                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                        FILED
                                                                               October 23, 2017
vs) No. 16-0990 (Harrison County 15-F-193)                                        RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Larry M. DeFrietas,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Larry M. DeFrietas, by counsel Jason T. Gain, appeals the Circuit Court of
Harrison County’s October 11, 2016, order sentencing him to a term of incarceration of fourteen
years for his convictions of fleeing in a vehicle with reckless disregard; possession of a firearm
by a prohibited person; and misdemeanor possession of heroin, methamphetamine, and
marijuana. The State, by counsel Elizabeth Grant, filed a response. Petitioner filed a reply. On
appeal, petitioner argues that the circuit court erred in denying his motion to suppress and that
his convictions on multiple counts violate the double jeopardy prohibition.

        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 April of 2015, the Chief Deputy of the Harrison County Sheriff’s Department (“the
deputy”) observed a blue Jeep pulled over at a wide area along the road and a male wearing
camouflage standing outside the vehicle. The deputy testified that he initially drove past the
vehicle but continued to watch the section of road because he knows the area as one where
people commonly dump trash and poach wild game. The deputy turned his vehicle around and
pulled in behind the blue Jeep. As the deputy exited his vehicle, petitioner walked toward the
deputy and the two had a brief conversation. Petitioner told the deputy that he stopped to let his
two dogs use the restroom. The deputy asked to see petitioner’s identification and he returned
with two pieces of identification. The deputy testified that the picture of the male on the
identification did not appear to be petitioner and petitioner later admitted that he gave the deputy
a fake identification. As the deputy returned to his vehicle to check the identification, petitioner
got into the blue Jeep and drove through the field, through the ditches out onto the main road
toward United States Route 19 (“Rt. 19”) in Harrison County, West Virginia. The deputy
initiated pursuit and activated his police cruiser lights and sirens. Petitioner sped through the
intersection of RT. 19 and Sycamore Road in Harrison County. The deputy later testified that
petitioner attempted to elude law enforcement by speeding, driving erratically, forcing other

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vehicles off the road, and failing to stop at intersections. Finally, petitioner’s vehicle came to a
complete stop when it became stuck in the mud near a gas well road. A second deputy from the
Harrison County Sheriff’s Department arrived on scene and petitioner admitted to the deputies
that he had drugs on his person, and there were additional drugs and a firearm in his vehicle. The
sheriff’s department executed a warrant search of petitioner’s vehicle and recovered twelve
grams of heroin, fifty-three grams of methamphetamine, and twelve grams of marijuana.

       In September of 2015, petitioner was indicted on five felony counts: (1) fleeing in a
vehicle with reckless disregard, in violation of West Virginia Code § 61-5-17(f); (2) possession
of a firearm by a prohibited person, in violation of West Virginia Code § 61-7-7(b); (3)
possession with intent to deliver heroin, in violation of West Virginia Code § 60A-4-401(a); (4)
possession with intent to deliver methamphetamine, in violation of West Virginia Code § 60A-4­
401(a); (5) possession with intent to deliver marijuana, in violation of West Virginia Code §
60A-4-401(a).

        In March of 2016, petitioner filed a motion to suppress the drugs found in his vehicle, on
the grounds that the initial stop by the deputy was invalid. According to petitioner, the deputy
lacked probable cause to initiate the initial traffic stop. The circuit court denied petitioner’s
motion. Petitioner’s three-day trial commenced in March of 2016. The jury convicted petitioner
of (1) fleeing in a vehicle with reckless disregard, (2) possession of a firearm by a prohibited
person, (3) misdemeanor possession of heroin, (4) misdemeanor possession of
methamphetamine, and (5) misdemeanor possession marijuana.

        In September of 2016, the circuit court sentenced petitioner to a term of incarceration of
one to five years for the conviction of fleeing in a vehicle with reckless disregard and to three
years for the conviction of possession of a firearm by a prohibited person. The circuit court
ordered that these sentences run consecutively. Petitioner was also sentenced to a term of
incarceration of six months for each of the misdemeanor possession offenses, two of which were
ordered to run consecutively to his previous sentence, and one to run concurrently to his previous
sentence. The State filed a recidivist petition against petitioner and the jury found petitioner to be
a recidivist. Accordingly, the circuit court further ordered him to serve an additional five-year
term of incarceration to run consecutively to his previous sentences. It is from the sentencing
order that petitioner appeals.

       We have held as follows:

                “In reviewing the findings of fact and conclusions of law of a circuit court
       . . . , we apply a three-pronged standard of review. We review the decision . . .
       under an abuse of discretion standard; the underlying facts are reviewed under a
       clearly erroneous standard; and questions of law and interpretations of statutes
       and rules are subject to a de novo review.” Syllabus Point 1, State v. Head, 198
       W.Va. 298, 480 S.E.2d 507 (1996).

Syl. Pt. 1, in part, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). Further, we have
explained as follows:



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               1. “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).

               2. “In 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.
       Similarly, an appellate court reviews de novo whether a search warrant was too
       broad. 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.” Syllabus point 2, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719
       (1996).

Syl. Pts. 1 and 2, State v. Bookheimer, 221 W.Va. 720, 656 S.E.2d 471 (2007).

        On appeal, petitioner argues that the circuit court erred in denying his motion to suppress
evidence the drugs found in his vehicle, because the evidence was seized from an illegal traffic
stop. As to traffic stops, we have held that “[p]olice 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). Further, we have previously explained
that “[f]actors such as erratic or evasive driving . . . are significant in determining reasonable
suspicion.” Id.at 192 W.Va. at 433, n. 10, 452 S.E.2d at 891. n. 10. We have also held that

       [n]ot all contact between a police officer and a citizen rises to the level wherein
       constitutional protections are implicated. A “consensual” encounter may occur
       where a citizen agrees to speak to law enforcement personnel. Such a contact may
       be initiated by law enforcement without the need of any objective articulable level
       of suspicion and does not, without more, amount to a “seizure” raising
       constitutional protections.

Ullom v. Miller, 227 W.Va. 1,8, 705 S.E.2d 111, 118 (2010); see Syl. Pt. 1, State v. Mays, 172
W.Va. 486, 307 S.E.2d 655 (1983) (“It is not an unreasonable seizure for police to approach an
individual in a public place, ask him if he is willing to answer questions and put questions to him
if he is willing to listen.”); United States v. Cooper, 43 F.3d 140, 145, (5th Cir.1995) (“‘[E]ven
when officers have no basis for suspecting a particular individual, they may generally ask
questions of that . . . individual’s identification . . . .” (quoting Florida v. Bostick, 501 U.S. 429,
435 (1991))).




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        On appeal, petitioner argues that the stop was illegal because the deputy lacked a
reasonable articulable suspicion to initiate the traffic stop. However, this argument simply
ignores the evidence below. It is clear from the record below that the deputy did not initially
make a traffic stop of petitioner’s vehicle, given that the vehicle in question was already stopped
along the side of the road. During the suppression hearing, the deputy testified the he observed a
vehicle pulled over at a wide area along the road and the camouflage-clad petitioner standing
outside the vehicle. The deputy also testified that he drove back to where petitioner’s vehicle was
parked and he had a brief conversation with petitioner and the deputy asked to see petitioner’s
identification. Petitioner then voluntarily retrieved a fake identification, presented the deputy
with the same, and fled the scene. The deputy then pursued petitioner as he sped through
intersections, drove erratically, and forced other vehicles off the road. Petitioner’s actions gave
the deputy a reasonable, articulable suspicion that petitioner committed or was about to commit a
crime. Accordingly, because we find that the deputy in question had a reasonable articulable
suspicion to initiate a traffic stop, we find no error in the circuit court’s denial of petitioner’s
motion to suppress.

        Petitioner next argues that his convictions on three separate counts of possession of a
controlled substance violate the constitutional provision against double jeopardy. There was no
indication in or on the record that petitioner did not receive a copy of the indictment or that he
objected to the three separate counts of possession of a controlled substance below. “Generally
the failure to object constitutes a waiver of the right to raise the matter on appeal.” State v.
Asbury, 187 W.Va. 87, 91, 415 S.E.2d 891, 895 (1992). Further, we have held that

               [t]he defense of double jeopardy may be waived and the failure to properly
       raise it in the trial court operates as a waiver . . . [s]o, the failure to raise the
       question, or to raise it properly, in the trial court operates as a waiver of the right,
       as does a failure to enter the plea.

State v. Carroll, 150 W.Va. 765, 769, 149 S.E.2d 309, 312 (1966). Accordingly, we find no error
below.

       For the foregoing reasons, we hereby affirm the circuit court’s October 11, 2016.


                                                                                            Affirmed.

ISSUED: October 23, 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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