United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge
the evidentiary hearing held on September 11 and 12, 2017, on
the defendant's Motion to Suppress, the court makes the
following findings of fact by a preponderance of the
evidence, as well as the conclusions of law that follow.
Findings of Fact
November 17, 2016, and for years before as well as now,
Russell Atkinson has held a Highway Route Contract
(“HRC”) with the United States Postal Service.
The defendant, Richard Thomas Morris, Jr., is his son-in-law
who along with his family resides with him. The defendant has
served from time to time as the unpaid driver for the route
assigned to Mr. Atkinson. Recently, he has been the regular
driver six days each week.
route includes the link from Ravenswood to Belleville, West
Virginia, which was traversed by the defendant on a daily
basis, leaving the Ravenswood post office at about 2:00 p.m.
after picking up the mail there, and arriving at the post
office in Belleville, approximately 14.7 miles away, as part
of a tight schedule that assured timely pickup and delivery.
In recent months prior to November 17, 2016, the post office
received persistent customer complaints about delivery
failures related to the 2:00 p.m. link from Ravenswood to
complaints prompted the postal authorities to include, in the
batch of mail picked up at the 2:00 p.m. departure from
Ravenswood, eight “test pieces” of mail, one on
each of eight occasions. The eight pieces consisted of rather
obvious greeting cards mail containing an enclosure of
monetary value. The eight test pieces that were placed in the
batches of mail delivered by the defendant out of Ravenswood
were not seen to have been tampered with but the eighth, on
August 29, 2016, was not delivered to the addressee.
ninth test piece was inserted by the postal authorities in
the batch of mail that the defendant picked up in an orange
tub at Ravenswood at about 2:00 p.m. on November 17, 2016. It
was placed on top where it would be immediately seen. It
contained a credit card-sized beacon transmitter that emitted
a steady beep once every four or five seconds, referred to as
the confidential sound. The beep could be detected by
portable radio on a FM frequency. If the envelope containing
the test piece were opened or if the test piece were bent,
the confidential sound of a beep every four or five seconds
became an alert sound that emitted a beep once per second.
postal officers, in three cars, followed the defendant on
that day to Belleville. One car was driven by Inspector
Melissa Maria Belmont. Another was driven by Special Agent
Todd Phillips. The third was driven by Inspector Seth
Summers, with Inspector Joshua Mehall as his passenger.
Route 68 trip to Belleville, the defendant drove on the
two-lane open road at speeds in excess of 70 miles per hour
despite the 55 mile per hour limit. In view of the winding
and curving nature of much of that stretch of highway, the
postal officers' vehicles were unable to keep up with the
defendant. As a consequence, the defendant got out of range
of the confidential sound initially received by the pursuing
officers. It did not matter that the confidential sound was
temporarily lost or that the defendant's vehicle got out
of sight. The postal officers knew that defendant was bound
for the Belleville post office and that they would find him
there with or without the benefit of the beacon transmitter.
Consequently, they were, in effect, able to maintain visual
surveillance throughout without the aid of the transmitter.
half way along the way, the defendant pulled his vehicle over
to the side of the road and, just as Inspector Belmont in the
lead car passed him, he was seen walking quickly to the rear
of the truck. By the time Agent Phillips reached the
defendant's stopped vehicle, he observed the defendant in
the back of the truck, with the back door open, bending over
the mail in the orange tub. As Agent Phillips passed the
stopped vehicle, his radio picked up the alert sound
indicating that the test piece greeting card had been opened.
All three cars proceeded on to Belleville, but before
arriving at the Belleville post office they allowed the
defendant to reach that point first. Agent Phillips did so by
stopping at a parking lot near the post office where his
radio still received the alert tone.
defendant backed his truck into the loading dock at the rear
of the post office. At that point, Inspector Summers,
followed immediately by Agent Phillips, arrived and parked
their vehicles to the right of the post office. Inspector
Summers parked on the gravel driveway access leading to the
rear of the post office with his vehicle located closest to
the post office, with half of it on the grassy edge and half
on the gravel area. Agent Phillips parked on the opposite
side of the gravel driveway, on the grassy area to the right,
and adjacent to the driveway. When Inspector Belmont arrived
about three minutes later at approximately 2:36 p.m., she
parked in line with the Summers vehicle.
Inspector Summers arrived, he received the alert sound on his
portable radio. He immediately engaged the defendant, who was
standing by the driver's side of the truck. He informed
the defendant that the officers were investigating complaints
of stolen mail, and advised the defendant that he wished to
talk to him. The defendant, who had left the engine running
in his truck, was at the same time advised that he was free
to leave and was not under arrest. After Inspector Summers
had some conversation with the defendant, Inspector Belmont
arrived just as Inspector Summers was asking the defendant
for consent to search the rear of the truck. The defendant
gave his consent, as heard both by Summers and Mehall.
Inspector Summers informed Inspector Belmont that he had
received defendant's consent to search the back of the
truck. He did so in the presence of the defendant and
Inspector Mehall at which time he also informed Inspector
Belmont that he had let the defendant know that he was not
under arrest and that he was free to leave. Inspector Summers
then went into the rear of the truck and within a minute or
two found the opened test piece of mail that had been
emitting the alert sound.
examining the mail for a few minutes, Inspector Summers asked
the defendant for his consent to search the cab, which
consent the defendant also gave. Upon examining the cab,
Inspector Summers found attached to the visor a second opened
piece of mail that consisted of a greeting card from Mark
Price to Jacob Cox. The greeting card had been deposited at
the Ravenswood post office at about 1:30 p.m. that day.
the search was taking place, Inspector Belmont interviewed
the defendant who at the outset admitted to nothing. The
defendant initially denied opening the test piece. As the
interview progressed, he gradually came to admit a limited
role in the thefts, vacillating from time to time. The
interview of the defendant would have commenced at about 2:45
p.m. and continued for about 50 minutes until the defendant
asked to be permitted to write out a statement, which he was
allowed to do. For this purpose, he went to the cab of his
truck at 3:41 p.m. and returned at 3:53 p.m. with the
handwritten statement that has been admitted into evidence.
In that statement, he admitted that he did “knowingly
take stuff that did not belong” to him and added,
“I took gift card and got money out of them to pay
bills . . .” He expressed sorrow for what he had done
and concluded by saying, “I told the truth to
Investigators to the best of my nollage [sic].” During
the time that the postal officers were with the defendant, he
was told by Inspector Summers at the very outset that he was
not under arrest and that he was free to leave. When