United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr., United States District Judge
is the Motion for Summary Judgment (“Motion”),
filed July 31, 2017, by J.D. Perry, R.S. Minor, J.R. Powers,
L.G. O'Brian,  and S.W. Perdue (collectively
close of briefing, the only defendants in issue remaining in
the action are J.D. Perry, R.S. Minor, and J.R. Powers; and
the only Count of the four-count complaint remaining in issue
is Count I alleging an unreasonable search and seizure by
these three defendants of the plaintiff's home on May 13,
Sara and Robert Carpenter are a married couple who, at the
time of the events leading to this suit, resided at 172
Jarrett Heights Road in Elkview, West Virginia. Living with
them was Ms. Carpenter's then
sixteen-year-olddaughter, Lydia Jarrett, and the
couple's then four-year-old son, P.C.
night of May 1, 2014, Lydia ran away from home following an
argument with her mother about spending time with her
boyfriend after school. Compl. ¶ 11; S. Carpenter Dep.
at 88. Ms. Carpenter contacted the West Virginia State Police
(“State Police”) to report her daughter as
missing. Compl. ¶ 12; Defs.' Mem. Mot. Summ. J. at
3; S. Carpenter Dep. at 115-16. Trooper Stepp responded to
Ms. Carpenter's report and located Lydia at the home of
her paternal grandfather, Chris Jarrett. Compl. ¶ 12;
Defs.' Mem. at 3; L. Jarrett Dep. at 8. Trooper Stepp
returned Lydia to the Carpenters' home on May 2, 2014
around 3:00-4:00am. S. Carpenter Dep. at 141. Trooper Stepp
told Ms. Carpenter that Lydia had been picked up by the
Elkview Sheriff's department from the side of a road with
a backpack. S. Carpenter Dep. at 139. Trooper Stepp later
stated that Mr. Jarrett had directed him to lie to Ms.
Carpenter about where Lydia was located. Compl. ¶ 38; S.
Carpenter Dep. at 139-40. Later that same morning, Lydia went
to school as usual, but Mr. Jarrett removed her from school
in the middle of the day without notifying the Carpenters.
Compl. ¶ 15; Defs.' Mem. Mot. Summ. J. at 3; S.
Carpenter Dep. at 142.
morning of May 2, 2014, Mr. Jarrett had filed a Domestic
Violence Petition (“DVP”) in the Magistrate Court
of Kanawha County, and it had been granted on a temporary
basis with a hearing scheduled for May 14, 2014. See Compl.
¶¶ 15-16. As the basis for the DVP, Mr. Jarrett
[Sara Carpenter] has acted violently toward [Lydia Jarrett],
destructive to the furnishing [sic]. [Sara Carpenter] is a
heavy drinker uses illegal drugs as well as prescription
drugs. Known drug dealer visits the residence frequently.
Drugs are used and kept at the residence. [Lydia Jarrett]
wants out of this environment and fears for herself as well
as her 4 year old stepbrother.
DVP at 6. He further reported to the court that when Trooper
Stepp took Lydia home on the morning of May 2, “the
child did not want to go back home and broke down in tears
and was very upset.” Id. at Continuation
Sheet. On May 6, 2014, Mr. Jarrett filed a Petition for
Appointment of Guardian. Defs.' Mem. Mot. Summ. J. at 4.
13, 2014, defendant Sergeant J.D. Perry, a trooper with the
State Police stationed at the Quincy detachment, received
information from his uncle, Mr. Jarrett, regarding possible
child neglect and endangerment, and drug use and trafficking
in the Carpenter home. Compl. ¶ 20; Written Report of
Trooper First Class Perdue, Ex. L Defs.' Mot. Summ. J. at
1 (“Rep. Perdue”). Mr. Jarrett showed his nephew,
Sergeant Perry, several photos that he received from Lydia
and her boyfriend, A.J. Tignor, depicting apparent marijuana
and marijuana paraphernalia in the Carpenter
home. See Defs.' Mem. Mot. Summ. J. at
4-5; S. Carpenter Dep. at 22-38, 72, 82; Rep. Perdue at 1.
One picture allegedly shows P.C. standing next to a table
upon which a bong sits. Ex. 1 Defs.' Mot. Summ. J. The
next two pictures purport to show Ms. Carpenter sitting at a
table and looking at and handling two mason jars filled with
possible marijuana. Exs. 2-3 Defs.' Mot. Summ. J. The
fourth picture is a closer shot of a mason jar filled with
possible marijuana next to what may be the same bong depicted
in the first photo. Ex. 4 Defs.' Mot. Summ. J. The next
photo shows Ms. Carpenter standing next to an overturned
table. Ex. 5A Defs.' Mot. Summ. J. The
remaining pictures allegedly show various close up shots of
cigarettes, marijuana pipes, jars filled with marijuana, and
bags filled with marijuana in the Carpenter home. Exs. 5B-5M
Defs.' Mot. Summ. J.
Perry was further informed that Mr. Carpenter was a
registered sex offender. Compl. ¶ 21; Rep. Perdue at 1.
Mr. Carpenter pled guilty to charges of statutory rape for
having sex with a fifteen-year-old female sixty-six times
when he was thirty-six years old. Defs.' Mem. Mot. Summ.
J. at 7; Compl. ¶ 22; R. Carpenter Dep. at 18. At no
time relevant to this case was Mr. Carpenter on probation,
parole, or supervised release. Compl. ¶ 28. As a
registered sex offender, Mr. Carpenter must re-register
yearly in the month of his birth with the State Police
detachment responsible for his county. W.Va. Code §
15-12-10; Compl. ¶¶ 22-23. “All registrants .
. . must respond to all verification inquiries and
informational requests . . . . The State Police shall verify
addresses . . . of registered persons once a year.”
W.Va. Code § 15-12-10. Mr. Carpenter's birthday is
May 4th, and he had recently made his yearly registration
when Sergeant Perry learned of his status. Compl. ¶ 22;
Defs.' Mem. Mot. Summ. J. at 7.
Perry contacted Corporal Abbess of the South Charleston
detachment to inquire about the verification of Mr.
Carpenter's registration. Compl. ¶ 21; Rep. Perdue
at 1. Corporal Abbess informed Sergeant Perry that Mr.
Carpenter had not yet been verified by the South Charleston
detachment as of May 13, 2014. Compl. ¶ 24; Rep. Perdue
Perry then contacted Troopers Powers and Minor and directed
them to “conduct a verification of the residence and
offender registration to determine the validity of [Mr.
Carpenter's] registration information and any immediate
danger to the four year old child who remained in the
residence.” Rep. Perdue at 1; Compl. ¶ 26-27. The
Troopers were instructed to “be mindful of any
contraband that may be in plain view.” Written Report
of Investigation or Inquiry prepared by First Lieutenant
LaFauci, Ex. A Pls.' Resp. Defs.' Mot. Summ. J. at 10
(“Rep. LaFauci”). Both Powers and Minor were
shown the photos provided to Sergeant Perry by Mr. Jarrett.
Rep. Perdue at 1. Sergeant Perry further instructed Powers
and Minor to “only do a sex offender verification and
if anything further was located in the residence to secure
the occupants and obtain a search warrant.” Rep. Perdue
at 1; Compl. ¶ 27.
10:30pm on May 13, 2014, Troopers Powers and Minor and two
“ride-a-long subjects” arrived at the Carpenter
home at 172 Jarrett Heights Road. See Compl. ¶ 29; Rep.
Perdue at 1; S. Carpenter Dep. at 158-59, 163. Present in the
home at that time were Robert Carpenter; Sara Carpenter;
Robert “Pierce” Carpenter, Mr. Carpenter's
adult son from a previous relationship; Steven Carpenter, the
Carpenters' nephew; and P.C. S. Carpenter Dep. at 164-65,
173-74; Pls.' Resp. Mot. Summ. J. at 5, 6 n.3. Pierce
Carpenter answered the door and Troopers Powers and Minor
asked him if he was Robert Carpenter. Compl. ¶ 30;
Pls.' Resp. Mot. Summ. J. at 6. Pierce answered
affirmatively,  and the officers grabbed him by the
shoulder and led him to the kitchen. Compl. ¶ 30;
Pls.' Resp. Mot. Summ. J. at 6; S. Carpenter Dep. at 173.
Pierce Carpenter stated that the State Police “shoved
him against the wall and barged into the residence, ”
while Troopers Powers and Minor asserted that they had been
“invited . . . into the residence.” Rep. LaFauci
Carpenter and P.C. were upstairs at the time Troopers Powers
and Minor and the two “ride-a-longs” entered the
Carpenter home. S. Carpenter Dep. at 160-62; R. Carpenter
Dep. at 25-26; Compl. ¶ 34. The officers took both
plaintiffs into the kitchen along with Pierce and their
nephew, Steven. Compl. ¶ 32; S. Carpenter Dep. at
161-62. Trooper Powers remained in the kitchen with the
Carpenters. S. Carpenter Dep. at 163; Rep. Perdue at 1;
Compl. ¶ 32. P.C. was not brought into the kitchen, and
when Ms. Carpenter asked if she could get her unattended
four-year-old son, the State Police refused. S. Carpenter
Dep. at 162. Ms. Carpenter states that upon asking to
retrieve her son the State Police told her that “if
[she] didn't sit down and shut up, they were going to
cuff [her].” S. Carpenter Dep. at 162.
Carpenter asked the Troopers to show her a search warrant,
and both plaintiffs directly questioned why the Troopers were
there and what they were doing. S. Carpenter Dep. at 172; R.
Carpenter Dep. at 27; Rep. Perdue at 1. Neither plaintiff
ever consented to the Troopers' presence in or search of
their home. Compl. ¶ 36; S. Carpenter Dep. at 237; R.
Carpenter Dep. at 52. The parties differ in their accounts
about whether or not the plaintiffs were told the purpose of
the search. Both plaintiffs state that the Troopers never
told them they were there to verify Mr. Carpenter's sex
Sergeant Perry reported that when Ms. Carpenter told the
Troopers they were not allowed in her home without a warrant,
the Troopers told her “the purpose of the visit was to
verify her husband Robert Scott Carpenter's information
on the sex offender registry was correct and accurate.”
Rep. Perdue at 1. According to Sergeant Perry, Mr. Carpenter
was also “advised of the reason for the visit.”
Id. The State Police had made verifications of Mr.
Carpenter's sex offender registration in the past, but on
those occasions they had never come into the home. R.
Carpenter Dep. at 27; S. Carpenter Dep. at 166-67. During
previous verifications, the State Police would come to the
house during the day or in the evening and ask Mr. or Ms.
Carpenter to initial and sign a form verifying that Mr.
Carpenter lives at that address, their internet service
provider, cellular service provider, number and type of
vehicles, and license plates. S. Carpenter Dep. at 166,
both plaintiffs were in the kitchen with Trooper Powers,
Trooper Minor went upstairs. Compl. ¶ 32; R. Carpenter
Dep. at 54; S. Carpenter Dep. at 162; Rep. LaFauci at 11. Ms.
Carpenter asserts that the two “ride-a-long
subjects” also went upstairs. S. Carpenter Dep. at 162.
Sergeant Perry, who was not present, reported that the
“ride-a-long participants stayed in the entry area of
the residence while the verification was conducted and had no
interaction with the residence occupants.” Rep. Perdue
at 1. One “ride-a-long, ” Mr. May, stated they
remained in the entry way of the home, while the other, Mr.
Muckel, said that they remained outside during the incident.
Rep. LaFauci at 11.
Minor conducted a search of the home including “opening
doors [and] looking through things” on the first floor,
and going upstairs. S. Carpenter Dep. at 162; Pls.' Resp.
Defs.' Mot. Summ. J. at 8. Mr. Carpenter asked the
Troopers what they were doing and they responded that
“they were looking for hidden cell phones and
computers.” R. Carpenter Dep. at 27. As part of the
internal investigation of the Troopers' conduct, Trooper
Minor stated that he went upstairs “to conduct a
‘sweep' to ensure no other persons were located in
the residence . . . . and he made a ‘walk through'
for officer safety purposes.” Rep. LaFauci at 11. After
the Troopers left, Ms. Carpenter found that dresser drawers
had been left open and the contents had been disturbed.
time did Troopers Powers or Minor ask to see either
plaintiffs' cell phone. Pls.' Resp. Defs.' Mot.
Summ. J. at 7; R. Carpenter Dep. at 53; S. Carpenter Dep. at
237. At no time did Troopers Powers or Minor go into the
plaintiffs' garage. Pls.' Resp. Defs.' Mot. Summ.
J. at 7; R. Carpenter Dep. at 53. At no time did Troopers
Powers or Minor show plaintiffs a verification form for
initial and signature as the State Police had done in the
past when verifying Mr. Carpenter's sex offender
registration. Pls.' Resp. Defs.' Mot. Summ. J. at
8-9; S. Carpenter Dep. 242-43. After thirty minutes to over
an hour, the Troopers and both “ride-a-long
subjects” left the residence. Compl. ¶ 35; S.
Carpenter Dep. at 168; R. Carpenter Dep at 28. This was the
only verification where the State Police entered the
plaintiffs' home and the only verification where they did
not provide the Carpenters with a verification form. R.
Carpenter Dep. at 26-28; S. Carpenter Dep. at 242-43;
Pls.' Resp. Defs.' Mot. Summ. J. at 9.
next day, May 14, 2014, the Carpenters appeared at Kanawha
County Family Court for the hearing on Mr. Jarrett's DVP
on behalf of his granddaughter, Lydia. Compl. ¶ 8;
Family Court Order Denying Domestic Violence Protective Order
and Terminating the Emergency Protective Order
(“Order”), Ex. I Defs.' Mot. Summ. J. At the
hearing, Judge Mike Kelly denied Mr. Jarrett's DVP for
failure to prove the allegations. Order at 1. Trooper Stepp
testified at this hearing that Mr. Jarrett had asked him to
lie to plaintiffs about where Lydia was located on the night
she ran away to her grandfather's home. Compl. ¶ 38;
see Order at 1; S. Carpenter Dep. 139-40.
May 14, 2014, Sergeant Perry consulted with Sergeant
O'Brian about the photographs turned over to him by Mr.
Jarrett. Rep. Perdue at 1. Sergeant O'Brian consulted
with Kanawha County special prosecutor, Amy Bird, and opened
up a further investigation due to “the quantity of
substances being stored and trafficked at the
residence.” Id. Trooper Perdue was assigned as
the investigating officer. Id. Trooper Perdue
interviewed Lydia who told him, among other things, that her
mother used marijuana openly in front of her and P.C., drank
beer and wine heavily, drove intoxicated, had large parties
where drugs were present, offered marijuana to her, smoked
marijuana with her, sold marijuana, and yells at and hits
P.C. Defs.' Mem. Mot. Summ. J. at 9-12; Statement of
Lydia Jarrett, Ex. K Defs.' Mot. Summ. J. Trooper Perdue
contacted Child Protective Services, who assigned West
Virginia Department of Health and Human Resources case worker
Pamela Ingram. Defs.' Mem. Mot. Summ. J. at 12. Ms.
Ingram also interviewed Lydia and was told similar
accusations against Ms. Carpenter. Id.; W.Va. Child
Protective Servs. Sys. Family Functioning Assessment, Ex. O
Defs.' Mot. Summ. J. at 5.
30, 2014, based on the allegations of Mr. Jarrett and Lydia,
the photos given to State Police, and the report of Ms.
Ingram, Kanawha County Magistrate Kim Aaron issued search
warrants for the plaintiffs' home at 172 Jarrett Heights
Road, and the adjoining property owned by Mr. Carpenter at
174 Jarrett Heights Road. Defs.' Mem. Mot. Summ. J. at
13; Rep. Perdue at 2. Finding probable cause that plaintiffs
had committed child endangerment and possession with
the intent to deliver a controlled substance, 
Magistrate Aaron also issued warrants for plaintiffs'
arrest that same day. Defs.' Mem. Mot. Summ. J. at 14.
Perdue and Minor, with other unknown troopers, executed the
search warrants on both the 172 and 174 Jarrett Heights Road
properties. Exs. M-N Defs.' Mot. Summ. J.; Defs.'
Mem. Mot. Summ. J. at 14; see Compl. ¶¶ 39-43. No
drugs or drug paraphernalia were located at either property.
Defs.' Mem. Mot. Summ. J. at 14; Compl. ¶ 40; Rep.
Perdue at 2. Pursuant to the arrest warrant for child
endangerment and possession with the intent to deliver a
controlled substance, the Troopers arrested Ms. Carpenter,
who was held for several hours in jail before being released,
and against whom the charges were ultimately dismissed for
lack of evidence. Compl. ¶ 40, 44, 46; Defs.' Mem.
Mot. Summ. J. at 14; Rep. Perdue at 2. Mr. Jarrett had
separately filed a Petition for Appointment of Guardian in
Kanawha County Family Court, but the Guardian ad litem
appointed to investigate found nothing that would make the
Carpenter home unsuitable for children. Compl. ¶ 47.
generally allege that Mr. Jarrett used his familial
relationship with his nephew, Sergeant Perry, to instigate
the actions of the State Police that led to this case.
5, 2016, plaintiffs filed their complaint in this court
pursuant to 42 U.S.C. § 1983 for the commission of an
unreasonable search and seizure of their home (Count I) in
violation of the Fourth Amendment to the United States
Constitution. Compl. at 1.
earlier noted, the only remaining issue for resolution is
Count I as asserted against defendants Perry, Minor, and
Powers for the “warrantless search of plaintiffs'
residence, 172 Jarrett Heights Road, on May 13, 2014,
beginning around 10:30pm.” Id. at 2.
assert that they are entitled to judgment as a matter of law
because the entry of Troopers Powers and Minor into the
Carpenter residence was protected by qualified immunity and
was not unreasonable under the Fourth Amendment. Defs.'
Mem. Mot. Summ. J. at 18. The defendants add that the fact
that the “verification was conducted without a warrant,
consent, or exigent circumstances is irrelevant because those
three bases for a search do not occupy the field of Fourth
Amendment reasonableness.” Id. They contend
that the search was reasonable because of the special needs
associated with monitoring sex offenders. Id. at
respond that the verification allegedly conducted by the
State Police at 10:30pm on May 13, 2014 was an unreasonable
search under the Fourth Amendment that meets no applicable
exception. Pls.' Resp. Defs.' Mot. Summ. J. at 2-3.
Plaintiffs further reiterate their view that the verification
was a pretextual Trojan Horse that allowed State Police entry
to the Carpenter Home to search for drugs and child neglect
to be used as evidence at the Family Court hearing that was
scheduled to take place the next ...