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United States v. Kennedy

United States District Court, M.D. Tennessee, Nashville Division

July 1, 2019




         Before the Court is Defendant's Motion to Suppress, in which Defendant seeks to suppress statements made after his arrest on April 13, 2019. (Doc. No. 18). The Government filed a response in opposition (Doc. No. 20). On May 9, 2019, the Court held an evidentiary hearing on the motion. Thereafter, each party filed a post-hearing brief (Doc. Nos. 33, 34). For the reasons discussed below, Defendant's Motion to Suppress will be granted.


         Defendant is charged in this case with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), based on an incident that occurred at the Love's Truck Stop on Trinity Lane in Nashville. (Doc. No. 1; Doc. No. 31 (“Tr.”) at 14). On April 13, 2018, Officer Progar of the Metropolitan Nashville Police Department was filling up gas for his patrol car at the truck stop when a concerned citizen informed him that a female driver seemed intoxicated. (Doc. No. 32.)[2]Officer Progar approached the female driver to speak with her as she was coming out of the gas station. (Id.) Officer Progar and the female driver spoke right next to her white Ford Expedition (the “Vehicle”). (Id.) Defendant was sitting on the passenger side in the Vehicle. (Id.) After that initial contact, Officer Progar went back to his patrol car with the female driver's ID to check to see whether she had any outstanding arrest warrants, while the female driver got back into the Vehicle. (Id.) Officer Progar's patrol car was parked at ¶ 7 or 8 o'clock position relative to the Vehicle's 12 o'clock position. (Id.)

         In his patrol car, Officer Progar discovered that the female driver had an outstanding arrest warrant, and immediately placed a call for backup, to which Sergeant Richard Lowry responded. (Id.) Sergeant Lowry arrived at the scene within minutes, and Officer Progar got out of his patrol car and walked over to Sergeant Lowry to explain the situation. (Id.) The two officers then walked over to the Vehicle together to inform the female driver that she had an outstanding arrest warrant. Only at this point, for the first time, Officer Progar noticed that Defendant was no longer in the passenger seat of the Vehicle. (Id.)

         Officer Progar briefly communicated to Sergeant Lowry what he noticed about Defendant. (Tr. at 21.) Sergeant Lowry thought Defendant's action was odd, but had no reason to suspect Defendant of any wrongdoing. (See Id. at 22.)[3] Per the police department's policy, to inquire whether Defendant has a valid driver's license to drive the Vehicle rather than tow it while the female driver is in custody, Sergeant Lowry instructed Officers Progar and Smith (who arrived sometime after Sergeant Lowry) to go inside the truck stop's store and look for Defendant. (Id. at 23-24.)

         When the three men emerged from the store, Sergeant Lowry asked the two officers, “Where was he at?” (Id. at 25.) One of the officers answered that Defendant was coming out of the restroom. (Id.) Sergeant Lowry instructed the officers to check Defendant's driver's license, and he then walked into the gas station restroom himself based on his hunch that criminal activity might be afoot. (Id. at 25.) Defendant was not handcuffed or otherwise restricted by officers at this point. (Id. at 60.) In the restroom, Sergeant Lowry saw the handle of a pistol, in plain view, that was wedged inside a toilet seat-cover dispenser in the middle stall; nobody else was in the restroom at the time. (Id. at 25-26.)

         Sergeant Lowry inferred that Defendant hid the pistol in the toilet seat dispenser and believed that Defendant had violated Tenn. Code Ann. § 39-17-1307(a)(1), which prohibits “carr[ying], with the intent to go armed, a firearm.” (See Id. at 29, 41-44.) Sergeant Lowry additionally believed that Defendant had engaged in evidence tampering by concealing the pistol, in violation of Tenn. Code Ann. § 39-16-503. (Id. at 44.) Upon this discovery, Sergeant Lowry immediately ordered Defendant be handcuffed via radio. (Id. at 29.)

         Sergeant Lowry then secured the gas station restroom, came back out, and instructed Officer Progar to follow him back into the restroom to take pictures of and secure the pistol. (Id. at 29-31.) He also saw that Defendant was handcuffed. (Id.) It took less than five minutes for Sergeant Lowry and Officer Progar to then come out of the gas station store. (Id. at 31.)

         As soon as he came back out, Sergeant Lowry advised Defendant of his Miranda rights (Id. at 31-32.) There is no question that at this time, Defendant was not only “in custody” for Miranda purposes, but also under arrest rather than merely detained temporarily for investigative purposes. Defendant thereafter was questioned and made allegedly incriminating statements, which Defendant now seeks to suppress. (Id. at 34-39.)


         The Court finds that the officers did not have probable cause to arrest Defendant and that therefore the fruits of the illegal arrest-his post-arrest statements-must be suppressed.

         “[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). “[A]n arresting officer must be able to articulate ‘concrete facts' from which the ‘totality of the circumstances' indicates that an arrest is warranted.” United States v. Reed, 220 F.3d 476, 478 (6th Cir. 2000) (citation omitted).

         “Probable cause exists where the facts, at the time of the arrest, were sufficient to lead a prudent person to believe that a crime had been committed or was in the process of being committed.” United States v. Jiminez, 654 Fed.Appx. 815, 819 (6th Cir. 2016) (citing Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001)). Probable cause is “reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.” United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990). ...

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