By Katie Kuba
Senior Staff Writer
Randolph County Circuit Court Judge Jaymie Godwin Wilfong denied a motion Thursday to suppress evidence in the case of an Elkins man who was arrested in June after police allegedly found 7 pounds of marijuana in his van.
Wilfong ruled that a traffic stop and search that preceded the arrest of Kenneth Wayne Hatfield, 59, of Elkins, was legal during a suppression hearing in Randolph County Circuit Court.
Hatfield was charged June 21, 2012, with possession of marijuana with intent to deliver, a felony, and his bond was initially set at $250,000, cash only. However, in July, Randolph County Magistrate George M. Riggleman modified Hatfield's bond to $100,000, with $75,000 being cash, property or surety and $25,000 being personal recognizance, and Hatfield was subsequently released.
On Thursday, Hatfield's attorney, Matthew Fair, asked that media be excluded from the suppression hearing due to his concern that newspaper and television coverage would bias potential jurors should the case go to trial.
Wilfong denied the motion.
"I think we can eliminate that problem during jury selection by asking the jurors if they've read anything or know anything about the case," the judge said.
Randolph County Prosecuting Attorney Michael Parker called Cpl. G.S. DeWeese with the Elkins detachment of the West Virginia State Police, and the investigating officer in the case, as his first witness.
DeWeese testified that he'd pulled Hatfield over for failure to use his turn signal prior to making a righthand turn. When DeWeese approached the vehicle, he smelled a strong odor of marijuana, observed a shotglass with a decal of a marijuana leaf on it on the van's dashboard and noticed that Hatfield appeared nervous.
"Of course, it was summertime, but he began to sweat," DeWeese said. Hatfield told DeWeese that there was no marijuana in his van, and would not consent to a search of his vehicle, the officer testified. DeWeese said he then employed K-9 Officer Servo, who indicated that drugs were present in the van by sitting down about a foot away from the spot where they were stored - directly behind the driver's seat.
"I then conducted a search of the vehicle and found a set of seven individual bundles of marijuana, a pound each," DeWeese testified. "One had been busted open."
During cross-examination, Fair suggested that DeWeese was specifically targeting Hatfield.
"There was no erratic driving or speeding to draw your attention to the vehicle?" Fair asked.
"No," DeWeese replied. The attorney then noted that DeWeese had failed to include any information about a marijuana odor in the criminal complaint and didn't actually issue Hatfield a warning for not using his turn signal.
"And you didn't get a search warrant," Fair said. "This complaint looks like you got a tip."
"Not a direct tip," DeWeese said, "but other officers say, 'You might want to watch this house, or that area.'"
Fair said it seemed as if DeWeese had searched the van simply because of the presence of a shotglass with a marijuana leaf imprinted on it.
"There were criminal indicators," DeWeese said. "The shotglass and the odor of marijuana, so I got the dog and the dog indicated for the presence of marijuana."
Hatfield opted to testify on behalf of himself and vehemently denied failing to use his turn signal.
"I turned my turn signal on because there was a police officer behind me," Hatfield said.
"Are you sure?" Fair asked.
"I'm positive - I knew a police officer was back there... I didn't want to get stopped at all," Hatfield said.
Hatfield said DeWeese approached his van, saw the shotglass and asked him if he was a "pothead." On the witness stand, Hatfield removed a similar shotglass from his pocket and Fair asked that it be admitted into evidence as a defense exhibit.
"He said, 'do you smoke pot, are you a pothead?'" Hatfield said of DeWeese. "And I said, 'no sir, I do not ... he said 'can I search your car?' and I said, 'no you do not have permission to search my car.'
"He never said anything about the odor," Hatfield added.
During cross-examination, Parker asked Hatfield if it was possible that his turn signals were not functional, but Hatfield said he "checks all the time" to make sure his turn signals are working.
"I checked two to three hours before, I checked seven to eight hours before (DeWeese pulled me over)," Hatfield said. Hatfield admitted that he'd lied when DeWeese asked him if there was any marijuana in the van.
In his closing argument, Parker said that Hatfield had incentive and reason to testify dishonestly in court, whereas DeWeese did not; he asked Wilfong to deny the motion to suppress the evidence seized during the traffic stop.
Fair countered that DeWeese had prior knowledge of the house in which Hatfield lived.
"Mr. Hatfield was in their sights," DeWeese said of the state police. "It was a pretextual situation. And the officer testified today that he came up to the van and smelled marijuana and significantly, that was not in the complaint. You have to have reasonable, articulable suspicion to do a search - which entails more than a mere shotglass with a marijuana leaf."
Wilfong denied Fair's motion.
"I do have to consider that (Hatfield) admitted that he gave false information to the officer (DeWeese) today and that weighs significantly on his credibility," she said, adding that Hatfield had reason and incentive to testify falsely. "Based on the evidence and totality of the circumstances, the officer had reasonable suspicion to search the vehicle, and the search was legal. The motion to suppress the stop and search is denied."
"I will add for the record that we had Mr. Hatfield drug tested prior to today's hearing due to the odor of marijuana about his body, and he passed," Wilfong said, "but as one of my probation officers indicated, if his coat was drug tested, it would fail."
Contact Katie Kuba by email at firstname.lastname@example.org.