United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION TO THE DISTRICT JUDGE
RECOMMENDING THAT DEFENDANT'S MOTION F4OI TO SUPPRESS AND
SUPPLEMENTAL MOTION F52L TO SUPPRESS BE DENIED
MAZZONE UNITED STATES MAGISTRATE JUDGE.
pending before the Court is Defendant's Motion  to
Suppress, filed September 2, 2019. The Government filed a
Response in Opposition  on September 12, 2019. Defendant
filed a Supplemental Motion  Motion to Suppress on
September 24, 2019. The Government filed a Response  on
September 26, 2019. The Court held an evidentiary hearing on
September 26, 2019. 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
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.
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.
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.
Testimony of the Parole Officers and ATF Agent Travis
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.
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.
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.
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.
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.
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.
OF THE PARTIES