Virginia Jackson Hopkins
Prosecuting Attorney
Attorney for the Appellee

Anthony J. Sabatino
Morgantown, West Virginia
Attorney for the Appellant

JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUDGE FOX sitting by temporary assignment.

JUDGE FOX dissents, and reserves the right to file a dissenting Opinion.

    1. "The general rule is that the voluntary consent of a person who owns or controls premises to a search of such premises is sufficient to authorize such search without a search warrant, and that a search of such premises, without a warrant, when consented to, does not violate the constitutional prohibition against unreasonable searches and seizures." Syl. Pt. 8, State v. Plantz, 155 W. Va. 24, 180 S.E.2d 614 (1971), overruled in part on other grounds by State ex rel. White v. Mohn, 168 W. Va. 211, 283 S.E.2d 914 (1981).

    2. "'Whether a consent to a search is in fact voluntary or is the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.' Syllabus Point 8, State v. Craft, 165 W. Va. 741, 272 S.E.2d 46 (1980)." Syl. Pt. 4, State v. Worley, 179 W. Va. 403, 369 S.E.2d 706, cert. denied, 488 U.S. 895 (1988).

    3. The circuit court, and this Court on review, should consider the following six criteria when evaluating the voluntariness of a defendant's consent: 1) the defendant's custodial status; 2) the use of duress or coercive tactics by law enforcement personnel; 3) the defendant's knowledge of his right to refuse to consent; 4) the defendant's education and intelligence; 5) the defendant's belief that no incriminating evidence will be found; and 6) the extent and level of the defendant's cooperation with the law enforcement personnel. While each of these criteria is generally relevant in analyzing whether consent is given voluntarily, no one factor is dispositive or controlling in determining the voluntariness of consent since such determinations continue to be based on the totality of the circumstances.

    4. "A trial court has the authority to reconsider and set aside its prior order granting a defendant's motion to suppress a confession when presented with new or additional evidence that would have a substantial effect on the court's ruling." Syllabus, Thompson v. Steptoe, 179 W. Va. 199, 366 S.E.2d 647 (1988).

    This case is before the Court upon the appeal of Henry Donovan Buzzard, from the January 13, 1994, final order of the Circuit Court of Preston County, sentencing the Appellant for his jury convictions of breaking and entering, grand larceny and conspiracy to commit breaking and entering.See footnote 1 The Appellant asserts that the trial court committed the following errors when it: 1) refused to grant the Appellant's pre-trial motion to suppress evidence obtained pursuant to the Appellant's unlawful arrest and subsequent unlawful and lawful searches; 2) admitted evidence unlawfully obtained pursuant to the warrantless arrest and subsequent warrantless search and seizure of the Appellant in violation of the Fourth Amendment and article III, section 6 of the West Virginia Constitution when, absent exigent circumstances, law enforcement officers failed to preserve the status quo to make reasonable efforts to obtain warrants; 3) refused to grant the Appellant's pre-trial motion to exclude evidence of the results of the State's latent print and footwear examiner's second test of footprints allegedly belonging to the Appellant when such results and evidence were not timely disclosed to defense counsel contrary to the court-ordered discovery;See footnote 2 and 4) refused to grant the Appellant's motion for a new trial. Based upon a review of the record, the parties' briefs and all other matters submitted before the Court, we find that the trial court erred in upholding the warrantless entry into the Appellant's motel roomSee footnote 3 and, accordingly, we reverse and remand for further proceedings consistent with this opinion.

    Around 9:50 p.m. on January 2, 1992, George Pifer, a night watchman at Volkstone Company (hereinafter referred to as "the plant"),See footnote 4 an industrial facility located in Preston County, West Virginia, observed a van with a light colored door and one headlight pass in front of the plant. Mr. Pifer also heard a beating or pecking noise coming from the back part of the plant. When he went toward the area to investigate, he observed what appeared to be two shining flashlights. He returned to his office and notified the Preston County Sheriff's Department, as well as one of the plant owners.

    James D. Fields, Sheriff of Preston County, responded to Mr. Pifer's telephone call. Upon his arrival at the plant, Sheriff Fields noticed a van parked alongside the roadway. Two men were seated in the front seats of the van. They were identified as Teddy Lee Workman and Tommy Mitchell White, both from Boone County, West Virginia. Directly beside the van, leaning against a concrete abutment, was a industrial-size circuit breaker box affixed with a Chemetals identifying tag.

    The sheriff entered one of the plant buildings which Mr. Pifer identified as the one he had observed several individuals enter. The sheriff first observed an open door and a dangling chain. He also heard individuals running and observed three separate designs of shoe prints in the dust-covered floor, as well as other foot prints, which were created when individuals had traveled through a damp area near the entrance of the building. The sheriff was unable to locate anyone in the building. Sheriff Fields also testified that he found numerous cigarette butts near the van and near the area in the plant where the circuit breakers where located. Additionally, in one of the rooms of the building, the sheriff observed a circuit breaker box partially disconnected from the wall and another circuit breaker box completely disconnected from the wall sitting on the floor.

    Teddy Workman and Tommy White were placed under arrest at the scene. The sheriff ascertained that the van in which the two men were found was registered to Mr. James Buzzard, also from Boone County. Sheriff Fields testified that he continued searching the area around the plant for additional suspects. As part of this continuing investigation, the sheriff checked the Heldreth Motel, the only motel in Kingwood, West Virginia, to determine if any guests had checked in recently. Sheriff Field was told by the desk clerk that a Mr. Henry Buzzard had checked into the motel at approximately 1:03 a.m. and was in room 210. According to the sheriff's testimony, when the Appellant checked in, he told the night clerk that the sheriff had sent him to the motel. The sheriff knew that this was untrue.

    At approximately 2:20 a.m., the sheriff, Deputy Bob BailorSee footnote 5 and Trooper Rick Brown went to room 210 and knocked on the door. The Appellant opened the door and the officers entered the room which was occupied by not only the Appellant but also by Danny Ray Griffy.See footnote 6 No written consent to search was obtained by the sheriff. When the sheriff told the Appellant what he was investigating, and that it involved Mr. White and Mr. Workman, the Appellant informed the sheriff that they had been with those two men earlier in the evening, but that Mr. White and Mr. Workman had dropped the Appellant and Mr. Griffy off and had not come back for them. Additionally, the sheriff noticed that there were shoes on the floor with the soles visible. The sheriff testified that the tread design of the shoes was similar to the tread designs he saw on the floor at the plant site. The sheriff seized the shoesSee footnote 7 and transported the Appellant and Mr. Griffy to the sheriff's department where they were placed under arrest.

    Additional evidence introduced by the State included the testimony of John Richard Giacalone, a chemist with the West Virginia State Police, who offered testimony regarding the presence of trace amounts of manganese, which his testing found on Tommy White's tennis shoes and jacketsSee footnote 8 belonging to Mr. Griffy and the Appellant. Also, William Tobin, a forensic metallurgist with the Federal Bureau of Investigation in Washington, D.C., testified that he found a high concentration of manganese on the Appellant's gloves, as well as Mr. Griffy's gloves. Further, Sergeant Mark Neal of the West Virginia State Police Criminal Identification Bureau testified that footwear impressions contained in a set of photographs taken at the crime scene were consistent with the Appellant's shoe sole design.

    The Appellant did not testify. The only witness for the defense was John Penn, an associate professor in the Department of Chemistry at West Virginia University. Mr. Penn's testimony essentially indicated that the manganese found on the Appellant's gloves and clothing could have originated from sources other than the plant, such as a mine or a car.

    The only issue before the Court is whether the trial court erred in failing to suppress evidence obtained pursuant to the warrantless entry of the Appellant's motel room. A suppression hearing was conducted to ascertain whether the evidence obtained as a result of the officers' warrantless entry into the hotel room should be suppressed. First, the circuit court, without a timely objection from the Appellant, agreed to the prosecutor's request to make the transcript of the joint suppression hearing which occurred on April 9, 1994, in the State's case against the Appellant's co- defendants, Mr. Workman, Mr. White and Mr. Griffy, a part of the record in the Appellant's case.See footnote 9 In the April 9, 1994, hearing, Sheriff Fields' testimony concerning the issue of the Appellant's consent was that the sheriff, accompanied by two other officers, went to the motel room and the sheriff knocked on the door. Sheriff Fields testified that the knock was
        answered from inside by someone. I'm not sure which of the two answered. Asked who it was. I told them it was the Sheriff. I asked them to open the door. And within a matter of seconds they opened the door. I walked in along with Deputy Baylor I think and Corporal Brown. Mr. Griffy was in bed. Mr. Buzzard was up. He had let us in."

Further, according to the transcript of the Appellant's suppression hearing on August 2, 1993, Sheriff Fields testified that "Mr. Buzzard answered the door and we went in." The Appellant, however, testified, at the suppression hearing, that when he answered the door, "[t]hey forced theirself [sic] in on me." The Appellant further stated that at the time this occurred he did not know who "they" were. The circuit court found that "[h]e [the sheriff] went to the room, knocked, identified himself and one (1) of the persons, it appears that Mr. Buzzard was in fact that person, let him in." At trial, Sheriff Fields' testimony indicated that "[h]e [the Appellant] opened the door and at that point in time I entered the room. He asked me to come in."

    The Appellant maintains that the police entered his motel room without a warrant and without his consent. The Appellant also argues that even though the officers may have been able to seize the Appellant's shoes under the plain view doctrine, this could have only been accomplished if the entry itself into the Appellant's motel room was lawful, and the Appellant maintains that it was not. In contrast, the Appellee argues that the Appellant consented to the officers' entry into the motel room. Further, the Appellee contends that the shoes were lawfully seized under any of the following three exceptions to the warrant requirement:
1) the seizure of the shoes was incident to a lawful arrest;See footnote 10 2) the shoes were in plain view; and 3) the shoes were seized under exigent circumstances.See footnote 11

    The Fourth Amendment, as well as article III, section 6 of the West Virginia Constitution, protects individual in their homes against unreasonable search and seizure. As a general rule, warrantless searches of a person's home are forbidden. Mincey v. Arizona, 437 U.S. 385, 390 (1978); State v. Peacher, 167 W. Va. 540, 562, 280 S.E.2d 559, 574-75 (1981). A motel room occupied as a temporary residence is entitled to the same constitutional protection. United States v. Jeffers, 342 U.S. 48, 51-52 (1951); United States v. Burns, 37 F.3d 276, 278-79 (7th Cir. 1994), cert. denied, 63 U.S.L.W. 3890 (1995). Thus, a warrantless entry into or search of a motel room is "'per se unreasonable ... subject only to a few well-delineated exceptions.'" Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); accord State v. Tadder, 173 W. Va. 187, 190, 313 S.E.2d 667, 670 (1984). One such exception is that a warrantless entry and search are permissible if the authorities have obtained the voluntary consent of a person authorized to grant such consent.
    It is axiomatic that the same general principles governing consent to search private premises are applicable to consent to enter the premises as well. Accordingly, in syllabus point eight of State v. Plantz, 155 W. Va. 24, 180 S.E.2d 614 (1971), overruled in part on other grounds by State ex rel. White v. Mohn, 168 W. Va. 211, 283 S.E.2d 914 (1981), we recognized that a search which is voluntarily consented to is not unreasonable and, therefore, does not violate the Fourth Amendment, stating that
        [t]he general rule is that the voluntary consent of a person who owns or controls premisesSee footnote 12 to a search of such premises is sufficient to authorize such search without a search warrant, and that a search of such premises, without a warrant, when consented to, does not violate the constitutional prohibition against unreasonable searches and seizures.

155 W. Va. at 25, 180 S.E.2d at 616 (footnote added); see Syl. Pt. 3, State v. Justice, 191 W. Va. 261, 445 S.E.2d 202 (1994).

    The State has the burden of proving by a preponderance of the evidence that the consent to search was given voluntarily. State v. Worley, 179 W. Va. 403, 410, 369 S.E.2d 706, 713, cert. denied, 488 U.S. 895 (1988) (citing State v. Hacker, 158 W. Va. 182, 209 S.E.2d 569 (1974)). "'Whether a consent to a search is in fact voluntary or is the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.' Syllabus Point 8, State v. Craft, 165 W. Va. 741, 272 S.E.2d 46 (1980)." Syl. Pt. 4, Worley, 179 W. Va. at 406, 369 S.E.2d at 709. However, in making a factual assessment concerning the existence of voluntary consent, the inquiry focuses upon whether the facts available to the officer at the moment of entry '"'warrant a man of reasonable caution in the belief'"' that the party had voluntarily authorized the officer's entry onto the premises. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). Finally, we review a trial court's legal conclusions regarding suppression determinations de novo, and the factual determinations involving those legal conclusions are reviewed under the clearly erroneous standard. State v. Honaker, ___ W. Va. ___, ___, 454 S.E.2d 96, 101 (1994) (citing State v. Farley, ___ W. Va. ___, 452 S.E.2d 50 (1994) and State v. Stuart, ___ W. Va. ___, 452 S.E.2d 886 (1994)).
    At the crux of this issue is whether the Appellant consented to the officers entering his motel room, or merely acquiesced to their entry in the face of authority.See footnote 13 In delving into this issue, it is helpful to identify relevant factors that this Court has previously utilized in evaluating the voluntariness of consent.See footnote 14 For example, in State v. Mullins, 177 W. Va. 531, 355 S.E.2d 24 (1987), relying in part upon the custodial status of the individual in ascertaining whether he had given voluntary consent,See footnote 15 we found that an individual in custody as a result of an illegal arrest was "in no position to resist an officer's request to allow his home to be searched." Id. at 532, 355 S.E.2d at 25, Syl. Pt. 7, in part. Further, in order to be voluntary, the consent given cannot be the product of duress by law enforcement or "inherently coercive tactics -- either from the nature of the police questioning [in obtaining consent] or the environment in which it [the consent] took place." Schneckloth, 412 U.S. at 247; see Worley, 179 W. Va. at 410, 369 S.E.2d at 713. Consideration has also been given to the defendant's awareness of his right to refuse consent as was the case in State v. Basham, 159 W. Va. 404, 223 S.E.2d 53 (1976), where we held:
            It is not necessary, as a prerequisite to obtaining a voluntary consent to a noncustodial search, that law enforcement officers give MirandaSee footnote 16 warnings or similar warnings relating to Fourth Amendment rights, although the subject's knowledge of a right to refuse is a relevant factor in determining whether the consent was voluntary and knowledgeable.

Id. at 404-05, 223 S.E.2d at 54, Syl. Pt. 2 (footnote added); accord Schneckloth, 412 U.S. at 248-49. Additionally, the defendant's education and intelligence are factors this Court has used in ascertaining whether consent was voluntarily given. See Schneckloth, 412 U.S. at 248 (stating that voluntariness takes into account evidence of minimal schooling and low intelligence); State v. Williams, 162 W. Va. 309, 316, 249 S.E.2d 758, 763 (1978) ("The intelligence of a person allegedly consenting to a search is a factor to be considered in determining the voluntariness of a consent search."). In Williams, we also considered whether consent was given at a time when the defendant believed that no incriminating evidence would be found in evaluating the voluntariness of consent. Id. at 317, 249 S.E.2d at 763. ("[T]he conclusion that the consent was not the product of free will is reinforced by the fact that the alleged consent to search was given at a time when the defendant still denied any involvement in the crime under investigation."). Finally, in determining voluntariness of consent, we have given consideration to the extent and level of the defendant's cooperation with the police. See generally Justice, 191 W. Va. at 268, 445 S.E.2d at 209 (finding that evidence established defendant's consent to search of car).
    Accordingly, rather than sporadically referring to the above- mentioned factors in making determinations of whether consent has been voluntarily obtained, the circuit court, and this Court on review, should consider the following six criteria when evaluating the voluntariness of a defendant's consent: 1) the defendant's custodial status; 2) the use of duress or coercive tactics by law enforcement personnel; 3) the defendant's knowledge of his right to refuse to consent; 4) the defendant's education and intelligence; 5) the defendant's belief that no incriminating evidence will be found; and 6) the extent and level of the defendant's cooperation with the law enforcement personnel. While each of these criteria is generally relevant in analyzing whether consent is given voluntarily, no one factor is dispositive or controlling in determining the voluntariness of consent since such determinations continue to be based on the totality of the circumstances.See footnote 17 See Worley, 179 W. Va. at 406, 369 S.E.2d at 709.

    Unfortunately, in the present case, the circuit court failed to discuss its consideration of any of these factors or to articulate any of the underlying facts upon which it relied to find a consensual entry. Further, a review of the record of the suppression hearings in this case establishes that Sheriff Fields, accompanied by two other officers, went to the Appellant's motel room at 2:20 a.m. The sheriff knocked on the motel room and the Appellant "opened" or "answered" the door, after which the officers went into the room. The record is devoid of any evidence presented by the State which indicates that the officers asked the Appellant if they could enter the motel room, or that the Appellant in any manner voluntarily told the officers that they had his permission to enter the room.

    The State's only evidence which tended to support that the Appellant consented to the entry is found in Sheriff Fields' testimony at trial where he stated that the Appellant "opened the door and at that point in time I entered the room. He [the Appellant] asked me to come in." (Emphasis added). Had the State brought to the trial court's attention during the suppression hearing that the Appellant had invited the officers to enter the room, and had the trial court determined that the Appellant's invitation was made voluntarily under the circumstances, then the trial court would have had evidence to support a finding that the Appellant indeed rendered a voluntary consent to enter. However, there is no authority to support the State's position that upon appellate review, we should consider the sheriff's testimony at trial in upholding the trial court's ruling which arose out of the pre-trial suppression hearing. While it is clear that "[a] trial court has the authority to reconsider and set aside its prior order granting a defendant's motion to suppress a confession when presented with new or additional evidence that would have a substantial effect on the court's ruling[,]" the problem in this case is that the State obtained a favorable ruling with regard to the suppression hearing and, therefore, failed to recognize that even with the favorable ruling, in reality, the burden of proof on the consent issue had not been met. Syllabus, Thompson v. Steptoe, 179 W. Va. 199, 366 S.E.2d 647 (1988). It certainly was within the realm of possibilities for the State to have recognized this flaw during trial and requested the trial court to reopen the pre-trial suppression hearing in order to consider more testimony concerning the consent issue. See id. at 201, 366 S.E.2d at 649 n.2 (stating that "ability to reconsider suppression rulings has not been confined to cases in which reopening would operate in the defendant's favor"). However, absent a motion by the State which would trigger the trial court's duty to revisit its decision on the suppression issue, the State, on appeal, can not use trial testimony to correct an erroneous pre-trial ruling.

    Consequently, considering the totality of the circumstances presented to the lower court, we conclude that since the State failed to present sufficient evidence to support a finding on whether the Appellant consented to the officers' entry, the trial court's finding that the Appellant voluntarily consented to enter was clearly erroneous. See Honaker, ___ W. Va. at ___, 454 S.E.2d at 101. Having concluded that the Appellant did not voluntarily consent to the search, we also conclude that the trial court erred in admitting the Appellant's shoes in evidence.See footnote 18 Further, all other evidence which was derivatively received as a result of the illegal entrySee footnote 19 is also inadmissible,See footnote 20 since that evidence falls within the purview of the "fruit of the poisonous tree" doctrine. See generally State v. Goodmon, 170 W. Va. 123, 131, 290 S.E.2d 260, 268 (1981); 1 Cleckley, supra note 12, at I-208-10.

    Based on the foregoing, the decision of the Circuit Court of Preston County is hereby reversed and remanded for further proceedings consistent with this opinion.

Syl. Pt. 2, State v. Hawkins, 167 W. Va. 473, 280 S.E.2d 222 (1981), cert. denied, 455 U.S. 925 (1982).