Search-Incident-to-Arrest Valid Despite CAD Timestamp Discrepancy; Suspect-Assisted Retrieval of Concealed Contraband Is Non‑Testimonial

Introduction

In State of West Virginia v. Roderick Levi Howard (Supreme Court of Appeals of West Virginia, Oct. 24, 2025), the Court affirmed the denial of a suppression motion following a conditional no contest plea to attempted possession with intent to deliver fentanyl. The appeal turned on a narrow but practically significant question: whether a warrantless search of the defendant’s person that yielded 9.5 grams of fentanyl was valid as a search incident to arrest, where a computer-aided dispatch (CAD) log reflected an arrest time more than an hour after the traffic stop began, seemingly at odds with the officer’s testimony that the arrest and handcuffing occurred within approximately ten minutes of the stop.

The case also touched on whether asking an arrestee to remove suspected contraband from a sensitive area (here, inside underwear) without Miranda warnings amounts to eliciting testimonial evidence. The Court held there was no error: the circuit court’s finding that the arrest preceded the search was not clearly erroneous and the search was a valid search incident to arrest; the defendant’s retrieval of the drugs at the officers’ request did not implicate Miranda because it was part of a lawful physical search, not custodial interrogation.

Summary of the Opinion

The Court affirmed the circuit court’s denial of a motion to suppress fentanyl recovered from the defendant’s person during a traffic stop.
Central holding: The search fell within the “search incident to arrest” exception to the warrant requirement. The circuit court’s finding that the defendant was under arrest and in handcuffs before the search was supported by credible testimony and was not clearly erroneous, notwithstanding a CAD timestamp indicating the arrest was logged much later.
The Court rejected two additional arguments because they depended on the premise that the defendant had not yet been arrested (including a “plain feel” argument and a Miranda-based claim). The Court emphasized that Miranda protections attach to custodial interrogation, not to the lawful seizure of physical evidence during a search incident to arrest.
The Court issued a memorandum decision under Rule 21, indicating the issues were controlled by existing precedent and did not present a substantial question of law.

Factual and Procedural Background

After observing traffic infractions (including an abrupt, unsignaled exit and unsafe lane changes) on Interstate 64, Corporal Brandon Oiler initiated a traffic stop at a rest area at approximately 6:51 p.m. A CAD check revealed an outstanding warrant for the defendant out of Wyoming County. Within roughly ten minutes, two additional officers arrived. According to Officer Oiler, he and a colleague arrested and handcuffed the defendant upon learning of the warrant, and a pat-down followed. During the pat-down, officers observed that the defendant was “standing funny,” suggesting an item hidden in his genital area. To avoid a more intrusive search, officers asked the defendant to remove the item himself; after removing handcuffs, the defendant retrieved 9.5 grams of fentanyl from his underwear. Later, after the defendant said there might be “a little weed” in the vehicle, a vehicle search uncovered a handgun.

The initial indictment contained two felonies: possession of fentanyl in excess of five grams (under a statute later discovered to be repealed) and prohibited person in possession of a firearm. At a suppression hearing, the State presented only Officer Oiler. The defense cross-examined him about a CAD entry showing the “arrest” logged one hour and forty-one minutes after the stop began. The officer offered several explanations for the discrepancy (e.g., delay in radioing or logging the arrest), but consistently maintained that the arrest and handcuffing occurred within minutes of the stop and before the search of the person.

Following the hearing, the State voluntarily dismissed the firearm charge (owing to a Miranda issue concerning questions about the car that preceded Miranda warnings) and dismissed the drug charge to reindict under the correct, existing statute. The grand jury reindicted for possession with intent to deliver fentanyl under W. Va. Code § 60A-4-401(a). On renewed suppression motions, the circuit court—relying on the earlier evidentiary record—denied suppression, finding the search valid incident to a lawful arrest. The defendant entered a no contest plea to attempted PWID fentanyl, reserved the suppression issue for appeal, and received a suspended penitentiary sentence with two years of probation. This appeal followed.

Analysis

Precedents Cited and How They Informed the Decision

State v. Ladd, 210 W. Va. 413, 557 S.E.2d 820 (2001) (Syl. Pt. 20): Warrantless searches are per se unreasonable unless they fall within a “jealously and carefully drawn” exception. This case frames the State’s burden to justify an exception to the warrant requirement.
State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996) (Syl. Pts. 1–2): Sets the standard of review—facts viewed in the light most favorable to the prevailing party (here, the State); factual findings are reviewed for clear error; constitutional reasonableness is reviewed de novo. This deference to the circuit court’s factual findings is pivotal in this case.
State v. Snyder, 245 W. Va. 42, 857 S.E.2d 180 (2021): Reiterates the Lacy standard; cited as the governing standard of review for suppression rulings.
State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994) (Syl. Pt. 3, in part): Distinguishes between de novo review for legal conclusions and clear-error review for factual findings underpinning suppression decisions. The Court relied on this to uphold the factual determination about the timing of the arrest.
State v. Barefield, 240 W. Va. 587, 814 S.E.2d 250 (2018) (Syl. Pt. 6): Authorizes a warrantless search of the person and the immediate area under physical control incident to a valid arrest. This is the core substantive rule validating the search.
State v. Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991): Identifies search incident to arrest as a frequently used exception and, in Syllabus Pt. 5, holds that a defendant cannot rely on the right to counsel to invalidate seizure of lawfully seized physical evidence from his person following a lawful arrest. The Court analogized to emphasize that physical evidence obtained during SITA is not governed by Miranda-type testimonial protections.
United States v. Edwards, 415 U.S. 800 (1974): Explains the rationale for SITA—officer safety, preventing escape, and preserving destructible evidence. Supports the propriety of searching a person’s body when lawfully arrested.
State v. Farley, 230 W. Va. 193, 737 S.E.2d 90 (2012): Catalogs recognized exceptions to the warrant requirement, including SITA. Provides structural context for the State’s justification.
Arizona v. Gant, 556 U.S. 332 (2009): Cited by the circuit court for SITA authority, though Gant principally limits vehicle searches incident to arrest. The Supreme Court of Appeals affirmed on broader SITA principles applicable to the person (as articulated in Barefield and Edwards).
State v. Bradshaw, 193 W. Va. 519, 457 S.E.2d 456 (1995) (Syl. Pt. 3, in part): Miranda rights attach only in the context of custodial interrogation. The Court relied on Bradshaw to conclude that the request to retrieve contraband as part of a physical search was not interrogation.

Legal Reasoning

1) The Standard of Review Controlled the Outcome

The defense’s core argument hinged on timing: if the search preceded a lawful arrest, it could not be justified as a search incident to arrest. The only non-testimonial evidentiary item that substantively supported the defense timeline was the CAD entry showing the arrest logged one hour and forty-one minutes after the stop began. The officer, by contrast, testified consistently—at the suppression hearing and in grand jury appearances—that dispatch notified him of the outstanding warrant within roughly ten minutes, at which point he arrested and handcuffed the defendant and then conducted a search incident to arrest.

At suppression, credibility determinations about such inconsistencies are entrusted to the circuit court. Applying Lacy and Stuart, the Supreme Court viewed the record “in the light most favorable to the State” and reviewed the circuit court’s factual finding for clear error. The Court found no clear error: the officer articulated plausible reasons why the arrest might have been logged later (delayed or omitted radio transmission; delegation; logging after completion of the car search), and no alternative witness (dispatcher, other officers, or the defendant) testified to rebut the officer’s account. The un-timestamped dispatch transcripts and a third party’s phone records were of negligible probative value without context.

2) The Search Was a Valid Search Incident to Arrest

Once law enforcement lawfully arrests a person, they may conduct a warrantless search of the arrestee’s person and the area within immediate control to protect officer safety and preserve evidence. Here, the outstanding warrant (not contested on validity) furnished the basis for a lawful custodial arrest. The subsequent search of the defendant’s person—prompted by observations that he was “standing funny” and likely concealing an item—fell squarely within SITA. To avoid an intrusive genital search, the officers asked the defendant to remove the item himself. The Court treated the defendant’s act of retrieval as part of the physical search, not as testimony or a statement.

3) Miranda Was Not Implicated by the Physical Retrieval of Contraband

The defendant argued that, absent Miranda warnings, asking him to retrieve the item was tantamount to eliciting incriminating testimony. The Court rejected this as a conflation of a lawful search with a coerced confession. Under Bradshaw, Miranda rights are a safeguard against compelled testimonial self-incrimination during custodial interrogation. They do not foreclose non-testimonial, physical evidence gathering that is independently justified—here, by SITA. The Court also distinguished this scenario from subsequent questioning that led to the vehicle search (which the State itself deemed problematic and remedied by dismissing the firearm charge). That separate Miranda issue did not undermine the lawfulness of the bodily search and seizure of the fentanyl.

4) The “Plain Feel” Doctrine Was Irrelevant Given the Arrest Finding

The defendant advanced a Terry-style “plain feel” argument—i.e., that contraband must be immediately apparent to remove during a pat-down of a detainee. The Court declined to engage because the predicate (no arrest) was rejected. Once a valid custodial arrest is found, officers may perform a full search of the person; the more restrictive Terry standards (and their “immediately apparent” limitation) do not apply.

5) Treatment of CAD Discrepancies

The case clarifies that CAD timestamps, while probative, are not dispositive of when an arrest occurred. Where the trial court finds the officer credible, and no direct evidence (e.g., a dispatcher’s testimony, timestamped recordings, or body-cam synchronized data) proves otherwise, a CAD entry’s delayed “arrest” logging will not, standing alone, render a contrary factual finding clearly erroneous on appeal. Put differently, administrative lag or logging practices can explain a post hoc arrest entry without invalidating a contemporaneous arrest-and-search sequence.

Impact

On Law Enforcement Practices

Documentation discipline matters. Officers should promptly and accurately log arrests with dispatch. Nevertheless, Howard confirms that a logging delay does not automatically defeat a search incident to arrest if the trial court credits sworn testimony explaining the discrepancy.
Body-worn camera footage and timestamped dispatch audio can be pivotal. Their absence elevates the importance of live credibility determinations, which appellate courts review deferentially.
Handling sensitive searches. Offering a suspect the option to retrieve an object concealed in intimate areas can avoid the need for an intrusive search while preserving evidence; Howard treats such suspect-assisted retrieval as part of a valid physical search, not interrogation.

On Defense Strategy

Build a robust, timestamped counter-record. If challenging the sequence of arrest and search, consider calling dispatchers, other officers, or the defendant; seek synchronized body-cam and CAD metadata; and ensure dispatch transcripts include timestamps. Absent such evidence, appellate deference to trial-level credibility findings will be difficult to overcome.
Frame “plain feel” arguments carefully. Terry standards apply to investigatory detentions. If a lawful arrest is credibly established, the more expansive search-incident-to-arrest doctrine will control.
Differentiate between testimonial and physical evidence. Miranda-based suppression arguments are strongest where questions elicit words or their functional equivalent; they are weaker where officers are lawfully conducting a physical search incident to arrest with no interrogation.

On West Virginia Suppression Law

Howard underscores the centrality of the Lacy/Snyder/Stuart framework: factual findings at suppression hearings receive substantial deference and will be overturned only if clearly erroneous.
It reaffirms robust search-of-person authority incident to a lawful arrest (Barefield/Edwards), and clarifies that suspect-assisted retrieval of contraband is treated as physical evidence gathering, not interrogation (Julius/Bradshaw).
Although a memorandum decision, Howard provides practical guidance on evidentiary weight: CAD logs are relevant but not determinative; live testimony can carry the day when the opposing party does not present counter-witnesses or reliable timestamps.

Complex Concepts Simplified

Search Incident to Arrest (SITA): A longstanding exception to the warrant requirement allowing officers, after a lawful custodial arrest, to search the arrestee’s person and the area within immediate control to protect safety and preserve evidence. It is broader than a Terry frisk and does not require that contraband be “immediately apparent.”
CAD (Computer-Aided Dispatch) Logs: Time-stamped records generated by dispatch centers reflecting events (e.g., traffic stop initiation, arrest logged). Useful but not infallible; logging can lag events in the field.
Clearly Erroneous Standard: An appellate standard giving deference to a trial court’s factual findings; a finding is clearly erroneous only if, after reviewing all the evidence, the appellate court is left with a firm and definite conviction that a mistake has been made.
“In the Light Most Favorable to the State”: On appeal from the denial of a suppression motion, courts construe facts to favor the prevailing party below (usually the State), reinforcing deference to the trial court’s credibility judgments.
Miranda and Custodial Interrogation: Miranda warnings are required before questioning a suspect in custody to protect against compelled testimonial self-incrimination. Non-testimonial, physical evidence obtained during a lawful search is generally unaffected absent interrogation.
Plain Feel Doctrine: During a limited pat-down for weapons (Terry stop), officers may seize contraband if its incriminating nature is immediately apparent by touch. This doctrine is inapplicable where a full search incident to arrest is authorized.

Observations and Caveats

Vehicle vs. Person Searches: Although the circuit court referenced Arizona v. Gant, that decision primarily limits vehicle searches incident to arrest. Howard ultimately rests on person-search principles (Barefield/Edwards/Chimel lineage) rather than Gant’s vehicle-specific rules.
Intrusiveness of Body Searches: Howard involved suspect-assisted removal from underwear, which the Court treated as part of a lawful search incident to arrest. The decision does not resolve standards for more intrusive strip or body-cavity searches conducted by officers themselves, which may implicate separate policies or constitutional considerations.
Memorandum Decision: Issued under Rule 21, the Court signaled that existing law controlled. While instructive, practitioners should evaluate how West Virginia courts treat the precedential weight and citability of memorandum decisions under current appellate rules.

Conclusion

Howard reinforces two practical pillars of suppression litigation in West Virginia. First, factfinding deference is decisive: when an officer’s testimony plausibly explains administrative discrepancies (such as CAD timestamps), appellate courts will seldom disturb a trial court’s credibility-based determination that the arrest preceded the search. Second, a lawful custodial arrest unlocks the well-established authority to conduct a search of the person; suspect-assisted retrieval of concealed items is treated as non-testimonial physical evidence gathering and does not implicate Miranda.

For law enforcement, the case encourages accurate, contemporaneous logging and the use of timestamped recordings but reassures that administrative lag is not fatal if explained and credited. For defense counsel, it underscores the need to develop a timestamped, witness-supported record when contesting the sequence of events. In the broader legal context, Howard does not expand search law so much as it clarifies evidentiary and review standards that control many close suppression disputes—particularly those turning on the timing of an arrest and the characterization of physical evidence gathering during custody.