IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

September 2015 Term 

No. 14-0174 

STATE OF WEST VIRGINIA,
 

Plaintiff Below, Respondent
 

V.
 

JAMES EARL NOEL, JR.,
 

Defendant Below, Petitioner
 

FILED
 

November 6, 2015
 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Appeal from the Circuit Court of Mercer County
 

Honorable Omar J. Aboulhosn, Judge
 

Criminal Action No. 13-F-330-OA
 

REVERSED AND REMANDED
 

Submitted: September 23, 2015 

Filed: November 6, 2015 

David L. White Patrick Morrisey 

Charleston, West Virginia Attorney General 

Attorney for the Petitioner Elbert Lin 

Solicitor General 

Gilbert Dickey 

Assistant Attorney General 

Julie A. Warren 

Assistant Attorney General 

Charleston, West Virginia 

Attorneys for the Respondent 
 

 

 

JUSTICE DAVIS delivered the Opinion of the Court.
 

JUSTICES BENJAMIN AND KETCHUM concur and reserve the right to file
 

concurring opinions.
 

JUSTICE LOUGHRY dissents and reserves the right to file a dissenting opinion.
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “Police officers may stop a vehicle to investigate if they have an 

articulable reasonable suspicion that the vehicle is subject to seizure or a person in the vehicle 

has committed, is committing, or is about to commit a crime.” Syllabus point 1, in part, State 

v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994). 

2. Pursuant to Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 

L. Ed. 2d 485 (2009), police may conduct a warrantless search of a vehicle incident to a recent 

occupant’s arrest only if (1) the arrestee is unsecured and within reaching distance of the 

vehicle’s passenger compartment at the time of the search or (2) it is reasonable to believe that 

the vehicle contains evidence of the offense of arrest. If these justifications are absent, a 

warrantless search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant 

or show that another exception to the warrant requirement applies. 

3. “‘An automobile maybe stopped for some legitimate state interest. Once 

the vehicle is lawfully stopped for a legitimate state interest, probable cause may arise to 

believe the vehicle is carrying weapons, contraband or evidence of the commission of a crime, 

and, at this point, if exigent circumstances are present, a warrantless search may be made.’ 

Syllabus point 4, State v. Moore, 165 W. Va. 837, 272 S.E.2d 804 (1980)[, overruled on other 

i 
 

 

 

 

 

 

 

 

grounds by State v. Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991)].” Syllabus point 2, State 

v. Flint, 171 W. Va. 676, 301 S.E.2d 765 (1983).
 

4. “‘A furtive gesture on the part of the occupant of a vehicle is ordinarily
 

insufficient to constitute probable cause to search a vehicle if it is not coupled with other
 

reliable causative facts to connect the gesture to the probable presence of contraband or
 

incriminating evidence.’ Syllabus point 5, 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)].” Syllabus point 3, State v. Flint, 171 W. Va. 676, 301 S.E.2d 765 (1983).
 

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Davis, Justice: 

The petitioner herein and defendant below, James Earl Noel, Jr. (“Mr. Noel”), 

appeals from a sentencing order entered January 30, 2014, by the Circuit Court of Mercer 

County. By that order, as corrected by its March 18, 2014, amended sentencing order,1 the 

circuit court upheld Mr. Noel’s jury convictions and sentenced him therefor as follows: one 

to five years for his conviction of fleeing in a vehicle;2 one to fifteen years for his conviction 

of possession with intent to deliver a schedule II controlled substance (cocaine);3 and one to 

five years for his conviction of possession with intent to deliver a schedule II controlled 

substance (methamphetamine),4 said sentences to run consecutively. On appeal to this Court, 

Mr. Noel raises two assignments of error: (1) the circuit court erred by not suppressing 

evidence discovered by the arresting officer at the time of the subject traffic stop and (2) the 

circuit court erred by allowing Mr. Noel’s attorney to answer as to whether Mr. Noel intended 

to testify at his trial in violation of State v. Neuman, 179 W. Va. 580, 371 S.E.2d 77 (1988).5 

1

On March 18, 2014, the circuit court entered an amended sentencing order 

which corrected the erroneous sentences set forth in its January 30, 2014, sentencing order 

to accurately reflect the sentences imposed during the court’s January 16, 2014, sentencing 

hearing. 

2

See W. Va. Code § 61-5-17(f) (2012) (Supp. 2013). For further treatment of 

this provision, see Section III.A., infra. 

3

See W. Va. Code § 60A-4-401 (2011) (Repl. Vol. 2014). 

4

Id. 

5

The parties also have submitted supplemental briefs in this case regarding the 

(continued...) 

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Upon a review of the parties’ arguments, the record designated for appellate consideration, 

and the pertinent authorities, we conclude that the search of Mr. Noel’s car was unlawful and 

that the circuit court erred by not suppressing the evidence found during that search. 

Accordingly, we reverse Mr. Noel’s convictions and resultant sentences and remand this case 

for a new trial. 

I.
 

FACTUAL AND PROCEDURAL HISTORY
 

On August 23, 2013, Mr. Noel was driving through the streets of downtown 

Bluefield, West Virginia, when Bluefield Police Officer K.L. Adams (“Officer Adams”), who 

was patrolling those streets in a police car, pulled out behind him. Mr. Noel then turned onto 

a side street, and Officer Adams continued his patrol route. Shortly thereafter, Mr. Noel 

exited a side street in front of Officer Adams’ cruiser, whereupon Officer Adams noticed that 

Mr. Noel’s vehicle had a large, horizontal crack in the windshield, which spanned from one 

side of the windshield to the other and had additional cracks radiating vertically from the main 

crack. Believing the windshield cracks posed a safety hazard, Officer Adams activated his 

5

(...continued) 

recent United States Supreme Court case of Heien v. North Carolina, ___ U.S. ___, 135 

S. Ct. 530, 190 L. Ed. 2d 475 (2014). Because the arresting officer neither charged nor 

arrested Mr. Noel with a violation of a vehicle safety statute, we do not find this case to be 

instructive to our resolution of the instant appeal. See infra Section III. 

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cruiser’s lights to effectuate a stop of Mr. Noel’s vehicle.6 Rather than stopping his vehicle, 

however, Mr. Noel drove away at a high rate of speed, reaching speeds of eighty to ninety 

miles per hour, through residential and campus streets of Bluefield. Upon reaching a 

particular residence, Mr. Noel stopped his vehicle in front of the house, exited his vehicle, and 

attempted to flee on foot; shortly thereafter, Officer Adams apprehended him. 

Upon returning Mr. Noel to the location where Mr. Noel’s vehicle and Officer 

Adams’ police cruiser were parked, Officer Adams asked Mr. Noel for his driver’s license; 

Mr. Noel stated that he did not have a driver’s license, but produced an identification card 

issued by the State of Ohio. Investigating further, Officer Adams learned that Mr. Noel’s 

driver’s license had been suspended due to numerous violations. Mr. Noel additionally 

claimed that he had traveled to that particular house to visit its resident, but the woman living 

there said that, while she knew who Mr. Noel was, she did not know why he would be visiting 

her. While Officer Adams engaged in this conversation with the home’s occupant, Mr. Noel 

again attempted to flee on foot. 

Eventually, Officer Adams placed Mr. Noel in handcuffs. At this point in time, 

Mr. Noel was standing next to the driver’s side door of his vehicle, and the driver’s side door 

6

See W. Va. Code § 17C-16-2(a) (1951) (Repl. Vol. 2013). For the relevant 

statutory language, see infra Section III.A. 

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was open. Officer Adams later testified that Mr. Noel repeatedly glanced inside his vehicle 

and at the vehicle’s center console. Apparently fearing that Mr. Noel either might have a 

weapon on his person or in his vehicle that he was attempting to access, Officer Adams 

searched under the vehicle’s driver’s seat and in the vehicle’s center console, where he 

discovered crack cocaine and methamphetamine. At trial, Officer Adams explained that Mr. 

Noel’s lack of a valid driver’s license and his repeated attempts to flee, coupled with his 

knowledge that persons in custody have been known to escape police handcuffs and retrieve 

a weapon, led him to search the vehicle. After placing Mr. Noel under arrest for fleeing but 

before transporting him to the police station for processing, Officer Adams conducted an 

inventory of Mr. Noel’s car in preparation for its impoundment; during the inventory process, 

Officer Adams also discovered straws used to crush and inhale drugs and latex gloves. On 

the way to the police station, Mr. Noel allegedly asked Officer Adams, “Who ratted me out? 

How did you know to pull me over?” The State did not reveal this dialogue to Mr. Noel or 

his attorney until right before his criminal trial was scheduled to begin. As a result of this 

delayed disclosure, the trial court prohibited the State from using this statement in its case-inchief, but allowed it to be used for purposes of impeachment on cross-examination. 

Mr. Noel was indicted by a Mercer County grand jury on charges of fleeing in 

a vehicle, possession with intent to deliver a schedule II controlled substance (cocaine), and 

possession with intent to deliver a schedule II controlled substance (methamphetamine). Prior 

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to trial, Mr. Noel moved to suppress the evidence Officer Adams discovered upon searching 

his vehicle, arguing that no probable cause existed for either the traffic stop or the subsequent 

vehicle search. The trial court denied Mr. Noel’s motion and allowed the drug evidence to 

be admitted at trial. At the commencement of his jury trial on December 26, 2013, the trial 

court informed Mr. Noel of his right to testify and his right to remain silent, and that the jury 

would be instructed accordingly; Mr. Noel answered in the affirmative when the trial court 

asked if he had understood this explanation of his rights. Thereafter, at the beginning of Mr. 

Noel’s case-in-chief, the trial court asked whether Mr. Noel intended to testify, to which his 

attorney replied in the negative. Upon the conclusion of the trial, the jury convicted Mr. Noel 

of fleeing in a vehicle and possession with the intent to distribute cocaine and 

methamphetamine. During the ensuing sentencing hearing, the trial court sentenced Mr. Noel 

to one to five years for his conviction of fleeing in a vehicle, one to fifteen years for his 

conviction of possession with intent to deliver a schedule II controlled substance (cocaine), 

and one to five years for his conviction of possession with intent to deliver a schedule II 

controlled substance (methamphetamine), which sentences were memorialized by the court’s 

January 30, 2014, sentencing order and its March 18, 2014, amended sentencing order.7 From 

these convictions and corresponding sentences, Mr. Noel appeals to this Court. 

7

See supra note 1. 

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II.
 

STANDARD OF REVIEW
 

In the case sub judice, Mr. Noel asserts two alleged errors. Because this Court’s 

review of each of these issues is governed by a different standard, we will set forth the 

applicable standard of review in our discussion of each issue. 

III.
 

DISCUSSION
 

On appeal to this Court, Mr. Noel raises two assignments of error: (1) the circuit 

court erred by refusing to suppress the evidence that Officer Adams obtained from his search 

of Mr. Noel’s car and (2) the circuit court violated Mr. Noel’s rights under State v. Neuman, 

179 W. Va. 580, 371 S.E.2d 77 (1988), by allowing Mr. Noel’s attorney to answer whether 

Mr. Noel intended to testify in his own defense at trial. We will address each of these 

assigned errors in turn. 

A. Motion to Suppress Search Evidence 

Mr. Noel first argues that the circuit court erred by denying his motion to 

suppress evidence discovered during Officer Adams’ search of Mr. Noel’s vehicle. After 

Officer Adams handcuffed Mr. Noel, who was standing at the open, driver’s side door of his 

car, Officer Adams searched the interior of the vehicle because, he explained, he was afraid 

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Mr. Noel had a weapon that he would be able to retrieve. During this search, Officer Adams 

discovered evidence that led to Mr. Noel’s arrest and conviction for the two drug charges in 

the case sub judice. Mr. Noel contends that the search and resultant evidence was improper 

because Officer Adams did not have probable cause to effectuate a traffic stop of his vehicle. 

The State responds that the West Virginia vehicle safety statutes provided 

Officer Adams with sufficient probable cause to stop Mr. Noel’s vehicle to inspect its cracked 

windshield, and, after Mr. Noel fled upon the activation of Officer Adams’ patrol car lights, 

additional probable cause existed to stop Mr. Noel for fleeing. The State further contends that 

Officer Adams conducted a permissible search of Mr. Noel’s vehicle incident to a valid traffic 

stop, and, therefore, the circuit court correctly refused to suppress the evidence discovered 

during this search. 

Before reaching the merits of this assignment of error, we first must consider 

the manner in which we review the denial of a motion to suppress. We previously have 

enunciated this standard as follows: 

The standard of review of a circuit court’s ruling on a 

motion to suppress is now well defined in this State. See State v. 

Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994) (discussing at 

length the standard of review in a suppression determination). 

By employing a two-tier standard, we first review a circuit 

court’s findings of fact when ruling on a motion to suppress 

evidence under the clearly erroneous standard. Second, we 

review de novo questions of law and the circuit court’s ultimate 

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conclusion as to the constitutionality of the law enforcement 

action. Under the clearly erroneous standard, a circuit court’s 

decision ordinarily will be affirmed unless it is unsupported by 

substantial evidence; based on an erroneous interpretation of 

applicable law; or, in light of the entire record, this Court is left 

with a firm and definite conviction that a mistake has been made. 

See State v. Stuart, 192 W. Va. 428[, 433], 452 S.E.2d 886, 891 

(1994). When we review the denial of a motion to suppress, we 

consider the evidence in the light most favorable to the 

prosecution. 

State v. Lilly, 194 W. Va. 595, 600, 461 S.E.2d 101, 106 (1995) (footnotes omitted). 

Turning to Mr. Noel’s contentions, we disagree that Officer Adams did not have 

sufficient cause8 to effectuate a traffic stop as a result of the severely broken windshield in 

Mr. Noel’s vehicle. Pursuant to W. Va. Code § 17C-16-2(a) (1951) (Repl. Vol. 2013), 

[t]he department of public safety may at any time upon 

reasonable cause to believe that a vehicle is unsafe or not 

equipped as required by law, or that its equipment is not in proper 

adjustment or repair, require the driver of such vehicle to stop 

and submit such vehicle to an inspection and such test with 

reference thereto as may be appropriate. 

Insofar as a vehicle cannot be driven “in such unsafe condition as to endanger any person,” 

W. Va. Code § 17C-15-1(a) (1951) (Repl. Vol. 2013), it is clear that Officer Adams had 

8

We note that both Mr. Noel and the State have indicated that Officer Adams 

was required to have probable cause in order to stop Mr. Noel’s vehicle. This, however, is 

not the correct standard. Rather, the governing vehicle safety statute requires only 

“reasonable cause,” W. Va. Code § 17C-16-2(a), and our established case law requires only 

“an articulable reasonable suspicion,” Syl. pt. 1, in part, State v. Stuart, 192 W. Va. 428, 452 

S.E.2d 886 (1994), to stop a vehicle. 

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“reasonable cause,” W. Va. Code § 17C-16-2(a), to stop Mr. Noel’s vehicle to inspect its 

windshield to determine whether such impairment was of a nature as to obstruct the driver’s 

vision and render the vehicle unsafe. 

However, an independent justification also exists to provide a basis for the 

traffic stop. Upon his activation of his patrol car’s lights, Officer Adams observed Mr. Noel 

drive away from him, through the streets and college campus of downtown Bluefield, 

reaching speeds of eighty to ninety miles per hour. Such actions on Mr. Noel’s part 

constituted the crime of fleeing with reckless indifference and provided independent 

justification for the subject traffic stop. See State v. Flint, 171 W. Va. 676, 681, 301 S.E.2d 

765, 770 (1983) (observing that there exists “a legitimate state interest in . . . the safety of the 

public [so as to] necessitate . . . the stopping of the erratically driven vehicle”). We previously 

have held that “[p]olice officers may stop a vehicle to investigate if they have an articulable 

reasonable suspicion that the vehicle is subject to seizure or a person in the vehicle has 

committed, is committing, or is about to commit a crime.” Syl. pt. 1, in part, State v. Stuart, 

192 W. Va. 428, 452 S.E.2d 886 (1994). Specifically, the crime of fleeing involving reckless 

indifference, with which Mr. Noel was charged and ultimately convicted, is defined as 

follows: 

A person who intentionally flees or attempts to flee in a 

vehicle from a law-enforcement officer . . . acting in his or her 

official capacity after the officer has given a clear visual or 

audible signal directing the person to stop, and who operates the 

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vehicle in a manner showing a reckless indifference to the safety 

of others, is guilty of a felony and, upon conviction thereof, shall 

be fined not less than $1,000 nor more than $2,000 and shall be 

imprisoned in a state correctional facility not less than one nor 

more than five years. 

W. Va. Code § 61-5-17(f) (2012) (Supp. 2013).9 Having determined that sufficient cause 

existed to effectuate the traffic stop, we next must determine whether the ensuing search was 

permissible. 

Whether Officer Adams’ search of Mr. Noel’s vehicle was proper depends upon 

the facts and circumstances surrounding the traffic stop, itself. As the United States Supreme 

Court explained in Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 

(1983), 

[o]ur past cases indicate . . . that protection of police and 

others can justify protective searches when police have a 

reasonable belief that the suspect poses a danger, that roadside 

encounters between police and suspects are especiallyhazardous, 

and that danger may arise from the possible presence of weapons 

in the area surrounding a suspect. These principles compel our 

conclusion that the search of the passenger compartment of an 

automobile, limited to those areas in which a weapon may be 

placed or hidden, is permissible if the police officer possesses a 

reasonable belief based on “specific and articulable facts which, 

9

In the case sub judice, we will apply the version of W. Va. Code § 61-5-17(f) 

(2012) (Supp. 2013) that was in effect at the time Mr. Noel committed the offense of fleeing 

in 2013. While this statute twice has been amended since that date, those changes do not 

alter the definition of or the penalty for fleeing with reckless indifference set forth in 

subsection (f). See W. Va. Code § 61-5-17(f) (2015) (Supp. 2015); W. Va. Code § 61-5­

17(f) (2014) (Repl. Vol. 2014). 

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taken together with the rational inferences from those facts, 

reasonably warrant” the officers in believing that the suspect is 

dangerous and the suspect may gain immediate control of 

weapons. See Terry[ v. Ohio], 392 U.S.[ 1], at 21, 88 

S. Ct.[ 1868], at 1880[, 20 L. Ed. 2d 889 (1968)]. “[T]he issue 

is whether a reasonably prudent man in the circumstances would 

be warranted in the belief that his safety or that of others was in 

danger.” Id., at 27, 88 S. Ct., at 1883. If a suspect is 

“dangerous,” he is no less dangerous simply because he is not 

arrested. If, while conducting a legitimate Terry search of the 

interior of the automobile, the officer should . . . discover 

contraband other than weapons, he clearly cannot be required to 

ignore the contraband, and the Fourth Amendment does not 

require its suppression in such circumstances. 

463 U.S. at 1049-50, 103 S. Ct. at 3480-81, 77 L. Ed. 2d 1201 (footnote and additional 

citations omitted). 

More recently, the Court revisited the question of when a vehicle search incident 

to a driver’s arrest is proper and reasonable under the circumstances in Arizona v. Gant, 556 

U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). In Gant, the Tucson Police Department 

was investigating a residence believed to be involved in the sale of drugs; Mr. Gant answered 

the door and informed the officers that the home’s owner would be home later that evening. 

Following this encounter, the police conducted a records check and learned that Mr. Gant’s 

driver’s license had been suspended and that he had an outstanding warrant for his arrest for 

driving on a suspended license. Upon returning to the residence later that evening to continue 

their drug investigation, the officers saw Mr. Gant also returning to the residence while 

driving a car. Once Mr. Gant parked his car, the police called his name and immediately 

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arrested and handcuffed him. After placing Mr. Gant in the back of a patrol car, the officers 

searched his car, where they found a gun and a bag of cocaine. During his ensuing criminal 

trial for possession of a narcotic drug for sale and possession of drug paraphernalia, Mr. Gant 

moved to suppress the evidence discovered in his car claiming that the search of his vehicle 

was unlawful. The trial court permitted the evidence to be admitted, but the Arizona Supreme 

Court determined the search to be unreasonable. Id., 556 U.S. at 335-38, 129 S. Ct. 1714-16, 

173 L. Ed. 2d 485. 

In considering the parties’ arguments, the Court recognized the existence of 

confusion regarding the scope of the exception to the Fourth Amendment’s search warrant 

requirement in cases involving a vehicle search incident to an arrest. Thus, the United States 

Supreme Court revisited the issue, clarifying the parameters of such a search by holding as 

follows: 

[P]olice [are authorized] to search a vehicle incident to a recent 

occupant’s arrest only when the arrestee is unsecured and within 

reaching distance of the passenger compartment at the time of the 

search. . . . 

[W]e also conclude that circumstances unique to the vehicle 

context justify a search incident to a lawful arrest when it is 

“reasonable to believe evidence relevant to the crime of arrest 

might be found in the vehicle.” 

Id., 556 U.S. at 343, 129 S. Ct. at 1719, 173 L. Ed. 2d 485 (footnote omitted) (quoting 

Thornton v. United States, 541 U.S. 615, 632, 124 S. Ct. 2127, 2137, 158 L. Ed. 2d 905 

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(2004) (Scalia, J., concurring)). With respect to the first reason for authorizing such a search, 

i.e., an arrestee who is unsecured and within reaching distance of the vehicle’s passenger 

compartment, the Court observed that 

[b]ecause officers have many means of ensuring the safe 

arrest of vehicle occupants, it will be the rare case in which an 

officer is unable to fully effectuate an arrest so that a real 

possibility of access to the arrestee’s vehicle remains. But in 

such a case a search incident to arrest is reasonable under the 

Fourth Amendment. 

Gant, 556 U.S. at 343 n.4, 129 S. Ct. at 1719 n.4, 173 L. Ed. 2d 485 (citation omitted). As 

to the second justification for such a search, i.e., to retrieve evidence relevant to the crime for 

which the arrestee has been arrested, the Court noted that, 

[i]n many cases, as when a recent occupant is arrested for a 

traffic violation, there will be no reasonable basis to believe the 

vehicle contains relevant evidence. But in others, . . . , the 

offense of arrest will supply a basis for searching the passenger 

compartment of an arrestee’s vehicle and any containers therein. 

Gant, 556 U.S. at 343-44, 129 S. Ct. at 1719, 173 L. Ed. 2d 485 (citations omitted). Thus, the 

precedent established by Gant is clear, and we now hold that, pursuant to Arizona v. Gant, 556 

U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), police may conduct a warrantless search 

of a vehicle incident to a recent occupant’s arrest only if (1) the arrestee is unsecured and 

within reaching distance of the vehicle’s passenger compartment at the time of the search or 

(2) it is reasonable to believe that the vehicle contains evidence of the offense of arrest. If 

these justifications are absent, a warrantless search of an arrestee’s vehicle will be 

unreasonable unless police obtain a warrant or show that another exception to the warrant 

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requirement applies. 

Similarly, this Court considers the circumstances justifying a search of a vehicle 

incident to a traffic stop to be quite narrow: 

“An automobile may be stopped for some legitimate state 

interest. Once the vehicle is lawfully stopped for a legitimate 

state interest, probable cause may arise to believe the vehicle is 

carrying weapons, contraband or evidence of the commission of 

a crime, and, at this point, if exigent circumstances are present, 

a warrantless search may be made.” Syllabus point 4, State v. 

Moore, 165 W. Va. 837, 272 S.E.2d 804 (1980)[(emphasis 

added), overruled on other grounds by State v. Julius, 185 

W. Va. 422, 408 S.E.2d 1 (1991)]. 

Syl. pt. 2, State v. Flint, 171 W. Va. 676, 301 S.E.2d 765 (emphasis added). Furthermore, 

“[a] furtive gesture on the part of the occupant of a vehicle 

is ordinarily insufficient to constitute probable cause to search a 

vehicle if it is not coupled with other reliable causative facts to 

connect the gesture to the probable presence of contraband or 

incriminating evidence.” Syllabus point 5, 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)]. 

Syl. pt. 3, State v. Flint, 171 W. Va. 676, 301 S.E.2d 765. 

Applying these holdings to the case sub judice, we conclude that Officer 

Adams’ search of Mr. Noel’s car without a warrant was not lawful under either the Supreme 

Court’s opinion in Gant or this Court’s prior jurisprudence. To render the subject search 

lawful under Gant, either (1) Mr. Noel had to be unsecured and within reaching distance of 

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the passenger compartment of his car or (2) it was reasonable to believe that Mr. Noel’s 

vehicle contained evidence of the crime for which he was arrested, i.e., fleeing with reckless 

indifference. From the circumstances that led to the instant appeal, it is clear that Mr. Noel 

was neither unsecured nor within reaching distance of the interior of his vehicle searched by 

Officer Adams. The record demonstrates that Officer Adams secured Mr. Noel by placing 

him in handcuffs before he searched Mr. Noel’s vehicle.10 Moreover, at the time Officer 

10Other courts considering whether an arrestee who is handcuffed, but who 

remains near his/her vehicle at the time of the warrantless search, rather than being placed 

in the officer’s patrol car, is secured also have concluded that the arrestee has been secured 

as contemplated by Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 

(2009). See Canino v. State, 314 Ga. App. 633, 725 S.E.2d 782 (2012) (driver charged with 

reckless driving was handcuffed and standing next to open driver’s door of vehicle during 

warrantless search; Gant requirements found not satisfied because driver was secured, not 

within reaching distance of car, and car would not have contained evidence of reckless 

driving). See also Commonwealth v. Perkins, 465 Mass. 600, 989 N.E.2d 854 (2013) 

(vehicle search without warrant found unlawful where driver was secured by handcuffs, was 

standing near car but could not access it, and evidence of arrest for traffic violation not likely 

to be found in car); State v. VanNess, 186 Wash. App. 148, 344 P.3d 713 (2015) (warrantless 

search of arrestee’s backpack not proper where arrestee was handcuffed and standing at rear 

of vehicle, but could not access backpack placed on vehicle’s trunk and arrest was made for 

outstanding warrants). Cf. United States v. McCraney, 674 F.3d 614 (6th Cir. 2012) 

(warrantless vehicle search not proper because unhandcuffed driver was standing near trunk 

of car, was not within reaching distance of vehicle’s passenger compartment, and it was 

unreasonable to believe evidence of traffic violation would be found inside vehicle). But see 

United States v. Sellers, 897 F. Supp. 2d 754 (N.D. Ind. 2012) (warrantless vehicle search 

proper where driver was standing at trunk of car, was not handcuffed, had informed police 

he had a weapon, and was subject of ongoing drug investigation); Robinson v. State, 407 S.C. 

169, 754 S.E.2d 862 (2014) (search of vehicle without warrant proper where driver was 

handcuffed and standing at rear of vehicle, but police had seen handgun inside the vehicle 

when the occupants exited the car and driver and occupants were wanted in connection with 

armed robbery); State v. Snead, 326 Ga. App. 345, 756 S.E.2d 581 (2014) (warrantless search 

of vehicle proper to secure scene where unhandcuffed driver was outside of vehicle, but 

(continued...) 

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Adams searched the vehicle’s closed console, Mr. Noel was not in reaching distance of the 

passenger compartment of his car. See Gant, 556 U.S. at 343 n.4, 129 S. Ct. at 1719 n.4, 173 

L. Ed. 2d 485 (“Because officers have many means of ensuring the safe arrest of vehicle 

occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so 

that a real possibility of access to the arrestee’s vehicle remains.” (citation omitted)). Finally, 

it was unreasonable to believe that Mr. Noel’s vehicle contained evidence of the offense of 

his arrest, i.e., fleeing with reckless indifference. Therefore, Officer Adams’ warrantless 

search of Mr. Noel’s vehicle incident to his arrest for fleeing was unlawful under Gant, and 

the circuit court should have suppressed the evidence found during this search. 

Furthermore, Officer Adams’ warrantless search of Mr. Noel’s vehicle was not 

lawful under this Court’s prior holdings in Flint. Under Syllabus point 2 of Flint, a vehicle 

search without a warrant is proper only if probable cause exists that the vehicle contains a 

weapon, contraband, or evidence of the commission of a crime and exigent circumstances 

exist. 171 W. Va. 676, 301 S.E.2d 765. In the case sub judice, Officer Adams originally 

initiated the traffic stop to check the safety of Mr. Noel’s vehicle and then effectuated the stop 

based upon Mr. Noel’s flight. Officer Adams had no probable cause to believe that Mr. 

Noel’s vehicle contained either a weapon or contraband, and evidence of the crime of arrest, 

10(...continued)
 

police had seen driver holding firearm inside car).
 

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i.e., fleeing with reckless indifference, would not have been found in the vehicle; neither were 

exigent circumstances present. Moreover, much of Officer Adams’ justification for the 

warrantless vehicle search was based upon Mr. Noel’s repeated glances towards the interior 

of his car and, specifically, its center console. As we held in Syllabus point 3 of Flint, such 

furtive gestures, without the presence of contraband or evidence of criminal activity, is not 

sufficient justification for a warrantless vehicle search. Id. 

Accordingly, we find that the subject warrantless vehicle search was not lawful 

and that the circuit court erred by refusing to suppress the evidence resulting therefrom.11 

Therefore, we reverse Mr. Noel’s convictions and resultant sentences and remand this case 

for a new trial.12 

11Although Mr. Noel has not addressed this issue, the State alternatively 

contends that Officer Adams’ search of Mr. Noel’s vehicle was proper as an inventory 

search. We disagree. The State has not demonstrated that Officer Adams saw any item of 

value in Mr. Noel’s vehicle that would have justified an inventory search. See Syl. pt. 2, 

State v. Goff, 166 W. Va. 47, 272 S.E.2d 457 (1980) (“An inventory search is not proper 

when there is no showing that the police saw any items of personal property in the interior 

of the vehicle, which would warrant the initiation of an inventory search.”). 

12Having concluded that the circuit court improperly admitted evidence that 

was used to convict Mr. Noel and that he is entitled to a new trial in which such evidence is 

suppressed, we need not consider his second assignment of error regarding the propriety of 

the Neuman colloquy conducted by the circuit court. However, during the retrial of this case, 

the circuit court should ensure that it complies with the protections afforded by Neuman. See 

Syl. pt. 7, State v. Neuman, 179 W. Va. 580, 371 S.E.2d 77 (1988) (“A trial court exercising 

appropriate judicial concern for the constitutional right to testify should seek to assure that 

a defendant’s waiver is voluntary, knowing, and intelligent by advising the defendant outside 

the presence of the jury that he has a right to testify, that if he wants to testify then no one can 

(continued...) 

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IV.
 

CONCLUSION
 

For the foregoing reasons, the circuit court’s January30, 2014, sentencing order, 

as corrected by its March 18, 2014, amended sentencing order, is hereby reversed, and this 

case is remanded for a new trial. 

Reversed and Remanded. 

12(...continued) 

prevent him from doing so, that if he testifies the prosecution will be allowed to 

cross-examine him. In connection with the privilege against self-incrimination, the defendant 

should also be advised that he has a right not to testify and that if he does not testify then the 

jury can be instructed about that right.”). 

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