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United States v. Parrish

United States District Court, N.D. West Virginia

October 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DERON PARRISH and ANDRE PARRISH, Defendants.

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 57], OVERRULING DEFENDANTS' OBJECTIONS [ECF NO. 59], AND DENYING MOTION TO SUPPRESS [ECF NO. 32]

          THOMAS S. KLEEH UNITED STATES DISTRICT JUDGE.

         Pending before the Court is a Report and Recommendation (“R&R”) by United States Magistrate Judge Michael J. Aloi. Judge Aloi recommends that the Court deny the Motion to Suppress Physical Evidence filed by Defendant DeRon Parrish and joined by Defendant Andre Parrish (together, “Defendants”). For the reasons discussed below, the Court adopts the R&R and denies the motion to suppress.

         I. FACTS

         The Court finds the following facts based on the testimony at the suppression hearing, along with exhibits provided to the Court. On November 25, 2018, two college students in Morgantown, West Virginia, reported a burglary at their home while on holiday break. Officer Dakota Moore (“Moore”) with the Morgantown City Police Department responded to the call at 112 Cornell Avenue, Morgantown, West Virginia 26505. Moore walked through the home with the students and learned that someone had allegedly stolen a number of items, including a 12-gun safe containing a passport, social security card, $1500 in cash, and three 12-gauge shotguns. Moore noticed evidence of forced entry into the home and into two of the bedrooms.[1] Moore noticed marks along the drywall in the stairwell, indicating that something had been dragged down the stairs and against the walls. He also noticed slide marks in the yard where it seemed that a heavy object had been dragged through the yard, along the side of the house, and toward the driveway.

         Moore approached a neighbor who was outside while Moore was at the home. He explained to the neighbor what had happened and asked her if she had seen anything unusual or out of place. The neighbor had been living there for “quite some time” and was familiar with the area. She told Moore that she had observed a U-Haul van pull up to the residence between 1:00 a.m. and 2:00 a.m. the night before, and the U-Haul van had backed into the driveway. She saw two individuals wearing dark clothing and, at first, thought they were the two students who live in the home. She did not notice the individuals' races but said that they were wearing dark clothing. She did not see their faces. She saw them carry something large to the van and drive away.

         After speaking to the neighbor, Moore searched for records of U-Haul rentals in the surrounding area and began to compile a preliminary list of suspect vans. Moore spoke to the neighbor again and showed her several pictures of different styles of U-Haul vans. She identified the van as a Ford Transit rather than a Chevy. Moore contacted the regional contact for U-Haul, and the regional contact provided him with a list of three different dealers who had rented Ford Transit vans during the time frame at issue.

         Moore examined a tire track in the yard from where the U-Haul had been parked. The U-Haul had driven over the curb and partially through the yard. Based on the tire track, Moore found that it was a passenger, “all-season type” of tire, which is consistent with a Ford Transit tire and different from a Chevy tire. Knowing that the van was backed into the driveway, Moore deduced that the mud from the tire track in the yard would have been found on the rear passenger side tire of the van.

         Moore examined the individual Ford Transit vans rented out by U-Haul at the time of the alleged burglary. The first two vans he examined did not have mud on them or “anything that stood out.” The last van Moore examined was at Exit 1 U-Haul in Morgantown (“Exit 1 U-Haul”). Moore noticed mud halfway up the side wall on the rear passenger side of the van. He noticed that the mud on the tire matched the type of mud at the allegedly burglarized home: more of a “yellow, clay type of mud.” Moore spoke with the manager at Exit 1 U-Haul and asked if anything about the van stood out when it was returned. The manager stated that the inside of the van was covered in mud, and the renter had been charged a $25.00 cleaning fee.

         The manager told Moore that the van had been rented to DeRon Parrish, who had provided Exit 1 U-Haul with his address: 321 Brockway Avenue, Morgantown, WV 26501. DeRon Parrish also provided Exit 1 U-Haul with a Maryland driver's license. Moore does not recall the Maryland address on the license and did not investigate the Maryland address further. Moore noted that the van had been driven 16 miles during DeRon Parrish's rental period.[2] Via Google search, Moore learned that 16 miles is the approximate distance the van would have traveled if it went from Exit 1 U-Haul to 112 Cornell, to 321 Brockway, and back to Exit 1 U-Haul.[3]

         Moore then drove to 321 Brockway, Apartment B. He noticed that the mailbox said “A. Parrish.” Moore walked around to the back of the apartments. He could not see anything in plain view because the windows were blocked off. He observed some mud outside the door and smelled raw marijuana emitting from inside the apartment. Moore stated that he knew it was raw marijuana because he became familiar with the smell at the police academy and has experienced the smell in the field. Moore ran 321 Brockway in his computer system and learned that Andre Parrish lived at the address. Through social media, he learned that DeRon and Andre Parrish are brothers.

         On November 27, 2018, Moore drafted and signed the affidavit for a search warrant. The Affidavit and Complaint stated the following:

On 11/25/2018, the victim called 911 for a burglary report. I responded and discovered that the victim's residence had been forceably [sic] entered and several items stolen, including a 12 gun safe containing two shotguns and $1500 cash. A witness stated that she had seen the suspects in a U-Haul van. I located the suspect van which had been rented to a “Deron Parrish” at 321 Brockway Avenue, Apartment B at the time of the incident.

         The magistrate judge issued a warrant to search DeRon Parrish's home for the missing items. The warrant was executed on the same day at 3:30 p.m. DeRon Parrish was at home when the officers arrived. The officers searched the home and found the 12-gauge shotguns, the safe, nearly $3, 000 in cash, the victim's passport and social security card, and muddy shoes.

         Moore did not personally present the affidavit to the magistrate judge and does not recall which officer presented the affidavit. He cites it as “common practice” in the police department to leave a signed affidavit on the sergeant's desk, and someone on the next shift will swear to the affidavit and have it signed by a magistrate judge. Moore testified that his training, through the State Police Academy and the FTA Field Training Program, in applying for a search warrant, is to provide the bare essentials for establishing probable cause because the magistrate judges are busy and do not have time to read an entire report.

         Moore testified that the magistrate judge will always put the presenting officer under oath. Moore did not know who presented this particular affidavit to the magistrate judge, which magistrate judge it would go to, whether the presenting officer provided any information to the magistrate judge, or whether the magistrate judge had any questions about the search warrant or the application for it. Moore did not talk to the magistrate judge about the case or talk to the officer who delivered the search warrant. Moore did not witness an oath or affirmation take place for the warrant application.

         II. ARGUMENTS BY THE PARTIES

         Defendants argue in their motion to suppress that the physical evidence found in their home should be suppressed because (1) the affidavit was so bare that it lacked the necessary probable cause to support it, (2) the affidavit failed to give any reason to believe that the stolen property was inside the home, and (3) the Leon good-faith exception does not apply. In response, the Government argues that the warrant did not violate the Fourth Amendment because it was sworn before a magistrate, supported by probable cause, and executed in good faith.

         After the suppression hearing, Defendants argue in their supplemental memorandum that the Fourth Amendment is violated when an officer drafts an Affidavit and Complaint for a search warrant and leaves it for another officer to deliver to a magistrate, where neither officer communicates, collaborates, or coordinates in the same investigation. In the Government's supplemental brief, it argues that this practice (one officer writing an affidavit and another swearing to it) is constitutional. The Government also presents new information in its brief.[4]

         III. STAN ...


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