
    759 S.E.2d 171
    STATE of West Virginia, Plaintiff Below, Respondent v. Curtis Joseph KIMBLE, Defendant Below, Petitioner.
    No. 13-0144.
    Supreme Court of Appeals of West Virginia.
    Submitted Feb. 4, 2014.
    Decided March 6, 2014.
    Dissenting Opinion of Justice Davis March 12,2014.
    
      Rebecca Stollar Johnson, Esq., Charleston, WV, for Petitioner.
    Patrick Morrisey, Esq., Attorney General, Julie A. Warren, Esq., Assistant Attorney General, Charleston, WV, for Respondent.
   PER CURIAM:

The petitioner herein and defendant below, Curtis Joseph Kimble, appeals the January 16, 2013, order of the Circuit Court of Mason County sentencing him to a five-year term of imprisonment for his jury conviction of one count of wanton endangerment. In this appeal, the petitioner contends that the circuit court erred by denying his motions to suppress certain evidence. Upon consideration of the parties’ briefs, oral argument and the submitted record, as well as the applicable authorities, this Court finds no error and affirms the final order.

I. Factual and Procedural Background

On November 12, 2011, at 3:39 p.m., Daniel Granger called 911 and reported that shots had been fired at his vehicle as he was driving in the area of Poindexter Road and Ashton Upland Road in Mason County, West Virginia. Mr. Granger described the perpetrator as a shirtless male wearing jeans and a black hat. Deputies C.A. Rhodes and R.A. Wilson of the Mason County Sheriffs Department responded to the call. They immediately went to the home of the petitioner, which is located at the intersection of the roads where the shooting occurred. Deputy Wilson had previously responded to reports of the petitioner shooting guns near his residence.

Upon arrival at the petitioner’s residence, Deputy Wilson announced that he was from the Sheriffs Department, pulled his gun, and ordered the petitioner out of his home. The petitioner was told to lie on the ground, and after doing so, he was placed in handcuffs. At the time, the petitioner was wearing a shirt and blue jeans, but no hat. Deputy Wilson asked the petitioner where the shotgun was and the petitioner replied that it was just inside the front door. Deputy Wilson entered the petitioner’s home, secured the shotgun, and unloaded the weapon. Deputy Wilson then went back into the house and removed a black hat. Thereafter, the deputies placed the petitioner in the back of a police cruiser and drove him to Mr. Granger’s residence. While the petitioner was sitting in the back of the police ear, he was identified by Mr. Granger as the person who had fired shots at him.

The petitioner was indicted on one count of wanton endangerment in connection with the shooting incident. Prior to his trial, the petitioner filed motions to suppress the following evidence: the statement by Deputy Wilson inquiring about the location of the gun and the petitioner’s response; the H & R single shot, twelve gauge shotgun and the black hat seized from the petitioner’s residence; and the out-of-court identification of the petitioner made by the victim. At the end of the suppression hearing, the court denied the motions except with regard to the black hat. However, immediately prior to the start of the petitioner’s trial, the court further ruled that the verbal exchange between Deputy Wilson and the petitioner concerning the location of the shotgun was inadmissible hearsay.

The petitioner’s jury trial was held on June 12, 2012, and he was found guilty of one count of wanton endangerment. He was sentenced to five years in prison, and this appeal followed.

II. Standard of Review

In syllabus point one of State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996), this Court explained that

[w]hen reviewing a ruling on a motion to suppress, an appellate court should construe all facts in the light most favorable to the State, as it was the prevailing party below. Because of the highly fact-specific nature of a motion to suppress, particular deference is given to the findings of the circuit court because it had the opportunity to observe the witnesses and to hear testimony on the issues. Therefore, the circuit court’s factual findings are reviewed for clear error.

This Court further held in syllabus point two of Lacy that

[i]n contrast to a review of the circuit court’s factual findings, the ultimate determination as to whether a search or seizure was reasonable under the Fourth Amendment to the United States Constitution and Section 6 of Article III of the West Virginia Constitution is a question of law that is reviewed de novo. Similarly, an appellate court reviews de novo whether a search warrant was too broad. Thus, a circuit court’s denial of a motion to suppress evidence will be affirmed unless it is unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a mistake has been made.

196 W.Va. at 107, 468 S.E.2d at 722. With these standards in mind, we consider the parties’ arguments.

III. Discussion

The petitioner raises two assignments of error. Each alleged error will be discussed, in turn, below.

A. Denial of Motion to Suppress the Shotgun

The petitioner argues that the shotgun taken from his residence should not have been admitted into evidence at his trial because he was subjected to an unlawful arrest and an unreasonable search and seizure. In support of his argument, the petitioner relies upon this Court’s holdings in State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). In syllabus point six of Thomas, this Court stated that “[ejvidenee obtained as a result of a seai’ch incident to an unlawful arrest cannot be introduced against the accused upon his trial.” Id. at 641, 203 S.E.2d at 448. This Court further held in Thomas that “ ‘[e]xcept where authorized by law as incident to a lawful arrest, any search of a person or his dwelling on mere suspicion and the seizure of any article found as a result thereof, without an arrest warrant or a search warrant, is an unlawful search and seizure in violation of Section 6, Article 3 of the Constitution of West Virginia.’ Syllabus Point 1, State v. Smith, [156] W.Va. [385], 193 S.E.2d 550 (1972).” 157 W.Va. at 640-41, 203 S.E.2d at 448, syl. pt. 5. The petitioner maintains that he was under arrest the moment the deputies put him in handcuffs and that the deputies had no probable cause to believe that he had committed the alleged offense at that time because he was not identified by name as the perpetrator during the 911 call and there were at least three other houses in the vicinity of where the shooting occurred.

Conversely, the State contends that the petitioner was not arrested until the shotgun was retrieved from his residence. The State says that given the nature of the alleged offense, the deputies detained the petitioner as a safety precaution and further conducted a search based on their belief that a dangerous weapon was present and posed a threat to themselves as well as anyone else who might have been in the area at that time. In other words, the State argues that exigent circumstances, or more particularly, the emergency exception to the warrant requirement, applies in this instance. We agree.

In syllabus point twenty of State v. Ladd, 210 W.Va. 413, 557 S.E.2d 820 (2001), this Court explained that

“[s]earehes conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment and Article III, Section 6 of the West Virginia Constitution — subject only to a few specifically established and well-delineated exceptions. The exceptions are jealously and carefully drawn, and there must be a showing by those who seek exemption that the exigencies of the situation made that course imperative.” Syllabus Point 1, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980), overruled in part on other grounds by State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991).

We have noted that

[ejxamples of recognized exceptions to the general warrant requirement include certain brief investigatory stops, searches incident to a valid arrest, seizures of items in plain view, searches and seizures justified by exigent circumstances, consensual searches, and searches in which the special needs of law enforcement make the probable cause and warrant requirements impracticable.

State v. Farley, 230 W.Va. 193, 197, 737 S.E.2d 90, 94 (2012). We have also stated “ ‘[t]he circumstances that justify warrantless searches include those in which officers reasonably fear for their safety, where firearms are present, or where there is risk of a criminal suspect’s escaping or fear of destruction of evidence.’” Lacy, 196 W.Va. at 113, 468 S.E.2d at 728 (quoting United States v. Mendozar-Burciaga, 981 F.2d 192, 196 (5th Cir.1992)).

“[T]he emergency doctrine has been defined in various ways and must be considered upon a case by case basis.” State v. Cecil, 173 W.Va. 27, 32, 311 S.E.2d 144, 149 (1983). Generally,

the emergency doctrine may be said to permit a limited, warrantless search or entry of an area by police officers where (1) there is an immediate need for their assistance in the protection of human life, (2) the search or entry by the officers is motivated by an emergency, rather than by an intent to arrest or secure evidence, and (3) there is a reasonable connection between the emergency and the area in question.

Id. More simply stated, “ ‘[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.’ ” State v. Bookheimer, 221 W.Va. 720, 729, 656 S.E.2d 471, 480 (2007) (Maynard, J., dissenting) (quoting Warden v. Hayden, 387 U.S. 294, 298-299, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)). Consequently, this Court held in syllabus point two of Cecil that

[although a search and seizure by police officers must ordinarily be predicated upon a written search warrant, a warrantless entry by police officers of a mobile home was proper under the “emergency doctrine” exception to the warrant requirement, where the record indicated that, rather than being motivated by an intent to make an arrest or secure evidence, the police officers were attempting to locate an injured or deceased child, which child the officers had reason to believe was in the mobile home, because of information they received immediately prior to the entry.

173 W.Va. at 28, 311 S.E.2d at 146.

In this ease, the deputies went to the intersection of the roads where it was reported that the shooting took place. While there are other homes in the same general vicinity, only the petitioner’s residence is located at that intersection. The record indicates that the deputies approached the petitioner’s residence with their weapons drawn not only because of the nature of the reported crime, but because Deputy Wilson had previously investigated reports of the petitioner discharging firearms outside of his residence. Thus, in order to protect themselves, as well as any other person in the area, the deputies notified the petitioner of their presence and requested that he come outside of his home. For the same reasons, the deputies immediately detained the petitioner and conducted a search for the shotgun.

Upon review, we find that these circumstances satisfied the emergency doctrine exception thereby allowing the deputies to conduct a warrantless search. Moreover, we further find that even absent the existence of exigent circumstances, the police officers were entitled to conduct a protective search.

A protective search is defined as a quick and limited search of premises for weapons once an officer has individualized suspicion that a dangerous weapon is present and poses a threat to the well-being of himself and others. This cursory visual inspection is limited to the area where the suspected weapon could be contained and must end once the weapon is found and secured.

Lacy, 196 W.Va. at 107, 468 S.E.2d at 722, syl. pt. 8. This Court explained in Lacy that

[n]either a showing of exigent circumstances nor probable cause is required to justify a protective sweep for weapons as long as a two-part test is satisfied: An officer must show there are specific articulable facts indicating danger and this suspicion of danger to the officer or others must be reasonable. If these two elements are satisfied, an officer is entitled to take protective precautions and search in a limited fashion for weapons.

Id. at 107, 468 S.E.2d at 722, syl. pt. 6. We further held that

[t]he existence of a reasonable belief should be analyzed from the perspective of the police officers at the scene; an inquiring court should not ask what the police could have done but whether they had, at the time, a reasonable belief that there was a need to act without a warrant.

Id. at 107, 468 S.E.2d at 722, syl. pt. 7.

While the petitioner was detained when Deputy Wilson conducted his search, at that juncture, the officers had no basis to know whether there was anyone else present, either inside or outside of the petitioner’s residence. Further, they were responding to reports of gunfire in that area. At the suppression hearing, Deputy Rhodes testified as follows in response to questioning by the State:

Q: On [November 12, 2011], you had occasion to respond to a dispatch from a 911 center to Ashton Upland Road, Milton area, Mason County?
A: Yes.
Q: What was your reason for responding to that lotion [sic]?
A: Shots fired. Supposedly shots was [sic] fired at a person driving by in a vehicle.
Q: Did they tell you where and give you any indication regarding the person suspect [sic] of doing that?
A: They did. They said it was in the area of Curtis Kimble’s residence____
Q: What happened when you got there?
A: Deputy Wilson actually ordered him out of the trailer onto the ground.
Q: What do you mean ordered him out?
A: Mr. Kimble was inside the trailer.
Q: I understand that. What was said?
A: Mr. Kimble, come out of the trailer, this is the sheriffs department. Once he came out—
Q: In response to Deputy Wilson asking—
A: Mr. Kimble did come out.
Q: —Mr. Kimble to come out, he came out?
A: Yes.
Q: What happened when Mr. Kimble exited the trailer?
A: Deputy Wilson then ordered him to get on the ground, which he did and then after he did lay on the ground, I then cuffed him just to secure the scene until we could figure out exactly what was going on.

Deputy Rhodes’s testimony clearly satisfied the two-part test established in syllabus point six of Lacy. See 196 W.Va. at 107, 468 S.E.2d at 722. Accordingly, based on all the above, the circuit court did not err in refusing the petitioner’s motion to suppress the shotgun.

B. Denial of Motion to Suppress Identification

The petitioner also argues that the circuit court erred by allowing the jury to hear testimony regarding the out-of-court identification of the petitioner by the victim. This Court has held:

“In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Point 3, Syllabus, State v. Casdorph, [159] W.Va. [909], 230 S.E.2d 476 (1976).

Syl. Pt. 2, State v. Foddrell, 165 W.Va. 540, 269 S.E.2d 854 (1980).

The petitioner argues that when the totality of the circumstances is considered in his case, it is clear that the identification was not reliable and should have been suppressed. In that regard, the petitioner notes that Mr. Granger testified at the suppression hearing that he saw the perpetrator make an obscene hand gesture at him as he drove by. He then heard a bang and looked in his rearview mirror and saw the perpetrator shooting at him. The petitioner points out that Mr. Granger did not specify how long he looked at the perpetrator or with what degree of attention; that Mr. Granger stated he had never seen the shooter before when he was questioned by the police, even though he had driven past the petitioner’s home every day on his way to and from work; and that Mr. Granger did not describe the shooter with any great detail when he called 911 as he only reported that it was “a guy ... wearing jeans, black hat no shirt____” In addition, while acknowledging that the identification occurred within thirty minutes of the shooting, the petitioner contends that consideration must be given to the fact that he was presented to the victim exactly as the person described to 911, i.e., a man wearing jeans; the only difference was that he was sitting in a police car and handcuffed.

The State contends that the petitioner is asking this Court to re-weigh the victim’s testimony and substitute its judgment for that of the jury. The State maintains that the evidence established that the identification made by Mr. Granger was reliable. While Mr. Granger testified that he did not know the petitioner, he did state that he had previously seen him feeding chickens in his yard and had encountered him face-to-face one time when he dropped off a member of the petitioner’s family at his home. Mr. Granger further testified that he was certain the petitioner was the perpetrator when he identified him as he was seated in the back of the cruiser. Finally, the State points out the petitioner did not react to the identification by claiming that he was not the perpetrator, but instead he threatened Mr. Granger.

The circuit court found that the out-of-court identification was, in fact, overly suggestive, but concluded Mr. Granger had sufficient independent knowledge of the petitioner to make the identification. In making that finding, the court noted that while Mr. Granger did not know the petitioner by name, he had seen him on multiple occasions. Further, the identification was made within twenty-five minutes of the shooting, and although the petitioner was wearing a shirt but not a hat, Mr. Granger was certain in his identification of the petitioner as the person who shot at him. Upon consideration of the totality of the circumstances and giving deference to the circuit court’s factual findings, we are unable to conclude that the circuit court erred in refusing the petitioner’s motion to suppress the out-of-court identification made by the victim.

IV. Conclusion

For the reasons set forth above, we find no merit to the petitioner’s arguments. Accordingly, the final order of the circuit court entered on January 16, 2013, is affirmed.

Affirmed. ,

Chief Justice DAVIS dissents and reserves the right to file a dissenting opinion.

DAVIS, C.J.,

dissenting:

The defendant in this case was sentenced to imprisonment for five years upon his conviction for wanton endangerment. In this proceeding, the defendant argued that the trial court committed reversible error in denying his motion to suppress a shotgun that the police seized from his home without a search warrant. The majority opinion determined that the shotgun was lawfully seized under the emergency doctrine and the protective sweep doctrine. For the reasons set out below, I dissent.

This Court has made clear that “[sjearches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment and Article III, Section 6 of the West Virginia Constitution-subject only to a few specifically established and well-delineated exceptions.” State v. Farley, 230 W.Va. 193, 197, 737 S.E.2d 90, 94 (2012) (internal quotations and citations omitted). In Syllabus point 1 of State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972), we determined that,

[ejxcept where authorized by law as incident to a lawful arrest, any search of a person or his dwelling on mere suspicion and the seizure of any article found as a result thereof, without an arrest warrant or a search warrant, is an unlawful search and seizure in violation of Section 6, Article 3 of the Constitution of West Virginia.

See also Syl. pt. 2, State v. Davis, 170 W.Va. 376, 294 S.E.2d 179 (1982) (“A warrantless entry into a person’s home either to effect his arrest or to seize his property therein contained violates the Fourth Amendment of the United States Constitution in the absence of probable cause and exigent circumstances.”). Despite the majority’s contrary conclusion, the record in this case plainly shows that the police possessed nothing more than a mere suspicion that the defendant had engaged in unlawful conduct when they arrested him and seized evidence from his home without a warrant.

The facts of this case are clear. On November 12, 2011, two deputies received information, based upon a 911 call, that- a “shirtless male wearing jeans and a black hat” fired shots at a vehicle in the area of Poindexter Road and Ashland Upland Road in Mason County. Based solely upon this information, the two deputies went directly to the defendant’s home. To be clear, when the police went to the defendant’s home, they had no objective information that identified the defendant as the person who had fired the weapon. Based purely upon alleged pri- or knowledge that the defendant had been accused of firing a weapon in the area in the past, the police determined that the defendant was the person who fired the weapon reported on the 911 call. The police did not go to the residence of the victim to obtain a description of the person. Nor did the police go to a magistrate to obtain an arrest warrant. The police arbitrarily determined that the warrant requirement of the state and federal constitutions did not apply when they had the barest suspicion that a suspect had committed an offense.

When the police arrived at the defendant’s home, they pulled out their weapons and ordered the defendant to come outside. Rather than questioning the defendant, in an investigative manner when he came outside, the police forced him to the ground and placed handcuffs on him. At the point the police placed handcuffs on the defendant he was effectively under arrest, even though the police did not have probable cause to believe that the defendant had committed a crime. See Syl. pt. 2, in part, State v. Duvernoy, 156 W.Va. 578, 195 S.E.2d 681 (1973) (“An officer, with authority to conserve the peace, may, without a warrant, arrest any person who he, upon probable cause, believes has committed or is committing a felony[.]”). Insofar as the defendant was in custody because he was not free to leave, the police could not question him without informing him of his Miranda rights. This Court has held that a “determination of whether a custodial inteiTOgation environment exists for purposes of giving Miranda warnings to a suspect is based upon whether a reasonable person in the suspect’s position would have considered his or her freedom of action curtailed to a degree associated with a formal arrest.” Syl. pt. 1, in part, State v. Middleton, 220 W.Va. 89, 640 S.E.2d 152 (2006), overruled on other grounds by State v. Eilola, 226 W.Va. 698, 704 S.E.2d 698 (2010). Obviously, any reasonable person handcuffed and lying on the ground, with police officers pointing guns at him, would believe he was under formal arrest.

Although the defendant was in custody, the police interrogated him about a self-incriminating matter without informing him of his Miranda rights. Specifically, the police asked the defendant for the location of his shotgun. With guns pointed at him, the defendant responded to the unlawful interrogation by stating that his shotgun was inside his home. The record is quite clear that at no time did the police ask for the defendant’s consent to enter his home, nor did he give consent for the police to enter his home. We have held that, “[a]s a general rule, a warrantless search of an individual’s home is constitutionally prohibited.” State v. Flippo, 212 W.Va. 560, 567 n. 7, 575 S.E.2d 170, 177 n. 7 (2002). Article III, § 6 of the West Virginia Constitution provides:

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.

The purpose of Article III, § 6 “is to impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law enforcement officers, so as to safeguard the privacy and security of individuals against arbitrary invasions [by governmental officials].” State v. Legg, 207 W.Va. 686, 692, 536 S.E.2d 110, 116 (2000) (internal quotations and citations omitted). “Moreover, searches and seizures performed without a valid warrant are presumed to be unreasonable^]” State v. Farley, 230 W.Va. 193, 197, 737 S.E.2d 90, 94 (2012). As a result of the police entering the defendant’s home without consent or a warrant, and for the express purpose of searching for what was believed to be evidence, the entry was unlawful.

While unlawfully inside the defendant’s home, the police seized a hat and a shotgun. The trial court, in an inexplicable ruling, determined that the hat was seized unlawfully, but that the shotgun was seized lawfully. Consequently, the trial court allowed the shotgun to be introduced into evidence. The majority opinion affirmed the trial court’s ruling allowing the shotgun to be introduced as substantive evidence. In doing so, the majority opinion erroneously found that two exceptions to the warrant requirement allowed the police to enter the defendant’s home: the emergency doctrine and the protective sweep doctrine. The majority opinion is wrong. The State failed to prove that either doctrine was applicable to justify their unlawful entry, search, and seizure.

This Court adopted the emergency doctrine exception in State v. Cecil, 173 W.Va. 27, 311 S.E.2d 144 (1983). In Cecil, we held that the emergency doctrine exception permits

[a] limited, warrantless search or entry of an area by police officers where (1) there is an immediate need for their assistance in the protection of human life, (2) the search or entry by the officers is motivated by an emergency, rather than by an intent to arrest or secure evidence, and (3) there is a reasonable connection between the emergency and the area in question.

Cecil, 173 W.Va. at 32, 311 S.E.2d at 149 (citation omitted). The majority opinion summarily determined that the emergency doctrine applied to the facts of this case. This summary treatment was given because, as I will demonstrate, an actual analysis of the elements of the emergency doctrine proves that it did not justify the entry into the defendant’s home.

The first requirement under the emergency doctrine for entering a citizen’s home without a warrant is that there must be an immediate need for the police to provide assistance to someone in the home. The second requirement for entering a citizen’s home without a warrant is that such entry must not be based upon an intent to secure evidence. The third requirement demands a reasonable connection between the emergency and the area searched. These three requirements were illustrated in Syllabus point 2 of Cecil by using the following factual example:

Although a search and seizure by police officers must ordinarily be predicated upon a written search warrant, a warrantless entry by police officers of a mobile home was proper under the “emergency doctrine” exception to the warrant requirement, where the record indicated that, rather than being motivated by an intent to make an arrest or secure evidence, the police officers were attempting to locate an injured or deceased child, which child the officers had reason to believe was in the mobile home, because of information they received immediately prior to the entry.

173 W.Va. 27, 311 S.E.2d 144. Cecil demonstrates the limitations imposed by the elements of the emergency doctrine. The invasion of a citizen’s home must be for the limited purpose of protecting life that is believed to be inside the home. The emergency doctrine does not allow the police to invade a citizen’s home for the purpose of collecting evidence. In the instant proceeding, there was absolutely no showing that the police entered the defendant’s home because they believed someone was inside that needed assistance. The sole purpose for entering the home, as stated by the police when they questioned the defendant, was to find the weapon they believed was used in the report of shots being fired at a passing car. Under these facts it is inconceivable that the majority opinion would rely on the emergency doctrine as a justification for the police invading the defendant’s home without a search warrant.

The majority’s reliance on the protective sweep doctrine as an additional basis for affirming the illegal search of the defendant’s home is equally misguided. The protective sweep doctrine was first recognized by the United States Supreme Court in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In Buie, the police entered the defendant’s home to execute an arrest warrant. After the defendant was apprehended coming from the basement of the home, an officer entered the basement to search for anyone else who might have been in the basement. In making this search, the officer saw and seized inculpatory evidence that was in plain view. The Supreme Court approved of the officer searching the basement for an attacker who could injure police officers present at the scene. Consequently, the opinion in Buie held that, during an arrest, the police may conduct a protective sweep of the premises if there are “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334, 110 S.Ct. at 1098, 108 L.Ed.2d 276. The decision in Buie was careful to state that a protective sweep “is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” Buie, 494 U.S. at 327, 110 S.Ct. at 1094, 108 L.Ed.2d 276.

Although Buie concerned a limited search for an attacker in the home, this Court applied Buie to a search for weapons in Syllabus point 8 of State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996), as follows:

A protective search is defined as a quick and limited search of premises for weapons once an officer has individualized suspicion that a dangerous weapon is present and poses a threat to the well-being of himself and others. This cursory visual inspection is limited to the area where the suspected weapon could be contained and must end once the weapon is found and secured.

Under the facts of this ease, the protective sweep doctrine simply had no application. First, implicit in Buie and Lacy is that the police must initially be engaged in lawful conduct when they trigger the protective sweep doctrine. In this case, the police had unlawfully arrested the defendant. In other words, the police cannot engage in unlawful conduct and use that conduct to illegally enter the defendant’s home. Second, the record is clear in showing that the police had their weapons drawn when they forced the defendant to the ground and handcuffed him. At this point, there is nothing in the record to mildly suggest that the two deputies were in danger. The person they believed to have fired a gun at a motorist was lying helpless at their feet and staring at the barrels of their drawn weapons. In fact, the only person in danger at this juncture was the defendant, because he could have been killed by an accidental firing of one of the two weapons pointed at him. In spite of the police having absolute unlawful control of the defendant and not a scintilla of evidence showing they were in any danger because of their unlawful conduct, the majority opinion found that the police could enter the defendant’s home to search for his weapon in order to protect themselves. This conclusion by the majority is most troubling.

By applying the emergency doctrine and the protective sweep to the facts of this case, the majority opinion has nullified in the State of West Virginia the application of the warrant requirement of the Fourth Amendment to the United States Constitution and Article III, § 6 of the West Virginia Constitution.

For the foregoing reasons, I must respectfully dissent. 
      
      . According to the State's brief, the petitioner is currently on parole.
     
      
      . It appears from the record that this road is sometimes referred to as John’s Creek Road.
     
      
      . The perpetrator was never identified by name to Mason County 911.
     
      
      .Deputy Rhodes also drew his gun.
     
      
      . During the petitioner's trial, Deputy Rhodes testified that the barrel of the gun was warm when it was recovered, indicating that it had recently been fired. Deputy Wilson did not testify at the trial as he had left his employment with the Mason County Sheriff's Department and moved out of state.
     
      
      . The court ruled that any evidence obtained after the recovery of the shotgun was not admissible.
     
      
      . The State sought to admit this evidence through the testimony of Deputy Rhodes because Deputy Wilson was not available to testify. See supra note 5.
     
      
      . Mr. Granger testified that the petitioner was sitting in the police cruiser whistling and that after he made the identification, the petitioner said, "I’m crazy, I’ll be out. I know where you live[J”
     
      
      . This fact is important because once the police unlawfully arrested the defendant and searched his home, they immediately took him to the victim's residence for identification.
     
      
      . See Syl. pt. 2, in part, State v. Jones, 193 W.Va. 378, 456 S.E.2d 459 (1995) ("If the police merely question a suspect on the street without detaining him against his will, Section 6 of Article III of the West Virginia Constitution is not implicated and no justification for the officer's conduct need be shown. At the point where a reasonable person believes he is being detained and is not free to leave, then a stop has occurred and Section 6 of Article III is triggered, requiring that the officer have reasonable suspicion that criminal activity is afoot. If the nature and duration of the detention arise to the level of a full-scale arrest or its equivalent, probable cause must be shown.”).
     
      
      . "Our case law long ago abandoned the notion that law enforcement officers must form[a]rly state to a suspect that he or she is under arrest in order for an arrest to actually occur.” State v. Milburn, 204 W.Va. 203, 214, 511 S.E.2d 828, 839 (1998) (Davis, C.J., dissenting).
     
      
      .In Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the United States Supreme Court set forth the requirements for interrogating a suspect as follows:
      Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.
     
      
      . The police obtained the hat during a second unlawful entry into the home.
     