Janet D. Preston, Esquire
Darrell V. McGraw, Jr., Attorney General
Cooper & Preston Leah Perry Macia, Assistant Attorney General
Parsons, West Virginia Charleston, West Virginia
Attorney for Appellant Attorneys for Appellee
JUSTICE SCOTT delivered the Opinion of the Court.
JUSTICE STARCHER concurs in part and dissents in part and reserves the right to file a concurring and/or dissenting Opinion.
*JUSTICE MCGRAW concurs and reserves the right to file a concurring Opinion.
*On June 22, 2000, JUSTICE MCGRAW withdrew his right to file a separate concurring opinion.
1. 'The State and Federal Constitutions prohibit only unreasonable searches and
seizures and there are numerous situations in which a search and seizure warrant is not needed, such as an
automobile in motion, searches made in hot pursuit, searches around the area where an arrest is made,
things that are obvious to the senses, and property that has been abandoned, as well as searches and
seizures made that have been consented to.' Point 1 Syllabus, State v. Angel, 154 W. Va. 615 [, 177
S.E.2d 562 (1970)]. Syl. Pt. 4, State v. Duvernoy, 156 W. Va. 578, 195 S.E.2d 631 (1973).
2. If officers are lawfully present and observe what is then and there immediately
apparent, no search warrant is required in such instance, and the testimony by the officers with regard to
the evidence which they observed is entirely proper. Syl. Pt. 3, State v. Angel, 154 W. Va. 615, 177
S.E.2d 562 (1970).
Medical necessity is unavailable as an affirmative defense to a marijuana charge
in West Virginia because the Legislature has designated marijuana as a Schedule I controlled substance
with no exception for medical use.
The Appellant, Donna Jean Poling, appeals from a final judgment of the Circuit Court of Tucker
County, entered on February 5, 1999, upon her conditional plea of guilty to the felony offense of
manufacturing a controlled substance, with reservation of her right to appeal under Rule 11(a)(2) of the
West Virginia Rules of Criminal Procedure.See footnote 1
The Appellant seeks a reversal of the conviction and the right
to withdraw her plea based on two pretrial evidentiary rulings by the lower court, which denied her motion
to suppress evidence seized under a warrant and precluded presentation of the affirmative defenses of
compulsion and medical necessity. Finding no error in the challenged rulings, we affirm.
The Appellant was arrested the next day and charged with possession with intent to manufacture
a controlled substance in violation of West Virginia Code § 60A-4-401 (1997). On May 26, 1998, a
preliminary hearing was held, and in June 1998, the Appellant was indicted for manufacturing a controlled
substance by growing and cultivating marijuana.
On June 30, 1998, the Appellant filed a pretrial motion to suppress all evidence seized or otherwise procured by police officers which stems from the illegal search of the Defendants' home . . . . Following an in camera suppression hearing, the circuit court took the motion to suppress under advisement. By order entered August 26, 1998, the circuit court denied the motion.
Trial was scheduled for February 5, 1999. On January 25, 1999, the State filed a motion in limine seeking to prohibit any testimony or defense based upon medicinal qualities of marijuana upon multiple sclerosis. The Appellant filed a response to the State's motion in limine and also filed a renewal of her motion to suppress.
On February 5, 1999, the circuit court conducted a hearing on the Appellant's renewed motion
to suppress and the State's motion in limine. At the hearing, Appellant's counsel offered evidence and
argued in support of the proposed theories of defense (compulsion and medical necessity). The circuit
court denied the Appellant's renewed motion to suppress and granted the State's motion in limine. The
Appellant then entered a plea of guilty to the felony charge of manufacturing a controlled substance,
conditioned on the instant appeal. Upon said plea, the circuit court adjudged the Appellant guilty of
manufacturing a controlled substance and sentenced her to one to five years in the state penitentiary. This
sentence was suspended, and a five-year term of probation was imposed.
At the outset, we observe that there is no question as to the form of the warrant under which the
marijuana plants and other evidence were seized. Nor is there any contention that the search conducted
under the warrant exceeded its scope. The only issue raised relating to the seizure of evidence from the
Appellant's home is whether Deputy Wilfong's observation of marijuana plants through her uncovered front
door window amounted to an unjustified warrantless search, which operated to invalidate the search
warrant subsequently obtained and rendered the property seized thereunder inadmissible. We conclude
that the said observation was not a search within the meaning of the Fourth Amendment, and consequently,
the circuit court committed no error in denying the motion to suppress.
This Court has long recognized that Article III, § 6 of our state constitutionSee footnote 2
and the Fourth
Amendment of our federal constitution,See footnote 3
protect citizens from unreasonable searches and seizures. State
v. Stone, 165 W. Va. 266, 269, 268 S.E.2d 50, 53 (1980), overruled on other grounds by State
v. Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991). However, as stated in
syllabus point four of State v.
Duvernoy, 156 W. Va. 578, 195 S.E.2d 631 (1973):
The State and Federal Constitutions prohibit only unreasonable searches and seizures and there are numerous situations in which a search and seizure warrant is not needed, such as an automobile in motion, searches made in hot pursuit, searches around the area where an arrest is made, things that are obvious to the senses, and property that has been abandoned, as well as searches and seizures made that have been consented to. Point 1 Syllabus, State v. Angel, 154 W. Va. 615 [, 177 S.E.2d 562 (1970)].
In syllabus point three of State v. Angel, 154 W. Va. 615, 177 S.E.2d 562 (1970), we described the situation in which a search warrant is not necessary because things are obvious to the senses : I f officers are lawfully present and observe what is then and there immediately apparent, no search warrant is required in such instance, and the testimony by the officers with regard to the evidence which they observed is entirely proper. Id. at 616, 177 S.E.2d at 563; a ccord Syl. Pt. 1, State v. Slaman, 189 W. Va. 297, 431 S.E.2d 91 (1993). Later, in State v. Woodson, 181 W. Va. 325, 382 S.E.2d 519
we attached the plain view
label to the situation delineated in
, stating that
the label 'plain
view' . . . applie[s] to a situation where the police officer is present where he has a lawful right to be and
sees in plain view an object that constitutes contraband or evidence of a crime. Woodson, 181 W. Va.
at 330, 382 S.E.2d at 524.
Discussing this particular plain view situation, we elucidated:
[T]he concern here is with plain view . . . as descriptive of a situation in which there has been no search at all in the Fourth Amendment sense. This situation . . . encompasses those circumstances in which an observation is made by a police officer without a prior physical intrusion into a constitutionally protected area . . . .
181 W. Va. at 331, 382 S.E.2d at 525 (quoting 1 Wayne R. LaFave, Search and Seizure 322-23 (2d ed. 1987)) ; see also Syl. Pt. 3, Stone, 165 W. Va. at 266, 268 S.E.2d at 51 (It is not a search for the police to discover evidence in plain sight . . . .).
Based on the above-stated principles, it is clear that the Appellant's assertions regarding a violation
of her Fourth Amendment rights are without merit. Deputy Wilfong was lawfully present at the Appellant's
front door with the intention of executing the administrative task of serving a subpoena on her husband.
As the deputy stood waiting for someone to answer his knock, he merely observed what was immediately
apparent, obvious, and in his plain view through the uncovered window. Under these facts,
we find there
was 'no search at all in the Fourth Amendment sense
Woodson, 181 W. Va. at 331, 382 S.E.2d at
. As explained in State v. Smith, 181 A.2d 761 (N.J. 1962), cert. denied, 374 U.S. 835 (1963),
the Fourth Amendment does not draw[ ] . . . the blinds the occupant could have drawn but did not. 181
A.2d at 769. Our conclusion on this issue is bolstered by numerous decisions from other jurisdictions.
See, e.g., United States v. Taylor, 90 F.3d 903 (4th Cir. 1996) (holding that officer's observations
from Appellants' front porch of items clearly visible through picture window located adjacent to front door
did not constitute search within meaning of Fourth Amendment); United States v. Hersh, 464 F.2d 228
(9th Cir.) (holding that officers' observations through window were not illegal where officers, while standing
on Appellant's front porch, merely looked through window located immediately to left of front door), cert.
denied, 409 U.S. 1008 (1972); State v. Dickerson, 313 N.W.2d 526 (Iowa 1981) (holding that
officers, who were engaged in legitimate investigative activities, did not invade defendant's reasonable
expectation of privacy by coming to door of his residence, and their visual observations through window
in door did not constitute search in the constitutional sense); State v. Rose, 909 P.2d 280 (Wash. 1996)
(holding that officer's observations did not constitute illegal search when officer, while standing on front
porch of defendant's mobile home, looked with aid of flashlight through unobstructed window to left of
front door and saw cut marijuana and scale on table inside).
Implicit in Appellant's argument is the contention that the affidavit of Deputy Wilfong detailing his
observation of marijuana plants was insufficient to support the issuance of a search warrant because the
information contained in the affidavit was obtained through an illegal search. To constitute probable cause
for the issuance of a search warrant, the affiant must set forth facts indicating the existence of criminal
activities which would justify a search . . . . Syl. Pt. 1, in part, Stone, 165 W.Va. at 266, 268 S.E.2d at
51. In State v. Wotring, 167 W. Va. 104, 279 S.E.2d 182 (1981), we rejected the appellant's
contention that the search of her home pursuant to a warrant was illegal where the supporting affidavit filed
by the investigating officer contained an assertion that the affiant witnessed a drug transaction on the
property to be searched. Id. at 111, 279 S.E.2d at 188. Our ruling in Wotring took into consideration
the fact that the affiant stated that he saw the transaction occur on the appellant's premises, which g[ave]
rise to more than a mere belief that the thing to be seized could be found on the premises. Id. at 110, 279
S.E.2d at 187. In the instant case, given that Deputy Wilfong's plain view observation of marijuana plants
did not constitute a Fourth Amendment search, his affidavit was clearly sufficient to establish probable
cause for the issuance of the search warrant.
The Appellant also assigns as error the absence of any factual findings in the circuit court's order denying her motion to suppress. On August 26, 1998, the circuit court entered an order, which stated summarily that the motion to suppress the search warrant . . . hereby is denied. Although the order does not set forth any factual findings, this Court has never held that the denial of a motion to suppress must be reversed if the circuit court's order does not contain findings of fact. On the contrary, this Court stated in State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996), that [i]f the circuit court did not make the necessary findings, the matter may either be remanded with appropriate directions or the circuit court's denial of a motion to suppress upheld if there is any reasonable view of the evidence to support it. Id. at 110, 468 S.E.2d at 725. Furthermore, the record presented to this Court includes the transcript of a hearing on February 5, 1999, during which the Appellant's renewed motion to suppress was discussed. At that hearing, the circuit court adopted Deputy Wilfong's version of the facts, stating: I am of the opinion that it happened exactly as the deputy said . . . . The designated record also includes the transcript of the suppression hearing, during which Deputy Wilfong testified. This evidence permits us to meaningfully review the circuit court's ruling.
The Appellant's third and final assignment of error is that the circuit court improperly granted the
State's motion in limine, and thereby foreclosed her presentation of the affirmative defenses of compulsion
and medical necessity. Upon review, we find no error in the preclusion of either of these defenses.
In syllabus point one of State v. Tanner, 171 W. Va. 529, 301 S.E.2d 160 (1982), this Court
articulated the test for compulsion, proof of which can be found to excuse the commission of a criminal act:
In general, an act that would otherwise be a crime may be excused if it was done under compulsion or duress, because there is then no criminal intent. The compulsion or coercion that will excuse an otherwise criminal act must be present, imminent, and impending, and such as would induce a well-grounded apprehension of death or serious bodily harm if the criminal act is not done; it must be continuous; and there must be no reasonable opportunity to escape the compulsion without committing the crime. A threat of future injury is not enough.
We stated further in Tanner that [i]f the evidence raised a reasonable doubt about [Appellant's] . . . criminal intent to commit the offense charged, [compulsion] . . . would be a valid legal defense. Id. at 532, 301 S.E.2d at 163.
Here, the Appellant failed to proffer sufficient evidence of compulsion, as defined in Tanner, to
raise a reasonable doubt about her criminal intent to commit the offense of manufacturing a controlled
substance. The Appellant argues that the Tanner test is satisfied because she
lives with the present, imminent, continuous, apprehension of serious bodily harm resulting from the disease of multiple sclerosis. She tried all legal, prescription, drugs prescribed to her prior to ever possessing marijuana, with no success. To her, there was no other way to escape the symptoms of her disease other than consuming marijuana.
This argument ignores that it is the compulsion, not the apprehension or fear, which must be present,
imminent, impending, and continuous in order to negate criminal intent. Before using marijuana, Appellant
suffered . . . from periodic attacks. [T]wo to three times a year [she would have] an attack of MS that
would last . . . [for] approximately three months . . . . Clearly, these claims do not support the Tanner
requirements that the compulsion be present and continuous, certainly not for the several months
necessary to plant, cultivate, and grow marijuana to maturity.
Through its ruling on the motion in limine, the circuit court also barred Appellant from presenting the defense of medical necessity. This Court has not previously recognized medical necessity as an affirmative defense, and we decline to do so today. We find persuasive the reasoning in State v. Williams, 968 P.2d 26 (Wash. Ct. App. 1998), review denied, 984 P.2d 1034 (Wash. 1999); and State v. Hanson, 468 N.W.2d 77 (Minn. Ct. App. 1991).
The appellant in Williams attacked his convictions of unlawful manufacturing of marijuana and
unlawful possession of marijuana on the grounds that the trial court erred in excluding expert testimony
regarding the medical use of marijuana and in refusing to give a jury instruction on medical necessity.
Washington's intermediate appellate court affirmed and held that the defense of medical necessity is
unavailable for drugs that are classified as Schedule I Controlled Substances because the Legislature has
conclusively determined that marijuana has no currently accepted medical use in treatment in the United
States. 968 P.2d at 28. Elaborating on its rationale, the Williams Court stated:
[T]he decision of whether there is an accepted medical use for particular drugs has been vested in the Legislature by the Washington Constitution. The Legislature has determined that marijuana has no accepted medical use. Williams has no fundamental right to have marijuana as his preferred treatment over the State's objections. Further, if the debate over medical treatment belongs in the political arena, it makes no sense for the courts to fashion a defense whereby jurors weigh experts' testimony on the medical uses of a Schedule I drug. Otherwise, each trial would become a battlefield of experts. But the Legislature has designated the battlefield as the Board of Pharmacy. The Washington Constitution has not enabled each individual to be the final arbiter of the medicine he is entitled to take--it is the Legislature that has been authorized to make laws to regulate the sale of medicines and drugs.
Id. at 30. Moreover, as noted by the court in Williams, the decision upon which the Appellant in the case sub judice relies as support for the medical necessity defense was implicitly overruled by the Washington Supreme Court's decision in Seeley v. State, 940 P.2d 604 (1997). Williams, 968 P.2d at 30 (discussing overruling of State v. Diana, 604 P.2d 1312 (Wash. Ct. App. 1979)).
In Hanson, the appellant, an epilepsy victim, challenged the trial court's exclusion of the defense
of medical necessity in connection with his conviction for manufacturing marijuana. Finding no error in said
exclusion, the Hanson Court stated that:
a prime feature of this defense as developed elsewhere is a deference to the legislative prerogative to define the criminal offense: The defense of necessity is available only in situations wherein the legislature has not itself, in its criminal statute, made a determination of values. If it has done so, its decision governs.
468 N.W.2d at 78 (quoting 1 LaFave & Scott, Substantive Criminal Law § 5.4, 631 (1986)). The Hanson Court proceeded to outline controlling statutory provisions which had been enacted by the state legislature: The Minnesota legislature has attached criminal penalties to the possession, sale or cultivation of marijuana. The statutory classification of marijuana as a Schedule I substance implies a determination that marijuana has 'no currently accepted medical use in the United States.' 468 N.W.2d at 78 (statutory citations omitted); see also State v. Cramer, 851 P.2d 147, 149 (Ariz. Ct. App. 1992) (holding that trial court did not err in precluding appellant's defense of medical necessity to charge of unlawful production of marijuana because the Legislature has addressed exceptions and exemptions in detail by statute . . . and . . . unlawful possession of marijuana does not fall within those protected categories).
As we consider the availability of the medical necessity defense in West Virginia, we are mindful
that West Virginia Constitution, Article VI, Section 1, reposes the legislative power in the legislative
department, State v. Grinstead, 157 W. Va. 1001, 1012, 206 S.E.2d 912, 920 (1974), and the
constitutional powers of the Legislature are particularly broad in matters of health[.] Id. at 1010, 206
S.E.2d at 918. The Uniform Controlled Substances Act, West Virginia Code §§ 60A-1-101 to 60A-9-7
(1997 & Supp. 1999), contains the following proviso:
The state board of pharmacy shall recommend to the legislature that a substance be included in Schedule I if it finds that the substance:
(1) Has high potential for abuse; and
(2) Has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.
W. Va. Code § 60A-2-203. By virtue of its broad constitutional power, and upon the recommendation of the state board of pharmacy, the West Virginia Legislature has designated marijuana as a Schedule I controlled substance. See W. Va. Code §§ 60A-2-203, -204(d)(22). In making this classification, the Legislature has adopted the board of pharmacy's determination that marijuana either has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision. W. Va. Code § 60A-2-203. Moreover, the Legislature has imposed criminal penalties upon any person who manufactures, delivers, or possesses with intent to manufacture or deliver, marijuana. The Legislature has made no exception for medical use. Accordingly, we hold that medical necessity is unavailable as an affirmative defense to a marijuana charge in West Virginia because the Legislature has designated marijuana as a Schedule I controlled substance with no exception for medical use.
(2) Conditional Pleas.--With the approval of the court and the
consent of the state, a defendant may enter a conditional plea of guilty
or nolo contendere, reserving in writing the right, on appeal from the
judgment, to review of the adverse determination of any specified
pretrial motion. A defendant who prevails on appeal shall be allowed
to withdraw the plea.
W. Va. R. Crim. P. 11(a)(2).
The rights of the citizens to be secure in their houses, persons, papers and effects, against unreasonable searches and seizures, shall not be violated. No warrant shall issue except upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, or the person or thing to be seized.