Carpenter v. Perry

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

SARA CARPENTER

and ROBERT CARPENTER,

individuals,

Plaintiffs,

v. Civil Action No. 2:16-cv-4199

J.D. PERRY,

individually,

R.S. MINOR,

individually,

J.R. POWERS,

individually,

L.G. O’BRIAN,

individually,

S.W. PERDUE,

individually,

PAMELA INGRAM,

individually,

and JOHN DOES 1-5,

individually,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is the Motion for Summary Judgment (“Motion”),

filed July 31, 2017, by J.D. Perry, R.S. Minor, J.R. Powers,

L.G. O’Brian,1 and S.W. Perdue (collectively “defendants”).2

1 Defendants note that plaintiffs misspell L.G. O’Bryan’s name as

“O’Brian” in their Complaint. The court uses the name as

spelled in the Complaint herein.

2Pamela Ingram was initially a named defendant in this case, but

plaintiffs voluntarily dismissed Ms. Ingram on July 31, 2017,

pursuant to F. R. Civ. P. 41. Dkt. 45

At the close of briefing, the only defendants in issue

remaining in the action are J.D. Perry, R.S. Minor, and J.R.

Powers; and the only Count of the four-count complaint remaining

in issue is Count I alleging an unreasonable search and seizure

by these three defendants of the plaintiff’s home on May 13,

2014.

I. Factual Background

Plaintiffs Sara and Robert Carpenter are a married

couple who, at the time of the events leading to this suit,

resided at 172 Jarrett Heights Road in Elkview, West Virginia.

Living with them was Ms. Carpenter’s then sixteen-year-old3

daughter, Lydia Jarrett, and the couple’s then four-year-old

son, P.C.4

On the night of May 1, 2014, Lydia ran away from home

following an argument with her mother about spending time with

her boyfriend after school. Compl. ¶ 11; S. Carpenter Dep. at

88. Ms. Carpenter contacted the West Virginia State Police

(“State Police”) to report her daughter as missing. Compl. ¶

3 Plaintiffs assert that Lydia was sixteen at the time of these

events while defendants state that she was fifteen. See Compl.

¶ 11; Defs’ Mem. Mot. Summ. J. at 2, 4.

4 Pursuant to L.R. Civ. P. 5.2.1(a)(2) P.C.’s initials are used

because he was a minor child at the time of these events, and he

still is. Although Lydia was a minor child at the time of

these events, she is now an adult.

12; Defs.’ Mem. Mot. Summ. J. at 3; S. Carpenter Dep. at 115-16.

Trooper Stepp responded to Ms. Carpenter’s report and located

Lydia at the home of her paternal grandfather, Chris Jarrett.

Compl. ¶ 12; Defs.’ Mem. at 3; L. Jarrett Dep. at 8. Trooper

Stepp returned Lydia to the Carpenters’ home on May 2, 2014

around 3:00-4:00am. S. Carpenter Dep. at 141. Trooper Stepp

told Ms. Carpenter that Lydia had been picked up by the Elkview

Sheriff’s department from the side of a road with a backpack.

S. Carpenter Dep. at 139. Trooper Stepp later stated that Mr.

Jarrett had directed him to lie to Ms. Carpenter about where

Lydia was located. Compl. ¶ 38; S. Carpenter Dep. at 139-40.

Later that same morning, Lydia went to school as usual, but Mr.

Jarrett removed her from school in the middle of the day without

notifying the Carpenters. Compl. ¶ 15; Defs.’ Mem. Mot. Summ.

J. at 3; S. Carpenter Dep. at 142.

On the morning of May 2, 2014, Mr. Jarrett had filed a

Domestic Violence Petition (“DVP”) in the Magistrate Court of

Kanawha County, and it had been granted on a temporary basis

with a hearing scheduled for May 14, 2014. See Compl. ¶¶ 15-16.

As the basis for the DVP, Mr. Jarrett reported:

[Sara Carpenter] has acted violently toward [Lydia

Jarrett], destructive to the furnishing [sic]. [Sara

Carpenter] is a heavy drinker uses illegal drugs as

well as prescription drugs. Known drug dealer visits

the residence frequently. Drugs are used and kept at

the residence. [Lydia Jarrett] wants out of this

environment and fears for herself as well as her 4

year old stepbrother.

DVP at 6. He further reported to the court that when Trooper

Stepp took Lydia home on the morning of May 2, “the child did

not want to go back home and broke down in tears and was very

upset.” Id. at Continuation Sheet. On May 6, 2014, Mr. Jarrett

filed a Petition for Appointment of Guardian. Defs.’ Mem. Mot.

Summ. J. at 4.

On May 13, 2014, defendant Sergeant J.D. Perry, a

trooper with the State Police stationed at the Quincy

detachment, received information from his uncle, Mr. Jarrett,

regarding possible child neglect and endangerment, and drug use

and trafficking in the Carpenter home. Compl. ¶ 20; Written

Report of Trooper First Class Perdue, Ex. L Defs.’ Mot. Summ. J.

at 1 (“Rep. Perdue”). Mr. Jarrett showed his nephew, Sergeant

Perry, several photos that he received from Lydia and her

boyfriend, A.J. Tignor, depicting apparent marijuana and

marijuana paraphernalia in the Carpenter home.5 See Defs.’ Mem.

5 One photo contains an Easter basket, which defendants’ suggest

means the photos were likely taken around Easter of 2014. The

court takes judicial notice that Easter took place on April 20

in 2014.

Mot. Summ. J. at 4-5; S. Carpenter Dep. at 22-38, 72, 82; Rep.

Perdue at 1. One picture allegedly shows P.C. standing next to

a table upon which a bong sits. Ex. 1 Defs.’ Mot. Summ. J. The

next two pictures purport to show Ms. Carpenter sitting at a

table and looking at and handling two mason jars filled with

possible marijuana. Exs. 2-3 Defs.’ Mot. Summ. J. The fourth

picture is a closer shot of a mason jar filled with possible

marijuana next to what may be the same bong depicted in the

first photo. Ex. 4 Defs.’ Mot. Summ. J. The next photo shows

Ms. Carpenter standing next to an overturned table.6 Ex. 5A

Defs.’ Mot. Summ. J. The remaining pictures allegedly show

various close up shots of cigarettes, marijuana pipes, jars

filled with marijuana, and bags filled with marijuana in the

Carpenter home. Exs. 5B-5M Defs.’ Mot. Summ. J.

Sergeant Perry was further informed that Mr. Carpenter

was a registered sex offender. Compl. ¶ 21; Rep. Perdue at 1.

Mr. Carpenter pled guilty to charges of statutory rape for

having sex with a fifteen-year-old female sixty-six times when

he was thirty-six years old. Defs.’ Mem. Mot. Summ. J. at 7;

Compl. ¶ 22; R. Carpenter Dep. at 18. At no time relevant to

this case was Mr. Carpenter on probation, parole, or supervised

6 Lydia stated that her boyfriend, Mr. Tignor, told her that Ms.

Carpenter had flipped the table over while enraged and yelling.

L. Jarrett Dep at 32; Defs.’ Mem. Mot. Summ. J. at 6.

release. Compl. ¶ 28. As a registered sex offender, Mr.

Carpenter must re-register yearly in the month of his birth with

the State Police detachment responsible for his county. W. Va.

Code § 15-12-10; Compl. ¶¶ 22-23. “All registrants . . . must

respond to all verification inquiries and informational requests

. . . . The State Police shall verify addresses . . . of

registered persons once a year.” W. Va. Code § 15-12-10. Mr.

Carpenter’s birthday is May 4th, and he had recently made his

yearly registration when Sergeant Perry learned of his status.

Compl. ¶ 22; Defs.’ Mem. Mot. Summ. J. at 7.

Sergeant Perry contacted Corporal Abbess of the South

Charleston detachment to inquire about the verification of Mr.

Carpenter’s registration. Compl. ¶ 21; Rep. Perdue at 1.

Corporal Abbess informed Sergeant Perry that Mr. Carpenter had

not yet been verified by the South Charleston detachment as of

May 13, 2014. Compl. ¶ 24; Rep. Perdue at 1.

Sergeant Perry then contacted Troopers Powers and

Minor and directed them to “conduct a verification of the

residence and offender registration to determine the validity of

[Mr. Carpenter’s] registration information and any immediate

danger to the four year old child who remained in the

residence.” Rep. Perdue at 1; Compl. ¶ 26-27. The Troopers

were instructed to “be mindful of any contraband that may be in

plain view.” Written Report of Investigation or Inquiry

prepared by First Lieutenant LaFauci, Ex. A Pls.’ Resp. Defs.’

Mot. Summ. J. at 10 (“Rep. LaFauci”). Both Powers and Minor were

shown the photos provided to Sergeant Perry by Mr. Jarrett.

Rep. Perdue at 1. Sergeant Perry further instructed Powers and

Minor to “only do a sex offender verification and if anything

further was located in the residence to secure the occupants and

obtain a search warrant.” Rep. Perdue at 1; Compl. ¶ 27.

At 10:30pm on May 13, 2014, Troopers Powers and Minor

and two “ride-a-long subjects”7 arrived at the Carpenter home at

172 Jarrett Heights Road. See Compl. ¶ 29; Rep. Perdue at 1; S.

Carpenter Dep. at 158-59, 163. Present in the home at that time

were Robert Carpenter; Sara Carpenter; Robert “Pierce”

Carpenter, Mr. Carpenter’s adult son from a previous

relationship; Steven Carpenter, the Carpenters’ nephew; and P.C.

S. Carpenter Dep. at 164-65, 173-74; Pls.’ Resp. Mot. Summ. J.

at 5, 6 n.3. Pierce Carpenter answered the door and Troopers

7 Plaintiff Sara Carpenter stated that the “ride-a-longs” were

represented to her as undercover, or plain-clothed officers. S.

Carpenter Dep. at 158-59 (“[t]here were two gentlemen in plain

clothes. They didn’t give a name, but when I asked the troopers

who they were, they said they’re undercovers, plainclothes

detectives.”). These subjects were not actually police

detectives but civilian “ride-a-long subjects,” Zachary May and

Daniel Muckel, who “completed the proper paperwork and were

approved.” Rep. Perdue at 1; Rep. LaFauci at 11; S. Carpenter

Dep. at 163.

Powers and Minor asked him if he was Robert Carpenter. Compl. ¶

30; Pls.’ Resp. Mot. Summ. J. at 6. Pierce answered

affirmatively,8 and the officers grabbed him by the shoulder and

led him to the kitchen. Compl. ¶ 30; Pls.’ Resp. Mot. Summ. J.

at 6; S. Carpenter Dep. at 173. Pierce Carpenter stated that

the State Police “shoved him against the wall and barged into

the residence,” while Troopers Powers and Minor asserted that

they had been “invited . . . into the residence.” Rep. LaFauci

at 10.

Mr. Carpenter and P.C. were upstairs at the time

Troopers Powers and Minor and the two “ride-a-longs” entered the

Carpenter home. S. Carpenter Dep. at 160-62; R. Carpenter Dep.

at 25-26; Compl. ¶ 34. The officers took both plaintiffs into

the kitchen along with Pierce and their nephew, Steven. Compl.

¶ 32; S. Carpenter Dep. at 161-62. Trooper Powers remained in

the kitchen with the Carpenters. S. Carpenter Dep. at 163; Rep.

Perdue at 1; Compl. ¶ 32. P.C. was not brought into the

kitchen, and when Ms. Carpenter asked if she could get her

8 Both Pierce and his father have the legal name of Robert

Carpenter. Plaintiff Robert Carpenter goes by the name “Scott,”

and his son goes by the name “Pierce.” S. Carpenter Dep. at 161

(“They said, ‘Are you Robert Carpenter?” and he said, “Yes.”

They grabbed him and shoved him through the hallway to my

kitchen, but my husband is also Robert Carpenter. They assumed

that Pierce, which is what we call him, was Scott. He was

not.”).

unattended four-year-old son, the State Police refused. S.

Carpenter Dep. at 162. Ms. Carpenter states that upon asking to

retrieve her son the State Police told her that “if [she] didn’t

sit down and shut up, they were going to cuff [her].” S.

Carpenter Dep. at 162.

Ms. Carpenter asked the Troopers to show her a search

warrant, and both plaintiffs directly questioned why the

Troopers were there and what they were doing. S. Carpenter Dep.

at 172; R. Carpenter Dep. at 27; Rep. Perdue at 1. Neither

plaintiff ever consented to the Troopers’ presence in or search

of their home. Compl. ¶ 36; S. Carpenter Dep. at 237; R.

Carpenter Dep. at 52. The parties differ in their accounts

about whether or not the plaintiffs were told the purpose of the

search. Both plaintiffs state that the Troopers never told them

they were there to verify Mr. Carpenter’s sex offender

registration.9

9 Pls.’ Resp. Defs.’ Mot. Summ. J. at 6; R. Carpenter Dep. at 26-

28 (“Q: And what did the trooper say to you? A: They said they

had a complaint. They had heard that I had a white Cadillac

Escalade, is what Trooper Powers said, and they were coming to

verify and see if it was on my registry . . . . Q: Did they tell

you that they were there to verify your sex offender

registration? A: No, they said they were checking that one

vehicle. Q: Did you understand that they were there to verify

your sex offender registration? A: Not at 10:30 at night, and

they don’t ever come in the house, so no and no.”); S. Carpenter

Dep. at 171 (“[T]hey didn’t say why they were there. When I

asked them they told me to go in the kitchen and sit down and

However, Sergeant Perry reported that when Ms.

Carpenter told the Troopers they were not allowed in her home

without a warrant, the Troopers told her “the purpose of the

visit was to verify her husband Robert Scott Carpenter’s

information on the sex offender registry was correct and

accurate.” Rep. Perdue at 1. According to Sergeant Perry, Mr.

Carpenter was also “advised of the reason for the visit.” Id.

The State Police had made verifications of Mr. Carpenter’s sex

offender registration in the past, but on those occasions they

had never come into the home. R. Carpenter Dep. at 27; S.

Carpenter Dep. at 166-67. During previous verifications, the

State Police would come to the house during the day or in the

evening and ask Mr. or Ms. Carpenter to initial and sign a form

verifying that Mr. Carpenter lives at that address, their

internet service provider, cellular service provider, number and

type of vehicles, and license plates. S. Carpenter Dep. at 166,

169-70.

While both plaintiffs were in the kitchen with Trooper

Powers, Trooper Minor went upstairs. Compl. ¶ 32; R. Carpenter

Dep. at 54; S. Carpenter Dep. at 162; Rep. LaFauci at 11. Ms.

Carpenter asserts that the two “ride-a-long subjects” also went

shut up, or they were going to cuff me and take me to jail.

They never said they were there to verify his sex offender

registry.”).

upstairs. S. Carpenter Dep. at 162. Sergeant Perry, who was

not present, reported that the “ride-a-long participants stayed

in the entry area of the residence while the verification was

conducted and had no interaction with the residence occupants.”

Rep. Perdue at 1. One “ride-a-long,” Mr. May, stated they

remained in the entry way of the home, while the other, Mr.

Muckel, said that they remained outside during the incident.

Rep. LaFauci at 11.

Trooper Minor conducted a search of the home including

“opening doors [and] looking through things” on the first floor,

and going upstairs. S. Carpenter Dep. at 162; Pls.’ Resp.

Defs.’ Mot. Summ. J. at 8. Mr. Carpenter asked the Troopers

what they were doing and they responded that “they were looking

for hidden cell phones and computers.” R. Carpenter Dep. at 27.

As part of the internal investigation of the Troopers’ conduct,

Trooper Minor stated that he went upstairs “to conduct a ‘sweep’

to ensure no other persons were located in the residence . . . .

and he made a ‘walk through’ for officer safety purposes.” Rep.

LaFauci at 11. After the Troopers left, Ms. Carpenter found

that dresser drawers had been left open and the contents had

been disturbed. Id.

At no time did Troopers Powers or Minor ask to see

either plaintiffs’ cell phone. Pls.’ Resp. Defs.’ Mot. Summ. J.

at 7; R. Carpenter Dep. at 53; S. Carpenter Dep. at 237. At no

time did Troopers Powers or Minor go into the plaintiffs’

garage. Pls.’ Resp. Defs.’ Mot. Summ. J. at 7; R. Carpenter

Dep. at 53. At no time did Troopers Powers or Minor show

plaintiffs a verification form for initial and signature as the

State Police had done in the past when verifying Mr. Carpenter’s

sex offender registration. Pls.’ Resp. Defs.’ Mot. Summ. J. at

8-9; S. Carpenter Dep. 242-43. After thirty minutes to over an

hour, the Troopers and both “ride-a-long subjects” left the

residence. Compl. ¶ 35; S. Carpenter Dep. at 168; R. Carpenter

Dep at 28. This was the only verification where the State

Police entered the plaintiffs’ home and the only verification

where they did not provide the Carpenters with a verification

form. R. Carpenter Dep. at 26-28; S. Carpenter Dep. at 242-43;

Pls.’ Resp. Defs.’ Mot. Summ. J. at 9.

The next day, May 14, 2014, the Carpenters appeared at

Kanawha County Family Court for the hearing on Mr. Jarrett’s DVP

on behalf of his granddaughter, Lydia. Compl. ¶ 8; Family Court

Order Denying Domestic Violence Protective Order and Terminating

the Emergency Protective Order (“Order”), Ex. I Defs.’ Mot.

Summ. J. At the hearing, Judge Mike Kelly denied Mr. Jarrett’s

DVP for failure to prove the allegations. Order at 1. Trooper

Stepp testified at this hearing that Mr. Jarrett had asked him

to lie to plaintiffs about where Lydia was located on the night

she ran away to her grandfather’s home. Compl. ¶ 38; see Order

at 1; S. Carpenter Dep. 139-40.

Also on May 14, 2014, Sergeant Perry consulted with

Sergeant O’Brian about the photographs turned over to him by Mr.

Jarrett. Rep. Perdue at 1. Sergeant O’Brian consulted with

Kanawha County special prosecutor, Amy Bird, and opened up a

further investigation due to “the quantity of substances being

stored and trafficked at the residence.” Id. Trooper Perdue

was assigned as the investigating officer. Id. Trooper Perdue

interviewed Lydia who told him, among other things, that her

mother used marijuana openly in front of her and P.C., drank

beer and wine heavily, drove intoxicated, had large parties

where drugs were present, offered marijuana to her, smoked

marijuana with her, sold marijuana, and yells at and hits P.C.

Defs.’ Mem. Mot. Summ. J. at 9-12; Statement of Lydia Jarrett,

Ex. K Defs.’ Mot. Summ. J. Trooper Perdue contacted Child

Protective Services, who assigned West Virginia Department of

Health and Human Resources case worker Pamela Ingram. Defs.’

Mem. Mot. Summ. J. at 12. Ms. Ingram also interviewed Lydia and

was told similar accusations against Ms. Carpenter. Id.; W. Va.

Child Protective Servs. Sys. Family Functioning Assessment, Ex.

O Defs.’ Mot. Summ. J. at 5.

On May 30, 2014, based on the allegations of Mr.

Jarrett and Lydia, the photos given to State Police, and the

report of Ms. Ingram, Kanawha County Magistrate Kim Aaron issued

search warrants for the plaintiffs’ home at 172 Jarrett Heights

Road, and the adjoining property owned by Mr. Carpenter at 174

Jarrett Heights Road. Defs.’ Mem. Mot. Summ. J. at 13; Rep.

Perdue at 2. Finding probable cause that plaintiffs had

committed child endangerment10 and possession with the intent to

deliver a controlled substance,11 Magistrate Aaron also issued

warrants for plaintiffs’ arrest that same day. Defs.’ Mem. Mot.

Summ. J. at 14.

Troopers Perdue and Minor, with other unknown

troopers, executed the search warrants on both the 172 and 174

Jarrett Heights Road properties. Exs. M-N Defs.’ Mot. Summ. J.;

Defs.’ Mem. Mot. Summ. J. at 14; see Compl. ¶¶ 39-43. No drugs

or drug paraphernalia were located at either property. Defs.’

Mem. Mot. Summ. J. at 14; Compl. ¶ 40; Rep. Perdue at 2.

Pursuant to the arrest warrant for child endangerment and

possession with the intent to deliver a controlled substance,

the Troopers arrested Ms. Carpenter, who was held for several

hours in jail before being released, and against whom the

10 W. Va. Code § 61-8D-4.

11 W. Va. Code § 60A-4-401.

charges were ultimately dismissed for lack of evidence. Compl.

¶ 40, 44, 46; Defs.’ Mem. Mot. Summ. J. at 14; Rep. Perdue at 2.

Mr. Jarrett had separately filed a Petition for Appointment of

Guardian in Kanawha County Family Court, but the Guardian ad

litem appointed to investigate found nothing that would make the

Carpenter home unsuitable for children. Compl. ¶ 47.

II. Procedural History

Plaintiffs generally allege that Mr. Jarrett used his

familial relationship with his nephew, Sergeant Perry, to

instigate the actions of the State Police that led to this case.

On May 5, 2016, plaintiffs filed their complaint in

this court pursuant to 42 U.S.C. § 1983 for the commission of an

unreasonable search and seizure of their home (Count I) in

violation of the Fourth Amendment to the United States

Constitution.12 Compl. at 1.

As earlier noted, the only remaining issue for

resolution is Count I as asserted against defendants Perry,

Minor, and Powers for the “warrantless search of plaintiffs’

12 Plaintiffs do not contest the dismissal of all claims against

defendants Perdue, O’Brien, and Doe. Pls. Resp. Defs.’ Mot.

Summ. J. at 18-19. Ingram was earlier dismissed by stipulation.

Plaintiffs also do not contest the dismissal of the remaining

Counts, II, III, and IV. Id.

residence, 172 Jarrett Heights Road, on May 13, 2014, beginning

around 10:30pm.” Id. at 2.

Defendants assert that they are entitled to judgment

as a matter of law because the entry of Troopers Powers and

Minor into the Carpenter residence was protected by qualified

immunity and was not unreasonable under the Fourth Amendment.

Defs.’ Mem. Mot. Summ. J. at 18. The defendants add that the

fact that the “verification was conducted without a warrant,

consent, or exigent circumstances is irrelevant because those

three bases for a search do not occupy the field of Fourth

Amendment reasonableness.” Id. They contend that the search

was reasonable because of the special needs associated with

monitoring sex offenders. Id. at 18-20.

Plaintiffs respond that the verification allegedly

conducted by the State Police at 10:30pm on May 13, 2014 was an

unreasonable search under the Fourth Amendment that meets no

applicable exception. Pls.’ Resp. Defs.’ Mot. Summ. J. at 2-3.

Plaintiffs further reiterate their view that the verification

was a pretextual Trojan Horse that allowed State Police entry to

the Carpenter Home to search for drugs and child neglect to be

used as evidence at the Family Court hearing that was scheduled

to take place the next morning. See Id. at 2-3, 16. The

response also asserts that defendants are not entitled to

qualified immunity for their actions. Id. at 16.

III. Governing Standard

Summary judgment is appropriate only “if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “Material” facts are those necessary to

establish the elements of a party’s cause of action. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News

& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d

570, 576 (4th Cir. 2010) (same). A “genuine” dispute of

material fact exists if, in viewing the record and all

reasonable inferences drawn therefrom in a light most favorable

to the non-moving party, a reasonable fact-finder could return a

verdict for the non-moving party. Anderson v. Liberty Lobby,

477 U.S. at 248.

The moving party has the initial burden of showing —

“that is, pointing out to the district court — that there is an

absence of evidence to support the non-moving party’s case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the

moving party satisfies this burden, then the non-moving party

must set forth specific facts, admissible in evidence, that

demonstrate the existence of a genuine issue of material fact

for trial. See id. at 322-23; Fed. R. Civ. P. 56(c), (e).

Inferences that are “drawn from the underlying facts

. . . must be viewed in the light most favorable to the party

opposing the motion.” United States v. Diebold, Inc., 369 U.S.

654, 655 (1962). A party is entitled to summary judgment if the

record as a whole could not lead a rational trier of fact to

find for the non-moving party. Williams v. Griffin, 952 F.2d

820, 823 (4th Cir. 1991). Conversely, summary judgment is

inappropriate if the evidence is sufficient for a reasonable

fact-finder to return a verdict in favor of the non-moving

party. Anderson v. Liberty Lobby, 477 U.S. at 248.

IV. Discussion

A. The Fourth Amendment to the United States Constitution

The Fourth Amendment provides that “[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not

be violated . . . .” U.S. Const. Amend. IV.

i. Search

A search occurs when a government actor “physically

occupie[s] private property for the purpose of obtaining

information.” U.S. v. Jones, 565 U.S. 400, 404 (2012). In

Jones, the Court held that affixing a GPS tracking device to a

target’s vehicle to monitor the vehicle’s movements constituted

a search under the Fourth Amendment. Id. Because the

government temporarily trespassed when it affixed the GPS

tracker onto Jones’ car, they performed a search in their

gathering of information recorded by the tracker.

Here, defendants accept, arguendo, that the entry of

plaintiffs’ home on May 13, 2014 was a search for Fourth

Amendment purposes. Defs.’ Reply Pls.’ Resp. n.1. Indeed, the

facts in this case support such a finding. Defendants Powers

and Minor entered the Carpenter home to collect information.

Whether that information was collected for the verification of

Mr. Carpenter’s sex offender registration or for an impending

Family Court proceeding, the actions of the defendants fall

plainly within the scope of a Fourth Amendment search.

ii. Reasonableness

The Fourth Amendment does not prohibit all searches,

rather it protects individuals from those that are unreasonable.

Carroll v. U.S., 267 U.S. 132, 147 (1925). “Because an

individual’s expectation of privacy is ‘at [its] apex in one’s

home,’ warrantless searches of homes are unconstitutional under

the Fourth Amendment absent some type of justification.” Yanez-

Marquez v. Lynch, 789 F.3d 434, 464 (4th Cir. 2015) (citing U.S.

v. Gray, 491 F.3d 138, 146 (4th Cir. 2007); Brigham City v.

Stuart, 547 U.S. 398, 403 (2006)). “[N]ot just any claimed

justification will suffice to excuse a warrantless home entry,

for the right of a man to retreat into his own home and there be

free from unreasonable government intrusion is at the very core

of the Fourth Amendment.” U. S. v. Taylor, 624 F.3d 626, 631

(4th Cir. 2010) (citations omitted). “When it comes to the

Fourth Amendment, the home is first among equals,” and is

guarded with a special jealousy that warrants the greatest

protection. Florida v. Jardines, 569 U.S. 1, 6 (2013); see also

Yanez-Marquez, 789 F.3d at 464.

The exceptions to the notion that warrantless searches

of a person’s home are per se unreasonable are “narrow and well-

delineated in order to retain their constitutional character.”

Flippo v. West Virginia, 528 U.S. 11, 13 (1999) (per curiam)

(citing Katz v. United States, 389 U.S. 347, 357 (1967)).

Justifications for a warrantless search include: exigent

circumstances, Brigham City, 547 U.S. at 403-04, voluntary

consent, Schneckloth v. Bustamonte, 412 U.S. 740, 748 (1984),

and special needs of the government, Skinner v. Railway Labor

Executives’ Ass’n, 489 U.S. 602, 620 (1989).

“Search regimes where no warrant is ever required may

be reasonable where special needs . . . make the warrant and

probable-cause requirement impracticable, and where the primary

purpose of the searches is distinguishable from the general

interest in crime control . . . .” City of Los Angeles v.

Patel, 135 S.Ct. 2443, 2452 (2015). However, if the primary

purpose of a regime “is to uncover evidence of ordinary

wrongdoing,” or “is ultimately indistinguishable from the

general interest in crime control,” a special needs exception

does not exist. City of Indianapolis v. Edmond, 531 U.S. 32,

42-44 (2000). Where a law enforcement purpose exists, or where

there is extensive law enforcement involvement, the search does

not “fit within the closely guarded category of constitutionally

permissible suspicionless searches” and there can be no

permissible special need. Chandler v. Miller, 520 U.S. 305, 309

(1997); Ferguson v. City of Charleston, 532 U.S. 67, 82-84

(2001). If a special need does exist, the court “balance[s] the

governmental and privacy interests to assess the practicality of

the warrant and probable-cause requirements in the particular

context.” Skinner, 489 U.S. at 619.

In this case, the warrantless search regime at issue

is the verification of sex offender registrations.13 Pursuant to

13 W. Va. Code § 15-12-2(d) describes the registration

requirements that underlay the verification procedures at issue

in this case. It requires that registering sex offenders must

do so yearly, in person, with the State Police detachment

responsible for the county of residence. As part of this

registration, the registrant must, at minimum, provide the

following information to the State Police:

(1) The full name of the registrant, including

any aliases, nicknames or other names used by

the registrant;

(2) The address where the registrant intends

to reside or resides at the time of

registration, the address of any habitable real

property owned or leased by the registrant that

he or she regularly visits . . . the name and

address of the registrant’s employer or place

of occupation at the time of registration, the

names and addresses of any anticipated future

employers or places of occupation, the name and

address of any school or training facility the

registrant is attending at the time of

registration and the names and addresses of any

schools or training facilities the registrant

expects to attend;

(3) The registrant’s Social Security number;

(4) A full-face photograph of the registrant

at the time of registration;

(5) A brief description of the crime or crimes

for which the registrant was convicted;

W. Va. Code § 15-12-10, sex offenders required to register “must

respond to all verification inquiries and informational

requests, including, but not limited to, requests for online

information made by the State Police pursuant to this section.

The State Police shall verify addresses of . . . registered

persons once a year.” “Online information” is defined in W. Va.

Code § 15-12-2(d)(8) as “information relating to any Internet

accounts the registrant has and the screen names, user names or

aliases the registrant uses on the internet.” The verification

(6) Fingerprints and palm prints;

(7) Information related to any motor vehicle,

trailer or motor home owned or regularly

operated by a registrant, including vehicle

make, model, color and license plate number . .

. ;

(8) Information relating to any Internet

accounts the registrant has and the screen

names, user names or aliases the registrant

uses on the Internet; and

(9) Information related to any telephone or

electronic paging device numbers that the

registrant has or uses, including, but not

limited to, residential, work and mobile

telephone numbers.

Additionally, under W. Va. Code § 15-12-8, a registrant who

“knowingly provides materially false information or who refuses

to provide accurate information . . . or knowingly fails to

register or knowingly fails to provide a change in any required

information” may be punished with either a misdemeanor or felony

resulting in imprisonment. Id. at § 15-12-8(a)-(c).

procedures to be followed by the State Police are outlined in W.

Va. Code. R. § 81-14-13.3, which states in relevant part:

13.3.g. Within fifteen (15) working days of the

date of registration a uniformed member of the

West Virginia State Police shall make an

appearance at the person's residence to verify

that the person resides at or has moved from the

given address, and; shall contact the Post Office

to verify that person receives mail or no longer

receives mail at the given address and document

date verified on detachment copy.

Furthermore, registrants “shall cooperate fully with the State

Police uniformed member when he/she physically arrives at the

person’s address to verify that the given address is correct.”

W. Va. Code R. § 81-14-17.5.a.1. “Persons required to register

must comply with all verification inquiries or requests made by

the State Police.” W. Va. Code R. § 81-14-17.5.e.

This procedure is generally consistent with the

previous verifications of Mr. Carpenter’s registration recounted

by plaintiffs. Save for the events of May 13, 2014, the State

Police would visit the Carpenter residence and have Mr. or Ms.

Carpenter initial and sign a form verifying that the information

provided during registration was correct. S. Carpenter Dep. at

166, 169-70. State Police had never entered the home on any

previous occasion. R. Carpenter Dep. at 26-28; S. Carpenter

Dep. at 167; Pls.’ Resp. Defs.’ Mot. Summ. J. at 9.

Nevertheless, defendants assert that the May 13, 2014

verification was a reasonable search under the Fourth Amendment

based on the special needs of dealing with sex offenders as

authorized by the statute. Defs.’ Mem. Mot. Summ. J. at 18-20.

West Virginia’s Sex Offender Registration Act (“Act”)

was intended to “assist law-enforcement agencies’ efforts to

protect the public from sex offenders by requiring sex offenders

to register with the State Police detachment in the county where

he or she shall reside and by making certain information about

sex offenders available to the public . . . .” W. Va. Code §§

15-12-1, 15-12-1a(a). Because there is a “compelling and

necessary public interest that the public have information

concerning persons convicted of sexual offenses,” the

legislature stated that “persons required to register as sex

offenders pursuant to this article have a reduced expectation of

privacy because of the State’s interest in public safety.” W.

Va. Code § 15-12-1a(b), (c).

The West Virginia State Supreme Court has upheld

provisions of the Act against a series of challenges under both

the United States and West Virginia Constitutions. See, e.g.,

In re Jimmy M.W., No. 13-0762, 2014 W. Va. LEXIS 586, at *4 (W.

Va. May 30, 2014) (cataloging cases rejecting attacks based on

ex post facto, procedural due process, separation of powers, and

punitive nature of the Act). Similarly, district courts of this

circuit have denied challenges to the constitutionality of the

Act based on the Due Process, Equal Protection, and Ex Post

Facto clauses.14 However, there appear to be no cases that

address the constitutionality of the State Police entering the

home to conduct a verification of information as required by W.

Va. Code § 15-12-10.

“Sex offenders are a serious threat in this Nation,”

and “[s]tates have a vital interest in rehabilitating convicted

sex offenders.” McKune v. Lile, 536 U.S. 24, 32-33 (2002).

States have enacted statutes that allow the monitoring of sex

offenders in a variety of ways that do not violate the Fourth

Amendment including: tracking sex offenders by GPS trackers, in

some cases for life, Belleau v. Wall, 811 F.3d 929 (7th Cir.

2016); collecting and recording the DNA of incarcerated sex

offenders, Roe v. Marcotte, 193 F.3d 72 (2d Cir. 1999), or of

any sex offender, People v. Wealer, 636 N.E.2d 1129 (Ill. App.

Ct. 1994); and requiring sex offenders in prison to undergo

testing “to identify sexual deviant cycles,” Pool v. McKune, 987

14 Wiley v. W. Va. House of Delegates, No. 2:14-cv-10974, 2017

U.S. Dist. LEXIS 22939, at *16-22 (S.D.W.V., Jan. 30, 2017)

(Tinsley, Mag. J.), adopted by Wiley v. W. Va. House of

Delegates, No. 2:14-cv-10974, 2017 U.S. Dist. LEXIS 22757

(S.D.W.V., Feb. 17 2017) (Johnston, J.); Cunningham v. Lemmon,

No. 6:06-cv-00169, 2007 U.S. Dist. LEXIS 97020, at *14-38

(S.D.W.V., Feb. 14, 2007) (Stanley, Mag. J.), adopted by

Cunningham v. Lemmon, No. 6:06-cv-00169, 2007 U.S. Dist. LEXIS

20587 (S.D.W.V., Mar. 22, 2007) (Goodwin, J.).

P.2d 1073, 1076 (Kan. 1999). However, these cases are

distinguishable from this one either because the individuals

being monitored were incarcerated or because of the search’s

minimal infringement into the privacy rights of the sex

offender.

Defendants rely primarily on Belleau to support their

claim that West Virginia has a special need to make entry into

the homes of sex offenders for verifications even when the

offenders are “no longer subject to formal state-imposed liberty

restriction[s].” Defs’ Mem. Mot. Summ. J. at 23. In Belleau

the Seventh Circuit Court of Appeals upheld Wisconsin’s lifetime

GPS monitoring program for a sex offender, who was not on bail,

parole, probation, or supervised release. 811 F.3d at 932, 937.

The court found that “[s]uch [GPS] monitoring of sex offenders

is permissible if it satisfies the reasonableness test applied

in special-needs cases,” Id. at 937, and ultimately concluded

that “the monitoring scheme constitutes a reasonable special

needs search,” Id. at 939 (Flaum, J. concurring). The

government’s need to reduce recidivism and collect information

on the whereabouts of sex offenders outweighed the privacy

concerns of the individual sex offender. Id. at 940 (Flaum, J.

concurring).

The court’s reasoning was based on: (1) the nature of

“serious child sex offenses,”15 particularly the rate at which

offenders reoffend and the “lifelong psychological scars” that

these crimes “frequently inflict,” and (2) on the incremental

intrusion of the challenged statute on an offender’s privacy.

Id. at 933-35; Wis. Stat. § 301.48. This case is

distinguishable as to the type of search at issue. The court in

Belleau acknowledged that “[t]he ‘search’ conducted in this case

via the [GPS] anklet monitor is less intrusive than a

conventional search.” 811 F.3d at 937. “For it’s not as if the

Department of Corrections were following the [offender] around

[and] peeking through his bedroom window . . . . The fruits of

such surveillance techniques would be infringements of privacy

that the Supreme Court deems serious.” Id. at 935. The privacy

loss to a sex offender when “occasionally his trouser leg

hitches up and reveals an anklet monitor that may cause someone

who spots it to guess that this is a person who has committed a

sex crime must be slight.” Id. This stands in stark contrast

to the warrantless entry of State Police into the Carpenter

15 The statute at issue in Belleau was applicable only to sex

offenders who had committed “level 1” or “level 2” sex offenses.

See Wis. Stat. § 301.48. These offenses are either committed

against children under the age of twelve, children under the age

of thirteen where “great bodily harm” results, or “by use or

threat of force or violence” against a child under sixteen years

of age. Id. at (1)(cm)-(cn).

home, which falls much closer to the “conventional search”

mentioned in Belleau, and sits at the heart of the Fourth

Amendment protections. See Taylor, 624 F.3d at 631.

Similarly, the collection and recording of sex

offender DNA is a minimal intrusion into the privacy of the

offenders. In People v. Wealer, the court found that “[t]he

physical intrusion imposed by the [DNA] testing . . . is

relatively slight . . . [and] the privacy interest that a

convicted sex offender has in his or her identity is minimal.”

636 N.E.2d at 1136. Contrastingly, because an individual’s

expectation of privacy is “at [its] apex in one’s home,” Wealer

is distinguishable from the present case. U.S. v. Gray, 491

F.3d 138, 146 (4th Cir. 2007).

The West Virginia statute authorizing in person

verifications and the verification procedures in the

accompanying regulation do not purport to direct the entry of

State Police into the home in order to complete the

verification. See W. Va. Code § 15-12-10; W. Va. Code R. § 81-

14-13.3. It is well established that police officers without a

warrant may permissibly approach a home, knock, and seek consent

to enter. Jardines 569 U.S. at 8; U.S. v. Moore, No. 5:14-cr-

56, 2015 U.S. Dist. LEXIS 2179, at (W.D.N.C. Jan. 7, 2015)

(upholding a search of a home after getting valid consent as

part of a “sex offender compliance check”). When sex offenders

are on some form of supervised release, officers may enter the

home pursuant to the provisions of that release. State v.

Bogart, 2013 109 A.3d 883, 892 (Vt. 2014); Doe v. Prosecutor,

566 F.Supp.2d 862, 884-85 (S.D. Ind. 2008); see also U.S. v.

Knights, 534 U.S. 112, 118 (2001) (“[A] court granting probation

may impose reasonable conditions that deprive the offender of

some freedoms enjoyed by law-abiding citizens.”).

By contrast, it is held impermissible for an officer

to search the home of a sex offender who is not on parole or

under supervision without a warrant or consent to do so. Doe v.

Nebraska, 734 F.Supp.2d 882, 900-01 (D. Neb. 2010) (finding that

a Nebraska law requiring sex offenders who were not on parole,

probation, or supervision to consent to a search of their homes

and computers “clearly violates the Fourth Amendment”); Doe v.

Prosecutor, 566 F.Supp.2d at 878, 883-85 (declining to extend

the special needs doctrine to allow law enforcement to search

devices with internet capability at any time for persons

registered as sex offenders who were not under any form of

supervision).

Both Doe v. Nebraska and Doe v. Prosecutor concerned

statutes that required registering sex offenders who were not on

parole, probation, or other supervised release to consent to a

search of their homes and computers.16 Nebraska 734 F.Supp.2d at

896; Prosecutor 566 F.Supp.2d at 867. In both cases, the courts

found that forcing registrants to consent to searches of their

personal computers was in violation of the Fourth Amendment.

Prosecutor 566 F.Supp.2d at 878 (“By granting unlimited access

to these devices, the Indiana legislation crosses the most

fundamental boundary under the Fourth Amendment.”); Nebraska 734

F.Supp.2d at 900-01. Though the West Virginia Act in this case

does not require registrants to sign a form of consent allowing

16 In Nebraska, the statute at issue provided that:

[T]he registrant shall sign a consent

form . . . authorizing the: (a) Search of all

the computers or electronic communication

devices possessed by the person; and (b)

Installation of hardware or software to monitor

the person’s Internet usage on all the

computers or electronic communication devices

possessed by the person.

Neb. Rev. Stat. § 29-4006(2) (2010). Similarly, in Prosecutor,

the statute required that:

[T]he offender shall sign a consent form

authorizing the: (1) search of the sex or

violent offender’s personal computer or device

with Internet capability at any time; and (2)

installation on the sex or violent offender’s

personal computer or device with Internet

capability, at the sex offender’s expense, of

hardware or software to monitor the sex or

violent offender’s Internet usage.

Ind. Code § 11-8-8-8(b) (2008). While neither statute

explicitly allowed entry into a registrant’s home, “personal

computers will most often be inside the home.” Prosecutor 566

F.Supp.2d at 878.

State Police to access their homes, interpreting the Act to

allow warrantless entry into homes for the purposes of verifying

registration information is equally troubling under the Fourth

Amendment.

The privacy right of plaintiffs to be secure in their

own home is at the core of the Fourth Amendment, and though the

government certainly has an interest in protecting the public

from sex offenders by collecting and releasing public

information about those offenders this does not allow for

warrantless entry into private residences. Therefore, the entry

of State Police into the Carpenter home for the purpose of

performing a sex offender registration verification of one not

under supervision is an unreasonable search under the Fourth

Amendment and does not meet a valid special needs exception.

B. Qualified Immunity

Although a search made for the purposes of a sex

offender verification is unreasonable under the Fourth

Amendment, plaintiffs’ claim brought under 42 U.S.C. § 1983 must

overcome the defense of qualified immunity asserted by the

defendants. It is well established that government officials

are shielded “from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Qualified immunity provides police officers with “‘ample room

for mistaken judgments’ by protecting ‘all but the plainly

incompetent or those who knowingly violate the law.’” Hunter v.

Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475

U.S. 335, 341 (1986)). Officers “are not liable for bad guesses

in gray areas,” but “they are liable for transgressing bright

lines.” Maciarello v. Sumner, 973 F.2d 295, 298 (4th Cir.

1992).

In determining whether an officer is entitled to

qualified immunity the court “asks first whether a

constitutional violation occurred and second whether the right

violated was clearly established. Melgar v. Greene, 593 F.3d

348, 353 (4th Cir. 2010) (citing Pearson v. Callahan, 555 U.S.

223, 241 (2009); Saucier v. Katz, 533 U.S. 194 (2001)). As

previously discussed, the Carpenters’ Fourth Amendment rights

were violated by the unreasonable search conducted in their home

on May 13, 2014. The only remaining inquiry is whether the

right was “clearly established.”

For a right to be “clearly established,” it is not

necessary that “the very act in question have been previously

held unlawful,” but “in the light of pre-existing law the

unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S.

635, 640 (1987). “[I]f the contours of the right are

sufficiently clear so that a reasonable officer would have

understood, under the circumstances at hand, that his behavior

violated the right” there is no entitlement to qualified

immunity. Bailey v. Kennedy, 349 F.3d 731, 741 (4th Cir. 2003)

(citing Wilson v. Layne, 526 U.S. 603, 615 (1999)).

Defendants are not entitled to qualified immunity for

the warrantless search of the Carpenter home on May 13, 2014.

“The State Police shall verify addresses of . . . all other

registered persons once a year.” W. Va. Code § 15-12-10. W.

Va. Code R. § 81-14-13.3 gives guidance to the State Police on

how to conduct the required verification, directing that “Within

fifteen (15) working days of the date of registration a

uniformed member of the West Virginia State Police shall make an

appearance at the person’s residence to verify the person

resides at or has moved from the given address . . . .” Id. at

§81-14-13.3.g. Registrants must “cooperate fully with the State

Police” when they conduct a verification and “must comply with

all verification inquiries or requests made by the State

Police.” Id. at § 81-14-17.5. Inquiries may include requests

for “[i]nformation relating to any Internet accounts the

registrant has and the screen names, user names or aliases the

registrant uses on the Internet.” W. Va. Code § 15-12-2(d)(8);

see W. Va. Code § 15-12-10.

Nothing in the statutes or rules would give a

reasonable officer reason to believe that he or she may enter

and search the home of a registered sex offender without a

warrant, consent, exigent circumstances or any other applicable

exception to the Fourth Amendment. The rules merely direct a

uniformed State Police Trooper to ensure that the registrant

lives at the reported address by “mak[ing] an appearance” at the

reported residence. W. Va. Code R. § 81-14-13.3.g. An officer

may always permissibly approach a home, knock, and seek consent

to enter. Jardines 569 U.S. at 8. However, entry into the home

absent that consent, warrant, or other exception is the concern

at the very heart of the Fourth Amendment, and nothing in the

statutes or rules gives any indication that the State Police

may, without more, enter a registrant’s home to conduct a search

as part of the verification. At best, the State Police may make

informational inquiries of the registrant, but nothing indicates

that these inquiries may take the form of a search of the

registrant’s private residence. See W. Va. Code § 15-12-10.

This is further supported by the fact that the State Police

never entered the Carpenter home as part of the verification at

any time other than on May 13, 2014. R. Carpenter Dep. at 27;

S. Carpenter Dep. at 166-67.

Absent consent (which is but one of several sharply

disputed questions of material fact in this case) defendants

Perry, Powers, and Minor violated the clearly established rights

of the plaintiffs, and no reasonable officer would have believed

this conduct was permissible. Accordingly, they are not shown

at this juncture to be entitled to qualified immunity.

V. Conclusion

For the foregoing reasons, it is ORDERED that

defendants’ motion for summary judgment be, and it hereby is,

denied.

Pursuant to the plaintiffs’ acknowledgements in their

briefing accompanying this motion, it is further ORDERED that

Counts II, III, and IV and defendants L.G. O’Brian, S.W. Perdue,

and John Does 1-5 be dismissed from this action.

The Clerk is requested to transmit copies of this

order to all counsel of record and any unrepresented parties.

Dated: November 21, 2017

LO ph Do =p —Q

John T. Copenhaver, Jr.

United States District Judge

36