting

in a police car and handcuffed.



              The State contends that the petitioner is asking this Court to re-weigh the

victim’s testimony and substitute its judgment for that of the jury. The State maintains that

the evidence established that the identification made by Mr. Granger was reliable. While

Mr. Granger testified that he did not know the petitioner, he did state that he had previously

seen him feeding chickens in his yard and had encountered him face-to-face one time when

he dropped off a member of the petitioner’s family at his home. Mr. Granger further testified


                                              12

that he was certain the petitioner was the perpetrator when he identified him as he was seated

in the back of the cruiser. Finally, the State points out the petitioner did not react to the

identification by claiming that he was not the perpetrator, but instead he threatened Mr.

Granger.8



               The circuit court found that the out-of-court identification was, in fact, overly

suggestive, but concluded Mr. Granger had sufficient independent knowledge of the

petitioner to make the identification. In making that finding, the court noted that while Mr.

Granger did not know the petitioner by name, he had seen him on multiple occasions.

Further, the identification was made within twenty-five minutes of the shooting, and although

the petitioner was wearing a shirt but not a hat, Mr. Granger was certain in his identification

of the petitioner as the person who shot at him. Upon consideration of the totality of the

circumstances and giving deference to the circuit court’s factual findings, we are unable to

conclude that the circuit court erred in refusing the petitioner’s motion to suppress the out-of­

court identification made by the victim.




       8
         Mr. Granger testified that the petitioner was sitting in the police cruiser whistling and
that after he made the identification, the petitioner said, “I’m crazy, I’ll be out. I know where
you live[.]”

                                               13

                                      IV. Conclusion

              For the reasons set forth above, we find no merit to the petitioner’s arguments.

Accordingly, the final order of the circuit court entered on January 16, 2013, is affirmed.



                                                                                   Affirmed.




                                             14

