S.D.W.Va.: Officers falsely swore def’s friend “lived or stayed there”; she visited after a small heroin deal, and there was no PC at all

Defendant was visited by a friend after an $80 heroin sale. There was no nexus to defendant’s house by the friend who’d only visited a few times over a long period of time. The police also falsely swore that she “lived or stayed there” and later admitted their mistake. There was no probable cause at all for the search, and the motion to suppress is granted. United States v. Sizemore, 2019 U.S. Dist. LEXIS 33074 (S.D. W.Va. Mar. 1, 2019):

It is further noted that, just as Figueroa was falsely stated by Sgt. Morris to have lived or stayed at the Sizemore residence, so too is the unproved allegation that Amber Evans lived or stayed there. She did not. Sgt. Morris has since admitted that he did not know where Evans lived or stayed and, as with Figueroa, he had made no investigation to find out. Rather, he simply saw Evans there on the evening of July 12th and made the same unwarranted assumption about Evans as he had made about Figueroa.

While the court must give deference to the sworn statement of the officer seeking a search warrant, the warrant must be supported by substantial evidence from reliable sources and there must be a fair probability that the contraband or related incriminating evidence will be found. Here, the only disclosed prior criminal activity of the target Figueroa was her mere possession of a small quantity of marijuana two months earlier along with the seat belt violation. Under a totality of the circumstances analysis, the only facts of which Sgt. Morris had knowledge that were in any sense relevant to the issuance of the search warrant sought, were the two small-time sales in the Dollar Tree parking lot. Only one of those sales significantly related, however obscurely, to the Sizemore house in that the officers witnessed Figueroa leave from that point while on her way to make the second sale. In particular, without the false statement that Figueroa lived or stayed at the Sizemore house, coupled with the false statement that the officers had prior knowledge of that allegation, there was simply no adequate ground on which to base the search of another man’s home.

The defendant was the sole owner of the residence searched. It was his home, as well as that of his 16-year-old son, and he had a legitimate expectation of privacy in it. The search warrant obtained for his residence was sought without any basis for it, and its execution was a clear violation of the Fourth Amendment to the United States Constitution as an unreasonable search and seizure.