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State v. Brecke

Supreme Court of West Virginia

May 24, 2019

State of West Virginia, Plaintiff Below, Respondent
v.
Robert Elliot Brecke, Defendant Below, Petitioner

          Upshur County 18-F-14

          MEMORANDUM DECISION

         Petitioner Robert Elliot Brecke, by counsel Jamella L. Lockwood, appeals the Circuit Court of Upshur County's March 7, 2018, order denying his motion to suppress evidence seized during a traffic stop. Respondent State of West Virginia, by counsel Benjamin F. Yancey III, filed a response. On appeal, petitioner asserts that the circuit court erred in concluding that his girlfriend was not an agent of the State in retrieving a container from his vehicle and in concluding that West Virginia Code § 62-1A-10, addressing motor vehicle searches, was inapplicable.

         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.

         On September 25, 2017, two officers with the Buckhannon Police Department initiated a stop of petitioner's sport-utility vehicle upon noticing an inoperative tail light. One officer, Joshua Wilson, spoke with petitioner and ultimately issued him a written warning. The second officer, Tanner Collins, asked to speak with the passenger, petitioner's girlfriend Christina Darnall, due to the officer's familiarity with her and questions he had regarding her former boyfriend. Ms. Darnall agreed to speak with Officer Collins and exited the vehicle; the two then spoke toward the rear of petitioner's vehicle.

         After Officer Wilson issued petitioner the warning, he noticed a small coffee container wrapped in a tan grocery bag in the back cargo area of petitioner's vehicle. Officer Wilson asked Ms. Darnall "what was up with the container in the back?" Ms. Darnall consented to allowing the officers to view the contents of the container, opened the rear of the vehicle, and retrieved the container. The officers found marijuana, including "THC [t]ar [t]abs, THC [v]apor [p]ens, and THC suckers" in the container. Petitioner was consequently indicted on January 8, 2018, for one count of possession of a controlled substance with intent to deliver.

          On January 22, 2018, petitioner filed a motion to suppress all evidence seized from his vehicle during the September 25, 2017, traffic stop. On February 12, 2018, the parties appeared for a hearing on the motion. Officer Wilson testified that after handing petitioner the written warning and noticing the container in the rear of petitioner's vehicle, he asked Ms. Darnall "if she knew anything about the canister. I asked her; did-do you know what that is?" Ms. Darnall reportedly responded, "[N]o, I do not; but I can get it." According to Officer Wilson, Ms. Darnell actually offered twice to retrieve the container, and then she opened the rear door of the vehicle, pulled the container out, and opened it for the officers. Officer Wilson reiterated that Ms. Darnall offered to retrieve the container:

No-no, she off-she offered it first. What hap-'cause I asked her, do you know what's in that container in the back and she said I-I don't know. I can get it for you if you want. And then I asked her again, you don't know what's in there? She said no, I do not know. But we can get it and we can see.

         The report Officer Wilson completed following the traffic stop indicated that he "asked [Ms. Darnall] what was up with the container in the back of the Jeep. [Ms. Darnall] said I don't know. [Officer] Collins asked [Ms. Darnall] if we could see what was in it at which [point Ms. Darnall] said yes and opened the rear of the Jeep." On cross-examination, Officer Wilson explained that Officer Collins asked Ms. Darnall if they could view what was inside the container only "[a]fter she advised [the officers] that she didn't know what it was and could get it for us."

         Officer Collins also testified at the suppression hearing, and his testimony was consistent with Officer Wilson's. Officer Collins stated, "We never asked her to go in and get [the container]. I mean, I can tell you that."

         Ms. Darnall testified that she had full access to the vehicle. Ms. Darnall was asked "whether or not there [were] any restrictions you had in terms of access to that vehicle and the contents of it. [Were] there any private parts of it that were just [petitioner's]?" Ms. Darnall responded, "No, sir." Ms. Darnall denied offering to retrieve the container for the officers, however. Ms. Darnall testified that "[Officer Wilson] told me to get it out of the Jeep, so I got it out of the Jeep." Ms. Darnall also testified that she "did not have an option to tell [Officer Wilson] no."

         On March 7, 2018, the circuit court denied petitioner's motion to suppress. It found that

[a]lthough there was conflicting evidence concerning the circumstances surrounding why Ms. Darn[a]ll removed the container from the Jeep, the [c]ourt finds, after considering the credibility of the witnesses and the weight of the evidence that the [o]fficers did not command or order Ms. Darn[a]ll to remove the container from the Jeep.

         Thus, the court concluded that Ms. Darnall's retrieval of the container was not a search, and that she offered to retrieve the container "without the officers taking any action that would make [her] an agent or 'instrument' of the State."

         Shortly after the court entered its order denying petitioner's motion to suppress, he and the State entered into a conditional plea agreement. Petitioner agreed to plead guilty to possession of a controlled substance with intent to deliver, but he reserved the right to appeal the court's decision on the motion to suppress. The plea agreement further provided that should petitioner prevail on appeal, his plea shall be withdrawn. The circuit court accepted ...


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