At least three criminal cases involving illegal gun possession have been dismissed from Jefferson Circuit Court over the past six months, each following a stern order by the judge to suppress evidence obtained in what was ruled to be an illegal search by officers of the Louisville Metro Police Department’s Ninth Mobile Division.
The two most recent cases in the past month both involved orders by Circuit Judge Annie O’Connell ruling that guns found in searches performed by Detective William Mayo must be excluded from evidence, as the officer violated the defendants’ constitutional rights in those searches last year.
Suppression orders filed by O’Connell in March and Circuit Judge Brian Edwards in December both made a point of stating that just because someone happens to be in a part of west Louisville that has a higher crime rate does not mean that they have fewer rights protecting them from illegal search and seizures as residents in other parts of the city.
LMPD spokesman Dwight Mitchell informed Insider Louisville that all three of these arrests made by the Ninth Mobile Division — the geographically shifting unit primarily focused on gangs and drugs — are now under internal investigation from the department’s Professional Standards Unit.
The dismissals of these three cases of African-American defendants arrested in the West End comes amid increased scrutiny and criticism of LMPD policies involving the detaining and searching of drivers in this part of the city, which largely stemmed from the widely publicized traffic stops of Simmons College President Rev. Kevin Cosby and 18-year old Tae-Ahn Lea last year.
Last month, LMPD Chief Steve Conrad unveiled a new set of policies for traffic stops that would go into effect Aug. 1, limiting the circumstances in which officers can remove an individual from a car, handcuff them and search the vehicle. The Louisville FOP has criticized those new rules, saying they will endanger the safety of officers and prevent the arrest of criminals.
The most recent case to have evidence suppressed by a judge is that of Miguel Ballard Jr., who was arrested last June after being pulled over by Mayo for not properly wearing his seatbelt.
Mayo and other Ninth Mobile officers told Ballard to exit the car and searched his van — predicated on him appearing “nervous and sweaty” and smelling marijuana — finding a concealed gun and charging him with possession of a handgun by a convicted felon.
However, Judge O’Connell granted a defense motion to suppress that gun from the evidence on May 29, determining that Mayo coerced Ballard into agreeing to a search of his van after asking several times, citing his extended detention, a large number of officers present and the manner in which he was questioned.
Noting that Mayo told Ballard there were only two types of people who did not consent to a search — “assholes and people who have something to hide” — O’Connell stated in her order that “this Court can think of another kind of person who might wish to deny consent to search: citizens exercising their Constitutional rights.”
O’Connell went on to cite the Moberly v. Commonwealth decision of the Kentucky Supreme Court last April, which threw out the drug and weapon convictions of a man whose vehicle was searched by police because he appeared nervous and sweaty and had previous criminal charges, though not convictions.
“We render this opinion for the untold number of innocent Kentucky citizens who have had ‘criminal charges’ and may become nervous and sweaty and look around when confronted by police at a traffic stop at night,” wrote Justice Daniel Venters in his 6-1 Moberly opinion. “They have the right to live their lives unfettered by police having no reasonable articulable suspicion to interfere.”
A video of the hearing on the defense’s suppression motion in February shows Ballard’s public defender Aaron Dyke repeatedly questioning Mayo on what he would have done if Ballard kept refusing to concede to a search, to which the detective replied three times that he would have just asked him again. Pressed on why he considered Ballard to be suspiciously nervous, Mayo answered that he is able to see things that his body cam can’t see, citing a bulging artery in Ballard’s neck.
Mayo’s body cam video of the search and arrest shows him explaining to Ballard that the Ninth Mobile Division is “the gun police” that only cared about taking guns off the street, adding he didn’t care if Ballard’s car contained methamphetamine, heroin or a dead body.
Assistant Commonwealth’s Attorney Jeff Cooke told Insider Louisville on Wednesday morning that with the suppression of the gun as evidence in the case his office will not be proceeding further with Ballard’s prosecution, adding that “we do not intend to appeal the judge’s ruling.” The Courier Journal first reported on O’Connell’s suppression of the evidence against Ballard later that evening.
Asked how often evidence has been suppressed from a search based on a driver’s nervousness since the Moberly decision last April, Cooke said that county prosecutors do not keep such statistics, “but it is not very common.”
“We seldom prosecute cases where an officer relies solely on a suspect appearing ‘nervous and sweaty’ as the basis for his believing he had reasonable suspicion for a ‘pat down’ or probable cause for a search,” stated Cooke. “Usually the defendant’s appearance or behavior is just one of several circumstances upon which an officer might rely on in conducting a warrantless search.”
Cooke added that Mayo relied on other factors beyond just nervousness to justify his search, noting that Ballard eventually gave his consent and the officer smelled marijuana — though no drugs were found in the car and Mayor did not perform a field sobriety test.
Ballard’s attorney Dyke declined to comment on the case until prosecutors formally dismissed the criminal charges.
Mitchell told Insider that a PSU internal investigation of the arrest and search by Mayo was initiated on Tuesday, and therefore the department would not provide further comment as the investigation goes forward.
This is the second PSU investigation of an arrest and search of an individual by Mayo that has been initiated this month, as Judge O’Connell also dismissed the gun possession charges against Tyrelle Henderson in an order two weeks before she suppressed the evidence in the Ballard case.
In May of 2018 — a month before Ballard’s arrest — Mayo stopped his vehicle when he saw Henderson and his brother walking at 11th and Broadway in the Russell neighborhood with what he thought looked like concealed guns or extended magazines in their pockets. The officer immediately patted down Henderson without his consent and found a gun and extended magazine, charging him with possession of a handgun by a convicted felon.
Mayo testified in court that the decision to stop and pat down Henderson was “based off where we were — in the projects; based on where we were directed to patrol — because of the violence, the things we observed, the brother and the things that were on Mr. Henderson, we decided to stop and investigate.” He also suspected that the two may have been trespassing at the Park Hill housing project, though this property was nearly two miles away.
However, in her order to suppress the evidence of the gun in March of this year, O’Connell ruled that Mayo was not justified in searching Henderson “without reasonable suspicion that criminal activity was afoot,” as carrying a gun of itself is not illegal and the officer did not know that he was a convicted felon or had a concealed carry permit.
Additionally, O’Connell cited a Kentucky Supreme Court case indicating that the mere presence of a person in a high crime area at night is not sufficient to justify an investigatory stop and seizure.
“Merely walking through a high-crime area does not amount reasonable, articulable suspicion necessary to justify a warrantless search of a pedestrian,” wrote O’Connell, who on May 15 issued an order to formally dismiss the charges against Henderson.
Mitchell of LMPD informed Insider on Friday that Chief Conrad had just been made aware of the Henderson case and as a result had begun a review of it.
Similar reasons were given by Judge Brian Edwards in his December order to suppress evidence in an illegal gun case against Garrett Johnson-Trumbo, whose vehicle was searched by Ninth Mobile officers in late 2016.
In this case, the rental car of Johnson-Trumbo was pulled over in the Park DuValle neighborhood for disregarding a stop sign, with the officers calling in a K-9 unit to search the car after he could not produce a rental car agreement.
Edwards ruled that the officers did not have reasonable suspicion to extend the traffic stop by calling in the K-9 unit, ordering that the gun found in the search be suppressed from the evidence in the case, leading to the dismissal of the charge a week later.
While noting that the court “appreciates the challenges that the 9th Mobile Unit faces in its efforts to curtail gun crimes and violence in west Louisville,” Edwards added in his suppression order that such considerations did not override the unconstitutional nature of the search, as those driving in Park DuValle have the same rights as those driving elsewhere in the city.
“As stated above, this Court is well aware of the troubling levels of gun and drug-related violence in west Louisville,” wrote Edwards. “However, this does not mean that citizens driving in west Louisville should be subjected to a lesser degree of constitutional protection than citizens driving in other parts of our community.”
Edwards continued: “For Americans, regardless of what part of town they may find themselves driving, the Constitution and the protections it affords is one size fits all. What is protected on one side of town must be deemed protected activity on all sides of town.”
LMPD initiated a PSU investigation of this arrest in April following questioning from the Courier Journal, which Mitchell told Insider has not yet concluded.
In August of last year, a teenager, Tae-Ahn Lea, was pulled over by Ninth Mobile detectives in the West End for making a wide turn, then handcuffed while his car was searched by a K-9 unit, which did not result in an arrest.
A video of the incident from the officer’s body cam was posted onto YouTube in February and picked up nearly one million views before the Courier Journal wrote about it in April, sparking an outcry from the community and pointed criticism of LMPD from Metro Council members. This followed similar criticism after Rev. Cosby was pulled over by officers in September of 2018.
Last month, Chief Conrad rolled out new a new set of LMPD policies for traffic and investigatory stops, pat downs, vehicle searches and restraining subjects, which appeared to be a reaction to the Lea incident. In addition to creating a more narrow set of circumstances in which officers can remove and detain an individual to conduct a search of a vehicle, officers must now fill out a new form detailing the probable cause for such a search.
The revised policies added language in eight different sections specifying that “merely being nervous or in a high-crime area are not sufficient, by themselves,” to justify pat downs, vehicle searches, removing persons from a vehicle, placing suspects on the ground, or even asking a person for consent to search their vehicle.
Louisville Fraternal Order of Police President Nicolai Jilek immediately criticized those new rules, calling them a “knee-jerk” reaction to high-profile incidents that could end up jeopardizing the safety of officers and allowing dangerous criminals to avoid arrest.