                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below,
                                                                                    FILED
Respondent
                                                                               November 23, 2015
                                                                               RORY L. PERRY II, CLERK
vs) No. 14-1154 (Webster County 14-F-46)                                     SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Dona Yvonne Jarvis, Defendant Below,
Petitioner


                              MEMORANDUM DECISION
        Petitioner Dona Yvonne Jarvis, by counsel Teresa Monk, appeals the Circuit Court of
Webster County’s October 10, 2014, order sentencing her to a term of incarceration of one to
five years for her conviction of conspiracy and a term of incarceration of two to ten years for her
conviction of operating or attempting to operate a clandestine drug lab. The State, by counsel
Jonathan E. Porter, filed a response. On appeal, petitioner alleges that the circuit court erred in
denying her motion to suppress the evidence obtained during a search of her home because she
alleges the search was unlawful.

        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 February of 2014, several law enforcement officers went to petitioner’s home after
receiving information that Kenny Mathis, a wanted individual, was hiding there. When the
officers approached the front door and knocked, a male individual came to the door, saw the
officer, and ran to the back of the home. This individual was later identified as Robert Lusk, one
of petitioner’s co-defendants. Eventually, Leroy Allen, another co-defendant, answered the door
and invited the officers inside. Mr. Allen directed the officers to the back of the house where
they would find petitioner, the owner of the home, and Mr. Lusk, a resident. Upon entering the
bedroom to speak to petitioner, the officers detected the smell of methamphetamine
manufacturing and observed a methamphetamine lab in a bottle on a nightstand. The officers
then asked petitioner and Mr. Lusk for permission to search the home, stating that the individuals
could either consent or wait, supervised, while the officers obtained a search warrant. Both
petitioner and Mr. Lusk executed written permission for the officers to search the residence,
during which the officers discovered methamphetamine precursors, marijuana, diazepam, and
klonopin. The occupants of the home were all arrested and charged with a variety of drug and
conspiracy charges.


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        In August of 2014, the circuit court held a hearing on petitioner’s motion to suppress the
evidence from the search and seizure of her home. Ultimately, the circuit court denied the motion
to suppress because of petitioner’s voluntary consent to search. Specifically, the circuit court
found that the search was voluntarily allowed, that officers had not threatened the occupants, and
that Mr. Lusk’s detailed statement claiming the materials belonged to him further strengthened
the voluntary nature of the interaction. That same month, petitioner entered into a plea agreement
whereby she reserved the right to appeal the suppression ruling. In October of 2014, the circuit
court sentenced petitioner to a term of incarceration of two to ten years for her conviction of
operation of a clandestine drug lab, and a term of incarceration of one to five years for her
conviction of conspiracy, said sentences to run concurrently. It is from the sentencing order that
petitioner appeals.

       We have previously established 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.”
       Syl. Pt. 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

Syl. Pt. 4, State v. Brock, 235 W.Va. 394, 774 S.E.2d 60 (2015). 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.” Syl. Pt. 2, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

Id. at --, 774 S.E.2d at 63, syl. pt. 5, in part. On appeal, petitioner’s assignment of error is based
entirely on allegedly erroneous findings of fact below. Specifically, petitioner argues that the
circuit court found that petitioner’s consent to search the home “cured” the officer’s initial illegal
entry into the home. However, the record is clear that the circuit court made no such finding and,
moreover, that the officer’s initial entry into the home was not illegal.

        While it may be true that the circuit court questioned the initial legality of the officer’s
entry into the home during the hearing on the motion to suppress, it ultimately found that after
Leroy Allen answered the door, law enforcement asked for petitioner and Mr. Allen “told the
officer that “[petitioner] was in the back room and directed the officer toward the room.” Based
on this finding, it is clear that the circuit court found that Mr. Allen allowed the officer into the
residence. Further, we have previously held that “[i]t is a paramount principle of jurisprudence
that a court speaks only through its orders.” Legg v. Felinton, 219 W.Va. 478, 483, 637 S.E.2d

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576, 581 (2006). As such, the Court finds that the circuit court’s only finding in regard to the
officer’s entry into the home was that Mr. Allen allowed him access to the residence.

        In addressing similar situations, we have held that “in making a factual assessment
concerning the existence of voluntary consent, the inquiry focuses upon whether the facts
available to the officer at the moment of entry [‘]warrant a man of reasonable caution in the
belief[’] that the party had voluntarily authorized the officer’s entry onto the premises.” State v.
Buzzard, 194 W.Va. 544, 550, 461 S.E.2d 50, 56 (1995) (quoting Illinois v. Rodriguez, 497 U.S.
177, 188, 110 S.Ct. 2793, 2801 (1990)). Based upon the evidence below, it is clear the officer in
question reasonably believed that Mr. Allen voluntarily authorized his entry into the residence.
However, it is unclear from the record whether Mr. Allen had common authority over the home
such that he could authorize the officer’s entry. Regardless, such authority is unnecessary given
that the United States Supreme Court has clearly held that a warrantless entry is valid when
based upon the consent of a third party whom the police, at the time of the entry, reasonably
believe to possess common authority over the premises, even if that third party does not possess
such common authority. See Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801
(1990). For these reasons, it is clear that the officer’s entry into petitioner’s home was not illegal.

        Petitioner next argues that the circuit court erred in denying her motion to suppress upon
a finding that the officer in question did not coerce petitioner into consenting to the search by
threatening her. In support, petitioner alleges that once the officer observed the smell of
methamphetamine and the lab itself, he threatened to make her wait “outside in the cold” while
he obtained a warrant. We have held that

               “‘[w]hether a consent to a search is in fact voluntary or is the product of
       duress or coercion, express or implied, is a question of fact to be determined from
       the totality of all the circumstances.’ Syllabus Point 8, State v. Craft, 165 W.Va.
       741, 272 S.E.2d 46 (1980).” Syl.Pt. 4, State v. Worley, 179 W.Va. 403, 369
       S.E.2d 706, cert. denied, 488 U.S. 895, 109 S.Ct. 236, 102 L.Ed.2d 226 (1988).

Buzzard, 194 W.Va. at 545, 461 S.E.2d at 51, syl. pt. 2 (1995). Our review of the record shows
that the only evidence before the circuit court was that the officer indicated that petitioner had
the option of waiting, supervised, in a law enforcement vehicle while they obtained a warrant. As
such, it is clear that no threats were used to obtain petitioner’s consent to search the premises.
For these reasons, we find no error in the circuit court denying petitioner’s motion to suppress.

       For the foregoing reasons, the circuit court’s October 10, 2014, sentencing order is
hereby affirmed.


                                                                                            Affirmed.

ISSUED: November 23, 2015

CONCURRED IN BY:



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




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