                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent                                                       FILED

                                                                                 March 31, 2014
                                                                             RORY L. PERRY II, CLERK
vs) No. 13-0672 (Harrison County 12-F-174)                                 SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

Kenneth Michael Davidson,
Defendant Below, Petitioner

                              MEMORANDUM DECISION
       Petitioner Kenneth Michael Davidson’s appeal, filed by counsel Jack E. Clark, arises
from the Circuit Court of Harrison County’s sentencing order after his convictions of possession
of a controlled substance and obstructing a law enforcement officer. The circuit court issued this
sentence by order entered on April 23, 2013. The State, by counsel Julie A. Warren, filed a
response in support of the circuit court’s order.

        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 the late evening of February 28, 2012, Sergeant Michelle Cross observed petitioner’s
vehicle parked in the middle of the road outside of the Parson’s Hotel on North Fifth Street in
Clarksburg, West Virginia. Thinking that petitioner may have been momentarily parked to
unload or load the vehicle, Sergeant Cross proceeded to drive past petitioner and circled the
block. However, when Sergeant Cross returned, she observed that petitioner’s vehicle was still in
the same position. Sergeant Cross thereafter parked her police cruiser behind petitioner’s vehicle,
turned on the emergency lights, and approached petitioner’s vehicle from the passenger side.

        According to Sergeant Cross’s criminal complaint, upon approaching petitioner’s vehicle,
she could immediately detect a strong odor of marijuana emitting from the car. The criminal
complaint also explained that petitioner “agreed to step out of the vehicle to speak with [Sergeant
Cross] further about a consented search of the vehicle.” When petitioner stepped out of the
driver’s side, Sergeant Cross observed a “marijuana smoking device” fall to the ground. At that
point, Sergeant Cross attempted to place petitioner in handcuffs, but petitioner jerked away and
attempted to flee on foot. After petitioner was finally restrained, Sergeant Cross inspected the
vehicle and found a bag of marijuana outside of the car near the driver’s side, a bag of marijuana
behind the passenger’s seat, and $350 on petitioner. As the case proceeded, petitioner filed a
motion to suppress this evidence.



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        At the hearing on petitioner’s motion to suppress evidence, Sergeant Cross testified that
petitioner’s vehicle was positioned in the middle of the road and that as she went to meet
petitioner on his side of the car, a metal pipe fell to the ground. Sergeant Cross further testified
that petitioner’s vehicle was not running and that all of the lights visible to her were turned off.
Following this hearing, the circuit court denied petitioner’s motion and the case proceeded to
trial.

         The jury convicted petitioner of possession of a controlled substance and obstructing a
law enforcement officer. At sentencing, the circuit court ordered petitioner to serve six months in
jail for his conviction of possessing a controlled substance and to serve one year in jail and pay a
fine of fifty dollars for his conviction of obstructing a law enforcement officer. The circuit court
ordered that the jail sentences run concurrently. It is from this sentencing order that petitioner
now appeals, arguing that the circuit court erroneously denied his motion to suppress evidence
that Sergeant Cross seized from his vehicle.

          We review orders concerning motions to suppress under the following standards 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.

Syl. Pt. 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996). Further, “[o]n appeal, legal
conclusions made with regard to suppression determinations are reviewed de novo. Factual
determinations upon which these legal conclusions are based are reviewed under the clearly
erroneous standard. In addition, factual findings based, at least in part, on determinations of
witness credibility are accorded great deference.” Syl. Pt. 3, State v. Stuart, 192 W.Va. 428, 452
S.E.2d 886 (1994). Bearing in mind these standards of review and the case law pertinent to this
matter, we turn to petitioner’s assignments of error.

        Petitioner raises two arguments on appeal. First, petitioner argues that the circuit court
erred in failing to find that the police lacked a reasonable articulable suspicion to seize
petitioner’s vehicle. “Police officers may stop a vehicle to investigate if they have an articulable
reasonable suspicion that the vehicle is subject to seizure or a person in the vehicle has
committed, is committing, or is about to commit a crime.” Syl. Pt. 1, in part, State v. Stuart, 192
W.Va. 428, 452 S.E.2d 886 (1994). “When evaluating whether or not particular facts establish
reasonable suspicion, one must examine the totality of the circumstances, which includes both
the quantity and quality of the information known by the police.” Syl. Pt. 2, State v. Stuart, 192
W.Va. 428, 452 S.E.2d 886 (1994). The record provides that Sergeant Cross observed petitioner
stationed in the middle of the road for a considerable amount of time. After first seeing
petitioner’s vehicle, Sergeant Cross circled the block only to return to petitioner positioned in the
same location with his engine and lights off. West Virginia Code § 17C-13-1(a) provides as
follows:


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       Upon any highway outside of a business or residence district no person shall stop,
       park, or leave standing any vehicle, whether attended or unattended, upon the
       paved or main-traveled part of the highway when it is practicable to stop, park, or
       so leave such vehicle off such part of said highway, but in every event an
       unobstructed width of the highway opposite a standing vehicle shall be left for the
       free passage of other vehicles and a clear view of such stopped vehicles shall be
       available from a distance of two hundred feet in each direction upon such
       highway.

Given the circumstances under which Sergeant Cross found petitioner’s vehicle and the West
Virginia statute that prohibits the obstruction of vehicles in the middle of the road without a clear
view, we find no error with the circuit court’s finding that Sergeant Cross had a reasonable,
articulable suspicion to approach petitioner’s vehicle.

        Lastly, petitioner argues that the circuit court erred in failing to suppress the evidence
found as a result of the illegal seizure. Petitioner argues that his arrest was the result of this
illegal seizure and, therefore, his arrest and the evidence “seized” from the arrest was
“unjustified” as “fruits of the poisonous tree.” Respondent argues that the “fruits of the
poisonous tree” doctrine is inapplicable here because there was no constitutional violation in the
search and seizure of petitioner and his vehicle. We agree. We recognize the following:

       Under the fruits of the poisonous tree doctrine “‘[e]vidence which is located by
       the police as a result of information and leads obtained from illegal[ ] [conduct]
       constitutes ‘the fruit of the poisonous tree’ and is . . . inadmissible in evidence.’”
       We have observed, however, that “absent a constitutional violation, the ‘fruits of
       the poisonous tree’ doctrine has no applicability.” State v. Bradshaw, 193 W.Va.
       519, 540, 457 S.E.2d 456, 477 (1995).

State v. DeWeese, 213 W.Va. 339, 346, 582 S.E.2d 786, 793 (2003) (internal citations omitted).

        As discussed, our review of the record indicates that Sergeant Cross decided to approach
petitioner in his vehicle upon observing him improperly parked in the middle of the roadway.
Upon approaching petitioner, Sergeant Cross immediately smelled marijuana emitting from
petitioner’s vehicle and proceeded to secure consent from petitioner to inspect his car. Petitioner
consented to this search, and upon doing so, a metal pipe that smelled of marijuana fell from
petitioner’s side of the vehicle. In light of these circumstances and the law pertinent to this case,
we find no error by the circuit court in denying petitioner’s motion to suppress evidence.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.




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ISSUED: March 31, 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




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