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United States v. Wingrove

United States District Court, S.D. West Virginia, Charleston

November 5, 2019

UNITED STATES OF AMERICA
v.
BRIAN KEITH WINGROVE, JR.

          MEMORANDUM OPINION AND ORDER

          David A. Faber Senior United States District Judge.

         Before the court is the motion of Defendant Brian Keith Wingrove, Jr. (“Wingrove”) to suppress all evidence seized from his residence pursuant to the search warrant granted and executed on February 28, 2018. ECF No. 22. The motion has been fully briefed, and the court held a hearing on October 29, 2019. For the reasons set forth below, the motion to suppress is DENIED.

         I. Background

         The evidence in this case was developed from Detective James R. Pack's Affidavit describing the events of February 28, 2018, the search warrant for Wingrove's residence granted February 28, 2018, Parole Services' Response Matrix Worksheet files on Wingrove, and from Det. Pack's, Parole Officer Jessica Crook's, and Sgt. C.A. Young's witness testimony given at the suppression hearing held before the court on October 29, 2019. The relevant evidence is as follows.

         Wingrove was convicted in 2005 of felony first degree armed robbery and in 2015 of being a felon in possession of a firearm. In April 2017, the State of West Virginia released Wingrove on parole, which included the following condition:

q. A parolee or probationer shall submit to a search without warrant of his or her person, place of residency or motor vehicle by his or her parole officer for supervision purposes at any time during the parole period.

         By September 7, 2017, Wingrove had missed multiple parole appointments and it was determined that he had absconded from parole. On September 11, 2017, the State of West Virginia issued a warrant for Wingrove's arrest for his parole violations. In early 2018, Sgt. C.A. Young, of the Central West Virginia Drug Task Force, received information through a tip from a separate ongoing DEA investigation that Wingrove was living in a trailer in Oak Hill, West Virginia, was involved in drug dealing, and possessed a firearm. Sgt. Young called the West Virginia Department of Corrections Parole Services office and communicated this information to Parole Officer Heather Crook. Heather Crook relayed the information on Wingrove's suspected activities and whereabouts to Parole Officer Jessica Crook, Wingrove's parole officer. Jessica Crook then requested that Oak Hill Police Department officers accompany her and Heather Crook to Wingrove's trailer, aid in the arrest of Wingrove, and provide security during a walkthrough of the trailer if it was in fact Wingrove's residence.[1]

         On February 28, 2018, officers with the Central West Virginia Drug Task Force, Oak Hill Police Department, and West Virginia Division of Corrections Parole Services office went to 46 Trump Street, Oak Hill, West Virginia, to arrest Wingrove on a parole violation warrant. Officers present at the scene included Det. Pack, Cpl. J.A. Jones, Ofc. M.D. Grose, and Parole Officers Jessica Crook and Heather Crook. Det. Pack testified that police officers present were aware that Wingrove absconded from parole, that there was a warrant for his arrest, and that the Drug Task Force had received information that Wingrove possessed a firearm and was conducting drug transactions at the trailer. Det. Pack also testified at the hearing that the trailer park where Wingrove was located was known by police to be a high crime area.

         When officers approached the trailer at 46 Trump Street, they saw two cars parked in the trailer's driveway - a pewter-in-color Chevrolet Silverado and a silver Dodge Charger. Advancing upon the trailer, Cpl. Jones, Ofc. Grose, and Parole Officer Jessica Crook went to the front door, and Det. Pack and Parole Officer Heather Crook went to secure the rear of the trailer. One of the officers at the front knocked on the door. Det. Pack then heard movement from inside the trailer, as if someone had moved from the far back side of the trailer to the front section of the trailer and then moved back to the rear door. The rear door of the trailer then opened and Wingrove exited the trailer. According to Det. Pack, Wingrove exited the door quickly and showed surprise at the presence of the officers. Wingrove had taken only one step outside the door before Det. Pack drew his firearm and instructed Wingrove to get on the ground. Wingrove complied and was handcuffed on the ground outside the trailer. Following Wingrove's exit from the trailer, Det. Pack testified that he did not hear any other sounds coming from inside the trailer, but that he was busy detaining Wingrove during that time and so could not be certain.

         After Wingrove was handcuffed, Det. Pack and another police officer entered the residence and cleared it - the “protective sweep” at issue in this case. While clearing the area believed to be Wingrove's bedroom to the right of the rear entrance, Det. Pack observed a spoon with what appeared to a be a piece of a cigarette filter and some off-white substance believed to be methamphetamine on it, a purple cube-like container with a white-in-color powdery substance believed to be methamphetamine in it, and multiple needles that were in plain view on a table. On the floor below this table, also in plain view, was a black bag with what appeared to be a considerable amount of U.S. currency in it. Officers did not seize these items at that time.

         Once the police officers completed their sweep of the trailer, Parole Officers Heather Crook and Jessica Crook conducted their own security sweep of the residence. After determining there were no other persons in the trailer, Jessica Crook asked Wingrove whether this trailer was his residence, and she testified that Wingrove answered in the affirmative. Once she determined that the trailer was Wingrove's residence, she then walked through the trailer looking for any parole violations. Upon doing so, she testified that she saw drugs and money in plain view, which she subsequently discussed with Det. Pack and the other officers on the scene after completing her walkthrough search.

         After the residence was cleared, Wingrove was placed inside a vehicle. Several officers, including Det. Pack and Jessica Crook, stayed behind. Det. Pack and other officers observed through the rear driver's side window of the pewter Chevrolet Silverado what appeared to be an AR-15 in plain view. Officers also observed through the rear passenger's side window of the silver Dodge Charger what appeared to be the butt end of a firearm.[2]

         Det. Pack then relayed what he had seen inside the residence and inside the cars to Det. J.G. Hoover, who applied for and obtained a search warrant for the trailer. There were two stated grounds for the search warrant in Det. Hoover's affidavit seeking the search warrant:

1) “Members of the Central West Virginia Drug Task Force, Oak Hill Police Department and the West Virginia State Police have received numerous complaints about the distribution of controlled substances from this residence.”
2) “While members of the Oak Hill Police Department were at the residence for the purpose of a probation violation, they discovered what they stated to be a large amount of a clear crystal substance believed to be Methamphetamine, a scheduled [sic] II controlled substance.”

         The search warrant was obtained on February 28, 2018 in the County of Fayette, West Virginia, and the search was executed about an hour later the same day. From the search of the trailer, the police recovered 51 grams of methamphetamine, 47 Suboxone strips, $2, 306 in United States currency, a digital scale, and a handgun. Wingrove was subsequently charged in the Southern District of West Virginia with (1) possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1); (2) possession with intent to distribute buprenorphine in violation of 21 U.S.C. § 841(a)(1); (3) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A); and (4) being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).

         II. Analysis

         Wingrove moves to suppress the evidence gathered from inside the trailer on the ground that the warrant to search the trailer was based upon the officers' observations from an illegal warrantless search of his residence. He argues that after excluding the information related to the unlawful search from the affidavit supplying the basis for the search warrant, the remaining portion of the search warrant does not contain sufficient grounds to create probable cause to grant the warrant. Wingrove further contends that Parole Officer Jessica Crook's walkthrough search of the trailer, where she also saw the drugs and then reported her findings to Det. Pack, cannot serve as an independent source for admission of the evidence, because Parole Officer Jessica Crook's search did not comply with the terms of Wingrove's parole condition authorizing warrantless searches by parole officers for supervisory purposes.

         The government counters by arguing that the police officers were permitted under Maryland v. Buie, 494 U.S. 325 (1990), to conduct the “protective sweep” during which they saw the drugs in the trailer. Alternatively, the government argues that the information Parole Officer Jessica Crook supplied to Det. Pack following her supervisory parole search is a lawful and independent source for the search warrant's factual basis.

         The court finds that the police's protective sweep was lawful and, alternatively, finds that Parole Officer Jessica Crook's supervisory search provides a lawful and independent basis of the information used to obtain the search warrant.

         A. The protective ...


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