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United States v. Prigmore

United States District Court, S.D. Ohio, Western Division

June 7, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
WILLIAM PRIGMORE, Defendant.

          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. #62)

          WALTER H. RICE UNITED STATES DISTRICT JUDGE.

         Defendant 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.

         This 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. #57.

         I. Background and Procedural History

         On the 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.

         Defendant 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 PagelD##204-06.

         By this 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.

         When 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.

         Defendant 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 PagelD#289.

         On 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.

         On the 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, 238-39.

         FBA 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.

         Defendant 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.

         II. ...


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