The Flippin' Fish #4b

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September 2002 Term

No. 30527


Plaintiff Below, Appellee,



Defendant Below, Appellant.

Appeal from the Circuit Court of Fayette County

Honorable John W. Hatcher, Jr., Judge

Criminal Action No. 96-F-119


Submitted: November 6, 2002

Filed: November 27, 2002

George Castelle Darrell V. McGraw, Jr.

Ira Mickenberg Attorney General

Kanawha County Public Defender Silas B. Taylo

Corporation Senior Deputy Attorney General Charleston, West Virginia Charleston, West Virginia Attorneys for Appellant Attorneys for Appellee

CHIEF JUSTICE DAVIS delivered the Opinion of the Court.


1. 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.”

2. 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 offense and the identification of the perpetrator, absent a contrary limitation imposed by the person summoning the police. 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 offense and identifying the perpetrator, and evidence obtained thereby is admissible. If the person affirmatively revokes his/her implied consent or becomes a suspect during the investigation, the police must stop the search and obtain a warrant for the purpose of continuing the search. The implied consent exception is valid only for the initial investigation conducted at the scene, and does not carry over to future visits to the scene.

3. Under the inevitable discovery rule, unlawfully obtained evidence is not subject to the exclusionary rule if it is shown that the evidence would have been discovered pursuant to a properly executed search warrant.

4. To prevail under the inevitable discovery exception to the exclusionary rule, Article III, Section 6 of the West Virginia Constitution requires the State to prove by a preponderance of the evidence: (1) that there was a reasonable probability that the evidence would have been discovered by lawful means in the absence of police misconduct; (2) that the leads making the discovery inevitable were possessed by the police at the time of the misconduct; and (3) that the police were actively pursuing a lawful alternative line of investigation to seize the evidence prior to the time of the misconduct.

5.“'Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.' Syllabus point 5, State ex rel. Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975).” Syllabus point 14, State v. Salmons, 203 W. Va. 561, 509 S.E.2d 842 (1998).

Davis, Chief Justice:

James Michael Flippo (hereinafter referred to as Mr. Flippo), appellant/defendant below, appeals from an order of the Circuit Court of Fayette County denying his motion for a new trial. In the motion for a new trial, Mr. Flippo contended that photographs of a third party, Joel Boggess (hereinafter referred to as Mr. Boggess), were unlawfully seized and therefore should not have been introduced as evidence during the trial. The trial court held that the photographs were lawfully seized under the implied consent or inevitable discovery exception to the warrant requirement. Therefore, the photographs were admissible during the trial. Alternatively, the trial court ruled that the introduction of the photographs was harmless error. Here, Mr. Flippo contends that the trial court committed reversible error by concluding that the photographs were admissible under the implied consent or inevitable discovery exception, and in finding harmless error in allowing the introduction of the photographs. After a thorough review of the briefs and record in this case, we find that the photographs were inadmissible under the implied consent or inevitable discovery exception. Having so ruled, however, we do agree with the trial court that introduction of the photographs in this case was, beyond a reasonable doubt, harmless error. We therefore affirm the circuit court's order denying a new trial.


On March 1, 1996, Mr. Flippo and his wife, Cheryl Flippo, purchased a $100,000.00 life insurance policy on her life. The policy became effective on April 1, 1996. The policy named Mr. Flippo as the beneficiary. On April 27, 1996, Mr. Flippo accompanied Mr. Boggess to Babcock State Park for the purpose of having Mr. Flippo, who was a minister, baptize Mr. Boggess in a park stream. They went to the park in Mr. Boggess' red Camaro.

After the baptism, Mr. Flippo took pictures of Mr. Boggess as he removed his wet clothing. At some point during the same day, Mr. Flippo telephoned the park and made reservations to rent a cabin for him and his wife on April 29, 1996, two days after the baptism. During the early evening hours of April 29, 1996, Mr. Flippo and his wife traveled to Babcock State Park. The Flippos did not secure a key to the cabin as their arrival was late. However, the cabin was unlocked. Shortly after the couple arrived at the cabin, Mr. Flippo left briefly to use a pay phone.

At approximately 2:11 a.m. on the morning of April 30, 1996, the Fayette County 911 operator received a phone call from Mr. Flippo. During the call, Mr. Flippo stated that he and his wife had been attacked in their cabin. The 911 operator told Mr. Flippo to remain at the pay phone and help would be on the way. Deputy C. Bryant of the Fayette County Sheriff's Department responded to the emergency call. Deputy Bryant found Mr. Flippo at the pay phone wearing only his underwear. He had blood on his legs. Mr. Flippo told the deputy that he had traveled to the park in a green Cadillac, but that it had been stolen. The deputy drove Mr. Flippo to the cabin. Upon arrival at the cabin, Deputy Bryant inquired about a red Camaro parked near the cabin. Mr. Flippo stated that he did not know who owned the Camaro, and that he had not come to the park in the Camaro.

Deputy Bryant left Mr. Flippo in his police cruiser and went to the cabin. The deputy found no signs of a forced entry into the cabin. He was also careful to note that, although it had been raining and the ground was soft, he found no footprints (other than his own) around the cabin area. When the deputy entered the cabin, he found the dead body of Mrs. Flippo lying between a bed and a wall. The deputy observed that Mrs. Flippo's skull was opened and her brain matter was exposed.

After discovering the body, Deputy Bryant went outside and found that two paramedics had arrived. One paramedic went into the cabin, while the other tended to Mr. Flippo. Once it was determined by the paramedic that Mrs. Flippo was dead, Mr. Flippo was taken to a local hospital. Deputy Bryant remained at the crime scene and conducted an investigation.

While Mr. Flippo was at the hospital, he was diagnosed as having a small bruise on his forehead and on the back of his head. He also had some scratches, with minimal bleeding, on his legs. During Mr. Flippo's treatment at the hospital, Fayette County Sheriff Detective S. Kessler arrived at the hospital. After receiving treatment at the hospital Mr. Flippo agreed to accompany the detective to police headquarters to give a statement.

While at police headquarters, Mr. Flippo informed the police that once he and his wife arrived at the cabin, he went out to a pay phone to call a sick friend who was at a hospital. After making the telephone call, he returned to the cabin and started a fire. Mr. Flippo stated that after he started the fire, he and his wife ate ice cream and played cards. Mr. Flippo reported that at some point after they went to bed, he heard a noise and saw a person lying between their bed and a wall. The intruder had a rope and was wearing a toboggan over his face. Mr. Flippo further stated that before he could alert his wife, the intruder hit him on the back of the head with a piece of firewood and knocked him unconscious. Mr. Flippo indicated that when he regained consciousness, he found the intruder sitting on him and cutting his legs with a knife. The intruder thereafter struck him in the forehead and knocked him unconscious once again. When Mr. Flippo regained consciousness a second time, the intruder was gone.

After regaining consciousness, Mr. Flippo stated that he found his wife on the floor in a pool of blood. He reported that he placed his head on her heart and found it still beating. Thereafter, he rushed out of the cabin to call 911.

Shortly after Mr. Flippo gave his statement, Detective Kessler spoke by phone with a crime scene investigator, Detective G. Burke.

Detective Burke reported that there was no forced entry into the cabin, the crime scene looked staged, and that certain items were not where they logically should have been. After the telephone call, at approximately 10:33 a.m., Mr. Flippo was informed that he was a suspect. He was read his Miranda rights. After Mr. Flippo requested to speak with his attorney, all questioning of him stopped. However, at some point after the interrogation ended, Mr. Flippo requested medication and clothing be retrieved from the cabin. Mr. Flippo's attorney arrived at police headquarters several hours later and took him away.

On May 3, 1996, the police arrested Mr. Flippo and charged him with murdering his wife. Mr. Flippo was subsequently indicted for first degree murder by a grand jury.

Prior to trial, Mr. Flippo made two motions relevant to this appeal.

Mr. Flippo requested that the prosecutor be precluded from eliciting testimony that he had a homosexual relationship with Mr. Boggess. The trial court granted the motion. However, the trial court permitted the prosecutor to present evidence attempting to prove Mr. Flippo's relationship with Mr. Boggess had caused stress to his marriage.

Mr. Flippo also sought to suppress the introduction of the photographs taken of Mr. Boggess undressing after his baptism. The trial court denied the motion to suppress the photographs on the grounds that they were lawfully seized during the crime scene investigation.

After the trial was bifurcated, the guilt phase was tried before a jury beginning on October 14, 1997.

On October 23, the jury returned a verdict finding Mr. Flippo guilty of first degree murder. The following day, the jury heard evidence on sentencing and returned a verdict denying mercy. On November 3, the trial court sentenced Mr. Flippo to life in prison without mercy. On April 30, 1998, the trial court re-sentenced Mr. Flippo for the purposes of filing a timely appeal.

Mr. Flippo then filed a petition for appeal with this Court. The petition was summarily denied on January 13, 1999. Thereafter, Mr. Flippo appealed to the United States Supreme Court. A per curiam opinion was issued in Flippo v. West Virginia, 528 U.S. 11, 120 S. Ct. 7, 145 L. Ed. 2d 16 (1999), reversing and remanding the case to the trial court based upon the following reasoning:

A warrantless search by the police is invalid unless it falls within one of the narrow and well-delineated exceptions to the warrant requirement, Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), none of which the trial court invoked here. It simply found that after the homicide crime scene was secured for investigation, a search of “anything and everything found within the crime scene area” was “within the law.”

This position squarely conflicts with Mincey v. Arizona, [437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978)], where we rejected the contention that there is a “murder scene exception” to the Warrant Clause of the Fourth Amendment. We noted that police may make warrantless entries onto premises if they reasonably believe a person is in need of immediate aid and may make prompt warrantless searches of a homicide scene for possible other victims or a killer on the premises, id., at 392, 98 S. Ct. 2408, but we rejected any general “murder scene exception” as inconsistent with the Fourth and Fourteenth Amendments-- . . . the warrantless search of Mincey's apartment was not constitutionally permissible simply because a homicide had recently occurred there.” Id., at 395, 98 S. Ct. 2408; see also Thompson v. Louisiana, 469 U.S. 17, 21, 105 S. Ct. 409, 83 L. Ed. 2d 246 (1984) (per curiam ). Mincey controls here.

Although the trial court made no attempt to distinguish Mincey, the State contends that the trial court's ruling is supportable on the theory that petitioner's direction of the police to the scene of the attack implied consent to search as they did. As in Thompson v. Louisiana, supra at 23, 105 S. Ct. 409, however, we express no opinion on whether the search here might be justified as consensual, as “the issue of consent is ordinarily a factual issue unsuitable for our consideration in the first instance.” Nor, of course, do we take any position on the applicability of any other exception to the warrant rule, or the harmlessness vel non of any error in receiving this evidence. Any such matters, properly raised, may be resolved on remand.

Flippo, 528 U.S. at 13-15, 120 S. Ct. at 8-9.

After the case was remanded to the trial court by the United States Supreme Court, the parties submitted briefs on the issue of the lawfulness of the seizure of the photographs. The trial court subsequently issued a lengthy order affirming the conviction and denying a new trial on June 15, 2001. In that order the trial court found that the photographs were seized based upon an “implied consent” to search the cabin by Mr. Flippo. Alternatively, the trial court found that the photographs were admissible under the “inevitable discovery” exception to the search warrant requirement. Finally, the trial court ruled that, to the extent the photographs were erroneously admitted into evidence, such error was harmless beyond a reasonable doubt. It is from this ruling that Mr. Flippo now appeals.

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