United States District Court, W.D. Kentucky, Louisville Division
Kenyatta James, pro se
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge United States District Court
matter is before the Court upon several motions by Defendant
Kenyatta James, most notably his motions to suppress and to
exclude evidence. [DN 105; DN 102; DN 103.] The United States
has responded to those motions, [DN 107; DN 109], and James
has replied, [DN 117; DN 115]. The Court held two suppression
hearings, on October 17 and December 16, 2016, respectively,
receiving testimony from Detective Aaron Browning, Major
Kevin Thompson, Detective Chad Stewart, and Crime Scene Unit
technician Dona J. Stephenson. Fully briefed, James'
substantive motions are ripe for adjudication. James also
moves to supplement the record and to strike exhibits
introduced by the United States during his first suppression
hearing. [DN 168; DN 172; DN 162.]
following reasons, James' motions to supplement the
record [DN 168; DN 172] are GRANTED. The Court has considered
those supplements in reaching its decision herein. His other
motions [DN 102; DN 103; DN 105; DN 162] are DENIED.
Facts and Procedural History
case arises from Defendant Kenyatta James' arrest on May
8, 2015. That evening, Detective Aaron Browning and Major
Kevin Thompson of the Louisville Metro Police Department were
on patrol in the Russell neighborhood, located in west
Louisville. Both officers testified that, based upon their
knowledge and experience, the Russell neighborhood is a
high-crime area known for narcotics trafficking and violent
crimes. At about 6:00 p.m., Browning and Thompson were in
Browning's maroon Ford Explorer, traveling westbound on
Stone Alley between South 19th and South 20th Streets.
Nineteenth and 20th Streets run roughly north to south, with
19th Street located to the east of 20th Street. Near the 19th
Street entrance to Stone Alley, they observed a black Toyota
sedan approaching them, traveling eastbound. Browning
observed the vehicle's operator, later identified as
Kenyatta James, not wearing a seatbelt. Browning testified
that he made the decision to initiate a traffic stop of the
vehicle at this time. After passing James's vehicle in
the alley, Browning then turned his Explorer around in a
parking lot and repositioned himself behind James, so that
both were facing east at the 19th Street entrance to Stone
Alley. James then made a right turn onto 19th Street without
using a turn signal. Browning and Thompson followed James
onto 19th Street. After traveling south on 19th Street for a
half-block, James then turned right onto West Madison Street,
which runs parallel to Stone Alley. Once again, James did not
use a turn signal. The officers followed James onto Madison
Street, and Browning activated his emergency equipment
halfway down the block.
came to a stop in front of 1939 West Madison, the house
nearest to the corner of West Madison and 20th Streets.
Browning approached the driver's side of James'
vehicle, and Thompson approached the passenger side. After
Browning asked James for his driver's license, James,
still seated, reached with his right hand toward the right
side of his body. Browning testified that at this point, his
view of James' right side was obscured, so Browning moved
toward the front of James' vehicle to get a better view.
When Browning made this movement, James immediately stopped
reaching for his pocket and said, “Don't worry,
it's just my cell phone.” Neither officer recalls
seeing a cell phone in James' hand at this time. James
then produced an Indiana driver's license, but told
Browning he lived at 1939 West Madison. He also told the
officers that the car, which had a Kentucky license plate,
was registered to his fiancé.
point after James produced his license, Browning slid it
across the roof of the car to Thompson. Browning did not
recognize James, but Thompson did. Thompson recalled that
several years prior, James' name had been mentioned
during internal police department meetings regarding
unrelated crimes. Thompson testified that once he recognized
James' name, he signaled to Browning that James was known
to him as a criminal. However, Browning stated that he did
not realize until after he detained James that Thompson knew
of James' criminal history.
testified that at this point, based upon James' statement
about the cell phone and the mismatch between James'
driver's license, claimed residence, and vehicle
registration, he suspected James was involved in criminal
activity. Browning asked James whether there were firearms or
narcotics in the vehicle. James said no, and declined to give
Browning permission to search the vehicle. James also told
Browning that he had just been released from prison on
narcotics charges. Browning then asked James to step out of
the vehicle. At first, James refused, stating that it was his
Fourth Amendment right to remain inside. After some
discussion between Browning and James, during which Browning
explained that Pennsylvania v. Mimms entitled
Browning to ask James to step out of his car, James agreed to
do so. James was wearing baggy clothing which, in
Browning's experience, makes concealing weapons and
narcotics easier. After he exited the vehicle, Browning
performed a Terry pat-down for weapons on the outer
layer of James' clothing, and found a .40 caliber Glock
23 handgun in James's right pants pocket.
securing James in handcuffs, Browning performed a full search
of James' person, finding two small bags of marijuana in
his right coin pocket. Officers also found a digital scale in
James' vehicle. During this time, Detective Chad Stewart,
who was present at the scene as backup, ran a background
check on James. He discovered that James had an outstanding
arrest warrant from Cook County, Illinois. Browning did not
know about James' outstanding warrant at the time he
conducted the Terry pat-down. Based upon James'
Illinois warrant, his possession of a handgun, and his
possession of marijuana, James was arrested and transported
to the detention center by Stewart.
took the handgun he seized from James' person to the
Crime Scene Unit, where it was collected by CSU tech Dona J.
Stephenson. On James' original citation, Browning wrote
that he recovered a Glock 23 handgun, .40 caliber, with the
serial number “DNX930 U.S.” However, in
Stephenson's CSU report, she lists the serial number as
“DNX903.” Browning admitted during the
suppression hearing that he incorrectly transposed the last
two digits of the firearm's serial number on the
citation. The CSU report lists Kenyatta Tyrone James as the
suspect, and the property room voucher lists
“Commonwealth of Kentucky Society” as the
weapon's owner. Stephenson testified that at the time, it
was CSU's standard practice to list “Commonwealth
of Kentucky Society” as the owner of all evidence
turned into CSU by LMPD officers. After processing and
photographing the weapon, Stephenson turned it in to the
property room. The weapon itself, the CSU report, and the
property room voucher were all introduced into evidence at
James' evidentiary hearing.
James' second suppression hearing, Detectives Browning
and Stewart provided further testimony regarding James'
outstanding Cook County, Illinois arrest warrant.
Specifically, Browning stated that when he asked for
James' driver's license, he intended to use it to run
a background check on James. Browning estimated that he runs
a background check in ninety percent of the traffic stops he
conducts, and he could not recall a specific instance in
which he had not run a background check. In a routine stop
for a minor traffic offense, Browning testified that he might
not perform a warrant check if the driver's personal
information and conduct did not raise any suspicion. However,
when a driver, like James, provides inconsistent information,
Browning said that he would always check to see if the driver
had any outstanding warrants.
Stewart, meanwhile, explained that one of his regular duties
as a backup officer is to conduct a background check at the
request of the arresting officer. He stated that when he
arrived on the scene, Major Thompson handed him James'
information, and Stewart entered James' information into
the computer system in Stewart's vehicle. Stewart stated
that while still at the scene of James' arrest,
Stewart's computer indicated that James had an active
warrant from Cook County, Illinois in the National Crime
Information Center (NCIC) database. Stewart testified that
when his computer shows that a suspect has an NCIC warrant,
the next step is to have LMPD dispatch contact NCIC to verify
that the warrant is still active and that its issuing
jurisdiction still wants the warrant to be executed. Stewart
followed this procedure, and LMPD dispatch told Stewart to
execute the Cook County warrant. Once NCIC validated the
warrant, Stewart testified that he was required to place
James under arrest.
his arrest, James was indicted on one charge of possession of
a firearm by a convicted felon, 18 U.S.C. § 922(g)(1).
[DN 1 at 1.] James filed the instant motions, seeking to
suppress and exclude from evidence the handgun that Browning
took from his person during the Terry pat-down
search. See [DN 105; DN 102; DN 103.] The United
States has responded to these motions, [DN 107; DN 109], and
James has replied, [DN 117; DN 115]. Fully briefed,
James' motions are ripe for adjudication.
James' Motion to Suppress
United States argues that the weapon seized from James need
not be suppressed for two reasons. First, the government
contends that Browning had reasonable suspicion under the
totality of the circumstances to believe that James was
armed, justifying a pat-down search of James' outer
clothing pursuant to Terry v. Ohio, 392 U.S. 1, 27
(1968). Second, the United States proposes that even if the
search was not justified by reasonable suspicion, the firearm
would have inevitably been discovered because of James'
outstanding Cook County, Illinois arrest warrant. The Court
will address each argument, and two threshold motions, in
addition to his motions to suppress and exclude, James also
moves to strike the eight exhibits the United States
introduced during his first suppression hearing. [DN 162.]
James contends that those exhibits are inadmissible under
Federal Rule of Evidence 104. The relevant portions of that
rule provide that “[t]he court must decide any
preliminary question about whether . . . evidence is
admissible.” Fed.R.Evid. 104(a). Furthermore,
“[w]hen the relevance of evidence depends on whether a
fact exists, proof must be introduced sufficient to support a
finding that the fact does exist.” Fed.R.Evid. 104(b).
James makes his Rule 104 objections in only a conclusory
fashion without explaining why Rule 104 bars the admission of
the United States' exhibits. See generally [DN
162.] Moreover, James did not object to exhibits 1 - 7 during
the suppression hearing, so his objections to those exhibits
are waived. Fed.R.Evid. 103(a)(1); see United States v.
Collins, 690 F.2d 670, 674 (8th Cir. 1982). As to
Exhibit 8, the property room voucher establishing the chain
of custody for James' firearm, the Court overruled
James' authentication objection during the suppression
hearing. To the extent James asks this Court to revisit that
conclusion, the Court will treat James' motion as a
motion to reconsider. Because James has ...