State v. Bookheimer

656 S.E.2d 471, 221 W. Va. 720, 2007 W. Va. LEXIS 88
CourtWest Virginia Supreme Court
DecidedNovember 8, 2007
DocketNos. 33289, 33290
StatusPublished
Cited by19 cases

This text of 656 S.E.2d 471 (State v. Bookheimer) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bookheimer, 656 S.E.2d 471, 221 W. Va. 720, 2007 W. Va. LEXIS 88 (W. Va. 2007).

Opinions

PER CURIAM.

The appellants, Kenneth Bookheimer and Jessica Marie Tingler (hereinafter “appellants” collectively, or “Mr. Bookheimer” and “Ms. Tingler” individually), appeal from separate sentencing orders entered May 11, 2006, by the Circuit Court of Braxton County. In those orders, the circuit court sentenced each of the appellants to one to five years’ imprisonment on a charge of conspiracy and to two to ten years’ imprisonment on a charge of operating a clandestine drug laboratory, both sentences to be served consecutively. On appeal, the appellants assert three common assignments of error, and Ms. Tingler asserts one additional assignment of error.1 Based upon the parties’ arguments, the record designated for our consideration, and the pertinent authorities, we determine that the circuit court erred by allowing the introduction of evidence seized as a result of an illegal search and seizure.2 Thus, the circuit court’s denial of the motion to sup[724]*724press is reversed, and the subsequent convictions are vacated. Both cases are remanded for a new trial consistent with this Opinion.

I.

FACTUAL AND PROCEDURAL HISTORY

Jessica Marie Tingler lived in Braxton County, West Virginia. Kenneth Bookheimer lived with Ms. Tingler at her rented residence. On February 9, 2005, Braxton County 911 received an anonymous call of a domestic dispute involving gunshots and yelling and screaming at Ms. Tingler’s residence. Two deputies were dispatched to the scene.3 When they arrived, they saw Ms. Tingler appear from the side of the trailer. Her behavior was described as hysterical, and it was reported that she was yelling and screaming. When questioned by the deputies, Ms. Tingler denied any domestic dispute. Further, she told the police they were not needed, were not wanted, and to leave. When questioned as to Mr. Book-heimer’s location, Ms. Tingler told the police that he was inside the residence.

One of the officers opened the front door and identified himself. Mr. Bookheimer responded that he was in the bathroom and would be out once he was finished.'4 The officers proceeded to the bathroom door. Upon reaching the bathroom door, the officers noted materials normally used in the manufacture of methamphetamine in plain view in the nearby bedroom. The deputies procured Mr. Bookheimer and removed him from the residence. The officers asked for consent to search, which was denied. Both Ms. Tingler and Mr. Bookheimer were de-tamed outside the trailer, while one of the officers went to the magistrate court to obtain a search warrant. The basis of the search warrant was to search and obtain evidence showing the operation of a clandestine drug laboratory. Upon execution of the warrant, the officers obtained various materials, all allegedly used in' the manufacture of methamphetamine.

Both Ms. Tingler and Mr. Bookheimer were indicted for operation of a clandestine drug laboratory and conspiracy. A suppression hearing was held on November 28, 2005, at which the appellants argued that the search was illegal and that all materials found therefrom should be suppressed. The circuit court denied the motion to suppress on the basis that exigent circumstances existed. Specifically, the order by the circuit court entered December 5, 2005, found as follows:

4. The defendant Jessica Tingler was found outside the residence in what the officers described as an agitated state when they arrived.
5. The defendant Jessica Tingler did not give the officers consent to enter or search the residence and in fact objected to a search and denied that any incident of domestic violence had taken place.
6. The officers were aware the residence was shared by the defendant Kenneth Bookheimer, and they did not know if he had been injured in the reported incident of domestic violence or if he was in the residence with a weapon.
7. That exigent and emergency circumstances existed in that the defendant Kenneth Bookheimer could have presented a [725]*725danger to the officers or others if he had been inside the residence with a weapon.
8. That exigent and emergency circumstances existed in that the defendant Kenneth Bookheimer could have been inside the residence injured based upon the report of domestic violence with a weapon being discharged and the agitated state in which the officers found the defendant Jessica Tingler.
9. The officers had a right to enter the residence based on the said exigent and emergency circumstances to determine if the defendant Kenneth Bookheimer was present and armed with a weapon or injured.
10. The officers found what they believed to be evidence of a clandestine methamphetamine laboratory in plain view when they entered the residence in search of the defendant Kenneth Bookheimer.
12. The defendant Kenneth Bookheimer did not give the officers consent to search the residence and in fact objected to a search.
14. A search warrant for the defendants’ residence was properly issued by [the magistrate court].
15. The evidence sought to be suppressed was seized under the search warrant.

(Footnote added).

The case proceeded to a joint trial. Ms. Tingler and Mr. Bookheimer were found guilty of all charges and were sentenced to one to five years’ imprisonment on the conspiracy charge and to two to ten years’ imprisonment on the clandestine drug laboratory charge, with both sentences to be served consecutively. They appeal their convictions and sentencing to this Court.

II.

STANDARD OF REVIEW

The crucial issue before this Court relates to the circuit court’s denial of a motion to suppress evidence. We have previously explained in Syllabus point one of State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996), as follows:

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.

Further,

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.

Syl. pt. 2, Lacy, id. We have also explained that “we review de novo

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Bluebook (online)
656 S.E.2d 471, 221 W. Va. 720, 2007 W. Va. LEXIS 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bookheimer-wva-2007.