United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
X. Copenhaver, Jr. Senior United States District Judge
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.
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.
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.
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.
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.
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.
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.
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
affidavit in support of the search warrant Sgt.
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.
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 ...