Opinion
Case No. 3:20-cr-00016-SMR-SBJ-1
2020-08-20
UNITED STATES of America, Plaintiff, v. Chris William KELLY, Jr., Defendant.
Melisa Kay Zaehringer, United States Attorney's Office, Davenport, IA, for Plaintiff. Terence L. McAtee, Federal Public Defender, Davenport, IA, for Defendant.
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
STEPHANIE M. ROSE, JUDGE
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." 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.
"Walking while black": a sardonic description of racial profiling of African Americans implying that a pedestrian of color may be perceived by members of the public to be suspicious-looking or stopped by law enforcement for committing pretextual violations of minor traffic laws at a greater rate than white individuals as a result of implicit racial bias; akin to "driving while black." Cf. Washington v. Lambert , 98 F.3d 1181, 1187 (9th Cir. 1996) ("In balancing the interests in freedom from arbitrary government intrusion and the legitimate needs of law enforcement officers, we cannot help but be aware that the burden of aggressive and intrusive police action falls disproportionately on African–American, and sometimes Latino, males. Notwithstanding the views of some legal theoreticians, as a practical matter neither society nor our enforcement of the laws is yet color-blind. Cases, newspaper reports, books, and scholarly writings all make clear that the experience of being stopped by the police is a much more common one for black men than it is for white men."); David A. Harris, The Stories, the Statistics, and the Law: Why "Driving While Black" Matters , 84 Minn. L. Rev. 265, 269, 298–306, 310–19 (1999) ; Tracey Maclin, Race & the Fourth Amendment , 51 Vand. L. Rev. 333, 336 & nn.18–19 (1998) ; David A. Harris, Driving While Black and all Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops , 87 J. Crim. L. & Criminology 544, 546, 570–71 (1997) ; see generally Jamison v. McClendon , No. 3:16-CV-595-CWR-LRA, 476 F.Supp.3d 386, 390 & n.1 (S.D. Miss. Aug. 4, 2020) (citing Max Ehrenfreund, The risks of walking while black in Ferguson , Wash. Post (Mar. 4, 2015), https://www.washingtonpost.com/news/wonk/wp/2015/03/04/95-percent-of-people-arrested-for-jaywalking-in-ferguson-were-black/).
I. FINDINGS OF FACT
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. 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.
At the suppression hearing, Officer Neeld and Detective Niles Mercer testified that Assistant Johnson County Attorney Pannell was the anonymous witness referenced in the affidavit filed in support of Kelly's criminal complaint. See [ECF No. 1 at 2]. Officer Neeld testified Assistant County Attorney Pannell had asked to keep his name out of the police report and criminal complaint. After Kelly's arrest on December 26, 2019, the case was turned over to the Johnson County Attorney's Office for prosecution, where it remained until the federal complaint was filed on January 21, 2020. The Court finds this "anonymous source" process in which the identity of the assistant county attorney witness was obscured created a clear conflict of interest for the Johnson County Attorney's Office when the case was then presented to it for prosecution.
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. 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 the point across, Kelly again began to leave.
Officer Neeld testified Kelly was "blading" during this time—positioned sideways with his right side away from the officer—leading him to believe Kelly was attempting to conceal the pocket suspected to contain the gun. But it is clear from Officer Neeld's body camera video that Kelly simply never turned to face Officer Neeld as he approached Kelly from Kelly's left side; Kelly did not move or turn away when Officer Neeld positioned himself directly in front of Kelly, blocking his path.
The situation escalated quickly from there. Multiple SCAT officers quickly converged on Kelly's location, and it is clear from Officer Neeld's body camera video that he was trying hard to prolong the encounter and delay Kelly from leaving until the SCAT officers could arrive on the scene. Almost immediately, Officer Neeld commanded Kelly to put his hands on his head because he "may have a warrant." Kelly informed Officer Neeld he did not have a warrant. At the time, Officer Neeld had not asked for Kelly's date of birth to confirm his identity, nor had he obtained the 10-106 information from dispatch. A matter of seconds elapsed between the time the undercover SCAT officers arrived at the scene and they seized Kelly, violently throwing him to the ground and tasing him twice. With Kelly detained, Officer Neeld reached into Kelly's left coat pocket, which he testified he believed to contain a gun at the time he reached inside, where he found a small glass jar of marijuana. A loaded pistol was recovered from Kelly's right coat pocket. Officer Neeld testified he became confused during the subduing of Kelly and meant to reach into Kelly's other pocket for the gun. Kelly was Mirandized at the scene, arrested, and taken to the police station for questioning.
Kelly was Mirandized twice. The first time he indicated he did not understand the rights the officers read to him. The second time he indicated he understood his rights. See [Gov't Ex. 3].
Kelly moved to suppress all evidence obtained through the search, along with statements made following his arrest. [ECF No. 27]. The Government resisted. [ECF No. 30]. A hearing was held on July 28, 2020, where the Court received evidence and heard testimony from Officer Neeld and Detective Mercer. Following the conclusion of the hearing, the Court ordered the record remain open for ten days to allow the parties to submit any additional evidence and arguments they thought to be appropriate. See [ECF Nos. 35; 36]. The matter is fully submitted.
II. LEGAL STANDARD
The Fourth Amendment forbids "unreasonable searches and seizures." U.S. Const. amend. IV. Its requirement that searches and seizures "be founded upon an objective justification" applies to all seizures, even those "that involve only a brief detention short of traditional arrest." United States v. Mendenhall , 446 U.S. 544, 551, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (citation omitted). A seizure occurs where law enforcement restrains the liberty of a citizen by either physical force or a show of authority. Terry v. Ohio , 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Though not implicated in a consensual encounter with law enforcement, Fourth Amendment scrutiny is triggered when the encounter loses its consensual nature and the citizen is no longer free "to disregard the police and go about his business." Florida v. Bostick , 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (citing California v. Hodari D. , 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ); cf. Michigan v. Chesternut , 486 U.S. 567, 576, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) (holding police conduct "not ‘so intimidating’ that [the defendant] could reasonably have believed that he was not free to disregard the police presence and go about his business" (citing INS v. Delgado , 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) )).
Absent a warrant, a seizure "must be supported by probable cause or reasonable suspicion." United States v. Gordon , 741 F.3d 872, 876 (8th Cir. 2013). Probable cause exists where an officer has an objectively reasonable basis to believe a person has violated the law. Id. Investigatory stops short of probable cause are appropriate "when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow , 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing Terry , 392 U.S. at 30, 88 S.Ct. 1868 ); United States v. Givens , 763 F.3d 987, 989 (8th Cir. 2014) ("Reasonable suspicion exists when an ‘officer is aware of particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed.’ " (citation omitted)). A "hunch" is not enough. Terry , 392 U.S. at 22, 27, 88 S.Ct. 1868.
Courts look at the " ‘totality of the circumstances’ of each case to see whether the detaining officer ha[d] a ‘particularized and objective basis’ for suspecting legal wrongdoing." United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Though an officer's subjective motivation for the stop is irrelevant, Brigham City v. Stuart , 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), the circumstances, objectively viewed, must be still be sufficient to justify the seizure, Whren v. United States , 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). What the officer reasonably knew at the time of the seizure, not in hindsight, informs whether probable cause or reasonable suspicion existed. See United States v. Hollins , 685 F.3d 703, 706 (8th Cir. 2012). The burden is on the Government to prove by a preponderance of the evidence that probable cause or reasonable suspicion existed to support the seizure. See United States v. Andrews , 454 F.3d 919, 922 (8th Cir. 2006) ; Carter v. United States , 729 F.2d 935, 940 (8th Cir. 1984) (citing United States v. Bruton , 647 F.2d 818, 822 & n.5 (8th Cir.), cert. denied , 454 U.S. 868, 102 S.Ct. 333, 70 L.Ed.2d 170 (1981) ); see also United States v. Uribe , 709 F.3d 646, 650 (7th Cir. 2013).
III. DISCUSSION
Probable cause did not exist to stop Kelly for jaywalking. The evidence presented by the Government does not show Kelly violated any traffic law sufficient for the Government to bear its burden justifying the seizure. Nor do the totality of the circumstances support the Government's contention that the officers had a reasonable, articulable suspicion to suspect Kelly was committing, or was about to commit, any crime. The stop was pretextual, and it was illegal.
A. Probable Cause
Any criminal offense—even a very minor traffic offense—may support probable cause and justify a seizure. Atwater v. City of Lago Vista , 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Iowa Code § 321.328 and Iowa City Ordinance § 9-6-2 provide in nearly identical language that "[e]very pedestrian crossing a roadway at any point ... shall yield the right of way to all vehicles upon the roadway." Iowa Code § 321.328(1) ; accord Iowa City Code § 9-6-2(A)(1). Both laws exempt this requirement where the pedestrian crosses a road "within a marked crosswalk or within an unmarked crosswalk at an intersection." Iowa Code § 321.328(1) ; Iowa City Code § 9-6-2(A)(1). These laws do not require a person to walk on a sidewalk per se; they require only that pedestrians not impede traffic. See Hedges v. Conder , 166 N.W.2d 844, 853 (Iowa 1969) (holding plaintiff violated statute where he failed to yield the right-of-way and walked into the street to stop traffic); McMurry v. Guth , 229 Iowa 776, 295 N.W. 133, 135 (1940) (holding that if jury found plaintiff had not obstructed the driver's path, he could not be contributorily negligent as a matter of law). By contrast, Iowa Code § 321.326 instructs that "[p]edestrians shall at all times when walking on or along a highway, walk on the left side of such highway." See also Iowa Code § 321.1(78) (defining "street" and "highway" synonymously as "the entire width between property lines of every way or place of whatever nature when any part thereof is open to the use of the public, as a matter of right, for purposes of vehicular traffic"). Officer Neeld cited Kelly for "failing to use [the] crosswalk" as a pedestrian. [Gov't Ex. 4]; see also Devenpeck v. Alford , 543 U.S. 146, 153–56, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (holding an officer's "subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause"). In either event, "jaywalking," as it is colloquially known, is a simple misdemeanor under Iowa law. Iowa Code § 321.482.
The Government has advanced three separate theories of probable cause throughout the course of this case. In the Government's initial response to the Defendant's Motion to Suppress Evidence and Statement and Request for Evidentiary Hearing, [ECF No. 27], the Government alleged Kelly had committed "a violation of Iowa Code 321.328 subsec. 3 (2020), which states that ‘Where traffic-control signals are in operation at any place not an intersection pedestrians shall not cross at any place except in a marked crosswalk.’ " [ECF No. 30 at 4]. By the suppression hearing, however, the Government had abandoned this probable cause theory to instead alleged a violation of Iowa Code § 321.328(1) and Iowa City Ordinance § 9-6-2(A)(1). This was likely because a violation of Iowa Code § 321.328(3) requires a stoplight , not a stop sign as was present in the instant case. When the Court advised the Government at the conclusion of the suppression hearing that it had not established a violation of Iowa Code § 321.328(1) or Iowa City Code § 9-6-2(A)(1), the Government submitted a post-hearing brief alleging for the first time that Kelly had violated Iowa Code § 321.326. This alleged violation was not addressed at the evidentiary hearing. The Court's concern about the pretext of this stop is supported by the Government's ever-changing probable cause assertions. If the Government is struggling to support a probable cause finding seven months after the fact—with full discovery, legal research, and an evidentiary hearing—how is a citizen to be expected to understand the crime he is accused of committing and how to avoid committing it again in the future? It is this type of after-the-fact justification for pretextual police behavior that contributes to the appearance of social injustice.
In United States v. West , the United States Court of Appeals for the Eighth Circuit upheld jaywalking as the constitutional basis of a warrantless seizure where "[t]he district court believed the officer who testified that [the defendant] was ‘walking down the middle of 13th Street’ " in violation of Iowa Code § 321.326. 612 F.3d 993, 996 (8th Cir. 2010). That is not the case here.
All agree that Kelly, walking east, crossed the intersection of Waterfront and Stevens after Officer Neeld signaled for Kelly to cross ahead of his patrol vehicle. All agree the intersection contained an unmarked crosswalk. From there, accounts diverge. According to Officer Neeld, Kelly then crossed the east-bound section of Waterfront Drive onto the south side of that street containing a grassy area, railroad tracks, and a utility box before crossing it again to arrive on the sidewalk on the north side of the street, near the entrance to the Hy-Vee grocery store parking lot. The Court does not find Officer Neeld credible. The angle at which Officer Neeld observed Kelly does not indicate a high degree of reliability, and the road did not have a center line distinguishing the left side from the right. See [Def.’s Ex. A]. Moreover, such a zig-zagged route seems implausible and unlikely given that Officer Neeld agreed in his testimony that Kelly walked in the most direct route from the point at which he crossed the intersection to the encounter on the sidewalk, which would have never left the north (left) side of the road. Officer's Neeld's account also conflicts with the testimony of Detective Mercer, who stated Kelly did not actually cross the east-bound section of Waterfront Drive but merely walked off the sidewalk on the northern-most side of the street (on the left side). The Government has not set forth sufficient evidence to prove Kelly was walking in the center or southern portion of the street so as to violate Iowa Code § 321.326. And unless Officer Neeld was driving on the wrong side of the road, Kelly could not have impeded traffic because both officers testified there were no cars driving northbound on Waterfront Drive; necessarily, he could not have violated Iowa Code § 321.328(1) and Iowa City Code § 9-6-2(A)(1).
Other inconsistencies bolster the Court's credibility determination. Officer Neeld testified he approached Kelly about jaywalking; his body camera video clearly articulates him immediately yelling at Kelly about the object in his pocket. In his testimony, Officer Neeld stated he called in to dispatch to run a background check on "Chris" Kelly; only on cross-examination did he concede that he actually asked for "Christopher" Kelly, and this, too, is confirmed by his body camera video. Officer Neeld testified that Kelly was consistently blading the right side of his body away from Officer Neeld in a suspicious manner. This too is not borne out by the body camera footage, including a portion of the recording where Kelly walks back toward Officer Neeld and shakes Officer Neeld's hand before continuing on his prior path away from Hy-Vee.
The Government contends probable cause supports the stop even if the officers were mistaken in their belief that Kelly's route constituted a jaywalking offense, suggesting Officer Neeld made a mistake of fact or law. The Government relies on Sherbrooke v. City of Pelican Rapids , where a patrol officer pulled over an individual for having their hazard lights flashing while driving down the highway. 513 F.3d 809, 812 (8th Cir. 2008). The driver's use of his hazard lights was arguably a violation of state law, but even assuming it was not under a permissive reading of the statute, the court held a reasonable officer in that case could not have known the facts that occurred prior to encountering the driver that would have made it lawful. Id. at 814. Probable cause supported the stop, the court held, because the officer operated under a "reasonable, but mistaken, belief that the suspect committed an offense" based on the facts known to him. Id. at 815 (citing United States v. Smart , 393 F.3d 767, 770 (8th Cir. 2005) ).
Unlike the officer in Sherbrooke , here Officer Neeld could not have reasonably believed Kelly had committed an offense. See Smart , 393 F.3d at 770 ("[T]he validity of a stop depends on whether the officer's actions were objectively reasonable in the circumstances, and in mistake cases the question is simply whether the mistake, whether of law or of fact, was an objectively reasonable one."). Officer Neeld did not simply operate under a set of facts that he did not have the opportunity to gather prior to his stop. Cf. Sherbrooke , 513 F.3d at 814–15. Here, the totality of the circumstances did not provide objective reason to believe Kelly broke the law by crossing the road into the center or right hand lane in violation of Iowa Code § 321.326. And even if his mistake could be said to be one of the legal requirements of jaywalking—i.e. , that Iowa Code § 321.328 and Iowa City Code § 9-6-2-(A)(1) per se criminalized walking in the street rather than requiring a pedestrian to fail to "yield the right of way" by impeding traffic—Iowa's jaywalking laws are not so complex so as to give rise to a reasonable mistake in their requirements. Cf. Heien v. North Carolina , 574 U.S. 54, 67–68, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014) (holding objectively reasonable error of law existed where traffic statute suggested conflicting meanings to "the everyday reader of English" and state appellate courts had noted the reasonableness of alternative interpretations); United States v. Martin , 411 F.3d 998, 1001 (8th Cir. 2005) (finding objectively reasonable mistake of law confronting "counterintuitive and confusing" motor vehicle statute that lacked clarity and conflicted with "common knowledge"). In the absence of any evidence by the Government "concerning the drafting history of the Code, prior enforcement of the Code's provision ..., the training of police concerning the requirements of the Code, or previous judicial interpretations of the ... provision," Martin , 411 F.3d at 1001, the Court cannot agree any such mistake in law was objectively reasonable. The jaywalking statutes at issue do not require patrol officers to "interpret the traffic laws with the subtlety and expertise of a criminal defense attorney," id. (citing United States v. Sanders , 196 F.3d 910, 913 (8th Cir. 1999) ), and "[t]he concept of an objectively reasonable mistake of law cannot be so unmoored from actual legal authority." United States v. Washington , 455 F.3d 824, 827–28 (8th Cir. 2006) (contrasting "counterintuitive and confusing" motor vehicle statute that justified a reasonable mistake in law with the absence of any evidence of "a basis in state law for [the] officer's action and some ambiguity or state custom that caused the officer to make the mistake"). And to the extent the Government argues Officer Neeld reasonably believed Kelly's route along the street provided probable cause for the stop, "mistakes about the requirements of the Fourth Amendment violate the Fourth Amendment even when they are reasonable." United States v. McLemore , 887 F.3d 861, 867 (8th Cir. 2018) (quoting Heien , 574 U.S. at 69 n.1, 135 S.Ct. 530 (Kagan, J., concurring)). Accordingly, the seizure was not supported by probable cause.
B. Reasonable Suspicion
Absent probable cause, Kelly's seizure and subsequent search were valid only if law enforcement had reasonable, articulable suspicion that Kelly had committed or was about to commit a crime. The Government does not dispute that Kelly was "seized" within the meaning of the Fourth Amendment when Officer Neeld first approached him. Therefore, the Government must show Officer Neeld had a "particularized and objective basis" for suspecting Kelly was in violation of the law. United States v. Lowry , 935 F.3d 638, 641 (8th Cir. 2019) (citing United States v. Jones , 606 F.3d 964, 966 (8th Cir. 2010) (per curiam)). Whatever suspicion the officers had, it was not reasonable under the totality of the circumstances.
A seizure must be "justified at its inception." Terry , 392 U.S. at 20, 88 S.Ct. 1868. Kelly was "seized" within the meaning of the Fourth Amendment when Officer Neeld first confronted him in a show of authority to accuse him of "jaywalking" (a minor criminal offense), and Kelly submitted to his show of authority. See United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ; United States v. Villa-Gonzalez , 623 F.3d 526, 533 (8th Cir. 2010) (citing United States v. Griffith , 533 F.3d 979, 983 (8th Cir. 2008) ).
Reasonable suspicion may be established by hearsay information obtained secondhand from a tipster, United States v. Robinson , 670 F.3d 874, 876 (8th Cir. 2012), and "law enforcement officers may ‘draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them,’ " id. (quoting Arvizu , 534 U.S. at 273, 122 S.Ct. 744 ). However, "[i]nformants’ tips doubtless come in many shapes and sizes from many different types of persons," and "like all other clues and evidence coming to a policeman on the scene may vary greatly in their value and reliability." Illinois v. Gates , 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Whether information supplied by an informant is sufficient under the Fourth Amendment hinges on the reliability of the source and the information's degree of corroboration. United States v. Nolen , 536 F.3d 834, 840 (8th Cir. 2008).
Jude Pannell is an assistant county attorney for Johnson County, a position of public trust with a close, direct working relationship with law enforcement. Though he would not have training commensurate with that of a police officer, a career as a prosecutor would have given him at least some knowledge of criminal behavior not possessed by the general public that could be relied on by law enforcement to a certain degree. Cf. Robinson , 670 F.3d at 876-77 (citing Gramenos v. Jewel Cos. , 797 F.2d 432, 439 (7th Cir. 1986) ). As a public servant and an officer of the court, the risk that he would "pursue a private agenda" or seek to vindictively "embarrass" an honest citizen is low because he could easily be held accountable for providing a false statement. See id. at 876 ; United States v. Kent , 531 F.3d 642, 649 (8th Cir. 2008) (citing Florida v. J.L. , 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) ). At the same time, the Government has not advanced any evidence of a prior history by Pannell in providing law enforcement with truthful information helpful in assisting with arrests. See Nolen , 536 F.3d at 840 (distinguishing "reliable informants" who "have ‘a track record of supplying reliable information’ to law enforcement officers" with "unproven informants" who lack such record (citation omitted)); cf. United States v. Wright , 145 F.3d 972, 975 (8th Cir. 1998) ("The reliability of a confidential informant can be established if the person has a history of providing law enforcement officials with truthful information."). Information supplied by such an "unproven informant" requires "some independent verification" to establish its reliability. Nolen , 536 F.3d at 840 (citing Kent , 531 F.3d at 649 ).
Though both Officer Neeld and Detective Mercer independently corroborated the prosecutor's observations, see Brown , 49 F.3d at 1349, the information verified here—the only basis for investigating Kelly as he walked to and from Hy-Vee Gas and suspecting him of carrying a weapon—consisted solely of the assistant county attorney's description of an unidentified black man with dreadlocks, a stocking cap, and a camouflage jacket the prosecutor thought he recognized, and who appeared to have some unspecified heavy object in his front right pocket. The Eighth Circuit has carefully considered the level of reasonable suspicion necessary to distinguish the illegal carrying of dangerous weapons from acts that are "shared by wholly innocent and reasonable persons." Lowry , 935 F.3d at 642. In United States v. Jones , the Eighth Circuit upheld the suppression of a gun retrieved from an individual stopped and frisked simply because the defendant was "walking in a high crime precinct in a neighborhood considered to be a violent ‘hot spot’ "; wearing a long-sleeved sweatshirt on a "mild September afternoon" and "clutching the front area of his hoodie pocket with his right hand" that officers claimed "was obviously hiding something he did not want the world, and the cruiser officers, to see"; and "continually watch[ing] the officers [as the cruiser drove by] as if concerned that they would stop him." 606 F.3d at 965–66. With only these observations, the court agreed the arresting officer "lacked the requisite reasonable suspicion that [the defendant] was carrying a concealed firearm in his hoodie pocket, as opposed to some other object, or no object at all." Id. at 967. Despite the latitude afforded the arresting officer's training and experience in recognizing concealed weapons, the court concluded he did not have a " ‘particularized and objective basis’ for his suspicion" because the officer "admitted that he was unable to see the size or shape of whatever was in [the] hoodie pocket" and the encounter lacked any "other suspicious circumstances." Id. (citation omitted). Opining that "nearly every person has, at one time or another, walked in public using one hand to ‘clutch’ a perishable or valuable or fragile item being lawfully carried in a jacket or sweatshirt pocket in order to protect it from falling to the ground or suffering other damage," the court concluded that "[t]oo many people fit this description for it to justify a reasonable suspicion of criminal activity" under the totality of the circumstances. Id. (citing United States v. Gray , 213 F.3d 998, 1001 (8th Cir. 2000) ).
United States v. Lowry involved similar facts and presented even "weaker" justification for the warrantless search. Though the individual was wearing heavy clothes in a high crime area, it was "a cold and windy January night," and the officer suspected the man "was engaged in some sort of criminal activity and might have been hiding weapons, drugs or alcohol" solely because the officer saw the man "looking in his direction" as the officer engaged in a loud confrontation with another person and appeared to be "attempting to avoid contact." 935 F.3d at 640. Citing Jones , the court picked apart each aspect of the officer's justification as facts that "are shared by wholly innocent and reasonable persons":
People visit bus stops in high crime areas because they need to catch a bus. Everyone wears heavy clothing on winter nights. People tend to watch when a police officer engages in a heated exchange with someone in their vicinity. And there are any number of innocent impulses that might motivate someone in Lowry's situation to walk behind the shelter, including the desire to move around or to steer clear of the tense situation between [the other man] and Officer Hand.
Id. at 642. Without more, the court held, the totality of the circumstances did not support an objective basis to suspect criminal wrongdoing and the stop violated the Fourth Amendment. Id.
By contrast, the Eighth Circuit distinguished Jones in United States v. Dortch , 868 F.3d 674 (8th Cir. 2017), where the police were actively patrolling a location that was not merely "a neighborhood generally associated with violence and high crime rates" but "a specific building known to be the subject of an active territorial dispute between two gangs" after a recent report that shots had been fired in the area. Id. at 680. The defendant was wearing a heavy winter coat in June, and when the officers approached his illegally-parked car he responded by pressing the front of his body against the vehicle, as if to conceal something in his coat. See id. The court emphasized that reasonable suspicion justified the warrantless search in this case because, in contrast to Jones , there was a much more "specific and direct connection to guns," the defendant's clothing capable of concealing a weapon was "markedly more unreasonable in June," and his movements were "suggestive of concealment and preparation for action" as opposed to a protective "clutching." Id. at 681. All told, the circumstances surrounding the defendant's conduct were "significantly less likely to be ‘shared by countless, wholly innocent persons.’ " Id. at 680 (citation omitted).
As in Jones and Lowry , the Government's "equivocal explanation for the stop suggests that this stop was in fact based on a hunch." See Lowry , 935 F.3d at 642. No testimony reflected that the Waterfront Drive Hy-Vee area was a high crime neighborhood. And despite their training and experience, neither the assistant county attorney nor the arresting officers knew or had a reasonable basis to believe that the unidentified heavy object in Kelly's coat pocket was in fact an illegal firearm—as opposed to any other "perishable or valuable or fragile item." Jones , 606 F.3d at 967. Although Officer Neeld testified the assistant county attorney observed Kelly intently staring the officers down as he was walking out of Hy-Vee, the record does not support such a contention, and the Court finds such a characterization to be dubious. Video footage obtained from the Hy-Vee grocery store—the only objectively verifiable account of the encounter—does not show such "suspicious" activity. See [Def.’s Ex. C]. Still, it is not illegal to look at police officers from a distance while they undergo a search so long as their official business is not impeded. Chestnut v. Wallace , 947 F.3d 1085, 1090–91 (8th Cir. 2020) (holding bystander had "clearly established right to watch police-citizen interactions at a distance and without interfering"). Such conduct, even under the totality of the circumstances, is not enough to "transform this innocent behavior into a basis for reasonable suspicion." Lowry , 935 F.3d at 642 ; cf. United States v. Quinn , 812 F.3d 694, 698 (8th Cir. 2016) (finding reasonable suspicion where the defendant was "constantly looking over his shoulder toward [the officer's] direction" and "partially matched a description of a suspect" when he "was seen walking near a crime scene when there were few other pedestrians around"). Nor is it a crime to carry a heavy object in one's pocket. See Jones , 606 F.3d at 967. And although Assistant County Attorney Pannell, Officer Neeld, and Detective Mercer all apparently recognized Kelly from some prior investigation, the generalized recognition of an individual from some previous criminal case is not enough to justify a reasonable suspicion of criminal activity in the absence of any other suspicious circumstances. Cf. Dortch , 868 F.3d at 680–81 ; United States v. Roelandt , 827 F.3d 746, 749 (8th Cir. 2016) (finding reasonable suspicion in the circumstances where officers "knew of [the defendant's] criminal history, his gang affiliation, the local pattern of retaliatory gang shootings, and the shooting of his close associate that very evening" while observing him "walking quickly through a high-crime area and suspiciously looking around"). Ultimately, "[t]he [G]overnment grounds much of its argument in facts that, like those at issue in Jones [and Lowry ], are shared by wholly innocent and reasonable persons." Lowry , 935 F.3d at 642. Under the totality of the circumstances, the Court finds this to be insufficient to establish reasonable, articulable suspicion Kelly was carrying an illegal weapon. The Court "do[es] not underestimate the importance of ferreting out violent offenders who unlawfully carry firearms in public," Jones , 606 F.3d at 968, but without reasonable, articulable suspicion of criminal activity, the December 26, 2019 stop violated Kelly's Fourth Amendment right to be free from unreasonable searches and seizures.
As aptly put by one recent study on race and law enforcement in America:
Disparities in the historical relationship between law enforcement and residents of difference [sic] races and ethnicities can manifest not only as differential crime rates across demographic groups but also as different behaviors on the part of citizens interacting with police. Extensive research demonstrates that, compared to White people, Black people are more distrustful and nervous (even scared) when interacting with a police officer (e.g., see Najdowski, Bottoms, and Goff, 2015). To the officer, this nervousness may appear suspicious (Najdowski, 2011), and the officer may stop and question the Black person based, in part, on this "suspicious" behavior.
Nat'l Academies of Sciences, Eng'g & Med., Proactive Policing: Effects on Crime and Communities 275 (David Weisburd & Malay K. Majmundar eds., 2018), https://www.nap.edu/read/24928/chapter/9#275; see also United States v. Curry , 965 F.3d 313, 332 (4th Cir. 2020), as amended (June 10, 2020) (en banc) (Gregory, C.J., concurring) ("There's a long history of black and brown communities feeling unsafe in police presence.").
See United States v. Warfield , 727 F. App'x 182, 188 (6th Cir. 2018) ("An officer can stop a driver for whatever reason he wants so long as he can give an objective justification after the fact. That justification must include specific reasons for why the officer was suspicious that person was breaking the law. While the law allows pretextual stops based on minor traffic violations, no traffic law prohibits driving while black. The protections of the Fourth Amendment are not so weak as to give officers the power to over-police people of color under a broad definition of suspicious behavior." (citations omitted)); cf. Curry , 965 F.3d at 345–46 (Thacker, J., concurring) ("[W]e must never lose sight that it is individual police officers ... who abuse their authority by violating the constitutional rights of citizens such as Billy Curry, based on the simple fact that they committed the offense of ‘walking while black.’ No fact in this case ever suggested Billy Curry's involvement in the commission of the crime under investigation.").
C. Remedy
The Fourth Amendment's exclusionary rule prohibits the introduction into evidence "tangible materials seized during an unlawful search," "testimony concerning knowledge acquired during an unlawful search," and "derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search." Murray v. United States , 487 U.S. 533, 536–37, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (citations omitted); see also United States v. Vega-Rico , 417 F.3d 976, 979 (8th Cir. 2005) (citing Wong Sun v. United States , 371 U.S. 471, 484–85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ). Kelly's gun, drugs, and incriminating statements were all obtained as a fruit of his illegal search and seizure. See United States v. Riesselman , 646 F.3d 1072, 1078–79 (8th Cir. 2011). They must therefore be suppressed.
IV. CONCLUSION
Kelly's encounter with law enforcement on December 26, 2019, continues a long and unfortunate pattern of racial profiling and pretextual stops of Americans of color. That Kelly was a black man with a prior criminal history, walking with some unidentified object in his pocket, and appeared to look at the officers conducting official business does not, in itself, justify a warrantless seizure under the totality of the circumstances. Law enforcement "lacked the requisite reasonable suspicion that [Kelly] was carrying a concealed firearm in his hoodie pocket, as opposed to some other object." Jones , 606 F.3d at 967. And the Court rejects the Government's position that Kelly was "jaywalking" under state and local law, a ubiquitous rationale used to detain and search African Americans that finds no support in the record here. In short, the officers had no objective basis to suspect Kelly was committing a crime, and instead advanced a narrative "shared by countless, wholly innocent persons." Id. The December 26, 2019 stop violated Kelly's Fourth Amendment right to be free from unreasonable searches and seizures. For the reasons discussed above, Defendant Chris William Kelly, Jr.’s Motion to Suppress, [ECF No. 27], is GRANTED.