United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [ECF NO. 57], OVERRULING DEFENDANTS'
OBJECTIONS [ECF NO. 59], AND DENYING MOTION TO SUPPRESS [ECF
S. KLEEH UNITED STATES DISTRICT JUDGE.
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.
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. 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.
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.
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.
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.
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.
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. 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.
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
November 27, 2018, Moore drafted and signed the affidavit for
a search warrant. The Affidavit and Complaint stated the
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.
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.
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.
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.
ARGUMENTS BY THE PARTIES
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.
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.