State v. Flippo

In State v. Flippo (W.Va. 2002) 212 W. Va. 560, 575 S.E.2d 170, following remand, the trial court denied Flippo's motion for a new trial, which was based, in part, on the contention that certain evidence introduced at trial had been unlawfully seized. On appeal, the Supreme Court of Appeals considered the lower court's ruling that the evidence was admissible under the implied consent exception to the warrant requirement of the Fourth Amendment, the existence of such an exception being a matter of first impression for West Virginia's highest court. (State v. Flippo, supra, at p. 178.) The court undertook an extensive review of federal and sister-state authority (id. at pp. 178-180), and held that "consent 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.'" (Id. at p. 180.) The court cited with approval reasoning by other courts that '"'one can hardly expect the police to get a search warrant for a house or building when the owner is obviously cooperative and gives every appearance of being the victim, rather than the perpetrator, of a crime"'" and that "'when the owner or occupant of the premises permits the police to make a search without a warrant at a time when the occupant is not even suspected of complicity in the crime, the police are lulled into a sense of security, and therefore the occupant cannot later object if the search led to the discovery of evidence which ultimately resulted in his being charged with complicity in the crime.'" (Ibid.) The court further held: "When a person summons the police to a dwelling he/she owns, possesses, or controls, and that person states that a crime was committed against him/her or others by a third person at the premises, he/she implicitly consents to a search of the premises reasonably related to the routine investigation of the offenses and the identification of the perpetrator .... As long as the person summoning the police is not a suspect in the case or does not affirmatively revoke his/her implied consent, the police may search the premises without a warrant for the purposes of investigating the reported offenses and identifying the perpetrator, and evidence obtained thereby is admissible...." (Id. at p. 183; fns. omitted; accord, Brown v. States (Tex.Crim.App. 1993) 856 S.W.2d 177, 182; State v. Fleischman (Ariz.App. 1988) 157 Ariz. 11, 754 P.2d 340, 344; Thompson v. State (Minn. 1986) 384 N.W.2d 461, 463.) Ultimately, the court found the police had implied consent to search the cabin during their initial response to Flippo's call for assistance. (State v. Flippo, supra, 575 S.E.2d at p. 183.) Subsequently, however, Flippo was taken to the police station in order to make a formal statement; there, he was informed he was a suspect and advised of his rights. As of that point, the court determined, the police were required to stop searching the cabin and obtain a search warrant. Evidence seized afterward without a warrant was subject to suppression. (Id. at p. 186.)