                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                November 21, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0220 (Boone County 13-F-23)                                         OF WEST VIRGINIA


Bruce Harper,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Bruce Harper, by counsel David A. Ford, appeals his conviction for possession
of a controlled substance with intent to manufacture in violation of West Virginia Code § 60A-4­
401 on the ground that the circuit court erred in failing to suppress evidence obtained during the
execution of a search warrant of petitioner’s home and outbuildings. The Circuit Court of Boone
County entered petitioner’s sentencing order on January 13, 2014. The State of West Virginia, by
counsel Derek Knopp, filed a response in support of the circuit court’s denial of petitioner’s
motion to suppress.

        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 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 30, 2011, West Virginia State Police Trooper J.R. Brewer received
information from a credible confidential informant (“CI”) that petitioner was selling marijuana
from one or more of his properties in Bandytown, a small town located in Boone County, West
Virginia. The CI described the trailer in which he claimed petitioner lived and an adjacent house
that petitioner was remodeling. The CI said he had seen illegal drugs in both the trailer and the
house. The CI also described the location of petitioner’s property and said there was a wagon
wheel in petitioner’s yard. Thereafter, the trooper had the CI call a 911 operator to describe the
location in order to obtain an address. The 911 operator determined that the trailer and the house
were located, respectively, at 91 and 92 Chester Lane. However, the actual address for
petitioner’s property was Karla Lane, about two blocks away from Chester Lane.

       The following day, Trooper Brewer obtained a warrant to search petitioner’s property for
evidence of illegal drugs and/or money. The warrant described the location of the places to be
searched as the follows:

       1.     Boone County, Bandytown, single wide trailer, white and red in color.
       Further described as 91 Chester Lane. Residence of Bruce Harper.

                                                1

       2.     Boone County, Bandytown, single story house, white in color with
       covered wooden front porch. Further described as 92 Chester Lane, also where
       Bruce Harper residence [sic].

       3.      Boone County, Bandytown, any outbuildings, sheds, shelters, and vehicles
       on either property of 91 or 92 Chester Lane, in Bandytown, WV.

Additionally, the warrant provided that “Bruce Harper . . . is also remodeling [the] house . . .
(listed as location 2 above).” However, neither the affidavit for the search warrant, nor the search
warrant, mentioned the wagon wheel in petitioner’s yard.

       That same day, Trooper Brewer and other officers went to Bandytown to execute the
search warrant, but they were unable to locate a sign for “Chester Lane.” The trooper eventually
found a house with a wagon wheel in the yard. On further inspection, the trooper saw that the
house was white, had a wood porch on one side, was situated next to a red and white trailer, and
a detached garage nearby the house showed signs of being remodeled. The trooper also saw a
sign on the house indicating that it was petitioner Bruce Harper’s residence. The trooper and
other officers then searched the house, the adjacent garage, and a small white shed on the
property. During their search, the officers discovered loose marijuana and individually-bagged
marijuana in petitioner’s detached garage, as well as scales and a grow room for cultivating
marijuana. The officers did not search the red and white trailer because they learned it did not
belong to petitioner.

       Soon thereafter, petitioner was indicted on two counts, the second of which was
possession of a controlled substance with intent to manufacture in violation of West Virginia
Code § 60A-4-401.1

        Petitioner moved to suppress the evidence obtained as a result of the search warrant. The
circuit court held a hearing on the motion at which Trooper Brewer testified. By order entered
September 11, 2013, the circuit court denied the motion to suppress. The circuit court found that
the officers who executed the search warrant had particularized information sufficient to identify
the place to be searched given that—other than an incorrect address—the property searched
matched the description of the property named in the warrant and a sign on petitioner’s house
clearly indicated that it was his property.

       Thereafter, petitioner asked the circuit court to reconsider its September 11, 2013, order
denying relief on his motion to suppress. On December 17, 2013, the circuit court held a hearing
on the motion and then orally denied relief.

        On January 7, 2014, petitioner entered into a conditional plea agreement to the one count
of possession of a controlled substance with intent to manufacture in exchange for the dismissal
of the other count and the State standing silent at sentencing. However, petitioner reserved the



       1
         Petitioner failed to include his indictment or any information regarding the first count of
the indictment in the appendix record provided to this Court.
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right to seek appellate review of the circuit court’s ruling on his motion to suppress the evidence
obtained pursuant to the search warrant.

        By order entered January 13, 2014, the circuit court sentenced petitioner to a period of
one to three years in prison for his conviction of possession with intent to manufacture.
However, the circuit court suspended the sentence and placed petitioner on supervised probation
for a period of thirty-six months.

       Petitioner now appeals to this Court.

               “In reviewing challenges to findings and rulings made by a circuit court,
       we apply a two-pronged deferential standard of review. We review the rulings of
       the circuit court concerning a new trial and its conclusion as to the existence of
       reversible error under an abuse of discretion standard, and we review the circuit
       court’s underlying factual findings under a clearly erroneous standard. Questions
       of law are subject to a de novo review.” Syllabus point 3, State v. Vance, 207
       W.Va. 640, 535 S.E.2d 484 (2000).

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

        Petitioner asserts two assignments of error on appeal. Petitioner first argues that the
circuit court committed reversible error when it failed to suppress evidence obtained pursuant to
the search warrant because the warrant failed to particularly describe the property to be searched
as required by the Fourth Amendment of the United States Constitution and Section 6, Article III
of the West Virginia Constitution. Petitioner highlights that the warrant included an inaccurate
house number, street name, and description of the structures on petitioner’s property. Petitioner
also claims that the police illegally searched his garage because the search warrant did not
specifically mention a garage.

       We review such claims under the following standard of review.

               “When 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, White, 228 W.Va. at 535, 722 S.E.2d at 571. In construing all the facts related to
petitioner’s first assignment of error in the light most favorable to the State, and giving particular
deference to the circuit court’s findings, we find that the circuit court did not clearly err in
denying petitioner’s motion to suppress the evidence obtained during the execution of the search
warrant at petitioner’s property, including the evidence obtained during the search of petitioner’s
detached garage.



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          The United States Supreme Court has said it is enough if the description of the place
intended to be searched in a search warrant is such that the executing officer can, with reasonable
effort, ascertain and identify the place. Steele v. U.S., 267 U.S. 498, 503 (1925). Likewise, in
Syllabus Point 4 of State v. Haught, 179 W.Va. 557, 567, 371 S.E.2d 54, 64 (1988), we held that
“the description contained in a search warrant is sufficient where a law enforcement officer
charged with making a search may, by the description of the premises contained in the search
warrant, identify and ascertain the place intended to be searched with reasonable certainty.” This
Court has also said that, “[a]lthough the description of the premises to be searched need not be
accurate in every detail, it must furnish ‘a sufficient basis for identification of the property so
that it is recognizable from other adjoining and neighboring properties.’ State v. Daniels, 46 N.J.
428, 437, 217 A.2d 610, 615 (1966).” 179 W.Va. at 567, 371 S.E.2d at 64.

        In the case before us, it is clear that—despite the incorrect address in the search
warrant—the description contained in the warrant particularly described petitioner’s residence to
the extent that the officers were able to identify the place to be searched with a reasonable
amount of effort. As noted above, the warrant described a white house with a wood porch next to
a red and white trailer. The warrant also indicated that a portion of the property was being
remodeled. This description was sufficient for petitioner’s property to be distinguished from
neighboring properties in the small town of Bandytown.

        As for petitioner’s claim that the search warrant did not authorize the search of his
detached garage, we find that the search warrant can reasonably be read as authorizing such a
search given that it specifically provides for the search of “outbuildings.” Clearly, the detached
garage was an “outbuilding.” Although the warrant lists outbuildings associated with the
erroneous address, the warrant as a whole indicates that the outbuildings authorized to be
searched were those located on petitioner’s property. Clearly, the garage searched by the officers
was located on petitioner’s property. Therefore, we find that the officers’ search of petitioner’s
garage was proper and within the confines of the search warrant. Thus, the circuit court did not
clearly err in denying petitioner’s motion to suppress on this ground.

         Petitioner’s second and final assignment of error is that the circuit court, in violation of
Rule 41(c) of the West Virginia Rules of Criminal Procedure, clearly erred when it considered
inadmissible evidence in denying petitioner’s motion to suppress. Under Rule 41(c), “it is
improper for a circuit court to permit testimony at a suppression hearing concerning information
not contained in the search warrant affidavit to bolster the sufficiency of the affidavit. . . .” Syl.
Pt. 2, State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762 (1986). Specifically, petitioner claims that
the trial court erroneously considered Trooper Brewer’s testimony regarding the wagon wheel in
petitioner’s yard because that information was not contained within the search warrant affidavit
or the search warrant. 2

       2
          Petitioner also claims that the circuit court violated Rule of Criminal Procedure 41(c)
when it considered Trooper Brewer’s testimony that one of petitioner’s neighbors told the
trooper the location of petitioner’s house. However, in reviewing petitioner’s citation to the
record on appeal regarding this assignment of error, we find that Trooper Brewer actually
testified that he spoke with petitioner’s neighbor only after he had located and searched
petitioner’s property. Given that petitioner fails to provide any evidentiary support for his claim,
                                                  4

        With regard to petitioner’s second assignment of error, the record on appeal reveals the
following discourse at the September 4, 2013, hearing on petitioner’s motion to suppress.
Trooper Brewer testified that he could not locate Chester Lane. However, while he was in
Bandytown, he found a house that had a wagon wheel in a front yard. Petitioner’s counsel
immediately objected to this testimony on the ground that the wagon wheel was not mentioned in
the trooper’s affidavit or in the resulting search warrant. The prosecuting attorney was uncertain
of the status of the wagon wheel information, but agreed that if it was not included in the
affidavit or warrant, he would concur with the objection. The circuit court took the matter under
advisement, pending its review of the record.

         One week later, the circuit court entered its September 11, 2013, order denying
petitioner’s motion to suppress the evidence obtained pursuant to the search warrant. In that
order, the circuit court never mentions a wagon wheel, nor does it rely in any manner on the
Trooper’s wagon wheel testimony to bolster the sufficiency of the affidavit or the resulting
search warrant. Further, at the December 17, 2013, hearing on petitioner’s motion to reconsider
his motion to suppress, petitioner’s counsel directly asked the circuit court whether it had based
its earlier denial of relief on the wagon wheel information. The court replied, “If it’s not part of
the search warrant [,] you can’t include it . . . .” Thus, the circuit court clearly stated that it did
not rely on information outside of the affidavit or search warrant in rendering its decision. On
this record, we find that petitioner fails to support his claim that the circuit court erred by
violating Rule 41(c) in this case. As such, we deny relief on this assignment of error.

       For the foregoing reasons, we affirm.
                                                                                            Affirmed.

ISSUED: November 21, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




we decline to address it further herein. See State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011)
(“Typically, this Court will not address issues that have not been properly briefed.”).
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