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Carpenter v. Perry

United States District Court, S.D. West Virginia, Charleston

November 21, 2017

SARA CARPENTER and ROBERT CARPENTER, individuals, Plaintiffs,
J.D. PERRY, individually, R.S. MINOR, individually, J.R. POWERS, individually, L.G. O'BRIAN, individually, S.W. PERDUE, individually, PAMELA INGRAM, individually, and JOHN DOES 1-5, individually, Defendants.


          John T. Copenhaver, Jr., United States District Judge

         Pending 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, [1] and S.W. Perdue (collectively “defendants”).[2]

         At the 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, 2014.

         I. Factual Background

         Plaintiffs 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-old[3]daughter, Lydia Jarrett, and the couple's then four-year-old son, P.C.[4]

         On the 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.

         On the 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 reported:

[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.

         On May 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.[5] 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.[6] 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.

         Sergeant 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.

         Sergeant 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 at 1.

         Sergeant 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.

         At 10:30pm on May 13, 2014, Troopers Powers and Minor and two “ride-a-long subjects”[7] 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, [8] 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 at 10.

         Mr. 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.

         Ms. 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 offender registration.[9]

         However, 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, 169-70.

         While 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.

         Trooper 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. Id.

         At no 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.

         The 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.

         Also on 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.

         On May 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[10] and possession with the intent to deliver a controlled substance, [11] Magistrate Aaron also issued warrants for plaintiffs' arrest that same day. Defs.' Mem. Mot. Summ. J. at 14.

         Troopers 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.

         II. Procedural History

         Plaintiffs 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.

         On May 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.[12] Compl. at 1.

         As 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.

         Defendants 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 18-20.

         Plaintiffs 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 ...

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