Case Number: 2016-KA-00816-SCT

Judge: Robert P. Chamberlin

Court: SUPREME COURT OF MISSISSIPPI

Plaintiff's Attorney: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT

Defendant's Attorney: OFFICE OF THE STATE PUBLIC DEFENDER BY: BENJAMIN A. SUBER GEORGE T. HOLMES

Description: The petitioner, John Michael Howell, appeals the portion of the Circuit Court of Wetzel County’s May 12, 2016, “Amended Entry of a Plea and Sentencing Order Amended” [sic] specifying that he will be eligible for parole consideration after serving a minimum of fifteen years in prison. He argues that pursuant to statute, he should be eligible for parole after ten years of incarceration. The State of West Virginia responds in support of the circuit court’s order, contending that the fifteen-year parole eligibility provision was an express and integral term in the petitioner’s plea agreement. However, the petitioner asserts that when accepting a plea bargain, nobody informed him of the applicable parole law or that he was relinquishing any rights regarding parole eligibility.
By memorandum decision filed on October 23, 2017, this Court affirmed the circuit court’s order. Subsequently, the petitioner filed a timely petition for rehearing, which was granted on February 7, 2018.2 Upon rehearing, this Court received supplemental briefs and, on April 3, 2018, heard the oral argument of the parties. For the reasons set forth herein, we now conclude that the petitioner’s plea agreement and conviction must be vacated, and the
1On appeal, Mr. Howell is represented by Keith White, Esquire. The State of West Virginia is represented by Zachary Aaron Viglianco, Assistant Attorney General. 2See W.Va. R.A.P. 25 (providing for filing of petition for rehearing); Atlantic Greyhound Corp. v. Public Serv. Comm’n, 132 W.Va. 650, 665, 54 S.E.2d 169, 177 (1949) (recognizing that granting of petition for rehearing “withdraws an opinion previously rendered and destroys its force and effect” unless opinion is re-adopted) (internal citation omitted).

In January 2011, the petitioner was indicted on four criminal counts: kidnapping, attempted sexual assault in the second degree, sexual assault in the first degree, and malicious assault. The indictment pertained to conduct he is alleged to have committed against his wife in December 2010. Trial began in January 2016.3 After a recess in the midst of jury selection, the parties announced to the circuit court that they had reached a plea agreement. The petitioner agreed to plead guilty to the kidnapping charge and to be sentenced to life in prison with mercy. The written plea agreement expressly provided he would be eligible for parole after serving fifteen years in prison:
It is understood herein that for the Felony offense of “Kidnapping” the defendant will be sentenced to life with mercy. The defendant will be eligible for parole after serving a minimum of fifteen (15) years with credit for time served. The defendant understands that he may never be paroled, that matter will be left up to the Parole Board.
(Emphasis in original). In exchange for this guilty plea, the State agreed to dismiss the remaining counts of the indictment.
The circuit court immediately held a combined plea and sentencing hearing wherein there were repeated references to the petitioner serving fifteen years of incarceration before becoming eligible for parole consideration. For example, the court explained the following to the petitioner:
Now, as you know, Mr. Howell, you are charged in this court with a series of offenses, one of which is kidnapping, and under the terms of the plea agreement you’re to enter a plea–or agree to enter a plea to that offense with the sentence to be life with mercy.
Now, kidnapping with a life with mercy recommendation means that you would be eligible for parole after serving a minimum of 15 years with
3The appendix record on appeal does not reveal the reasons for the delay in going to
trial.
2


















credit for time served and that you understand that you may never be paroled; that would be left up to the parole board[.]
After engaging in a plea colloquy, the circuit court determined that the petitioner’s guilty plea to the crime of kidnapping was knowing, intelligent, and voluntary. The court proceeded to sentence the petitioner to life in prison with a recommendation of mercy, once again specifying that the petitioner would be “eligible for parole after serving a minimum of 15 years with credit for time served[.]” The circuit court entered a written order on January 7, 2016, memorializing the plea and sentencing.
Thereafter, the petitioner’s counsel objected to the contents of the written order. 4 In a March 31, 2016, letter to the circuit court, petitioner’s then-lawyer Mark D. Panepinto advised that the fifteen-year parole eligibility period was contrary to law. Specifically, the kidnapping statute provides:
(b) The following exceptions shall apply to the penalty . . . .
(2) If the person pleads guilty, the court may, in its discretion, provide that the person is eligible for parole in accordance with the provisions of article twelve, chapter sixty-two of this code and, if the court so provides, the person is eligible for parole in accordance with the provisions of said article in the same manner and with like effect as if the person had been found guilty by the verdict of a jury and the jury had recommended mercy[.]
W.Va. Code § 61-2-14a(b) (2017). 5 Article twelve of chapter sixty-two, which is the parole statute, provides in relevant part:
An inmate sentenced for life may not be paroled until he or she has served ten years, and an inmate sentenced for life who has been previously twice convicted of a felony may not be paroled until he or she has served fifteen years: Provided, That an inmate convicted of first degree murder for an offense committed on or after June 10, 1994, is not eligible for parole until he or she has served fifteen years.
4The record reflects that the written order was not provided to the defense for review prior to its entry. 5Both the kidnapping and the parole statutes have been amended since the petitioner’s alleged crimes. However, the changes to the relevant language are stylistic and do not affect the outcome of this appeal, so this decision quotes the current language. 3

















W.Va. Code § 62-12-13(c) (2017) (emphasis added). It is undisputed that the petitioner has no prior felony convictions, thus, pursuant to these statutes, he would be eligible for parole consideration in ten years, not fifteen. In his letter, Mr. Panepinto told the circuit court of his belief that “all parties, as well as the Court, were mistaken [during the plea/sentencing hearing] relative to the time when Mr. Howell would be eligible for parole pursuant to statute.”
The circuit court held a hearing on May 6, 2016, to consider issues regarding its order.6 The judge explained that he had been mistaken about the applicable parole eligibility period:
I will say this: At the time the plea was entered, I had in my mind that the fifteen-year eligibility date was proper. Basically, what I had in mind, really, was the first degree murder cases . . . . But what I had in my mind–and I’m giving you the mental processes–is that with a recommendation of mercy, that means a person would be eligible for parole in fifteen years. That’s what I operated on.
The petitioner requested that the sentencing order be changed to reflect that he would be parole-eligible after ten years of incarceration. However, the State objected to this modification. The prosecuting attorney averred that the requirement of serving at least fifteen years in prison was “the essence of the plea agreement[,]”and the State would not have entered into the plea bargain without this provision.
Acknowledging that the fifteen-year provision was specified in the plea agreement, the circuit court denied the petitioner’s motion to reduce the parole eligibility period to ten years. The court made other changes to the written order that are not at issue in this appeal,7 and an amended plea and sentencing order was entered on May 12, 2016.8
6The petitioner’s lawyers also objected to language in the order about the circuit court’s offer to recommend parole when the petitioner ultimately appears before the parole board, assuming the petitioner does not commit any improprieties in the interim period. That issue was resolved before the circuit court and is not pertinent to this appeal. 7See supra note 6. 8In his brief, the petitioner incorrectly refers to this appeal as arising from the denial of a motion filed pursuant to Rule 35 of the West Virginia Rules of Criminal Procedure. Although the petitioner did file a separate Rule 35 motion, the appendix record reflects that 4

















Standard of Review
Although a criminal defendant who pleads guiltyhas ordinarily waived his or her right to appeal, “[a] direct appeal from a criminal conviction based on a guilty plea will lie where an issue is raised as to the voluntariness of the guilty plea or the legality of the sentence.” Syl. Pt. 1, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978). Our standard of review is as follows:
In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).
Discussion
In support of the circuit court’s decision, the State argues that the petitioner is bound by the fifteen-year parole eligibility provision because it was clearly set forth in the written plea agreement and was discussed no fewer than five times during the January 2016 plea/sentencing hearing. The petitioner contends that although the fifteen-year period was specified, no one ever told him that the parole statute only requires ten years or that his plea agreement would require him to forgo any rights regarding parole eligibility.
When a criminal defendant pleads guilty, the defendant must be accurately informed of the consequences of the plea: “When a conviction rests upon a plea of guilty, the record must affirmatively show that the plea was intelligently and voluntarily made with an awareness of the nature of the charge to which the plea is offered and the consequences of the plea.” Syl. Pt. 1, Riley v. Ziegler, 161 W.Va. 290, 241 S.E.2d 813 (1978); accord W.Va. R. Crim. P. 11 (requiring trial court to ensure plea of guilty or nolo contendere is voluntary); Boykin v. Alabama, 395 U.S. 238 (1969) (finding reversible error when record did not reflect that criminal defendant voluntarily and understandingly entered guilty plea).
In Riley, the trial court gave a “misleading explanation” regarding the maximum possible penalty faced by a defendant who was pleading guilty. 161 W.Va. at 292, 241
he withdrew it during the May 6, 2016, hearing. In actuality, this is a timely-filed appeal of the amended plea and sentencing order. 5




















S.E.2d at 815. The defendant therein was charged with grand larceny as well as the alternative counts of breaking and entering in the daytime or breaking and entering in the nighttime, all arising from a single incident. The circuit court inaccurately advised the defendant that he was facing “three one-to-ten [year] charges” when, by law, the defendant could only have been convicted of one of the counts for which he was charged. Id. at 294, 241 S.E.2d at 816. This Court admonished that during a plea colloquy, “[w]hen a trial court explains the maximum possible sentence provided by law to a defendant, such explanation must be accurate and not confusing, misleading or coercive.” Id. at 291, 241 S.E.2d at 814, syl. pt. 2.
Similarly, in State ex rel. Gill v. Irons, while accepting a guilty plea pursuant to a plea bargain, the trial judge incorrectly told the defendant that “the worst thing I could do to you . . . [when imposing sentence is] send you to the state penitentiary for a period of between 6 years and 30 years.” State ex rel. Gill v. Irons, 207 W.Va. 199, 202, 530 S.E.2d 460, 463 (2000). In actuality, the applicable statutes provided for a sentence of ten to thirty years of incarceration. Our Court held that because the defendant “was not accurately informed of the possible sentence that could be imposed . . . [he] could not intelligently waive his constitutional rights and enter a plea of guilty.” Id.
In addition to reviewing the plea colloquy, this Court will consider the advice given bydefense counsel when ascertaining the voluntariness ofa guiltyplea. “The controlling test as to the voluntariness of a guilty plea, when it is attacked either on a direct appeal or in a habeas corpus proceeding on grounds that fall within those on which counsel might reasonably be expected to advise, is the competency of the advice given by counsel.” Sims, 162 W.Va. at 212, 248 S.E.2d at 835, syl. pt. 2.9
A review of the appendix record finds no indication that the petitioner was ever advised that the applicable statutes only require ten years of incarceration for parole eligibility for his crime. To the contrary, both the court and the petitioner’s counsel have admitted that they were mistaken about this requirement when the plea was taken. Counsel and the court just assumed that the statutes provided for parole eligibility after fifteen years. As such, it is clear that neither the court nor the petitioner’s counsel accurately explained all that the petitioner was relinquishing with this plea deal. Although inadvertent, this failure
9The State argues that a habeas corpus hearing is necessary to develop a record regarding the advice of petitioner’s counsel. However, this Court clearly held in Sims that issues regarding the voluntariness of a plea may be addressed on direct appeal. 162 W.Va. at 212, 248 S.E.2d at 835, syl. pts. 1 & 2. Moreover, a record has already been made on this issue, including the March 31, 2016, letter from the petitioner’s former lawyer and the uncontested proffers made during the May 6, 2016, hearing. 6


On July 15, 2014, a confidential informant (“CI”) told law-enforcement officers at the
Washington County Sheriff’s Office that “stolen items” were located at 331 Muscadine
Street in Greenville, Mississippi ( “Muscadine house”). Based on the information provided
by the CI, Officers Dwight Donham and Charlton Smith prepared an Affidavit for Search
Warrant and presented it to Washington County Justice Court Judge Laverne Holmes-Carter.
Judge Holmes-Carter issued a search warrant for “stolen items”1 in the Muscadine house at
331 Muscadine Street in Greenville, Mississippi.
¶4. The same day, law-enforcement officers—including Officer Smith—executed the
warrant on the Muscadine house. Upon entering, the officers detained and searched Sedric
Sutton. As a result of the search of Sutton and the Muscadine house, the officers found sixty
1The items to be seized were “particularly described” in the search warrant as “marijuana, cocaine, methamphetamine, stolen items and or any other illegal controlled substances as well as any paraphernalia which reflect the use(s) of, sale(s) of, or proceed(s) of illegal drug transactions.” As discussed infra, no probable cause existed to issue a warrant for any drug-related items. 2
pills, $4,995 in cash, a handgun, and two digital scales.
¶5. While conducting a safety check, Officer Christopher Surf searched Sutton’s right,
front pocket and discovered sixty small, yellow pills2 in a clear plastic bag. Sutton, who
testified in his own defense at trial, admitted to possession of the pills but argued that he had
them solely for his personal use.
¶6. Beyond the pills, the officers found additional evidence in the Muscadine house.
Officers discovered $4,995 in cash in Sutton’s black waist pack. Officer Smith also
discovered a 9 mm handgun in a black holster “located inside the wall in between the
threshold of the dining room and the living room area.” Investigator Cedric Adams testified
that the handgun was in plain view. Additionally, Officer Smith found two digital
scales—one small and one large—in the dining room.
¶7. After the officers completed the search, Sutton was taken into custody and charged
with possession of a controlled substance under Mississippi Code Section 41-29
139(c)(3)(A) —a misdemeanor, given that he had less than 100 pills. A Washington County
grand jury indicted Sutton as a habitual offender for possession of a controlled substance
with intent under Mississippi Code Section 41-29-139(a)(1) and for possession of a firearm
by a convicted felon.
¶8. Pretrial, Sutton moved to suppress the evidence from the execution of the warrant.
Sutton attacked the warrant on two separate grounds: (1) that the underlying facts and
2At trial, Allison Conville, a forensic scientist with the Mississippi Forensics Laboratory, gave expert testimony that the sixty pills were a Schedule III controlled substance, containing hydrocodone and acetaminophen. 3
circumstances on which the warrant was based were unreliable and (2) that the warrant failed
sufficiently to describe the property to be seized. The trial court held a hearing on Sutton’s
motion.
¶9. At the hearing, Officer Donham testified that the CI had informed him that the
Muscadine house was a warehouse for stolen goods and that he had sold stolen items there.
The CI, according to Donham, claimed that he had seen the stolen items in the house two
days before the arrest warrant was executed. On cross-examination, Sutton’s counsel
engaged in the following exchange with Officer Donham:
Q. Now, [the CI] did not give you any specific items whatsoever at Mr. Sutton’s address, did he? Isn’t that correct?
A. He said there were numerous things there.
Q. Numerous things. A warehouse of stolen stuff?
A. Right.
Q. But he did not give you a single itemized piece of stolen property, did he?
A. No.
Officer Donham also claimed the CI had given him reliable information in the past and that
the CI had personal knowledge—unknown to the public—of a number of local, recent house
burglaries. Officer Donham recounted that the CI had told him of a residence at which the
CI had sold a “Barnett cross bow.” Upon visiting the residence, Officer Donham had
recovered the crossbow.
¶10. After consideration of the testimony and arguments of counsel, the trial court denied
4
the motion to suppress. From the bench, the trial court explained its finding: “[T]he [c]ourt,
having reviewed the underlying facts and circumstances, finds that there is sufficient factual
basis presented upon which the magistrate could have verified the v[e]racity or the reliability
of the confidential informant.” In its written order, the trial court found that the information
in the affidavit seeking the warrant “described the things to be seized with sufficient
particularity to satisfy [the] Fourth Amendment.”
¶11. Sutton was tried before a jury on May 26, 2016. At trial, Sutton stipulated to his status
as a felon. The jury found Sutton guilty of the first count, possession with intent, and
acquitted him of the second count, possession of a firearm. On June 1, 2016, the trial court
sentenced Sutton to a term of fifteen years in the custody of the Mississippi Department of
Corrections pursuant to Sections 41-29-139(b)(4)(C) and 99-19-81.3
¶12. Sutton now appeals. Sutton, pro se, and his counsel raise a number of issues.
Because our analysis of the suppression issue is dispositive, we need not address Sutton’s
other claims of error.
STANDARD OF REVIEW
¶13. “‘In reviewing a magistrate’s finding of probable cause, this Court does not make a
de novo determination of probable cause, but only determines if there was a substantial basis
for the magistrate’s determination of probable cause.’” Roach v. State, 7 So. 3d 911 (Miss.
2009) (quoting Petti v. State, 666 So. 2d 754, 758 (Miss. 1995)). Our review is guided by
3 Mississippi Code Section 41-29-139(b)(3)(D) (Supp. 2017) allows a maximum sentence of twenty years for Sutton’s offense. Section 41-29-139(b)(3)(D) did not become effective until July 1, 2016. 2016 Miss. Laws 482. Thus, Sutton received the maximum sentence of fifteen years under Mississippi Code Section 41-29-139(b)(4)(C) (2014). 5
the totality-of-the-circumstances analysis established by the United States Supreme Court.
Lee v. State, 435 So. 2d 674, 676 (Miss. 1983) (citing Illinois v. Gates, 462 U.S. 213,
238–39, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983)). The United States Supreme Court
in Gates detailed the test:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . conclud[ing]” that probable cause existed.
Gates, 462 U.S. at 238–39 (alteration in original) (quoting Jones v. United States, 362 U.S.
257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d 697 (1960), overruled by United States v. Salvucci,
448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980)). In making this determination, “‘this
Court looks both to the facts and circumstances set forth in the affidavit for search warrant
and as well, the sworn oral testimony presented to the issuing magistrate.’” Petti, 666 So. 2d
at 757 (quoting Williams v. State, 583 So. 2d 620, 622 (Miss. 1991)). Further, “[T]he
information necessary to establish probable cause ‘must be information reasonably leading
an officer to believe that, then and there, contraband or evidence material to a criminal
investigation would be found.’” Id. (quoting Rooks v. State, 529 So. 2d 546, 554–55
(Miss.1988)).
6
ANALYSIS The trial court erred in denying Sutton’s motion to suppress.
¶14. Sutton argues that the trial court erred in denying the motion to suppress the evidence
seized in the search. While we find that the facts and circumstances undergirding the warrant
were sufficient to support a determination of probable cause as to “stolen items,” we agree
with Sutton that the warrant failed adequately to describe the property to be seized. Thus,
we find that Sutton’s constitutional rights under both the Mississippi Constitution and the
United States Constitution were infringed.
¶15. The Mississippi Constitution provides that “[t]he people shall be secure in their
persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall
be issued without probable cause, supported by oath or affirmation, specially designating the
place to be searched and the . . . thing to be seized.” Miss. Const. art. 3, § 23 (1890)
(emphasis added). “Section 23 provides greater protections to citizens than does the United
States Constitution [and] . . . should be liberally construed in favor of individual citizens and
strictly construed against the State.” State v. Woods, 866 So. 2d 422, 425 (Miss. 2003)
(citing Graves v. State, 708 So. 2d 858, 861 (Miss. 1997)).
¶16. The Fourth Amendment to the United States Constitution provides: “[N]o Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the . . . things to be seized.” U.S. Const. amend. IV (emphasis added). “When
evidence is obtained in violation of the Fourth Amendment,” the exclusionary rule is
implicated. Illinois v. Krull, 480 U.S. 340, 347, 107 S. Ct. 1160, 1165, 94 L. Ed. 2d 364
7
(1987). Both the Fourth Amendment and the accompanying exclusionary rule apply to the
States “through the Fourteenth Amendment.” Hudson v. Michigan, 547 U.S. 586, 590, 126
S. Ct. 2159, 2163, 165 L. Ed. 2d 56 (2006).
A. The information supporting the determination of probable cause as to “stolen items” was sufficiently reliable.
¶17. Sutton argues that the search warrant was invalid as it was based on underlying facts
and circumstances which were not reliable, violating the Fourth Amendment to the U.S.
Constitution as well as Article 3, Section 23 of the Mississippi Constitution. After review,
we find that this contention is without merit.
¶18. “A confidential informant’s veracity may be demonstrated through ‘a statement of the
affiant that the confidential informant has given credible information in the past.’” Chesney
v. State, 165 So. 3d 498, 505 (Miss. Ct. App. 2015) (quoting Peden v. State, 132 So. 3d 631,
636 (Miss. Ct. App. 2014)); see also State v. Woods, 866 So. 2d 422, 426 (Miss. 2003)
(recognizing that “[u]sually . . . corroborating evidence consists of a statement that the officer
had successfully used the CI in the past.”).
¶19. This Court has determined that a warrant is supported by sufficiently reliable
information where the confidential informant has provided reliable information in the past
and the informant’s reliability can be corroborated independently. Roach, 7 So. 3d at 919.
In Roach, the Court recognized that the investigator “described the CI as reliable in the past
because he knew him to be a reliable CI used by the department on occasion.” Id.
¶20. Under a totality-of-the-circumstances review, it is evident that there was a substantial
basis for Judge Holmes-Carter’s determination that the search warrant’s language concerning
8
“stolen items” was supported by sufficiently reliable information. The affidavit before Judge
Holmes-Carter claimed that the CI had shown Officer Donham “several locations in
Washington County where stolen items from recent house burglaries were taken and sold .
. . and described details of the burglaries that were not public knowledge.” The CI also knew
the brand name—Barnett—of a stolen crossbow that Investigator Donham later recovered.
According to the affidavit, the informant demonstrated his knowledge of these burglaries on
July 15, 2014, the same day that Judge Holmes-Carter issued the arrest warrant.
¶21. Further, as in Roach, Officer Donham testified that the CI had provided reliable
information to law-enforcement authorities in the past. The following exchange occurred
during Donham’s examination at the suppression hearing:
Q. Did you have any contact with that confidential informant before that day?
A. Yes, I did.
. . .
Q. And had he give[n] you reliable information in the past before?
A. Yes, he had.
Investigator Donham also reaffirmed the events recorded in the Affidavit for Search Warrant.
¶22. Given that the CI proved reliable information on the same day that the search warrant
was issued and that the CI had given reliable information in the past, the information
supporting the warrants was sufficiently reliable. Next, we determine if the warrant itself
was valid.
B. The search warrant was invalid.
9
1. The warrant did not sufficiently describe the things to be seized.
¶23. Sutton argues that the search warrant did not adequately describe the property to be
seized. After review, we agree.
¶24. “The description ‘stolen property’ is no description. For property other than what is
illicit or contraband, the thing or things to be seized must be described with some
particularity.” Conn v. State, 170 So. 2d 20, 24 (Miss. 1964) (citing 79 C.J.S. Searches and
Seizures § 81c (1952)).4 “‘Descriptions in search warrants need not be positively specific
and definite, but are sufficient if the places and things to be searched are designated in such
a manner that the officer making the search may locate them with reasonable certainty.’”
Barrett v. Miller, 599 So. 2d 559, 566 (Miss. 1992) (quoting Hamilton v. State, 556 So. 2d
685. 689 (Miss. 1990), and Cole v. State, 237 So. 2d 443, 445 (Miss. 1970)).
¶25. At the outset of this analysis, we address the trial court’s written order. In it, the trial
court cited Logan v. State, 773 So. 2d 338 (Miss. 2000), for the proposition that the
information in the Affidavit for Search Warrant “described the things to be seized with
4This statement of law is not unique to Mississippi. See United States v. LeBron, 729 F.2d 533, 537 (8th Cir. 1984) (“But the general description of ‘property . . . believe[d] to be stolen’ is not a description of a generic class. In fact, it is not descriptive at all. It is simply conclusory language.”); Martin v. City of Barstow, 2015 WL 12743595, at *2 (C.D. Cal. July 24, 2015) (“‘[S]tolen property’ is an objectively non-particular description.”); Thompson v. Superior Court, 70 Cal. App. 3d 101, 108, 138 Cal. Rptr. 603, 606 (Cal. App. 1977) (“The [State] concede[s] that a general description of ‘stolen property’ standing alone in a warrant would be constitutionally overbroad because it would enable an officer to engage in an unlimited exploratory search of all personal property and papers situated in the described premises.”); Clark v. Bridges, 211 F. Supp. 3d 731, 746 (D. S.C. 2016) (There was an “obvious failure of the warrant to describe any particular thing that was to be seized [when] [t]he warrant’s description of property that is appropriate for seizure merely states [d] ‘stolen property’ . . . .”) (emphasis in original). 10
sufficient particularity to satisfy [the] Fourth Amendment.”
¶26. Upon review, we find that the trial court erred here in this conclusion for a number
of reasons. First, the Affidavit for Search Warrant was not incorporated into the issued
search warrant and, therefore, did not describe the items to be seized with any particularity
for the executing officers. Second, even considering the Affidavit for Search Warrant, it
does not describe the items to be seized with any more particularity than “stolen items.”
Third, while the Logan Court did not record the specific language at issue in the search
warrant, Logan is distinguishable from the instant facts as the items sought in that search
were particular: “. . . any documents relating to vehicles rebuilt or repaired by Logan at his
shop facility. . . .” Logan, 773 So. 2d at 344. Fourth, the trial court’s order did not analyze
the description of the things to be seized in the warrant under Article 3, Section 23, of our
State Constitution, which has been held to “provide[] greater protections to citizens than . .
. the United States Constitution.” Woods, 866 So. 2d at 425.
¶27. With the trial court’s order addressed, we now turn to the description of the things to
be seized in the warrant. Here, the description of “stolen items” was wholly inadequate to
inform the officers executing the search as to which items in the Muscadine house were to
be seized. The description “stolen items” is even less descriptive than the conclusory
description “stolen property.” There simply was no means for the executing officers to
distinguish any stolen items from any items that rightfully belonged in the Muscadine house.
Indeed, after the search, Sutton had to reclaim a number of his items that were confiscated
from the Muscadine house as a result of the warrant’s execution.
11
¶28. Also, despite the claims that the Muscadine house was a “warehouse” for stolen
goods, the warrant should have included a more particularized description of at least some
of the property to be seized—especially since it is clear from the record that it could have.
See United States v. Fuccillo, 808 F.2d 173, 176 (1st Cir. 1987). In Fuccillo, pursuant to
warrants authorizing the seizure of “[c]artons of women’s clothing,” the FBI seized, among
other items, a number of cartons of clothing from several warehouses. Id. at 175. The
defendant moved to suppress all the evidence seized, and the trial court granted the motion.
Id. Affirming, the First Circuit noted that “[t]he instant warrants contained no explanation
as to how the executing agents were to differentiate cartons of stolen women’s clothing from
legitimate goods at either location.” Id. at 176. Further, the First Circuit found that “the FBI
clearly could have obtained specific information for . . . placement in the warrant which
would have enabled the agents executing the . . . warehouse searches to differentiate
contraband cartons of women’s clothing from legitimate ones.” Id. at 176–77.
¶29. While there are clear distinctions between legitimate warehouses, such as those in
Fuccillo, and criminal “warehouses,” the reasoning undergirding the Fuccillo decision
provides us guidance. Here, the Affidavit for Search Warrant provided that the CI had told
officers that he “ha[d] been to the [Muscadine house] on numerous occasions and seen stolen
items in the residence.” In fact, Officer Donham testified that the CI “had given us
information that he had rendered stolen property at that location before. He had taken stolen
property there to dispose of.” Also, the CI demonstrated that he had sufficient memory recall
to remember the brand names of certain property that he stole. The CI recalled that he had
12
stolen a “Barnett” crossbow that later was recovered by Officer Donham. After review of
the record, we are convinced that law-enforcement officers could have provided a more
detailed description of the things to be seized beyond the conclusory language of “stolen
items.” As the information was available to them, the officers should have included it in the
warrant. Indeed, both the United States Constitution and our State Constitution required
them to do so.
2. The warrant’s drug-related language was not supported by probable cause.
¶30. The search warrant additionally was invalid as there was no substantial basis for the
inclusion of the language related to drug activity. While not raised by the parties, upon
review, we find that there was no probable cause to issue a search warrant for any illegal
drug activity.
¶31. Again, “the information necessary to establish probable cause ‘must be information
reasonably leading an officer to believe that, then and there, contraband or evidence material
to a criminal investigation would be found.’” Petti, 666 So. 2d at 757 (quoting Rooks v.
State, 529 So. 2d 546, 554–55 (Miss. 1988)).
¶32. The warrant listed the drug-related items to be seized, yet the record— pretrial, at trial
and on appeal—is devoid of any allegation that either the issuing judge or the officers had
reason to believe that the Muscadine house contained drugs. The CI related only activity
about theft. Also, at the hearing on the motion to suppress, Investigator Donham did not
claim that law-enforcement officers had sought the warrant due to drug-related activity.
¶33. Because the warrant insufficiently describes the stolen goods to be seized and there
13
was no probable cause for any drug-related language to be included in it, the warrant was
invalid. The issue now becomes whether the exclusionary rule applies to this case.
C. The exclusionary rule applies.
¶34. “The exclusionary rule prohibits introduction into evidence of tangible materials
seized during an unlawful search . . . .” Murray v. United States, 487 U.S. 533, 536, 108 S.
Ct. 2529, 2533, 101 L. Ed. 2d 472 (1988); Wong Sun v. United States, 371 U.S. 471, 83 S.
Ct. 407, 9 L. Ed. 2d 441 (1963)). The United States Supreme Court, in Wong Sun, explained
the application of the exclusionary rule:
We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.
Wong Sun, 371 U.S. at 487–88 (internal quotations and citations omitted).
¶35. The exclusionary rule, however, does not apply automatically, as even a search
pursuant to an invalid search warrant may be found to be reasonable under the good-faith
exception. See White v. State, 842 So. 2d 565, 571 (Miss. 2003); United States v. Leon, 468
U.S. 897, 922–23, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). In White, this Court, quoting
the Fifth Circuit, explained the good-faith exception:
The [United States Supreme] Court has stated that the exclusionary rule should not be applied to suppress evidence if the evidence was obtained by officers acting in objectively reasonable reliance on a subsequently invalidated search warrant. However, this good faith exception does not apply if: (1) in issuing the warrant the magistrate is misled by information in the affidavit that the affiant knows is false or would have known was false except for his reckless disregard of the truth; (2) the issuing magistrate wholly abandons his judicial
14
role; (3) the warrant is based on an affidavit so lacking in indicia of probable cause that official belief in its existence is entirely unreasonable; or, (4) the warrant is so facially deficient in failing to particularize the place to be searched and things to be seized that the executing officers cannot reasonably presume it to be valid.
White v. State, 842 So. 2d 565, 571 (Miss. 2003) (alteration in original) (quoting United
States v. Russell, 960 F.2d 421, 423 (5th Cir.1992)) (citing Leon, 468 U.S. at 922–23).
¶36. In the present case, we find that the evidence seized pursuant to the invalid warrant
cannot “be purged of the primary taint” of the illegal search. As such, the exclusionary rule
applies.
¶37. Here too, the warrant was so facially deficient that the executing officers could not
have presumed it to be valid. The executing officers did not have any way to distinguish
stolen items from property that was not stolen. A reasonable officer who sees a warrant
authorizing the seizure of “stolen items” would know that it failed to provide any guidelines
for what property was to be seized.
¶38. Also, it is important to reiterate that, under the facts of this case, the inclusion of the
drug-related language in the warrant does not somehow validate the search. From the
evidence before us in the record, there was no probable cause for the language to be in the
warrant.
¶39. Indeed, Officer Smith knew this. He had assisted Officer Donham in the preparation
of both the Underlying Facts and Circumstances as well as the Affidavit for Search Warrant.
He knew that there was no particular description of the stolen property in the underlying facts
or affidavit. He knew a better description was available from the informant. He knew there
15
was no probable cause for the drug language in the warrant. This knowledge, in and of itself,
should have raised a red flag as to the validity of the warrant. The good-faith exception is
to protect those who act in good faith upon a seemingly valid warrant. It is not to protect
those who continue forward with full knowledge of the insufficiencies of the warrant.
¶40. Also of note, the State does not raise the argument on appeal that the search was valid
because of the drug-related language. In fact, the State conceded at trial that the search
warrant was executed only for “stolen items.” Thus, the exclusionary rule applies to this case
and prohibits the introduction into evidence of the tangible items seized during the search.



















to correctly advise the petitioner of the law carries a significant impact–it results in the petitioner serving an additional five years in prison before he may seek release on parole. Under these facts, we conclude that the petitioner’s guilty plea was not knowing, intelligent, and voluntary.10
However, the remedy for this error is not to simply change the terms of the plea bargain and the circuit court’s order, as the petitioner requests. “A recognized corollary to the principle that a guilty plea must be shown to have been intelligently and voluntarily entered is the rule that if the plea is based on a plea bargain which is not fulfilled or is unfulfillable, then the guilty plea cannot stand.” Syl. Pt. 1, State ex rel. Morris v. Mohn, 165 W.Va. 145, 267 S.E.2d 443 (1980); accord State ex rel. Gessler v. Mazzone, 212 W.Va. 368, 572 S.E.2d 891 (2002) (plea agreement that could not be fulfilled was vacated in entirety). A plea agreement is subject to the principles of contract, with rights belonging to both the defendant and to the State. See, e.g., Syl. Pt. 4, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998) (“When a defendant enters into a valid plea agreement with the State that is accepted by the trial court, an enforceable ‘right’ inures to both the State and the defendant not to have the terms of the plea agreement breached by either party.”). Notably, the remedy in both Riley and Gill, discussed above, was to void and set aside the respective guilty pleas in their entirety. See Riley, 161 W.Va. at 295, 241 S.E.2d at 816; Gill, 207 W.Va. at 202, 530 S.E.2d at 463.
In the case sub judice, the State has demonstrated that even if the parties were mistaken about the statutory language, the fifteen-year parole eligibility provision was an essential element of the plea bargain. The provision was clearly specified in the written plea agreement and was repeatedly discussed during the plea/sentencing hearing. The petitioner is alleged to have committed brutal acts against his wife, and during the May 6, 2016, hearing, the prosecutor informed the circuit court that he would not have agreed to a plea bargain without ensuring that the petitioner would serve at least fifteen years in prison.
10Because we have concluded that the petitioner was given incorrect legal information when deciding to enter his guilty plea, it is unnecessary for this Court to address the petitioner’s other claim on appeal: that it would constitute an illegal sentence for the circuit court to order a period of parole eligibility different from that specified by the Legislature. See, e.g., State v. Wilson, 226 W.Va. 529, 703 S.E.2d 301 (2010) (vacating conviction based upon plea agreement that called for imposition of sentence of incarceration contrary to statute); Spencer v. Whyte, 167 W.Va. 772, 775, 280 S.E.2d 591, 593 (1981) (“courts cannot set punishments that are inconsistent with the statutory penalties”) superceded by statute on other grounds as stated in State v. White, 188 W.Va. 534, 425 S.E.2d 219 (1992); Syl. Pt. 3, State ex rel. Nicholson v. Boles, 148 W.Va. 229, 134 S.E.2d 576 (1964) (judgment rendered by court in criminal case must conform strictly to statute prescribing punishment). 7








Indeed, the record reflects that the prosecutor made two different plea offers to the petitioner, both of which would have required the petitioner to serve a minimum of fifteen years in prison before being eligible to seek parole.11

Outcome: While the dissent would render judgment in Sutton’s favor,5 we do “not presume to
speculate as to the substance of the prosecution’s case against” Sutton. Woods, 866 So. 2d
at 428 (dismissing indictment without prejudice). Had the trial court properly suppressed the
evidence in this case, the State may have dismissed the case against Sutton, or it may have
offered other evidence that it chose not to use against Sutton in light of the evidentiary ruling.
Even though the case may be dismissed against Sutton upon remand, we need not make the
5The cases cited by the dissent are distinguishable. Four of the cases involve traffic stops where the law-enforcement officer’s first encounter with the defendant was unconstitutional. See Cook v. State, 159 So. 3d 534, 540–41 (Miss. 2015) (no reasonable suspicion for stop); Eaddy v. State, 63 So. 3d 1209, 1216 (Miss. 2011) (same); Trejo v. State, 76 So. 3d 684, 690 (Miss. 2011) (same); White v. State, 735 So. 2d 221, 224 (Miss. 1999) (unlawful search of automobile). In contrast, Sutton was the subject of an ongoing police investigation, and the search warrant against him was supported by probable cause. The remaining case cited by the dissent also is distinguishable as the dispositive issue there was whether or not the evidence was legally sufficient to support the verdict—not whether or not certain evidence should have been suppressed. Johnson v. State, 81 So. 3d 1020, 1023 (Miss. 2011). 16
final determination here. There has been no representation from the State that its case cannot
proceed against Sutton without the suppressed evidence. In fact, Sutton’s counsel requested
that this Court remand “this case for a new trial.” Although we do not make a finding as to
the merits of a new trial, we find here that the proper procedure (as we have followed
multiple times in analogous circumstances) is to remand to the trial court. See Petti, 666 So.
2d at 760 (reversing conviction and remanding to the trial court after finding that the only
evidence supporting the conviction should have been suppressed); Conn, 170 So. 2d at 24
(same).
¶42. Sutton’s constitutional right to be free from unreasonable search and seizure was
violated by the State. The language “stolen items” failed to describe particularly the things
to be seized by the officers executing the search of the Muscadine house. Therefore, we
reverse Sutton’s conviction of possession with intent to distribute, vacate his sentence and
remand this case for further proceedings consistent with this opinion.

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