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United States v. Robinson

United States District Court, W.D. Missouri, Western Division

October 11, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
EMMANUEL ROBINSON, Defendant.

          REPORT AND RECOMMENDATION

          SARAH W. HAYS UNITED STATES MAGISTRATE JUDGE

         This matter is currently before the Court on defendant Emmanuel Robinson's Motion to Suppress (doc #29). For the reasons set forth below, it is recommended that the motion be denied.

         I. BACKGROUND

         On March 13, 2017, a criminal complaint was filed against defendant Emmanuel Robinson. On March 29, 2017, the Grand Jury returned a one-count indictment against defendant Robinson charging defendant with being a felon in possession of a firearm.

         An evidentiary hearing on the motion to suppress was held on September 21, 2017. Defendant Robinson was represented by appointed counsel Alex S. McCauley. The Government was represented by Assistant United States Attorney Bradley K. Kavanaugh. The Government called Detective William Hooley and Detective David Kellgren of the Kansas City, Missouri Police Department as witnesses. The defense called Davionne Cazzell Harvey, Jr. to testify.

         II. FINDINGS OF FACT

         On the basis of the evidence presented at the evidentiary hearing, the undersigned submits the following proposed findings of fact:

1. Detective William Hooley and Detective David Kellgren are partners who work in the Vice Unit of the Kansas City, Missouri Police Department. (Tr. at 9, 44) Some of the crimes which the Vice Unit is responsible for policing are party houses, prostitution, and liquor. (Tr. at 9, 45)
2. On March 10, 2017, at approximately 11:30 a.m., Detective Hooley and Detective Kellgren went to 11611 Hickman Mills Drive, Kansas City, Missouri to contact Davionne Harvey. (Tr. at 9-10, 45) Detective Hooley had past dealings with Mr. Harvey. (Tr. at 10) Detective Hooley testified that Mr. Harvey had run illegal house parties at several different locations where there had been numerous neighbor complaints, prostitution occurring inside the houses, and some parties ending in shootings. (Tr. at 10) Detective Hooley had met with Mr. Harvey in the past to get those parties stopped. (Tr. at 10) Detective Hooley testified that he had information that another illegal house party was being started, so he and Detective Kellgren went out to talk to Mr. Harvey to tell him to squash it before it started. (Tr. at 10-11, 45)
3. When Detective Hooley and Detective Kellgren arrived at 11611 Hickman Mills Drive, they pulled into the parking lot and parked their vehicle. (Tr. at 11) Detective Hooley described the business as a makeshift used car lot.[1] (Tr. at 11) Detective Hooley observed Mr. Harvey down at the other end of the parking lot standing in front of a Corvette. (Tr. at 11) Detective Hooley testified that he had met with Mr. Harvey in person one time prior to March 10, 2017, and had also talked to him on the phone. (Tr. at 11) The officers, who were wearing normal street clothes, walked towards Mr. Harvey. (Tr. at 10-11, 45) Detective Hooley testified that he reminded Mr. Harvey of who he was and that Harvey responded that he knew. (Tr. at 11) Mr. Harvey testified that while he did not initially know that the men approaching him were officers, he knew who Detective Hooley was after a couple words into the conversation. (Tr. at 77) Detective Hooley introduced his partner, Detective Kellgren, to Mr. Harvey. (Tr. at 12) Detective Hooley told Mr. Harvey that he was not in trouble, but asked if Harvey would talk with the officers about this house party. (Tr. at 11-12) The officers wanted to talk with Mr. Harvey privately so they headed towards their vehicle. (Tr. at 12) Detective Hooley testified, “I don't like to put people's business out there if I don't have to mostly. Since I'm in plain clothes, we'll just do it very low key.” (Tr. at 12) Mr. Harvey agreed to talk with the officers, but said that he wanted to give a ring full of keys that he was carrying to one of his guys. (Tr. at 12, 46)
4. Mr. Harvey walked up to a man (defendant Robinson)[2] standing beside a white SUV in the parking lot and handed him the keys. (Tr. at 12, 46) Mr. Harvey then turned around and began to walk back towards the officers when Robinson shoved Harvey really hard in the back, [3] causing Harvey to stumble forward, and yelled, “Are we going to do this right here; are we going to do this right now?” (Tr. at 13, 46-47) While Robinson was yelling, he was motioning towards his waistband with his hand, like he was going to draw a weapon.[4] (Tr. at 13, 46) At that point, the officers pulled out their badges, identified themselves as police, and said stop. (Tr. at 13, 46) Detective Hooley testified that he announced himself as law enforcement to stop the physical confrontation. (Tr. at 16) Detective Hooley testified that he exposed his weapon because he believed that Robinson had a weapon. (Tr. at 13) Detective Hooley testified that he had just witnessed an assault and that he wanted to make sure that Mr. Harvey did not end up getting shot while Hooley was standing right there. (Tr. at 16, 21-22, 37) Detective Hooley testified that he was also concerned for his partner's and his own safety. (Tr. at 16-17) Detective Kellgren testified that he had just witnessed an assault and felt that he needed to diffuse the situation quickly before somebody got hurt. (Tr. at 48)
5. Detective Hooley testified that he “kept telling him [defendant Robinson] back up, man, back up, don't do it, back up.” (Tr. at 17) Detective Hooley testified that Robinson started to back up, but he kept his hand at his waistband the whole time. (Tr. at 17) Detective Kellgren testified that Robinson was still making the movements toward his waistband. (Tr. at 48) Detective Kellgren testified that in his experience, handguns are commonly concealed in a person's waistband. (Tr. at 48) Detective Kellgren was concerned for everyone's safety because he thought that Robinson might be armed. (Tr. at 48-49) Detective Kellgren grabbed defendant Robinson and Detective Hooley grabbed Mr. Harvey. (Tr. at 17, 48) Detective Hooley testified that he grabbed Mr. Harvey because he figured if there was going to be a fight where one person had a gun, there was a possibility that they both had guns. (Tr. at 18) Detective Hooley wanted to maintain the status quo of the situation for everyone's safety. (Tr. at 18)
6. Detective Kellgren frisked defendant Robinson and said, “Gun. I've got a gun.” (Tr. at 18-19) The gun was in Robinson's front waistband, the same location where the officers observed Robinson place his hand immediately after shoving Mr. Harvey and the same location where Robinson continued to hold his hand after the officers produced their badges and announced that they were law enforcement. (Tr. at 20, 51) The gun, a .40-caliber handgun, was loaded with a round in the chamber. (Tr. at 29, 51) Detective Hooley did a pat-down of Mr. Harvey. (Tr. at 18) Mr. Harvey was not armed. (Tr. at 19) Detective Hooley testified that after Detective Kellgren found the gun on Robinson, Mr. Harvey said, “Hey, man, that's my friend. It's not a big deal. It's not a big deal. He's fine.”[5] (Tr. at 20, 37)
7. After Detective Kellgren located the gun on defendant Robinson, Kellgren retrieved the gun and placed Robinson in restraints. (Tr. at 21) The officers ran Robinson's name through dispatch and learned that Robinson was a convicted felon. (Tr. at 21) The officers then called Detective Manley, who works for the illegal firearms squad, to do more research on Robinson's past charges and convictions. ...

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