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Sizemore v. Morris

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

January 15, 2020

KEITH ALLEN SIZEMORE, et al., Plaintiffs,
v.
S. R. MORRIS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE

         Pending before the court are Defendants Motions to Dismiss [ECF Nos. 5, 8]. For the reasons that follow, the Motions are DENIED in part and GRANTED in part.

         I. Background

         Plaintiff Keith Allen Sizemore and his son, Plaintiff Shane Allen Sizemore, residents of Oak Hill, Fayette County, West Virginia, brought the current action against the following four defendants: S.R. Morris, employed by the Fayette County Sheriff's Department and assigned to the Central West Virginia Drug Task Force; C.A. Young, employed by the Oak Hill Police Department and assigned to the Central West Virginia Drug Task Force; the Fayette County Commission; and the Town of Oak Hill.

         According to the complaint, on July 10, 2017, Defendant Morris received a tip that Plaintiff Keith Sizemore was transporting heroin in a pickup truck. Compl. [ECF No. 1] ¶ 5-6. Officers conducted a traffic stop on Plaintiff's truck, which was carrying him and Melissa Figueroa, the significant other and friend of Plaintiff's daughter. Id. at ¶ 7. No heroin was found in the truck. Id. Following the search, Defendant Morris interviewed Plaintiff at his residence and noticed Figueroa inside Plaintiff's home with his daughter. Id. at ¶ 9.

         Nearly two months later, Defendants Morris and Young observed Figueroa sell $80 of heroin in a Dollar Tree parking lot and then leave in a gold Ford Taurus. Id. at ¶ 11. Afterwards, Figueroa's buyer agreed to become a confidential information (“CI”) for Defendants. Id. at ¶ 12. Defendants Morris and Young arranged a second heroin buy with the CI and Figueroa for later the same day. Id. at ¶ 13.

         At some point after the first drug buy but prior to the second buy, Defendants Morris and Young drove by Plaintiff Sizemore's residence and saw the same gold Ford Taurus in which Figueroa had left the Dollar Tree Parking lot parked in front of Plaintiff's residence. Id. They did not see Figueroa. Id.

         Later that day, after the second buy with the CI was set, Defendants Morris and Young positioned themselves outside of Plaintiffs' residence. Id. at ¶ 14. They observed Figueroa and her sister leave Plaintiffs' residence and get into a dodge Neon, which was parked where the gold Ford Taurus had been earlier. Id. The Neon drove to the Dollar Tree parking lot with Figueroa as a passenger, and the second drug transaction took place. Id. at ¶ 15. After the buy, “the officers observed the Dodge Neon return to the [P]laintiff's residence but did not observe Melissa Figueroa exit the vehicle nor enter the residence.” Id.

         Following the second buy, Defendant Morris “went to the Fayette County Sheriff's Department to draft an application for a search warrant for [P]laintiff's residence.” Id. at ¶ 16. The affidavit used the term “we, ” referring to both Defendants Morris and Young. Id. at ¶ 26.

         According to the complaint, Defendant Morris attested to several false statements in the affidavit, including that he and Defendant Young “had prior knowledge that Melissa Figueroa lived or stayed at the [P]laintiff's residence.” Id. at ¶ 18. The complaint also alleges Defendant Morris falsely attested that he and Defendant Young witnessed Figueroa enter Plaintiff's residence after the second buy. Id. at ¶ 19. Further, Plaintiffs allege Defendants omitted that the heroin involved in Figueroa's transactions was a small amount, sold for $80, which could be hidden on her person. Id. at ¶ 25. Finally, the affidavit allegedly falsely added that “Members of the Central West Virginia Drug Task Force have received numerous complaints about the sale and distribution of heroin from this residence.” Id. at ¶ 29.

         The magistrate, Defendant Young's mother, signed the search warrant around 9:00 pm the same day as the drug buys, and the Defendant officers immediately executed the warrant at Plaintiffs' residence. According to the complaint,

Plaintiff was sitting in his living room when the officers arrived. His 16 year old son was in the home with him. Officers threw a concussion grenade through his living room window, then busted through his door with a sledgehammer. They handcuffed [P]laintiff, and put him on his porch, took his son from him, and proceeded to search his house.

Id. at ¶ 20. The officers found heroin, two firearms, and about $2, 000 in cash and arrested Plaintiff Keith Sizemore. Id. at ¶ 21. “What they did not find, however, was Melissa Figueroa-nor any of her possessions. Nor did they find the prerecorded money from the second buy with the informant.” Id. “As a result of the illegal search and the ensuing civil forfeiture proceedings, [P]laintiff lost his home, which was confiscated; he lost his 2017 pickup truck, which was confiscated; and he spent a substantial amount of time incarcerated.” Id. at ¶ 33.

         Plaintiff Keith Sizemore filed a Motion to Suppress, which Judge Copenhaver of the Southern District of West Virginia granted, and subsequently the United States dismissed all charges against Plaintiff. Id. at ¶ 31-32. In granting the Motion to Suppress, the Court found that “neither [Defendants Morris nor Young] had any such prior knowledge” that Figueroa lived or stayed at Plaintiff's residence, nor did they see Figueroa enter the residence after the second drug buy. Id. at ¶ 18-19 (quoting United States v. Sizemore, 2:18-cr-198, ECF No. 58 at 6). In addition, the Court found “there is not an iota of evidence to support [the] gratuitous allegation” that the Central West Virginia Drug Task Force “received numerous complaints about the sale and distribution of heroin from [Plaintiff's] residence.” Id. at ¶ 29 (quoting United States v. Sizemore, 2:18-cr-198, ECF No. 58 at 11).

         Judge Copenhaver found the false statements were “calculated to mislead the magistrate into the belief that there was probable cause to believe heroin could be found at that location.” Id. at ...


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