           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 JANUARY 2020 TERM
                                                                           FILED
                                                                      February 25, 2020
                                     _____________                        released at 3:00 p.m.
                                                                      EDYTHE NASH GAISER, CLERK
                                                                      SUPREME COURT OF APPEALS
                                      No. 18-0963                          OF WEST VIRGINIA
                                     _____________

                              STATE OF WEST VIRGINIA,
                                     Respondent

                                            v.

                              RAYMOND C. HOWELLS, JR.,
                                    Petitioner

  ____________________________________________________________________

                    Appeal from the Circuit Court of Fayette County
                         Honorable Paul M. Blake, Jr., Judge
                             Criminal Action No. 18-F-102

                               AFFIRMED
  ____________________________________________________________________

                               Submitted: February 11, 2020
                                 Filed: February 25, 2020


James Adkins, Esq.                                    Patrick Morrisey, Esq.
Assistant Public Defender                             Attorney General
Fayetteville, West Virginia                           Benjamin F. Yancey, III, Esq.
Attorney for Petitioner                               Assistant Attorney General
                                                      Charleston, West Virginia
                                                      Attorneys for Respondent


JUSTICE HUTCHISON delivered the Opinion of the Court.

JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
                              SYLLABUS BY THE COURT



          1. “Electronic interception by law enforcement authorities of a person’s

conduct or oral communications in his or her home is governed by W.Va. Code §§ 62-1F-

1 to-9.” Syl. pt. 2, State v. Hoston, 228 W. Va. 605, 723 S.E.2d 651 (2012).



          2. A law enforcement officer may not engage in electronic interception of

conduct or oral communications in a person’s home without first obtaining an order

authorizing that interception unless, pursuant to W.Va. Code § 62-1F-9 (2007), the officer

can establish: (1) a situation exists such that an order authorizing such interception cannot

with due diligence be obtained; (2) a factual basis for issuance of an order exists; and (3)

it is determined that exigent circumstances exist which prevent the submission of an

application for an order to a court.



          3.   Subsequent to an electronic interception of conduct or oral communications

under W.Va. Code § 62-1F-9 (2007), a law enforcement officer must submit an application

in accordance with W.Va. Code § 62-1F-3 (2007), for an order to a magistrate or judge of

the circuit within the county wherein the person’s home is located as soon as practicable,

but not more than three business days after the electronic interception.


                                              i
          4. An order entered pursuant to W.Va. Code § 62-1F-9 (2007) that approves of

an electronic interception of conduct or oral communications and is made retroactive, must

recite the exigent circumstances that prevented a law enforcement officer from obtaining

an order before engaging in electronic interception in a person’s home.




                                            ii
Hutchison, Justice:

              This appeal was brought by Raymond C. Howells, Jr. (hereinafter the

“Petitioner”) from an October 10, 2018, order of the Circuit Court of Fayette County
                                                                     1
sentencing him to two terms of 1 to 5 years of imprisonment.             The Petitioner was

convicted by a jury of two counts of delivery of a controlled substance. In this appeal the

Petitioner argues that the circuit court committed error in not suppressing evidence of an

audio/video recording of one of the two drug transactions. The Respondent (hereinafter

the “State”) argues that no reversible error occurred and that the conviction should be

affirmed. Upon careful review of the briefs, the appendix record, the arguments of the

parties, and the applicable legal authority, we affirm.



                                              I.

                       FACTUAL AND PROCEDURAL HISTORY

              The record in this case indicates that on June 12, 2017, Detective S. Morris

and Detective R. Callison of the Fayette County Sheriff’s Department were looking for a

missing confidential informant named Michelle. The Detectives were able to learn from

another confidential informant that Michelle was staying at the Petitioner’s home in Gauley

Bridge, West Virginia and that the Petitioner sold drugs. The Detectives, operating

undercover, went to Petitioner’s home. When the Petitioner responded to the Detectives’



              1
                  The sentences were ordered to run consecutively.
                                              1
knock at his door, the Detectives asked him if Michelle was there. The Detectives also

informed the Petitioner that Michelle supplied them with drugs whenever they came to

town. The Petitioner informed the Detectives that he could supply them with drugs and

asked how much they wanted. The Detectives informed the Petitioner that they wanted

$20 worth of methamphetamine. The Petitioner told the Detectives to come back in a little

while and he would have the methamphetamine for them.



             The Detectives left the Petitioner and drove their car a short distance from

his home and parked. It appears that while the Detectives waited in their car Detective

Morris put on an audio/video recording device. The Detectives returned to Petitioner’s

home after about a half hour. The Petitioner invited the Detectives into his home. While

inside the home Detective Callison gave the Petitioner $20 and the Petitioner gave him a

baggie that contained methamphetamine. Before the Detectives left Petitioner’s home, he

gave Detective Callison his phone number.



             On the morning of June 13, 2017, Petitioner agreed to meet Detective

Callison in a Walmart parking lot for the purpose of selling the Detective one gram of

methamphetamine for $100. Prior to the meeting Detective Morris obtained an electronic

interception order from a magistrate, for the drug transaction that had occurred in

Petitioner’s home on June 12. The Detectives eventually met the Petitioner in the Walmart

parking lot and got into his car. Detective Morris was wearing an audio/video recording

                                            2
device at the time. As Detective Morris secretly recorded the transaction inside the car,

Detective Callison gave the Petitioner $100 and the Petitioner gave the Detective a bag

containing methamphetamine.



              On May 10, 2018, a grand jury returned a two count indictment against the

Petitioner.   The indictment charged the Petitioner with the delivery of a controlled

substance on June 12 and 13 of 2017. A one day jury trial was held on August 24, 2018.

The State called several witnesses, including Detective Callison and Morris. During the

trial the State introduced into evidence the audio/video recordings of June 12 and 13. The

defendant did not testify, but he did put on a case-in-chief in which he only called Detective

Callison and Morris. The jury returned a verdict convicting the Petitioner of both charges

in the indictment. Subsequent to the Petitioner’s sentence this appeal followed.



                                             II.

                               STANDARD OF REVIEW

              The Petitioner has couched his appeal as a challenge to the circuit court’s

failure to suppress evidence. We have held,

              On appeal, legal conclusions made with regard to suppression
              determinations are reviewed de novo. Factual determinations
              upon which these legal conclusions are based are reviewed
              under the clearly erroneous standard. In addition, factual
              findings based, at least in part, on determinations of witness
              credibility are accorded great deference.


                                              3
Syl. pt. 3, State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994). With this review

standard in mind we turn to the merits of the appeal.



                                            III.

                                      DISCUSSION

              In this appeal the Petitioner argues that the circuit court committed error by

refusing to suppress all evidence related to the June 12 drug transaction, on the grounds

that such evidence was “obtained as a result of a recorded transaction within the

Petitioner’s home without an Electronic Intercept Order issued prior to the transaction.”2

The Petitioner contends that this conduct violated our decision in State v. Mullens, 221

W. Va. 70, 650 S.E.2d 169 (2007) and was not in compliance with the Electronic

Interception of Conduct or Oral Communications in the Home Act.3 The State argues that

the evidence was properly admitted because “exigent circumstances” existed to justify

entering Petitioner’s home wearing an audio/video recording device without a court order.



              As noted, the Petitioner contends that the decision in Mullens required the

Detectives obtain an electronic intercept order before they entered his home with an

audio/video recording device. In Mullens the police employed an informant to wear an



              2
               The Petitioner has not asserted error with regards to the conviction and
       sentence involving the June 13 drug transaction.
              3
                  Discussed infra.
                                             4
audio/video device to record a drug transaction inside the defendant’s home. The police

did not obtain judicial authorization before using the audio/video recording device because

the West Virginia Wiretapping and Electronic Surveillance Act (“Wiretapping Act”),

W. Va. Code § 62-1D-1 et seq., did not require judicial authorization when one party to the

recording consented thereto. Subsequent to the drug transaction in Mullens, the defendant

was indicted for delivery of a controlled substance and conspiring to deliver a controlled

substance. The defendant entered a conditional plea and preserved his right to challenge

the circuit court’s refusal to suppress all the evidence obtained against him as a result of

the audio/video recording. On appeal, the defendant argued that the police were required

to obtain judicial authorization before sending an informant into his home wearing an

audio/video recording device.



              This Court agreed with the defendant in Mullens and reversed his conviction

and remanded the case to allow him to withdraw the guilty plea. We held in Mullens that,

although the one-party consent exception in the Wiretapping Act did not require the police

to obtain judicial authorization to send an informant into a person’s home wearing an

audio/video recording device, the Search and Seizure Clause of the State Constitution

required prior judicial authorization to enter the home of a non-consenting party.

Accordingly, this Court held the following in syllabus points 2 and 4 of Mullens:

              2. It is a violation of West Virginia Constitution article III, § 6
              for the police to invade the privacy and sanctity of a person’s
              home by employing an informant to surreptitiously use an

                                              5
              electronic surveillance device to record matters occurring in
              that person's home without first obtaining a duly authorized
              court order pursuant to W. Va. Code § 62–1D–11 (1987)
              (Repl.Vol.2005). To the extent that State v. Thompson, 176
              W.Va. 300, 342 S.E.2d 268 (1986), holds differently, it is
              overruled.
              4. Article III, § 6 of the West Virginia Constitution prohibits
              the police from sending an informant into the home of another
              person under the auspices of the one-party consent to electronic
              surveillance provisions of W. Va. Code § 62–1D–3(b)(2)
              (1987) (Repl.Vol.2005) where the police have not obtained
              prior authorization to do so pursuant to W. Va. Code § 62–1D–
              11 (1987) (Repl.Vol.2005).



              Mullens is not dispositive in this case because the Detectives did not act

pursuant to the Wiretapping Act. The Legislature responded to the decision in Mullens

during the Second Extraordinary Session of 2007, by enacting the Electronic Interception

of Person’s Conduct or Oral Communications in the Home by Law Enforcement Act

(“Electronic Interception Act”), W. Va. Code § 62–1F–1 et seq. (2007). The Detectives’

conduct in entering the Petitioner’s home wearing an audio/video recording device was

governed by the Electronic Interception Act, not the Wiretapping Act under consideration

in Mullens.



              We have previously recognized that pursuant to the specific provisions of the

Electronic Interception Act, “[e]lectronic interception by law enforcement authorities of a

person’s conduct or oral communications in his or her home is governed by W. Va. Code

§§ 62-1F-1 to-9.” Syl. pt. 2, State v. Hoston, 228 W. Va. 605, 723 S.E.2d 651 (2012). The
                                             6
Electronic Interception Act requires law enforcement officials obtain a court order

authorizing the use of a hidden audio/video recording device in the home of a

nonconsenting person. More specifically W. Va. Code § 62–1F–2(a) (2007) provides, in

part, that “[p]rior to engaging in electronic interception … an investigative or law-

enforcement officer shall … first obtain from a magistrate or a judge of a circuit court

within the county wherein the nonconsenting party’s home is located an order authorizing

said interception.”



              The Electronic Interception Act sets out an exception that permits electronic

interception without a prior court order. This exception is outlined in W.Va. Code § 62-

1F-9 (2007) as follows:

              Notwithstanding any other provision of this article, when: (1)
              a situation exists with respect to engaging in electronic
              interception before an order authorizing such interception can
              with due diligence be obtained; (2) the factual basis for
              issuance of an order under this article exists; and (3) it is
              determined that exigent circumstances exist which prevent the
              submission of an application under section three of this article,
              conduct or oral communications in the person’s home may be
              electronically intercepted on an emergency basis if an
              application submitted in accordance with section three of this
              article is made to a magistrate or judge of the circuit within the
              county wherein the person’s home is located as soon as
              practicable, but not more than three business days after the
              aforementioned determination. If granted, the order shall recite
              the exigent circumstances present and be retroactive to the time
              of such determination. In the absence of an order approving
              such electronic interception, the interception shall immediately
              terminate when the communication sought is obtained or when
              the application for the order is denied, whichever is earliest. If

                                              7
              granted, the order shall recite the exigent circumstances present
              and be retroactive to the time of such determination. In the
              absence of an order approving such electronic interception, the
              interception shall immediately terminate when the
              communication sought is obtained or when the application for
              the order is denied, whichever is earliest.
We find no ambiguity in this statute under the facts of this case. See Syl. pt. 2, State v.

Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision which is clear and

unambiguous and plainly expresses the legislative intent will not be interpreted by the

courts but will be given full force and effect.”).



              Unlike the Wiretapping Act that was at issue in Mullens, the Electronic

Interception Act expressly authorizes entry into a person’s home wearing an audio/video

recording device without a prior judicial order when exigent circumstances exist. This

Court has noted that “[i]n West Virginia, the presence of exigent circumstances may justify

a search and seizure without a warrant.” State ex rel. Adkins v. Dingus, 232 W. Va. 677,

687, 753 S.E.2d 634, 644 (2013). In syllabus point 1 of 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) we set out the general rule regarding the exigent circumstances exception

to a court order:

              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

                                              8
              by those who seek exemption that the exigencies of the
              situation made that course imperative.
We have also observed that

              [e]xigent circumstances may exist in many situations: three
              well recognized situations are when police reasonably believe
              (1) their safety or the safety of others may be threatened, (2)
              quick action is necessary to prevent the destruction of potential
              evidence, or (3) immediate action is necessary to prevent the
              suspect from fleeing.
State v. Kendall, 219 W. Va. 686, 692, 639 S.E.2d 778, 784 (2006), quoting State v.

Buzzard, 194 W. Va. 544, 549 n.11, 461 S.E.2d 50, 55 n.11 (1995). See State v. Boyd, 238

W. Va. 420, 438, 796 S.E.2d 207, 225 (2017) (“The fact that Mr. Wyche was in custody in

Maryland made it extremely likely that any gunshot residue on his hands would be

destroyed by the time he eventually returned to West Virginia. Under these facts, exigent

circumstances existed for the minimal intrusion of swabbing his hands for possible gunshot

residue.”); Jarrell v. Ballard, No. 12-0616, 2013 WL 1632553, at *8 (W. Va. Apr. 16,

2013) (Memorandum Decision) (“When Petitioner left his home in the company of the

police at approximately 1:30 a.m., the police also knew that Petitioner’s son was left at the

home and was, therefore, in a position to destroy or conceal the murder weapon. The court

finds that exigent circumstances existed to proceed immediately with the search and seizure

for this weapon behind Petitioner’s home.”); Syl. pt. 2, State v. Mullins, 177 W. Va. 531,

355 S.E.2d 24 (1987) (“A warrantless arrest in the home must be justified not only by

probable cause, but by exigent circumstances which make an immediate arrest

imperative.”); State v. Shingleton, 171 W. Va. 668, 670, 301 S.E.2d 625, 627 (1983) (“The

                                             9
mobility of the vehicle, given the time necessary to secure a warrant, provided the

necessary exigent circumstances justifying the warrantless search.”).



              In light of our recognition that exigent circumstances may justify a search

and seizure without a court order, we now hold that a law enforcement officer may not

engage in electronic interception of conduct or oral communications in a person’s home

without first obtaining an order authorizing that interception unless, pursuant to W. Va.

Code § 62-1F-9 (2007), the officer can establish: (1) a situation exists such that an order

authorizing such interception cannot with due diligence be obtained; (2) a factual basis for

issuance of an order exists; and (3) it is determined that exigent circumstances exist which

prevent the submission of an application for an order to a court. Subsequent to an electronic

interception of conduct or oral communications under W. Va. Code § 62-1F-9 (2007), a

law enforcement officer must submit an application in accordance with W. Va. Code § 62-

1F-3 (2007), for an order to a magistrate or judge of the circuit within the county wherein

the person’s home is located as soon as practicable, but not more than three business days

after the electronic interception. An order entered pursuant to W. Va. Code § 62-1F-9

(2007) that approves of an electronic interception of conduct or oral communications and

is made retroactive, must recite the exigent circumstances that prevented a law enforcement

officer from obtaining an order before engaging in electronic interception in a person’s

home.



                                             10
              The test for exigent circumstances is based on the totality of the

circumstances. See State v. Kendall, 219 W. Va. 686, 692, 639 S.E.2d 778, 784 (2006).

We have held that “[t]his is an objective test based on what a reasonable, well-trained police

officer would believe.” Syl. pt. 2, in part, State v. Canby, 162 W. Va. 666, 252 S.E.2d 164

(1979). Moreover, “[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.” Syl. pt. 7, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719

(1996).



              In the instant case the Petitioner argues that the order entered pursuant to W.

Va. Code § 62-1F-9, purporting to find exigent circumstances, did not recite what those

circumstances were as required by the statute. Consequently, the Petitioner contends that

his conviction and sentence for the June 12 offense should be vacated. The State concedes

that the intercept order failed to set out what the exigent circumstances were. However,

the State argues that this was not fatal because the circuit court found that the testimony of

the Detectives at trial established that exigent circumstances existed. Detective Morris

testified on the issue as follows:

              Q. And did you have the court order on you to do the
              recording at his residence?
              A. Not at that time.


                                             11
             Q. You didn’t—you went and you took a video when you
             didn’t have the permission under the law to do so?
             A. That’s correct, sir. The reason being, on the first instance,
             we made arrangement to meet him on his porch. I did not
             know that we was going to go inside of his residence on the
             second occasion. It wasn’t our intentions to go inside his
             residence on the second occasion.
             ***
             Q. What’s the exigent circumstance?
             A. We’d previously arranged to meet outside, and he invited
             us in the house, which it was almost midnight; there was no
             magistrate on duty. So the first thing the next morning I went
             to the magistrate’s office to obtain the order.
             ***
             Q. Wouldn’t it have been just as easy to await and get the
             warrant and go back the next day?
             A. No, sir, not with the way the first meeting went.
             Q. And why is that?
             A. Because he said he was going to get methamphetamine for
             us to purchase and to come back later. I could not wait till the
             next day for that.



             In our review of the record, it is clear to this Court that the testimony of both

Detectives established that exigent circumstances prevented them from obtaining an order

authorizing the use of an audio/video recorder in the Petitioner’s home.4 The Detectives


             4
              The Petitioner has not argued in his brief that the Detectives failed to
      show exigent circumstances at trial, or that they failed to actually present the
      exigent circumstances to the magistrate. The Petitioner’s argument is simply that
      the order did not contain those facts.
                                            12
believed that the drug transaction would occur on the Petitioner’s porch and therefore they

did not initially seek a court order to wear the audio/video recorder. See Mullens, 221

W. Va. at 88 n.45, 650 S.E.2d at 187 n.45 (“Our decision has no impact on the authority of

the police to place a bodywire on an informant to record communications with a suspect

outside the suspect’s home.”). Once the Petitioner invited the Detectives into his home, it

was simply not practical for them to abruptly tell the Petitioner they had to go, but they

would be back. Although the subsequent order issued by the magistrate failed to comply

with the statute by setting out the exigent circumstances that the Detectives testified to at

trial, we find this to be harmless error. We have noted that “[t]he doctrine of harmless error

is firmly established by statute, court rule and decisions as a salutary aspect of the criminal

law of this State.” State v. Blair, 158 W. Va. 647, 659, 214 S.E.2d 330, 337 (1975)

(citations omitted). Further, “[a]s to error not involving the erroneous admission of

evidence, we have held that nonconstitutional error is harmless when it is highly probable

the error did not contribute to the judgment.” State v. Guthrie, 194 W. Va. 657, 684, 461

S.E.2d 163, 190 (1995). See State v. Atkins, 163 W. Va. 502, 510, 261 S.E.2d 55, 60 (1979)

(“where a nonconstitutional error has been asserted, we have adopted the rather general

rule that the case will not be reversed unless the error is prejudicial to the defendant.”).




                                              13
              Insofar as the exigent circumstances were testified to during the trial, the

Petitioner suffered no prejudice from the failure to set out those facts in the intercept order.5

See State v. David K., 238 W. Va. 33, 44, 792 S.E.2d 44, 55 (2016) (“the circuit court’s

failure to follow the procedural safeguards contained in W.Va. Code § 62–6B–1 et seq.

was harmless error.”); State v. Blake, 197 W. Va. 700, 705, 478 S.E.2d 550, 555 (1996) (“a

conviction should not be reversed if we conclude the error was harmless or unimportant in

relation to everything else the jury considered on the issue in question.”) (internal quotation

marks and citation omitted).6




              5
                The Petitioner has cited to our decision in State v. Adkins, 176 W. Va.
       613, 346 S.E.2d 762 (1986), where it was held that during a suppression hearing a
       circuit court should not permit testimony about a search warrant affidavit, issued
       under Rule 41(c) of the West Virginia Rules of Criminal Procedure, that was not
       contained in the affidavit. Adkins is not controlling because the intercept order in
       this case was not issued under Rule 41(c). Moreover, a violation of Adkins is not
       automatic reversal; a violation is subject to harmless error. See State v. Corbett,
       177 W. Va. 397, 399 n.3, 352 S.E.2d 149, 150 n.3 (1986) (Affirming conviction
       and noting the following: “Here, the trial court permitted the State to bolster the
       affidavit by considering the testimony of the issuing magistrate and the affiant
       police officer about facts not contained in the affidavit. This was error under Rule
       41(c) since this information was not contemporaneously recorded. However, this
       error does not affect the basic validity of the warrant affidavit itself.”).
              6
                The last issue raised by the Petitioner simply has no merit. The Petitioner
       argued that he was denied due process because the prosecutor was allowed to
       admit “illegally obtained evidence in violation of the Electronic Intercept Act.”
       Insofar as we have determined that exigent circumstances justified the conduct of
       the Detectives, the evidence they collected was lawfully obtained.
                                               14
                                           IV.

                                    CONCLUSION

              In view of the foregoing, we affirm the October 10, 2018, order of the

Circuit Court of Fayette County sentencing the Petitioner to two terms of 1 to 5 years of

imprisonment.

                                                                             AFFIRMED.




                                            15
