It was a textbook case of raiding the wrong house but finding the right drugs.
Officers with the Central West Virginia Drug Task Force obtained a search warrant in September 2017 to enter what they said was the home of Melissa Figueroa, who they witnessed sell a small baggy of heroin to a man, who would become their confidential informant, for $80.
The informant purchased drugs from her again later that day, this time wearing a recording device and paying with identifiable bills. Officers described these transactions in requesting a search warrant for what they said was Figueroa’s home.
Inside the Oak Hill home, they didn’t find Figueroa, her possessions, or the informant’s identifiable bills.
Instead, they found 112 grams of heroin (worth $25,000, the task force said in a news release), scales, two firearms and more than $2,200 in cash, all belonging to Keith Allen Sizemore.
They charged Sizemore — who confessed to officers that he bought the heroin in Detroit to sell around Oak Hill — with possession with the intent to deliver.
The case quickly fell apart when U.S. District Judge John Copenhaver found the only basis the officers used in their search warrant to state Figueroa “lived or stayed at” Sizemore’s was that they saw her in the house one time, they saw a car they connected her with parked there once, and they saw her leave the house once.
On both her driver’s license and in another interaction with police, Figueroa said she lived elsewhere. As Copenhaver said in a March ruling that would bar any evidence or statements obtained in connection with the search warrant from being introduced at a trial, Figueroa had only stayed there on two or three occasions.
Copenhaver stopped just short of saying Sgt. Shannon Morris lied in seeking the warrant.
“Sgt. Morris’ false statement that the officers had prior knowledge that Figueroa ‘lived or stayed at’ the defendant’s residence was calculated to mislead the magistrate into the belief that there was probable cause to believe heroin could be found at that location,” he wrote.
Beyond claiming that Figueroa and her then-girlfriend, Amber Evans, lived at Sizemore’s, police claimed in the search warrant they had received “numerous complaints” about the sale of heroin from Sizemore’s, and additional complaints about “other subjects who are known to live or stay there” — describing Sizemore and Evans, who is Sizemore’s daughter.
“There is not an iota of evidence to support that gratuitous allegation,” said Copenhaver, noting that Evans did not live there, nor had the Task Force ever made a controlled buy from the house.
“The search warrant obtained for [Sizemore’s] 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,” Copenhaver wrote.
After Copenhaver’s ruling to suppress the evidence, prosecutors dismissed the case.
Last week, Sizemore filed a lawsuit against Morris, another officer on the task force, the city of Oak Hill and Fayette County, alleging they committed an unreasonable seizure under the Fourth Amendment to the U.S. Constitution.
“He only got caught because they didn’t follow the rules. They got lucky in catching him,” said John Bryan, Sizemore’s attorney. “Even though maybe it’s not a sympathetic situation, maybe a jury might not care, but there’s clearly a civil rights violation there. We’ve got to apply it to everybody or we can’t apply it to anybody.”
Months before they filed the search warrant, police came close to catching Figueroa and Sizemore with about 80 grams of heroin, according to Copenhaver’s order, which contains a narrative of events.
In July, Morris fielded a tip about Sizemore bringing heroin into the state from Detroit. The officers pulled them over. A police dog searched the car and found a small quantity of marijuana, for which Figueroa was arrested.
Police towed Sizemore’s truck for a search that would prove fruitless. They visited Sizemore afterward for an interview, where they saw Evans and Figueroa inside.
Copenhaver’s order would later reveal that Sizemore and Figueroa had 80 grams of heroin on them that officers failed to locate at the time of the initial traffic stop, including some Figueroa had in her bra when she was taken to the police station upon her arrest.
Sizemore was at home with his 16-year-old son, who is also named as a defendant, when officers threw a concussion grenade through his window and busted open his door with a sledgehammer, according to the complaint.
The lawsuit states Sizemore’s home and truck were seized and forfeited to the government after the raid before he was even indicted, proof that “the primary motive of [the officers] is profit, rather than law enforcement.” In an interview, Bryan went on to call the practice a “scam” regularly abused by law enforcement.
“They run around in plain clothes, beards maybe, kind of undercover looking guys, they have no supervision, and they’re just running this racket where they’re confiscating things,” he said. “And if they screw up, ‘Oh well.’”
Fayette County Prosecutor Larry Harrah didn’t play a hands-on role in the case, but said it’s common to see the government claim ownership of people’s property through forfeiture before indictments or convictions are secured.
“If you look at the forfeiture law, we have to file those within 90 days of the seizure,” he said. “It really ramps up your time frame to file those things.”
The West Virginia Contraband Forfeiture Act allows law enforcement to seize property believed to be a “container” or “conveyance” in the commission of a crime. The state needs to prove by a preponderance of the evidence (a lesser standard than reasonable doubt) that the evidence seized is subject to forfeiture.
When seized goods are forfeited, the office of the prosecuting attorney that initiated the proceedings gets 10 percent of proceeds, while the rest goes to a fund controlled by the head of the relevant law enforcement agency.
Harrah largely declined comment on the case, though he said it’s not a common practice to see misinformation appear in a search warrant. He also said he’s “not pleased” to see a case in which a man who admitted to possessing that much heroin walks free.
Fayette County Sheriff Mike Fridley declined to comment on the suit. A spokeswoman for the U.S. attorney’s office did not grant an interview with the prosecuting attorney or respond to written questions.