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.
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.
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."
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.
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.
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.
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