State v. Pennington, 21-0396
| Court | Supreme Court of West Virginia |
| Parties | STATE OF WEST VIRGINIA, Respondent, v. TRACY PENNINGTON, Petitioner. |
| Docket Number | 21-0396 |
| Decision Date | 14 November 2022 |
STATE OF WEST VIRGINIA, Respondent,
v.
TRACY PENNINGTON, Petitioner.
No. 21-0396
Supreme Court of Appeals of West Virginia
November 14, 2022
Submitted: September 27, 2022
Appeal from the Circuit Court of Jackson County The Honorable Lora A. Dyer Judge Criminal Action No. 19-F-83
Roger L. Lambert, Esq. Hurricane, West Virginia Counsel for Petitioner
Patrick Morrisey, Esq. Attorney General Katherine M. Smith, Esq. Assistant Attorney General Charleston, West Virginia Counsel for Respondent
CHIEF JUSTICE HUTCHISON delivered the Opinion of the Court. JUSTICE WOOTON dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
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." Syl. Pt. 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. . . . 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, in part, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).
3. Law enforcement executing a valid arrest warrant may lawfully enter a residence if they have reason to believe that the subject of the warrant lives there and is presently within. Reason to believe requires less proof than probable cause and is established by evaluating the totality of the circumstances.
HUTCHISON, CHIEF JUSTICE
Petitioner Tracy Pennington entered a conditional guilty plea to one count of child concealment following the Circuit Court of Jackson County's denial of her motion to suppress evidence that her minor child, who had been adjudicated as a status offender for truancy and placed in a temporary guardianship with her grandparents in a neighboring county, was discovered by law enforcement in petitioner's home after absconding from her grandparents' supervision five months earlier. At issue in this appeal is whether the officers' entry into the residence for the exclusive purpose of executing a lawful juvenile "pick-up" order violated petitioner's constitutional right against unreasonable search and seizure such that the evidence obtained as a result of the search of the residence should have been suppressed.
Upon review of the parties' briefs, appendix record, oral argument, and applicable legal authority, and for the reasons stated below, we find no error and affirm the circuit court's decision to deny petitioner's motion to suppress.
I. Factual and Procedural Background
Juvenile S.W. was adjudicated as a status offender for truancy on July 30, 2018. By order entered November 5, 2018, it was agreed that, as a lesser restrictive alternative to out-of-home placement, S.W. would be placed with her paternal grandparents, as temporary guardians, in Kanawha County, West Virginia, where she would attend school. Petitioner's parental rights to S.W. remained intact. After being
placed with her grandparents, on December 7, 2018, S.W. left their residence, without permission, and was no longer attending school.
By order entered January 11, 2019, upon consideration of the State's motion and verified petition that S.W., who was then sixteen years old, was an "active runaway, whose current whereabouts are unknown[,]" the circuit court determined that there was probable cause to believe that S.W.'s health, safety, and welfare demanded that she be taken into custody, in accordance with West Virginia Code § 49-4-705(a)(2)[1], and it ordered that she be taken into custody forthwith and placed in the State's custody for placement in a staff-secured facility pending further hearings. This order is commonly referred to as a "pick-up" order.
Until she was temporarily removed from petitioner's custody in November 2018, S.W. resided with petitioner and G.W., S.W.'s father, in petitioner's apartment on Klondyke Street in Ripley, West Virginia. After S.W. absconded from her grandparents' home in December, Department of Health and Human Resources (DHHR) worker Carey
Blackhurst spoke with petitioner and G.W. by phone and, on several occasions, attempted to locate S.W. by going to petitioner's apartment. Also on occasion, DHHR workers received tips that S.W. had been seen at petitioner's apartment or at her maternal grandparents' house, which was located nearby. Ms. Blackhurst's efforts to locate S.W. were unsuccessful. Law enforcement's repeated efforts to locate S.W. at petitioner's apartment were equally unavailing.
On May 16, 2019, by which time S.W. had been missing for more than five months, Jackson County Sheriff's Deputy Ben DeWees was advised by his superior, Chief Deputy R. H. Mellinger, that, at approximately 8:30 p.m., he received a tip from a woman who not only saw S.W. at petitioner's apartment, but who was also informed by petitioner that she intended "to keep [S.W.] hidden until she was 18, so all this juvenile stuff would go away." Chief Deputy Mellinger advised Deputy DeWees that his source concerning S.W.'s whereabouts was credible. Upon receiving this information from his superior, and with the knowledge that S.W. was the subject of a "pick-up" order, Deputy DeWees contacted the Jackson County Prosecuting Attorney to determine whether a search warrant was also required to enter petitioner's apartment in order to execute the "pick-up" order. According to Deputy DeWees, Prosecuting Attorney Katie Franklin advised him that a search warrant was not required. Deputy DeWees also contacted two other law enforcement officers, West Virginia State Troopers M.P. Fannin and J.M. Comer, whom he knew had been to petitioner's apartment earlier in the evening in an unsuccessful attempt to speak with petitioner on an unrelated criminal matter. The officers returned to petitioner's apartment and joined Deputy DeWees as he knocked on the door. Although
footsteps could be heard from inside the apartment, no one answered the door. After explaining the purpose of their visit to petitioner's landlord, who lived next door, Deputy DeWees obtained a key to the apartment.
Using the key, the officers entered the apartment and encountered petitioner and G.W. lying on the bed in one of the bedrooms.[2] Petitioner and G.W. denied that S.W. was in the apartment. The officers eventually proceeded to the second bedroom, where they found S.W. hiding inside a hollowed-out chest of drawers that had been placed against the wall. The officers took S.W. into custody pursuant to the pick-up order. Deputy DeWees also arrested both petitioner and G.W. for "child concealment," in violation of West Virginia Code § 61-2-14d[3], because of "[t]he way [S.W.] was hidden in the room." Petitioner and G.W. were subsequently indicted on felony charges of "child concealment" and conspiracy to commit that offense, in violation of West Virginia Code § 61-10-31.[4]
On August 20, 2019, petitioner filed a motion to suppress "any and all evidence obtained as a result of the illegal, warrantless search of [petitioner's] home" - i.e., evidence that S.W. was concealed in the home. A suppression hearing was conducted on May 18, 2020, at which Ms. Blackhurst, the DHHR caseworker, and Deputy DeWees testified consistently with the facts as set forth above. Deputy DeWees clarified that the sole purpose for entering petitioner's apartment was to execute the "pick-up" order for S.W. out of concern for her because "[w]e didn't know where she was"; that he did not intend to charge petitioner with a crime in the event S.W. was found in the home; but that petitioner and G.W. were ultimately arrested because of "[t]he way [S.W.] was hidden in the room." By order entered on August 6, 2020, the circuit court denied petitioner's motion.
Petitioner thereafter entered into a plea agreement pursuant to which she pled guilty to the offense of "child concealment"; the State agreed to dismiss the count of conspiracy. [5] Under the terms of the plea agreement, petitioner retained the right to appeal any prior pretrial evidentiary rulings of the circuit court. She was sentenced to a period of
incarceration of one to five years, with such sentence being suspended, and was placed on probation for a period of four years. This appeal followed.
II. Standard of Review
The issue on appeal is whether the circuit court erred in denying petitioner's motion to suppress the evidence obtained as a result of the search of her home.
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.
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...
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