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State v. Ott

Supreme Court of West Virginia

April 10, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
Amanda Kay Ott, Defendant Below, Petitioner

         Marion County 15-F-174

          MEMORANDUM DECISION

         Petitioner Amanda Kay Ott, by counsel David M. Grunau, appeals the decision of the Circuit Court of Marion County that denied her motion to suppress evidence. Respondent State of West Virginia, by counsel Gordon L. Mowen, II, filed a response.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In February of 2015, the Marion County Sheriff's Department responded to a call that a firearm was discharged in a trailer park. Corporal Russell Garrett ("Cpl. Garrett") responded, and was told by one of petitioner's neighbors that the disturbance came from around petitioner's trailer and was from fireworks. Cpl. Garrett then knocked on petitioner's door to investigate the firework complaint and immediately smelled the odor of marijuana. William Sanders ("Mr. Sanders") opened the door. Once the door was open, Cpl. Garrett testified that the smell became stronger. Cpl. Garrett also heard the voice of Lawrence Vincent ("Mr. Vincent"), who he referred to as "a frequent offender and suspected marijuana dealer." Mr. Vincent was not visible from the doorway, but Cpl. Garrett was familiar with his voice due to multiple contacts with Mr. Vincent. Cpl. Garrett testified that, "at that point I essentially asked him how much marijuana he had in the residence. And in order to prevent him from destroying evidence, I walked into the doorway to get eyes on him, just to observe him."

         Mr. Vincent told Cpl. Garrett that he smoked marijuana earlier, and pointed to marijuana that was in plain sight in the kitchen. The marijuana was in a glass mason jar and there were multiple plastic bags containing marijuana outside of the jar. Upon this observation, Cpl. Garrett detained the individuals in the home, including petitioner, and sought a search warrant for the trailer. After the warrant was obtained, the police searched the residence and found two, two gram bags of marijuana, a mason jar with two bags of marijuana, prescription pills belonging to petitioner, and a digital scale. The deputies seized approximately $2, 340.00 from Mr. Vincent. After her arrest, petitioner admitted in an interview to law enforcement that she was selling the pills which contained buprenorphine.

         Thereafter petitioner was indicted for possession with intent to deliver buprenorphine. In February of 2016, petitioner filed a motion to suppress the evidence seized during the search of the trailer, asserting that Cpl. Garrett had illegally entered the trailer, and that there was no probable cause for the search because the warrant was based upon evidence obtained from officers after officers "barg[ed] into petitioner's residence without a warrant." The circuit court held an evidentiary hearing on petitioner's motion on April 4, 2016. On May 9, 2016, the circuit court entered an order denying petitioner's motion to suppress.

         Following the circuit court's order, on August 8, 2016, petitioner entered into a conditional guilty plea to the offense of possession of buprenorphine with intent to deliver. Petitioner was sentenced on the same day, and received a sentence of one to five years in the state penitentiary. This sentence was suspended and petitioner was placed on supervised probation. As a condition of the plea, petitioner was also permitted to appeal the circuit court's denial of her motion to suppress to this Court. Petitioner now appeals her conviction for the offense of possession of buprenorphine with intent to deliver, and the circuit court's denial of her motion to suppress.

"In reviewing the findings of fact and conclusions of law of a circuit court . . . we apply a three-pronged standard of review. We review the decision . . . under an abuse of discretion standard; the underlying facts are reviewed under a clearly erroneous standard; and questions of law and interpretations of statutes and rules are subject to a de novo review." Syllabus Point 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

Syl. Pt. 1, in part, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). Moreover, we have held as follows:

"[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." Syllabus point 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

Syl. Pt. 13, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). Further,

"[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. . . . 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." Syllabus point 2, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

Syl. Pt. 2, in part, State v. Bookheimer, 221 W.Va. 720, 656 S.E.2d 471 (2007). Upon our review, we find no error in the circuit court's ruling below.

         Petitioner's sole assignment of error on appeal is that the circuit court erred by denying her motion to suppress. Petitioner argues that police are not permitted to "barge into a home without consent or a warrant and demand evidence because they think they smell marijuana." Petitioner asserts that, according to article 3, section 6 of the West Virginia Constitution, citizens are protected from unreasonable searches and seizures in their houses, and "[a]bsent exigent circumstances, that threshold may not be reasonably crossed without a warrant." State v. Craft, 165 W.Va. 741, 755, 272 S.E.2d 46, 55 (1980). Petitioner claims ...


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