United States District Court, S.D. Ohio, Western Division
DECISION AND ENTRY OVERRULING MOTION TO SUPPRESS
PHYSICAL EVIDENCE AND ANY CONTEMPORANEOUSLY MADE STATEMENTS
(DOC. #43 AS SUPPLEMENTED BY DOC. #53), AND SUPPLEMENTAL
MOTION TO SUPPRESS PHYSICAL EVIDENCE AND ANY
CONTEMPORANEOUSLY MADE STATEMENTS TO NOW INCLUDE THE SEARCH
WARRANT EXECUTED ON 341 STELTON ROAD, APT. 608 (DOC.
H. RICE UNITED STATES DISTRICT JUDGE.
William Prigmore was originally indicted on one count of
being a felon in possession of ammunition. Doc. #21. A
Superseding Indictment charges him with one count of being a
felon in possession of a firearm, and two counts of being a
felon in possession of ammunition, all in violation of 18
U.S.C. § 922(g)(1). Doc. #60.
matter is currently before the Court on Defendant's
Motion to Suppress Physical Evidence and Any
Contemporaneously Made Statements, Doc. #43, as supplemented
by Doc. #53, and a Supplemental Motion to Suppress Physical
Evidence and Any Contemporaneously Made Statements to Now
Include the Search Warrant Executed on 341 Stelton Road, Apt.
608, Doc. #62. The Court held an evidentiary hearing on
January 3, 2019, the transcript of which is filed at Doc.
Background and Procedural History
evening of October 21, 2017, Xenia police officer Chris Reed
was dispatched to the Deer Creek apartment complex on a
complaint of drug activity. The unidentified caller indicated
that a sport utility vehicle ("SUV") was double
parked and that someone in the back seat was "shooting
up." Doc. #57, PagelD#201. When he arrived at the
apartment complex, Officer Reed found a Hyundai Santa Fe
straddling two parking spaces, one of which was a handicap
spot. As he exited his patrol car and approached the SUV, he
noticed that it had no placard or license plate indicating
that the driver had permission to park in a handicap spot.
Id. at PagelD##202-03.
William Prigmore opened the rear passenger door of the SUV
and began to step out. Not knowing what Defendant's
intentions were, Officer Reed instructed him to stay in the
vehicle. Defendant complied with the order but left the car
door open. Officer Reed noticed what appeared to be a handgun
protruding from a pocket in that car door. For safety
reasons, Reed drew his firearm and ordered the three
occupants of the SUV to raise their hands. Id. at
time, Sergeant Cvitkovich had arrived on the scene. Reed
removed the handgun from the door pocket and handed it to
him. Neither officer inspected the gun to determine whether
it was real. Reed testified that it was not safe at that
point in time to do so because there were still three people
in the car, and it was unclear whether they had other
weapons. Because Defendant was closest to door pocket where
the gun was found, Officer Reed asked him to step out of the
SUV. Reed handcuffed him and patted him down. Defendant then
told him that the gun was not real, but the officers took no
steps at that point to confirm his statement. Reed testified
that, because BB guns look so realistic, it is not always
easy to distinguish them from real guns. Id. at
PagelD##208, 210-11, 221-22.
Officer Reed returned to the SUV, he saw another gun in plain
view on the back seat where Defendant had been sitting. In
the course of securing this weapon, Reed determined that it
was real. Id. at PagelD##212-13. This 9 mm handgun
was loaded with seven rounds in the magazine and one in the
chamber. Doc. #62-1, PagelD#288.
was taken into custody, along with the driver and the other
back seat passenger, who were found with drug paraphernalia,
heroin and Gabapentin. The driver indicated that they had
just come from apartments on 341 Stelton Road in Xenia.
Defendant was released on bond the next day. Id. at
October 23, 2017, FBI agents obtained a search warrant for
two residences and two vehicles. Doc. #62-1, PagelD#278. The
warrant application indicated that the search was related to
violations of 21 U.S.C. § 846, conspiracy to distribute
and to possess with intent to distribute controlled
substances. The application was supported by the Affidavit of
FBI Agent Dennis Eng, who detailed a lengthy history of drug
trafficking activity by Defendant and his associates. One of
the residences to be searched was 341 Stelton Road, Apartment
608, in Xenia. Property to be seized included
"[f]irearms and ammunition." Id. at
PagelD#291. During the search, a box of 9 mm ammunition was
recovered from that apartment, along with mail addressed to
Defendant. Id. at PagelD#298.
same date, FBI agents obtained an arrest warrant for
Defendant for an alleged violation of 18 U.S.C. §
922(g)(1), being a felon in possession of ammunition. They
arrested him that evening at the Deer Creek apartment
complex. Based on his eyes, his facial expressions and his
"scattered and incoherent" demeanor, the agents
feared that he was under the influence of a controlled
substance. They believed he "might not have understood
anything if we did try to attempt to question him." They
therefore refrained from questioning him. They did not read
him his Miranda rights. Doc. #57, PagelD##230-34,
agents Dennis Eng and Patrick Gragan transported Defendant to
the Montgomery County Jail, approximately 25 minutes away.
Defendant walked unassisted into the jail. During the booking
process, Defendant was cooperative and was able to confirm
biographical information such as his name, social security
number and date of birth. Gragan testified that Defendant
appeared to be more coherent than he had been at the
apartment complex. The officers did not question Defendant
concerning any of the allegations against him. Id.
at PagelD##239-43. Nevertheless, during the booking process,
Defendant spontaneously stated "that gun was mine."
Id. at PagelD#243.
was indicted on November 14, 2017, on one count of being a
felon in possession of ammunition. He then filed a Motion to
Suppress Physical Evidence and Any Contemporaneously Made
Statements, Doc. #43. He later filed a Supplement to that
motion, Doc. #53. Before those motions were fully briefed,
the Government filed a Superseding Indictment, charging
Defendant with one count of being a felon in possession of a
firearm and two counts of being a felon in possession of
ammunition. Doc. #60. After these new charges were filed,
Defendant filed a Supplemental Motion to Suppress Physical
Evidence and Any Contemporaneously Made Statement to Now
Include the Search Warrant Executed on 341 Stelton Road, Apt.
608, Doc. #62. These motions are now fully briefed.