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United States v. Sizemore

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

March 1, 2019

UNITED STATES OF AMERICA
v.
KEITH ALLEN SIZEMORE

          MEMORANDUM OPINION AND ORDER

          John X. Copenhaver, Jr. Senior United States District Judge

         Upon defendant Keith Allen Sizemore's Motion to Suppress Evidence, filed December 20, 2018, and the memoranda and the documentary evidence filed in connection with the briefing by the parties on the motion and the evidence received at the hearing thereon held on January 8, 2019, the court makes the following findings of fact and conclusions of law.

         On July 10, 2017, Detective-Sergeant Shannon R. Morris of the Fayette County, West Virginia, Sheriff's Department, received information from an informant that the defendant, Keith Allen Sizemore, was planning to travel to Detroit, Michigan, for the purpose of acquiring heroin. On July 12, 2017, Sgt. Morris learned that Sizemore was on his way back and alerted others to look for his vehicle as it neared Oak Hill. That same date, Sgt. T. N. Mooney, the canine handler, observed the defendant driving his pickup truck, in which Melissa Figueroa was a passenger, and noticed that she was not wearing a seat belt. He conducted a traffic stop, along with Sgt. Morris and Sgt. Young.

         After a positive alert from the canine, a small quantity of marijuana was found in a duffel bag in the back seat of the vehicle. Figueroa admitted that the marijuana belonged to her. A search of the truck at that point did not result in the discovery of the expected heroin. Sgt. Morris spoke to Figueroa for a couple of minutes at roadside.

         The officers obtained a search warrant for the pickup truck and it was towed to the City of Oak Hill service garage where a search took place that same day. No. heroin or contraband of any kind was found. Unbeknownst to the officers who had failed to have Figueroa subjected to a search, she had possession of the heroin on her person.

         Figueroa was also taken into custody, brought to the Sheriff's office in Fayetteville and interviewed by Sgt. Mooney. At that time she revealed she was in a romantic relationship with the defendant's daughter, Amber Evans. She gave her address as 2081 Prudence Road in Oak Hill. That is the address where she stayed with her grandmother and which is the residence where she was staying at the time of the case events here. That is the same address set forth on her West Virginia driver's license that was issued earlier that same year in January 2017. Figueroa was released on a citation for both possession of marijuana and no seat belt. The citation reflected her Prudence Road address. She walked from the Sheriff's office to the “four lane” and eventually made her way that same day to the defendant's residence in nearby Oak Hill.

         After the fruitless search of the truck, Sgt. Morris, along with two DEA agents, at approximately 9:30 p.m. that evening, traveled to the defendant's residence on Wood Avenue in Oak Hill to discuss the search of the truck. One of them knocked on the door and, when the defendant answered, Sgt. Morris saw Figueroa and Evans inside the residence, but did not speak to them. Rather, Sgt. Morris spoke to Sizemore on the porch but did not enter the house. No. further investigation of the matter was undertaken. Sgt. Morris returned the truck to Sizemore the next day.

         Nearly two months later, on September 7, 2017, around 5:00 or 5:15 p.m., Sgt. Morris, accompanied by Detective-Sergeant C. A. Young, saw Figueroa at the Dollar Tree parking lot in Oak Hill and observed her hand something to an individual, for which she received money in return that Sgt. Morris saw her stuff in her bra. Figueroa left in a gold Ford Taurus. Sgt. Morris approached the buyer and questioned him about the transaction. He admitted that he had bought $80 worth of heroin from Figueroa and agreed to cooperate with the officers. It was quickly planned that Sgt. Morris and Sgt. Young would meet the buyer at a different location to arrange a second transaction between the buyer and Figueroa that same day. On the way, Sgt. Morris drove by the defendant's residence where he saw the gold Ford Taurus parked on the street in front of the home. Figueroa was not seen by him. The second buy was arranged. Sgt. Morris equipped the buyer with a recording device and pre-recorded money of unstated amount with which to make the buy.

         The officers did not know where Figueroa was once she left the 5:15 p.m. transaction. Two hours later, at approximately 7:20 p.m., the officers, who shortly before that time had positioned themselves in sight of the defendant's residence, watched Figueroa come out of the defendant's residence and get in the passenger seat of a Dodge Neon that was parked in the same spot in which the gold Ford Taurus had been parked. The driver was Figueroa's sister, Christine Figeuroa, and they proceeded to drive to the Dollar Tree parking lot where the controlled transaction took place. After the sale, they observed the Dodge Neon in which Figueroa was a passenger return to the defendant's residence but did not see Figueroa exit the vehicle or enter the residence. The officers met with the informant for a few minutes and then went to the Fayette County Sheriff's Department to draft the warrant for a search of the defendant's house.

         In his affidavit in support of the search warrant Sgt.

         Morris, in the course of noting that he had observed the gold Ford Taurus in front of the defendant's residence soon after the first buy, stated as follows:

Myself and Detective-Sgt. Young then observed the gold Ford Taurus sitting in front of [], in Oak Hill, WV where we had prior knowledge that Melissa Figueroa lived or stayed at.

         In reality, neither of those two officers had any such prior knowledge. The affidavit then referred to their prior knowledge a second time:

Myself and Detective-Sgt. Young then conducted surveillance at__, in Oak Hill, Fayette County, WV where we had prior knowledge that ...

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