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United States v. Moore

United States District Court, N.D. West Virginia

October 4, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DEMETRIUS MOORE, Defendant.

          BAILEY Judge

          REPORT AND RECOMMENDATION TO THE DISTRICT JUDGE RECOMMENDING THAT DEFENDANT'S MOTION F4OI TO SUPPRESS AND SUPPLEMENTAL MOTION F52L TO SUPPRESS BE DENIED

          JAMES MAZZONE UNITED STATES MAGISTRATE JUDGE.

         Currently pending before the Court is Defendant's Motion [40] to Suppress, filed September 2, 2019. The Government filed a Response in Opposition [45] on September 12, 2019. Defendant filed a Supplemental Motion [52] Motion to Suppress on September 24, 2019. The Government filed a Response [53] on September 26, 2019. The Court held an evidentiary hearing on September 26, 2019.[1] After considering the parties' briefs, the applicable law and the Court file, and after considering the evidence and argument presented during the aforementioned hearing, the undersigned would RECOMMEND that Defendant's Motion to Suppress [ECF No. 45] and Supplemental Motion to Suppress [ECF No. 52] be DENIED.

         I.

         FACTUAL/PROCEDURAL HISTORY

         Defendant was indicted on December 4, 2018 on one count of Prohibited Possession of a Firearm and one count of Possession of a Stolen Firearm. A forfeiture allegation is contained within the Indictment. The evidence which provides the basis for the charges in this case was found during a visit to Defendant's home by parole officers on August 29, 2018. Defendant seeks to suppress all evidence found during the search of Defendant's residence which took place at that time. As was stated above, a hearing was held on September 26, 2019 regarding Defendant's request. During the September 26, 2019, hearing, ten (10) witnesses appeared and provided testimony, including Defendant himself. Though slight variations existed, the timeline of material events was consistent among the parole officers who appeared and provided testimony. Defendant's testimony differed from that of the parole officers. ATF Agent Travis Campbell testified regarding the firearms seized during the search. Agent Campbell further testified regarding the statements made by Defendant following discovery of the firearms, and those made subsequent to his arrest. The relevant testimony is summarized below.

         A. Defendant's Testimony

         Defendant testified that when the parole officers arrived at his home to conduct a home visit, he was in his bedroom with his brother smoking marijuana and watching television. His brother heard the knocking first. Defendant did not believe someone was knocking at first, but then realized that someone was indeed knocking and went downstairs to see who it was. He inquired of his wife, who was sitting on the living room couch watching television. She declined to answer the door. Defendant believed that it was an ex-girlfriend and asked who was at the door. No one answered. He tried looking through the peep hole, but it was covered so he could not see. He then opened the door. Everyone on the porch entered the house. They asked where the bedroom was, and he took them upstairs where the search occurred. Though Defendant did not refuse entry, he did not consent either. The men identified themselves only after they entered his residence.

         Defendant knew that he was on parole at the time of this home visit. He had been out of prison for less than one year and had only several more weeks on parole when this home visit occurred. Defendant was shocked to see the officers on his front porch. He had never been subjected to a home visit the entire time he was on parole.

         B. Testimony of the Parole Officers and ATF Agent Travis Campbell

         On the night of August 29, 2018, two teams of parole officers conducted various home visits during night detail. Defendant's home was one such residence visited on that date. The teams included two relatively new parole officers (Hillary Richards and Melissa Richmond), as well as various supervisors and enhanced supervision officers from around the State of West Virginia (Brian Templeton, Bryan Thompson, John Tackett, David Toler, Matthew Currence, Douglas Workman, and Bryan Ware). These supervisors and enhanced supervision officers were present to provide assistance to a short-handed parole office and to conduct home visits which had not been conducted in some time.

         The first team arrived at Defendant's home (he resided in an apartment complex) around 9:30 p.m. on August 29, 2018 and knocked on the front door. Defendant opened the door. The parole officers identified themselves and advised that they were there to conduct a home visit. Defendant permitted entry into the home. The officers asked where the bedroom was. Defendant showed them to the bedroom. Upon entry into the bedroom, the officers smelled marijuana. One of the officers noted that a marijuana joint was still smoking in an ashtray next to the bed. At that point, the officers removed Defendant from the bedroom and conducted a search of the bedroom where they found two firearms. A bag of marijuana was found in the nightstand. Digital scales were also found. The firearms were not within plain view.

         The second team arrived at Defendant's residence between 9:30 p.m and 9:45 p.m. When they arrived, the other team had already entered Defendant's residence. It was not immediately clear from the testimony exactly why the second team arrived at Defendant's residence.

         The Rules and Regulations Governing Parole Supervision applicable to paroled persons state that a parolee or probationer shall allow his or her parole officer to visit his or her place of residence for supervision purposes without obstruction and that the parolee or probationer shall submit to a search without a warrant of his person, place of residency or motor vehicle for supervision purposes. See ECF No. 55-1. These Rules and Regulations were confirmed via the testimony of various parole officers.

         ATF Agent Travis Campbell testified that the two firearms recovered from Defendant's residence include an AK-type firearm and a Glock 9mm caliber pistol. After being Mirandized, Defendant advised Agent Campbell that he received the firearms from someone who had stolen them from a home in Wheeling. Defendant admitted that he was holding them for this other person and that he had received money to do so. While incarcerated in the Northern Regional Jail, Defendant reached out to Agent Campbell again and advised that he had additional, useful information. Agent Campbell interviewed Defendant a second time, wherein Defendant provided additional details and corrected a minor misstatement he had made previously to protect his wife. Agent Campbell found Defendant to be cooperative and forthright at all times.

         The parole officers denied blocking the peep hole on the front door prior to entry. Further, those who were questioned regarding this issue denied hearing Defendant ask 'who is it' through the closed front door. Their testimony was consistent in that the front door opened fairly quickly after they knocked, and it was only after opening the front door that Defendant inquired who the officers were. The officers testified that if someone had asked them to identify themselves prior to opening the door, they would have done so. The officers further confirmed that there was nothing unusual about conducting a home visit at 9:30 p.m., noting that parolees have a 9:00 p.m. curfew, so that a home visit conducted at 9:30 p.m. would be a time when the parolee should be at home.

         II.

         ARGUMENTS OF THE PARTIES

         A. ...


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