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United States v. Stevens

United States District Court, W.D. Kentucky, Bowling Green Division

September 27, 2019



          H. Brent Brennenstuhl United States Magistrate Judge

         Before the Court is the motion of Defendant Ajani John Stevens to suppress evidence (DN 17). The United States responded in opposition (DN 18). The District Judge referred the motion to the undersigned to conduct any necessary evidentiary hearing and submit a Report and Recommendation for disposition of the motion (DN 19). The undersigned conducted an evidentiary hearing on July 22, 2019 and the transcript of testimony is of record at ¶ 25. The United States filed a post-hearing memorandum at ¶ 27 and Stevens filed a memorandum at ¶ 28. The matter now stands fully briefed.

         Nature of the Criminal Charges

         Stevens was indicted by a Grand Jury sitting in the Western District of Kentucky and charged with the offense of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 942(a)(2) and 924(e)(1) (DN 1). Specifically, the indictment alleges that Stevens was previously convicted of felony offenses in Cook County Circuit Court in Illinois in 1996, 2004 and 2010 and thereafter knowingly possessed a Lorcin .25 caliber semi-automatic pistol.

         The firearm was discovered during a police search of a vehicle Stevens was driving, and he seeks suppression of the firearm as evidence.

         Testimony at the Evidentiary Hearing

         Leigh Ann Dycus represented the United States at the hearing, and Stevens' appointed counsel, Laura R. Wyrosdick, appeared on his behalf. Stevens was present during the hearing but elected not to testify. The United States called two witnesses, Kentucky State Police Troopers Jeremy Duvall and Justin Rountree.

         Trooper Duvall testified that on July 26, 2018 he was engaged in regular patrol of interstate 65 in Warren County when he observed a vehicle traveling in the middle lane of the divided three-lane highway which “appeared to be going much slower than the traffic around it” (DN 25, p. 5). He also noted that the vehicle had excessively dark window tinting which, based upon his training and experience, he believed was in violation of a state statute. Finally, he observed that the license plate had an aftermarket accessory which obscured the identity of the issuing state, also a violation of state statute. He briefly followed Stevens and executed a traffic stop based upon the window tinting and obscured license plate observations.

         Stevens was the sole occupant of the vehicle. Trooper Duvall asked him for his driver's license, which Stevens was unable to produce. Trooper Duvall asked for his name and understood him to say “John Stevens” and Stevens provided his date of birth. Stevens told Trooper Duvall that he was traveling from Atlanta Georgia and that he believed he had a valid license issued by Illinois. The vehicle registration documents were not in his name. Stevens told Trooper Duvall it belonged to his mother.

         Trooper Duvall then returned to his vehicle and began communicating with his dispatch to see if he could verify whether Stevens had a valid driver's license. Dispatch was unable to locate any records, so Trooper Duvall obtained additional information from Stevens, including his social security number. It appears there may have been some confusion between Stevens and Trooper Duvall as to whether Stevens told him his first name was “John” or “Ajani.” While Trooper Duvall was attempting to determine Stevens' license status, KSP Trooper Lawless arrived on scene. At that point, Trooper Duvall asked Stevens to exit the vehicle.

“We still don't know who he is, we know the vehicle's not his, and we're unsure about his identity. So, we want to get him out, do a Terry frisk, and ask for consent to search.”
(DN 25, p. 11, ln. 13-15).

         Trooper Duvall conducted a Terry frisk and then asked Stevens for permission to search the car.

Q. “And going back to the consent issue, explain that to us. How did you obtain consent to search the vehicle?
A. It was - he was outside his vehicle. A Terry frisk had been conducted. He was submitted to that. And while I discussed - we were between my patrol vehicle and his car, safely off the - kind of out of the traffic pattern. Trooper Lawless was in the area - not necessarily right on top of us, but he was in the area - standing by. And I asked for verbal consent to search, and Mr. Stevens granted that.
Q. Did you ask Mr. Stevens if he had any illegal items in the vehicle?
A. I did.
Q. And what did he say?
A. I asked for items such as weapons or any kind of open alcohol. He denied any weapons in the vehicle but did state he had open alcohol containers.
Q. And where specifically did he say that open ...

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