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State v. Charles Eric Ward, 22-0211

Armstead, Justice, concurring:

I concur with the majority opinion’s conclusion that Petitioner Charles Eric 

Ward’s (“Petitioner”) conviction should be reversed because the State failed to make the 

required showing under our plain view warrantless seizure test. However, for the reasons 

explained below, I disagree with the majority opinion’s conclusion that the police officers 

violated the Fourth Amendment by arriving in the basement where Petitioner’s firearm was 

located. I believe the police officers’ concern for their own safety justified their entry into 

the basement. While I disagree with the majority opinion’s analysis on this issue, I 

nevertheless find that Petitioner’s conviction should be reversed because the State did not

make another required showing under our plain view warrantless seizure test in that it failed 

to demonstrate that the incriminating nature of the firearm was immediately apparent.

The issue in this case is whether the plain view warrantless seizure was 

proper. “It is well established that under certain circumstances the police may seize 

evidence in plain view without a warrant.” Coolidge v. New Hampshire, 403 U.S. 443, 465 

(1971). This Court set forth our test when examining a plain view warrantless seizure in 

syllabus point three of State v. Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991): 

The essential predicates of a plain view warrantless 

seizure [which] 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 

FILED

November 9, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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plainly seen, but the officer also had a lawful right of access to 

the object itself.

As stated, the majority opinion concluded that the State did not satisfy the 

first element of the above test. The inquiry under the first element is whether the police 

officers violated Petitioner’s Fourth Amendment rights by standing in the doorway of the 

basement when they viewed the firearm. The circuit court found that the officers’ conduct 

was reasonable for the purposes of their safety. In syllabus point six of State v. Lacy, 196 

W. Va. 104, 468 S.E.2d 719 (1996), this Court held:

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.

I agree with the circuit court’s conclusion that the State satisfied the first 

element of Julius based on the officers’ concern for their own safety. It is undisputed that 

when the officers arrived at Petitioner’s mother’s home, they were responding to a volatile 

conflict between neighbors and that Petitioner was “agitated” by the confrontation. 

Because of his level of agitation, the officers reasonably found it necessary to stay close to 

him and asked him for identification. Petitioner then voluntarily led the officers away from 

his mother’s front porch, where his initial encounter with the officers occurred, walked

around the outside of the house, eventually arriving at the separate basement entrance. The 
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circuit court found Detective Queen’s testimony to be credible that Petitioner gave his 

consent for the officers to enter as they crossed the basement threshold. 

Additionally, the circuit court’s ruling is supported by Petitioner’s 

cooperative actions in leaving the porch area where he spoke with the officers and entering 

the interior of the basement, aware that officers were following him. There is no evidence 

that Petitioner was unreasonably compelled to lead the officers as he did and, in fact, 

Detective Queen testified that Petitioner was cooperative. This Court has held that

[c]onsent to search may be implied by the circumstances 

surrounding the search, by the person’s prior actions or 

agreements, or by the person’s failure to object to the search. 

Thus, a search may be lawful even if the person giving consent 

does not recite the talismanic phrase: “You have my 

permission to search.” 

Syl. Pt. 1, State v. Flippo, 212 W. Va. 560, 575 S.E.2d 170 (2002). Because Petitioner 

implied his consent by voluntarily leading the officers to the room containing the prohibited 

firearm and affirmatively allowed the officers to enter the basement when they asked for 

permission, I would find that the first prong of Julius is satisfied. 

While I disagree with the majority opinion’s conclusion that the State did not 

satisfy the first element of Julius, I agree that Petitioner’s conviction should be reversed 

because the State did not demonstrate that the incriminating nature of the firearm was 

immediately apparent. The second element of Julius contains two-parts: (1) was the item 

in plain view and (2) was its incriminating character immediately apparent. Syl. Pt. 3, 185 

W. Va. 422, 408 S.E.2d 1. There is little doubt that the firearm was in plain view from the 

officers’ vantage point in the basement doorway. Therefore, the key inquiry is whether the 
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incriminating nature of the firearm was “immediately apparent.” Justice Cleckley 

addressed this issue in State v. Lacy, stating:

The officers must have probable cause to believe that the item 

seized is contraband and there is nothing in our opinions to 

suggest that merely finding a weapon in someone’s private 

residence will always give rise to probable cause. In Hicks, the 

officer’s search of the stereo was improper because, based 

upon his knowledge and experience, he lacked probable cause 

to suspect that the equipment was stolen or evidence of a crime. 

See Hicks, 480 U.S. at 328, 107 S.Ct. at 1154, 94 L.Ed.2d at 

356 (holding that “probable cause to believe the equipment was 

stolen was required” to justify officer’s search of stereo found 

in plain view).

196 W. Va. 104, fn. 22, 468 S.E.2d 719, fn. 22 (emphasis added).

In the instant case, Detective Queen did not know that Petitioner was 

prohibited from having the firearm when he initially saw it in the basement. Detective 

Queen described what happened when he initially saw the firearm: 

I went over and retrieved the weapon, and I made a general 

statement, ‘You’re not allowed to have this.’ The general 

statement was – it could go one of two ways: If you’re an 

innocent person without a felony, then you’ll say, ‘I have a 

right to bear arms, et cetera;’ otherwise, you’ll respond with a 

different answer. He responded, ‘That’s not mine, that’s 

somebody else’s,’ and then through conversation he did admit 

that he was a felon.

It is clear from Detective Queen’s testimony that it was not immediately 

apparent to him that Petitioner was a felon who was prohibited from owning a firearm. 

Detective Queen’s “general statement” was asked with the intention of gathering that 

information, i.e., whether Petitioner was a felon. Because the incriminating nature of the 

firearm was not “immediately apparent” when Detective Queen entered the basement, the 
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State did not satisfy the plain view warrantless seizure test as set forth by this Court in 

syllabus point three of Julius. Therefore, I would have reversed Petitioner’s conviction on 

this basis.