United States v. Kelly
| Decision Date | 20 August 2020 |
| Docket Number | Case No. 3:20-cr-00016-SMR-SBJ-1 |
| Citation | 481 F.Supp.3d 862 |
| Parties | UNITED STATES of America, Plaintiff, v. Chris William KELLY, Jr., Defendant. |
| Court | U.S. District Court — Southern District of Iowa |
Melisa Kay Zaehringer, United States Attorney's Office, Davenport, IA, for Plaintiff.
Terence L. McAtee, Federal Public Defender, Davenport, IA, for Defendant.
ORDER ON DEFENDANT'S MOTION TO SUPPRESS
A local prosecutor was grocery shopping and saw a black man with a heavy object in his pocket. In a series of events that have become all too predictable, the man was stopped under pretext, violently wrestled to the ground, tased, and placed under arrest.
That black man was Chris Kelly. On December 26, 2019, Kelly was walking back from getting a bite to eat at a Hy-Vee Gas station when he was confronted by police officers for "jaywalking." The officers had been observing Kelly following a call from the assistant county attorney informing them of a black man's presence in the area who the attorney thought he recognized from a prior case but could not identify by name, and that the attorney observed a heavy object in the man's coat pocket he surmised to be a gun. After a post-arrest search revealed a pistol and a small amount of marijuana, the Government charged Kelly with being a felon in possession of a firearm. Kelly moved to suppress all evidence obtained through the search, along with statements made following his arrest. [ECF No. 27].
This is a story of "walking while black."1 To be sure, controlling precedent makes clear that a police officer's subjective motivations for an arrest—however flawed—are irrelevant in determining whether an investigatory stop is lawful under the Fourth Amendment. But here, law enforcement lacked any objective basis for suspecting criminal wrongdoing. Kelly was not jaywalking, and neither the prosecutor nor the arresting officers had any reasonable grounds to suspect the object in his pocket was a gun as opposed to some other personal item. They operated solely on a "hunch" that Kelly was violating the law, and a hunch is not enough. Kelly's Motion to Suppress is GRANTED.
On December 26, 2019, members of the Iowa City Police Department and Street Crimes Action Team ("SCAT") were executing a search warrant for an unrelated investigation in the Hy-Vee parking lot located at 1720 Waterfront Drive when Assistant Johnson County Attorney Jude Pannell called Officer Travis Neeld to report what he perceived to be suspicious behavior in the surrounding area.2 Officer Neeld, who was assisting with the unrelated search, testified that the prosecutor stated he was exiting the west end of the Hy-Vee parking lot when he observed what he described as a black man with dreadlocks, a stocking cap, and a camouflage jacket who, he claimed, was intently staring at the officers as they performed their search. The assistant county attorney reported that as he stopped his car at the exit to allow the man, later identified as Defendant Chris Kelly, Jr., to walk north along the sidewalk of Waterfront Drive past the Hy-Vee entrance, the prosecutor thought he recognized the man from a prior case and observed a fairly heavy object in the man's right jacket pocket that he speculated to be a gun. There is no evidence the prosecutor witnessed Kelly engage in any illegal acts or saw the contents of his coat pockets.
As Kelly rounded the curve of Waterfront Drive westward toward the Hy-Vee Gas station, Officer Neeld relayed the prosecutor's observation to other law enforcement in the area. Detective Niles Mercer, an officer with the Iowa City Police Department SCAT unit who was also working on the unrelated search in the Hy-Vee parking lot that day, observed a man matching the prosecutor's description of Kelly enter Hy-Vee Gas, and the team took up positions around the perimeter of the building.
The Waterfront Drive Hy-Vee area, shown in Government's Exhibit 6 and reproduced below, rests at a complex intersection of Waterfront Drive and Stevens Drive that is fairly difficult to describe. From the north, Waterfront Drive runs directly south past Hy-Vee Gas until it intersects with the east-west running Stevens Drive to form a "T" intersection.
Stevens Drive then ends while Waterfront Drive continues east over railroad tracks, curving southward past the western-most entrance to the Hy-Vee grocery store before continuing straight south.
A sidewalk runs completely along the eastern and northern side of Waterfront Drive as it runs south, turns east, and curves to continue south, as well as the northern side of Stevens Drive; there is no sidewalk on the south side of Stevens Drive, nor is there a sidewalk on the western and southern portion of Waterfront Drive where a utility box is located. An unmarked crosswalk at the Stevens-Waterfront intersection is designated solely by handicap-accessible pedestrian ramps connecting the sidewalk as it runs east-west. See [Def.’s Ex. A].
After a few minutes, Detective Mercer, who was positioned under the covered pumps just south of Hy-Vee Gas, observed Kelly exit the building with a bag of food and walk south-southeast through the parking lot towards the intersection of Waterfront and Stevens. Detective Mercer testified he also recognized Kelly, but could not remember his name. He alerted Officer Neeld, who was parked north of Hy-Vee Gas facing south on Waterfront Drive, to Kelly's movement. Officer Neeld's body camera footage shows him pull his marked police cruiser forward to the stop sign at the intersection of Waterfront and Stevens and wave at Kelly to signal him to cross the street in front the patrol vehicle. [Gov't Ex. 1]. Officer Neeld testified he observed the large object in Kelly's coat pocket described by Assistant County Attorney Pannell as Kelly crossed Waterfront heading east, though his body camera video shows at the time Officer Neeld was looking at Kelly's left side, not his right.
From here, the account of Kelly's movement becomes less clear. Sitting at the stop sign, see [Def.’s Ex. A], Officer Neeld testified he observed Kelly walk east across the unmarked crosswalk over Waterfront Drive, veer south to the other side of the street toward the railroad tracks and utility box as the road continued eastward, see [Def.’s Ex. B], and then walk back up to the sidewalk on the northeast side of Waterfront as it curved southbound, just before the entrance to the Hy-Vee parking lot. Detective Mercer told a different story. Detective Mercer testified he also observed Kelly cross the unmarked crosswalk, but saw him only briefly leave the sidewalk to walk east on the street along the northern portion of Waterfront Drive, cutting a narrow path from the intersection along the curve of Waterfront Drive before returning to the sidewalk near the Hy-Vee entrance. He testified Kelly did not cross over to the southern side of Waterfront or approach the grassy area on the portion of the road containing the utility box. Detective Mercer testified that several cars had stopped behind Officer Neeld's vehicle heading south on Waterfront Drive when Officer Neeld was following Kelly, but there were none driving northbound around the curve towards the intersection with Stevens Drive. Officer Neeld did not observe Kelly walking in front of any vehicle except, he claims, his own; and Kelly only crossed in front of Officer Neeld after Officer Neeld waved him across the street in front of his patrol vehicle at the intersection.
As Kelly walked across the north end of Waterfront Drive, Officer Neeld and the SCAT detectives can clearly be heard discussing Kelly's behavior and looking for a reason to stop him. One officer can be heard confirming the prosecutor's observation of Kelly with a heavy object in his pocket, but noting it was unclear that the object was a firearm and that it was not enough to approach him. Another officer suggested Officer Neeld do a flyby to look at Kelly more closely. Just after he waived Kelly across the intersection, Officer Neeld suggested Kelly was jaywalking and initiated the stop.
Officer Neeld accelerated his patrol car to get in front of Kelly and positioned his vehicle so as to cut him off at the entrance to the Hy-Vee parking lot. Officer Neeld testified that, from the beginning of the encounter, he approached Kelly about jaywalking. His body camera footage reveals Officer Neeld exiting his vehicle as his K-9 enforcement dog barks loudly and immediately yelling at Kelly about what was in his pocket. Officer Neeld admitted he had not identified any gun or other contraband at the time he approached Kelly. Kelly stopped as Officer Neeld confronted him and told him he had been jaywalking across the street. Kelly apologized and began to leave, but Officer Neeld continued to engage Kelly and asked for his identification.3 Initially telling Officer Neeld his name was Marcus, Kelly produced an EBT card with the name "Chris Kelly." Officer Neeld—despite knowing that Iowa City had both a Chris Kelly and a Christopher Kelly with active police contacts—called in the wrong name, asking for a background check on "Christopher Kelly." Christopher Kelly had an active warrant for his arrest; Chris Kelly did not. Dispatch came back a minute later and indicated a code 10-106 meaning, in law enforcement lingo, that dispatch had obtained pertinent information about the target of the stop, which may have been information about a protective order, details about violence in prior encounters, or that there was an active warrant for the individual, with the latter being the most common reason for code 10-106 responses. Officer Neeld admitted in his testimony he neither paused to retrieve the 10-106 information nor asked for Kelly's birthdate to confirm his identity and ensure the correct Chris/Christopher Kelly was the source of the warrant. Officer Neeld continued to lecture Kelly about the sins of jaywalking, and when it appeared he had gotten...
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