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United States v. Tribett

United States District Court, N.D. West Virginia

October 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNETH TRIBETT, Defendant.

          BAILEY, J.

          REPORT AND RECOMMENDATION TO THE DISTRICT JUDGE RECOMMENDING THAT DEFENDANT'S MOTION [91] TO SUPPRESS EVIDENCE BE DENIED

          JAMES P. MAZZONE, UNITFJD STATES MAGISTRATE JUDGE

         Currently pending before the Court is Defendant's Motion [19] to Suppress Evidence, filed August 29, 2019. Plaintiff filed a Response in Opposition [27] 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 DENIED.

         I.

         FACTUAL/PROCEDURAL HISTORY

         Defendant 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.

         A. Testimony of Officer Robert Scott

         In the 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.

         On 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 at issue.

         The 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.

         According 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.

         When 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.

         Officer 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 were located.

         Officer 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 the vehicle.

         Officer 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.

         During 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.

         The 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 search.[1]

         On 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.

         Officer Scott denied threatening to use a drug dog if no consent to search was given.

         B. Review of Body Camera Video (Government's Exhibit No. 1)

         The 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.

         Officer 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 ...


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