                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                         FILED
                                                                                 April 21, 2017
vs) No. 16-0385 (Nicholas County 15-F-62)                                        RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Misty Dawn Nelson,
Defendant Below, Petitioner


                               MEMORANDUM DECISION
       Petitioner 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.

        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 June 25, 2014, petitioner and two friends left their hometown in Calhoun County and
traveled to Birch River to sell scrap copper.1 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.

        When 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 the vehicle.



       1
           Petitioner’s boyfriend was the driver of the vehicle in which petitioner was a passenger.
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       Deputy 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.2 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 tire.”3

        As he was searching the vehicle, Deputy Ellison removed petitioner’s purse from the
vehicle.4 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.

        During 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.5 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.




       2
           Neither petitioner nor the other occupant had a valid driver’s license.
       3
           During the search of the car and pat-downs of the occupants, Deputy Ellison found
lighter fluid, Drano, lithium batteries, and cold packs.
       4
           It is undisputed that the purse belonged to petitioner.
       5
         Petitioner did not testify during the suppression hearing. Thus, the only evidence before
the circuit court was Deputy Ellison’s testimony that petitioner gave her express consent for the
search of her purse.
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        On 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 clear error.

          [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.

Syl. Pts. 1 and 2, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996).

        Petitioner 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.6 “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.

         Based 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 petitioner and her friends. There is no evidence to suggest
that Deputy Ellison caused or ordered the vehicle to stop.

       It is further undisputed that upon approaching the trio and their vehicle, Deputy Ellison
asked for identification from the parties when they began to act “real fidgety” and “stuttery.”
Only one of trio possessed a driver’s license. Petitioner’s boyfriend also had an outstanding
warrant for his arrest. Petitioner’s boyfriend was then arrested and placed in the police cruiser.

       6
        See Syl. Pt. 1, State v. Marple, 197 W. Va. 47, 475 S.E.2d 47 (1996), and Rule 52(b) of
the West Virginia Rules of Criminal Procedure.


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While in the cruiser, Deputy Ellison asked petitioner’s boyfriend for permission to search the
vehicle. Petitioner’s boyfriend consented to the search. In fact, petitioner’s boyfriend advised
Deputy Ellison as to the location of a product used in the making of methamphetamine.
Accordingly, we find that the circuit court did not commit plain error in allowing at trial the
admission of evidence obtained by Deputy Ellison from the vehicle in which petitioner was a
passenger.

        Similarly, we find no merit to petitioner’s remaining contention that the admission of
evidence obtained as a result of Deputy Ellison’s search of her purse constitutes plain error.
Petitioner does not dispute that she provided Deputy Ellison with the express authority to search
her purse, but argues that her agreement was simply a concession to authority. However, such
argument is contrary to petitioner’s own sworn trial testimony wherein she testified that she
freely gave consent to Deputy Ellison to search her purse and explained that she had done so
because she “didn’t care” and was “mad at her boyfriend.” Such an occurrence does not
constitute plain error.

       For the foregoing reasons, we affirm petitioner’s December 9, 2015, conviction on
charges of conspiracy to manufacture methamphetamine and possession of a substance to be
used as a precursor to manufacture methamphetamine.

                                                                                       Affirmed.

ISSUED: April 21, 2017

CONCURRED IN BY:

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




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