Misty Dawn Nelson, by counsel Crystal L. Walden, appeals her
jury conviction on charges of conspiracy to manufacture
methamphetamine and possession of a substance to be used as a
precursor to manufacture methamphetamine. Respondent the
State of West Virginia, by counsel Gordon L. Mowen, II, filed
a response in support of the circuit court's order.
Petitioner contends that the circuit court plainly erred in
finding reasonable suspicion for the stop of the vehicle in
which she was a passenger and in finding that the search of
her purse was voluntary.
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.
25, 2014, petitioner and two friends left their hometown in
Calhoun County and traveled to Birch River to sell scrap
copper. After selling the copper, the trio
traveled to Nicholas County and stopped at a Walmart, where
petitioner purchased Sudafed. The trio then traveled to the
Nicholas County home of the parents of petitioner's
friend. As the trio were leaving the home, they passed Deputy
Ellison of the Nicholas County Sheriff's Department who
was alongside U.S. Route 39, running stationary radar.
the trio's vehicle passed Deputy Ellison, the rear seat
passenger in the vehicle turned around and looked through the
rear window at the Deputy's vehicle. Deputy Ellison then
pulled his vehicle into traffic and followed. The trio's
vehicle pulled off the roadway into a private parking lot.
Deputy Ellison, drove past the lot, turned around, and pulled
into the parking lot where the trio's vehicle was parked.
Two of the vehicle's occupants were standing outside the
vehicle with the hood up, while petitioner was sitting inside
Ellison approached the vehicle, on foot, to determine
"if anyone else was in the backseat or anything . . .
" and observed petitioner and cold packs sitting in
plain view within the vehicle. The Deputy then asked for
valid identification from the trio. Petitioner's
boyfriend advised the Deputy that he did not have a valid
driver's license. Petitioner and the other occupant
produced identification cards. Deputy Ellison "ran
everyone's information through dispatch" and
discovered that petitioner's boyfriend had a warrant for
his arrest. Upon making this discovery, Deputy Ellison
separated the trio. Petitioner's boyfriend was then
arrested, handcuffed, and placed in the cruiser. Thereafter,
Deputy Ellison asked petitioner's boyfriend for his
consent to search the vehicle and the boyfriend provided such
authorization. The boyfriend then "yelled" from the
cruiser "Mr. Ellison, I'm not going to waste your
time . . . the Crystal Drano is under the spare
was searching the vehicle, Deputy Ellison removed
petitioner's purse from the vehicle.Deputy Ellison stated
that he could see a pharmacy bag in petitioner's open
purse, but could not see the contents of the bag. Deputy
Ellison then asked petitioner for her consent to search her
purse, and stated, "I always go through female's
purses with them watching me." Petitioner gave Deputy
Ellison permission to search her purse, wherein he discovered
Sudafed. Petitioner was placed under arrest and subsequently
indicted on charges of conspiracy to manufacture
methamphetamine and possession of a substance to be used as
precursor to manufacture methamphetamine.
pre-trial proceedings, petitioner filed a motion to suppress
the evidence obtained by Deputy Ellison, including the items
discovered in the vehicle and the Sudafed found in her purse.
After a hearing, which included the testimony of Deputy
Ellison, the circuit court denied petitioner's motion to
suppress and found that both searches (of the vehicle and her
purse) were lawful. On December 9, 2015, petitioner's jury
trial began. Petitioner testified at trial and admitted that
she gave Deputy Ellison express consent to search her purse.
When her counsel on direct examination asked her why she gave
Deputy Ellison consent to search her purse, she responded,
"I don't know. Like I said, I didn't feel good,
I was fighting with [my boyfriend], and I just - [shook head]
I didn't care." At trial, petitioner's counsel
made no objection or challenge to the alleged violation of
petitioner's rights "against unreasonable searches
and seizures." Petitioner was found guilty on both the
conspiracy and possession charges. It is from her conviction
that petitioner now appeals.
appeal, petitioner raises two assignments of error, both
relating to the circuit court's rulings on
petitioner's motion to suppress. We have long held 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
[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 United States
Constitution and . . . 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.
Pts. 1 and 2, State v. Lacy, 196 W.Va. 104, 468
S.E.2d 719 (1996).
concedes that that her trial counsel made no objection or
challenge to the alleged violation of petitioner's rights
"against unreasonable searches and seizures." It is
a fundamental proposition of law that an appellate court
generally will not entertain an alleged trial error unless it
has been properly preserved at trial. See State v.
Miller, 194 W.Va. 3, 17, 459 S.E.2d 114, 128 (1995).
Therefore, on appeal, we must review the propriety of the
circuit court's rulings as to whether the traffic stop
with made with reasonable suspicion and the admission of the
evidence seized from petitioner's purse for plain
error. "To trigger application of the plain
error, there must be (1) an error; (2) that is plain; (3)
that affects substantial rights; and (4) seriously affects
the fairness, integrity, or public reputation of the judicial
proceedings." Syl. Pt. 7, Miller.
upon our review of the record herein, we find no merit to
petitioner's claims that the trial court committed plain
error in permitting, at trial, the admission of evidence
discovered by Deputy Ellison during his "stop" of
the vehicle in which petitioner was a passenger. First, the
vehicle at issue was stopped alongside the road and the hood
of the vehicle was propped up when Deputy Ellison initiated
contact with ...