United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION TO THE DISTRICT JUDGE
RECOMMENDING THAT DEFENDANT'S MOTION  TO SUPPRESS
EVIDENCE BE DENIED
P. MAZZONE, UNITFJD STATES MAGISTRATE JUDGE
pending before the Court is Defendant's Motion  to
Suppress Evidence, filed August 29, 2019. Plaintiff filed a
Response in Opposition  on September 24, 2019. The Court
held an evidentiary hearing on September 25, 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. 19] be
was arrested on January 21, 2019 following the traffic stop
at issue. During the traffic stop, a firearm was found in a
backpack allegedly belonging to Defendant. On May 7, 2019,
Defendant was indicted on two (2) counts of Unlawful
Possession of a Firearm. On August 29, 2019, Defendant filed
the instant Motion to Suppress. The undersigned held a
hearing on September 25, 2019, at which time evidence was
taken. The evidence presented during the hearing of September
25, 2019 adduced the following facts.
Testimony of Officer Robert Scott
early morning hours of January 21, 2019, Wheeling Police
Officer Robert Scott conducted a traffic stop of a vehicle
operated by Defendant, Kenneth Tribett. Defendant had two
passengers that night: Daniel Ferry (front seat passenger)
and Amanda Ferry (rear passenger). During his shift and prior
to the traffic stop, Officer Scott had been patrolling his
usual beat in South Wheeling, which included the area around
the Luau Manor. He was familiar with the Luau Manor,
specifically that it was a place about which police received
complaints, where violent incidents took place, and at which
drug activity occurred. During one of his passes by Luau
Manor, Officer Scott observed a silver Chevy truck (later
determined to be Defendant's truck) pulled up to the
front of the Luau Manor. Someone exited the vehicle and went
into Luau Manor. Officer Scott kept driving but made a mental
note of that activity.
another pass, Officer Scott observed the truck still parked
in front of Luau Manor. Nevertheless, he continued driving.
Approximately 5-10 minutes later, the truck pulled away.
Officer Scott was on Chapline Street heading north when he
saw the vehicle pull away from Luau Manor. Officer Scott
pulled behind the truck. He could not read the truck's
license plate. Officer Scott could not determine whether the
tag lights were broken or whether the license plate was
dirty. Regardless of which one it was, Officer Scott believed
that his inability to read the license plate constituted a
violation of West Virginia State law. He allowed several
minutes to pass, thinking that the tag lights might come on.
When they did not, Officer Scott initiated the traffic stop
stop was initiated at approximately 2:30 a.m. around
16th Street near West Virginia Northern Community
College in downtown Wheeling, WV. When Officer Scott
activated his lights, Defendant's truck pulled over in
the 7-11 parking lot. According to Officer Scott, it was
bitterly cold out and there was hardly anyone on the road.
When Officer Scott initiated his lights, the dash camera
began recording. The cruiser camera was also recording
outside and inside the cruiser. Additionally, Officer Scott
was wearing a body camera that night.
to Officer Scott, the body camera records everything.
Officers can specifically request footage if they feel that
they will need it later. He recalls requesting the footage
from this particular traffic stop. He believes the camera
worked accurately and recorded what was meant to be recorded.
Officer Scott approached Defendant's vehicle, he noticed
that the windows were foggy/icy. He made contact with
Defendant, who was the driver, but the window was not rolled
down because, according to Defendant, the door was frozen. It
was difficult to see into Defendant's truck.
Notwithstanding, Officer Scott was able to communicate with
the passengers in the vehicle. There were three (3) occupants
total, previously identified as Defendant (driver), Daniel
Ferry (front seat passenger) and Amanda Ferry (rear seat
passenger). Officer Scott did not see Amanda Ferry until he
moved around the vehicle while using his flashlight.
Scott advised Defendant of the equipment violations and asked
to see Defendant's driver's license, registration and
proof of insurance. Defendant provided his driver's
license. He was unable to provide Officer Scott with a valid
registration for the vehicle. Officer Scott returned to his
cruiser to give Defendant a chance to look for the
registration. While he was in his cruiser, he used
Defendant's driver's license to search for
outstanding warrants. He called for a K-9, but a K-9 did not
seem to be close to the traffic stop. No outstanding warrants
Scott returned to Defendant's vehicle to continue his
investigation. Defendant still could not provide his
registration. Officer Scott shined a light into the vehicle.
He saw empty pill bottles in plain sight. He asked Defendant
about the empty pill bottles, and specifically whether there
were any other drugs in the vehicle. Officer Scott ran
through different, individual drugs. Though he directed his
questions to Defendant, he was trying to inquire of all
passengers. They all answered "no." During the
stop, Officer Scott also inquired as to whether there were
weapons in the vehicle. He was told there were no weapons in
Scott requested permission to search the vehicle multiple
times. He was given permission. Defendant and Mr. Ferry
exited the vehicle, but Ms. Ferry remained in the back seat
for the search. According to Officer Scott, it was extremely
cold outside, and he did not want her to have to get out of
the vehicle. Defendant and Mr. Ferry mentioned waiting inside
the 7-11 during the search, but Officer Scott cautioned them
against that, as they would be unable to revoke their consent
if they wished.
his search, Officer Scott observed pill bottles and a
backpack in the front seat. He asked who the backpack
belonged to. Defendant claimed ownership of the backpack and
he gave Officer Scott his permission to search the backpack.
Officer Scott located a firearm in the backpack.
firearm shocked him at first because he had asked previously
whether there were any weapons in the vehicle and all
passengers denied having any weapons. Officer Scott also
realized that he had not fully patted down the Defendant.
Officer Scott handcuffed Defendant and patted him down.
Defendant claimed ownership of the gun. He said a family
member put the gun in his backpack. Defendant was arrested.
Drug paraphernalia was found during the balance of the
cross examination, Officer Scott admitted that he did not see
anyone come from the Luau Manor and get into the vehicle, nor
did he see anything illegal out in the open. Notwithstanding
this, he believed there was suspicious activity. His
suspicions were based upon the time of night, the weather,
and the location. Officer Scott also admitted that he did not
see a moving violation; only an equipment violation was
observed. There was no call to be on the lookout for
Defendant's vehicle on the night of the traffic stop. The
pills in the pill bottle were all the same size and shape, so
Officer Scott was not concerned about the pills. There was
nothing else in plain view in the cabin that indicated he
would find drug paraphernalia upon a search. All passengers
were completely calm and there were no physical indications
that they were hiding something. Officer Scott did note,
however, that the amount of clothing worn by the passengers
and Defendant made it difficult to discern their movements.
Notwithstanding this, Officer Scott acknowledged that it was
not uncommon for the passengers and Defendant to have that
amount of clothing on their bodies given the temperatures.
Officer Scott did not issue an equipment violation as a
result of the stop.
Scott denied threatening to use a drug dog if no consent to
search was given.
Review of Body Camera Video (Government's Exhibit No.
body camera video begins at approximately 2:27 a.m. as
Officer Scott approaches Defendant's truck. Defendant
advises through the closed door that he cannot roll the
window down and cannot open the door. During the first minute
of the traffic stop, Officer Scott identifies himself through
the closed door and advises Defendant that he cannot see
Defendant's license plate. Officer Scott says that either
the plate is dirty, or the tag lights are out. If the plate
is dirty, this is "Improper Display of
Registration." If the tag lights are out, this is
"Defective Equipment." Officer Scott then asks for
Defendant's driver's license, registration and proof
of insurance. Defendant identifies the passengers at Officer
Scott's request. Defendant cannot locate his proof of
registration. Officer Scott asks whether there are weapons in
the vehicle. All passengers deny having weapons in the truck.
Scott continues to wait outside of the truck for Defendant to
locate the registration. At approximately two minutes into
the traffic stop, Officer Scott asks Defendant about his
intended destination. Defendant indicates that they were on
their way to the ...