State v. Fleece

• Decision Date: 12 October 2018
• Docket Number: No. 17-0981,17-0981
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Brandon E. Fleece, Defendant Below, Petitioner
• Court: West Virginia Supreme Court

State of West Virginia, Plaintiff Below, Respondent v. Brandon E. Fleece, Defendant Below, Petitioner

No. 17-0981

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

October 12, 2018

(Morgan County CC-33-2017-F-8)

MEMORANDUM DECISION

Petitioner Brandon E. Fleece, by counsel Eric S. Black, appeals the Circuit Court of Morgan County's October 17, 2017, sentencing order. Respondent State of West Virginia, by counsel Julianne Wisman, filed a response. On appeal, petitioner contends that the circuit court erred in denying his motion to suppress incriminating statements given by him and the evidence seized from his residence.

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 October 28, 2016, Trooper Sam Smith initiated a traffic stop after he observed petitioner following another vehicle too closely and that petitioner's car did not have a visible inspection sticker. After Trooper Smith pulled petitioner over, petitioner, with whom Trooper Smith was familiar due to prior interactions, informed the officer that he did not have a driver's license because it had been suspended. Petitioner also volunteered that the vehicle registration did not belong to the vehicle in which he was driving, and that he was coming from his home and only intended to deliver cookies to his niece and nephew. Trooper Smith noted the odor of marijuana, but did not then inform petitioner that he noticed this odor. Once Trooper Smith returned to his vehicle to "run [petitioner's] information[,]" he also radioed another officer, Trooper Jeremy McDonald, for assistance.

When Trooper McDonald arrived at the scene, petitioner was seated in the front passenger seat of Trooper Smith's cruiser. Trooper Smith had requested that petitioner join him in his cruiser to "separate [himself] from any type of pursuit liability."¹ After Trooper Smith patted petitioner for weapons, petitioner sat in the front passenger seat of the cruiser withouthandcuffs. Trooper McDonald was asked to retrieve petitioner's car title from petitioner's vehicle. Like Trooper Smith, Trooper McDonald noted the "strong odor of marijuana, extremely strong" when he was in petitioner's vehicle. Trooper Smith told Trooper McDonald he intended to get a search warrant for petitioner's residence, and he sent Trooper McDonald to petitioner's home to secure it and await the search warrant.

Meanwhile, Trooper Smith and petitioner made small talk while Trooper Smith completed his paperwork. During their conversation Trooper Smith told petitioner that he had information that petitioner was selling marijuana out of his home and asked petitioner if he had marijuana in the vehicle. Petitioner denied having marijuana in his vehicle and said only that he intended to deliver cookies to his niece and nephew. Seeing the cookies in the back seat of petitioner's vehicle and noting the strong odor of marijuana, Trooper Smith concluded that the cookies were "marijuana cookies." Trooper Smith informed petitioner that if he did not have marijuana in his vehicle, it must be in his home. Petitioner admitted to selling marijuana in the past and smoking it at his home. Trooper Smith then placed petitioner in custody to travel to the detachment and prepare a search warrant for petitioner's home. Petitioner made no additional incriminating statements.

Ultimately, Trooper Smith received and, along with Trooper McDonald, executed a search warrant at petitioner's residence. The officers recovered three gallon-size bags of marijuana, numerous oxycodone pills, paraphernalia, cookie dough, and other contraband. As a result of these events, petitioner was indicted in January of 2017 for one count of possession with intent to deliver marijuana, one count of possession with intent to deliver oxycodone, one count of driving with a suspended license, one count of driving without insurance, one count of improper use of registration, one count of following too closely, and one count of driving without a motor vehicle inspection.

Following his indictment, petitioner moved to suppress any statements elicited by Trooper Smith during the traffic stop and petitioner's subsequent arrest. Petitioner acknowledged that he made incriminating statements concerning his sale and use of marijuana, but he argued that the statements were made without having been informed of his Miranda rights.² Petitioner also sought to suppress the evidence seized from his residence. Trooper Smith's affidavit for the search warrant cited petitioner's statements as providing probable cause for the issuance of the warrant. Petitioner argued that because these statements were, according to him, illegally obtained, they could not be used to establish probable cause for the search warrant.

At the hearing on petitioner's motion to suppress, Trooper Smith testified concerning the traffic stop. In addition to recounting the details of the stop set forth above, Trooper Smith testified that one of his confidential informants had told him that petitioner was "selling large quantities of marijuana out of his residence." This information, coupled with the smell of marijuana emanating from petitioner's car, caused Trooper Smith to request "cover" from Trooper McDonald, and he determined that the particular stop would be a drug interdiction stop.

Trooper Smith further testified,

[t]hrough the traffic stop it was found that in fact [petitioner's driver's license] was suspended. The tags on the vehicle were improper. He didn't have an inspection sticker and didn't have an insurance certificate with him all of this was enforcement action. As an interdiction officer we take the time to bring that person back to the vehicle. He's not in custody. [Petitioner] would not have been free to leave at that point under the circumstances of the traffic stop but he wasn't under arrest it was simply for my enforcement action. As he sat beside me I began to make small talk with [petitioner], advised him that I had information that in fact he was selling marijuana out of his house, and so forth[.]

Trooper Smith explained that petitioner would not be permitted to drive the vehicle home on account of his suspended driver's license, and that petitioner was aware that the vehicle needed to be towed, but Trooper Smith clarified that petitioner was "free" in his cruiser without handcuffs and that petitioner knew he was not in custody. The trooper further testified that petitioner remained in his cruiser for approximately seven to ten minutes, and twenty to thirty minutes elapsed between the time he initially stopped petitioner and his eventual arrest. Finally, Trooper Smith testified that he advised petitioner of his rights under Miranda once he was arrested and placed in custody.

On July 5, 2017, the circuit court denied petitioner's motion to suppress. The court concluded that petitioner was not in custody when he spoke with Trooper Smith in the cruiser and that probable cause existed for issuance of the search warrant. Thereafter, the parties entered into a conditional plea agreement. Petitioner agreed to plead no contest to the possession with intent to deliver marijuana count, but he retained the right to appeal the circuit court's ruling on his motion to suppress.

The parties appeared for sentencing on October 3, 2017. The circuit court sentenced petitioner to an indeterminate term of not less than one year nor more than five years of incarceration; however, the circuit court suspended this sentence and imposed five years of supervised probation with a special term and condition that petitioner complete fifty hours of community service. Petitioner's sentence was memorialized in the circuit court's October 17, 2017, sentencing order, and it is from this order that petitioner appeals.

On appeal, petitioner asserts that he was in custody when he was in the cruiser and made incriminating statements, but that he was not provided with Miranda warnings prior to being placed in the cruiser. Petitioner argues that the traffic stop "quickly escalated into an accusatory, custodial environment," and a reasonable person would have considered his freedom of movement restrained as though formally arrested. Petitioner states that this "constructive custody" necessitated Miranda warnings, and, because he was not provided with these warnings, his incriminating statements should have been suppressed.

Additionally, because the search warrant for his residence was predicated, in part, on his allegedly improperly obtained incriminating statements, petitioner argues that the evidence seized from his home should have likewise been suppressed. Petitioner contends that without theincriminating statements, there was insufficient probable cause for issuance of the search warrant.

Petitioner also takes issue with Trooper Smith's statement in the affidavit that "TFC Smith, having used several informants, prior to this date, has attempted to make...