State v. Hlavacek

In State v. Hlavacek, 185 W. Va. 371, 407 S.E.2d 375 (1991), the Court recognized a limitation to a Terry-Choat protective frisk. Hlavacek involved the detention of a suspect based upon an anonymous tip that the suspect was engaged in drug trafficking. While the suspect was being detained, a police officer required the suspect empty his pockets. When the suspect complied, he pulled out three marijuana cigarettes from his pockets. The Court found such a search unconstitutional. The Court stated, "in this case, Sergeant Hylton stated that requiring the appellant to empty his pockets made the frisk 'more complete.' While this is undeniably true, we conclude that the extent of the intrusion also made the frisk unconstitutional." Hlavacek, 185 W. Va. at 376, 407 S.E.2d at 380. The Court stated: "Generally, when information received from a confidential informant is relied upon in an affidavit for a search warrant, the affidavit must contain information which establishes the informant's basis of knowledge and lends credibility to the informant's statements." Hlavacek, 407 S.E.2d at 382. "Because the affidavit the officer presented to the magistrate in this case made no reference to the reliability of the informant or how he had come to possess his information, we conclude that the affidavit was 'bare bones' and insufficient to support the issuance of a warrant to search the appellant's car." Hlavacek, 407 S.E.2d at 382-83. The court ruled that the illegal search could not be "redeemed through resort to the good faith exception," (quoting State v. Adkins, 176 W. Va. 613, 346 S.E.2d 762, 775 (WVa 1986)), where "the affidavit in question is so conclusory with regard to its probable cause information as to render it a 'bare bones' affidavit" because "even under United States v. Leon, a bare bones affidavit is not subject to rehabilitation by the good faith exception."