United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, Senior Judge
federal grand jury indicted Defendant Cornelius Eugene
Pendelton and his co-defendants for conspiring “to
possess with the intent to distribute five kilograms or
more” of cocaine. Indictment 1, ECF No. 1. Pendelton
moved to suppress any evidence obtained as a result of a
traffic stop on May 14, 2015, ECF No. 100. The United States
responded, ECF No. 108. This Court referred the motion to the
magistrate judge “for a hearing, if necessary, and for
findings of fact, conclusions of law, and
recommendation” under 28 U.S.C. § 636(b)(1)(A).
June 6, 2016 Order, ECF No. 113. On October 17, 2016, the
magistrate judge held an evidentiary hearing on the motion to
suppress. Evid. Hr'g Tr., ECF No. 141. Both the United
States and Pendelton filed post-hearing briefs. U.S. Brief,
ECF No. 148; Pendelton Brief, ECF No. 153; U.S. Reply, ECF
No. 163. The magistrate judge recommended that this Court
grant in part and deny in part Pendelton's motion to
suppress. R. & R. 1, ECF No. 165. Pendelton objects to
the magistrate judge's findings of fact, conclusions of
law, and recommendation (“report and
recommendation”). Obj. R. & R., ECF No. 168.
reasons set forth below, the Court will adopt the report and
recommendation in full. The Court will overrule
Pendelton's objections to the magistrate judge's
report and recommendation. The Court will grant in part and
deny in part Pendelton's motion to suppress.
Court shall make a de novo determination of the proposed
findings or recommendations to which Pendelton objects.
See 28 U.S.C. § 636(b)(1)(B); Fed R. Crim. P.
59(b)(3). The Court shall accept those findings and
conclusions to which neither party objects. See Fed.
R. Crim. P. 59(b)(3).
magistrate judge accepted the following facts based upon the
testimony of Officers Gregory Odle and Josh Thompson that was
presented at the evidentiary hearing. See Evid.
Hr'g Tr. 97, ECF No. 141. This Court will repeat those
facts necessary to provide context for review of
late 2014 to the middle of 2015, the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (“ATF”)
conducted an ongoing investigation of narcotics trafficking
in the Park Hill Housing Authority (“Park Hill”)
in West Louisville. R. & R. 1, ECF No. 165. Park Hill is
a “very active” area for crime, including for
narcotics trafficking. Id. The ATF sought assistance
in the Park Hill investigation from the Louisville Metro
Police Department's Housing Authority Liaison Officers
(“the HALO officers”). Id. at 2.
these HALO officers were Officers Odle and Thompson, both of
whom are experienced officers that have worked for the
Louisville Metro Police Department since 2011 and 2010,
respectively. Id. Officers Odle and Thompson were
briefed on the specifics of the Park Hill investigation and
given access to pole cam footage within Park Hill, which they
could access in real time via computers in their vehicles.
Id. Officers Odle and Thompson were informed that
Roscoe Clark's unit in Building 5, Apartment D and
Building 2, Apartments B and C were target locations of the
investigation. Id. Officers Odle and Thompson were
also aware that Pendelton was suspected of regularly moving
drugs from one location to another. Id.
14, 2015, HALO officers received an independent tip from a
concerned citizen of a narcotics complaint on Building 2,
Apartments B and C. Id. Based on this tip, Officers
Odle and Thompson recovered narcotics after stopping two or
three vehicles leaving Building 2, Apartments B or C early
that day. Id. Later that afternoon, Officer Odle was
parked on 11th Street. Id. He could not directly
view Building 5 but was watching pole cam footage of the
outside of Clark's unit in Building 5, Apartment D on his
computer. Id. In a nearby alley, Officer Thompson
and a probationary officer were also watching pole cam
footage of the target apartments. Id. Officers Odle
and Thompson were communicating with one another through a
closed police radio channel and discussing their
Odle observed pole cam footage of an individual on a bicycle
leaving Clark's unit at Building 5, Apartment D and
traveling to Building 2, Apartment B. Id. The
individual was wearing orange. Id. at 3. From his
parked view on 11th Street, Officer Odle observed the
individual enter Building 2, Apartment B, stay inside for a
few minutes, exit the apartment, and ride his bicycle back
toward Building 5. Id. Again utilizing pole cam
footage, Officer Odle observed the individual enter Building
5, Apartment D and remain inside for a few minutes.
Id. Based on his previous experience, Officer Odle
recognized the individual's actions of traveling by
bicycle and remaining in the target locations for only a few
minutes as consistent with narcotics trafficking.
Odle observed the individual exit Building 5, Apartment D on
foot and walk toward 12th Street out of view of his pole cam
footage. Id. From his vehicle, however, Officer Odle
was able to then see the individual enter the passenger side
of a Ford F-150 pickup truck. Id. Officer Odle
recognized the truck from previous traffic stops in the Park
Hill investigation. Id. While previous stops of the
F-150 had not turned up narcotics, the most recent time that
officers had attempted to stop the F-150, the vehicle had
Odle observed the F-150 disregard a stop sign while making a
right-hand turn before losing sight of the truck.
Id. He radioed Officer Thompson to alert him of the
stop-sign violation and remained parked on 11th Street to
continue his surveillance of Park Hill. Id. Officer
Thompson began following the F-150 down 11th Street.
Id. He continued to follow the F-150 for five or six
blocks to avoid making the traffic stop within Park Hill.
Id. Officer Thompson then initiated his emergency
equipment, and the F-150 immediately pulled over.
Thompson approached the F-150 on the passenger side, while
the probationary officer approached the driver's side.
Id. at 4. Officer Thompson immediately recognized
the front seat passenger as Clark and knew that Clark had two
bench warrants for his arrest. Id. Officer Thompson
asked Clark to exit the F-150, placed him in handcuffs,
performed a search incident to arrest, and found a small
baggie of pills in his pocket. Id. Officer Thompson
also recognized the F-150's driver as Keith Irvin and the
back seat passenger as Pendelton. Id.
securing Clark in handcuffs at the rear of the vehicle,
Officer Thompson opened the back passenger door where
Pendelton was seated and asked him to step out of the
vehicle. Id. Officer Thompson noticed that Pendelton
had an orange pullover on the seat beside him. Id.
At that point, Officer Thompson concluded that Pendelton was
the individual that Officer Odle had observed walking and
biking between the two target locations. Id. Officer
Thompson noticed that Pendelton was acting very
nervous-sweating and breathing heavily-which was inconsistent
with Officer Thompson's prior interactions with
Pendelton, when Pendelton had been “cool, calm, and
collected” and “very respectful to police
officers.” Id. Based on these observations,
Officer Thompson was “100 percent sure there was
something on [Pendelton's] person narcotics wise.”
Thompson did a quick pat down of Pendelton, checking for
weapons because he knew that narcotics traffickers are
frequently armed. Id. During this pat down, Officer
Thompson felt what he immediately recognized as narcotics in
both Pendelton's right and left pockets. Id. He
recovered hydrocodone pills from Pendelton's right pocket
and a baggie of marijuana from his left pocket. Id.
Pendelton continued acting nervously during the pat down and
stated multiple times that he believed he was going to jail.
Id. at 4-5. Officer Thompson tried to “play it
off, ” telling Pendelton that he was “not looking
to take nobody to jail here today.” Id. at 5.
After uncovering the pills and marijuana, Officer Thompson
discontinued his pat down for weapons and initiated a more
thorough search of Pendelton's person. Id.
Officer Thompson then found a baggie of cocaine wrapped in a
twenty-dollar bill in Pendelton's small coin pocket on
his right side. Id. Officer Thompson subsequently
put Pendelton in handcuffs and placed him in custody at the
back of the vehicle. Id.
receiving Irvin's consent to search the F-150, Officer
Thompson recovered a large baggie of suspected crack cocaine
from under Pendelton's seat. Id. Upon
questioning, Pendelton admitted that the crack cocaine under
the rear passenger seat was his. Id. At no point
during Officer Thompson's interaction with Pendelton did
he give Pendelton Miranda warnings. Id.
Thompson gave Irvin a verbal warning for disregarding the
stop sign. Id. He wrote Pendelton a citation for
possessing narcotics, trafficking in narcotics, and
possession of marijuana. Id. Officer Thompson did
not arrest any of the individuals in the F-150. Id.
at 6. Nearly five months later, a federal grand jury in the
Western District of Kentucky indicted Pendelton and his
co-defendants. Id. The Court will adopt the
magistrate judge's factual findings in full.
moves to suppress all evidence obtained as a result of this
traffic stop. Mot. Suppress 1, ECF No. 100. Pendelton made
four arguments in his motion: (1) the officers' stop of
the F-150 was illegal; (2) the length and scope of the
detention exceeded that allowed for a traffic stop; (3)
Officer Thompson did not have probable cause to search
Pendelton's person; and (4) Officer Thompson did not have
probable cause to search the F-150. Id. at 1-2.
Pendelton's post-hearing brief also asserts that his