Tyrone Kemp Federal Lawsuit College Park Police Officer
Tyrone Kemp Federal Lawsuit College Park Police Officer
civil action, by and through his attorneys of record, and files this his Complaint for
Damages and Demand for Jury Trial pursuant to 42 U.S.C. § 1983, by virtue of the
Court as follows:
INTRODUCTION
1.
This is a civil action asserting claims under state and federal law arising
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ANTHONY KEMP due to the negligent, deliberate, willful, and wrongful acts of
the Defendant.
The Plaintiff’s claims are rooted in the fact that the Defendant KEVIN
POGORZELSKI filed an affidavit leading to the arrest of the Plaintiff for felony
murder, aggravated assault, etc., based upon incorrect and false statements of fact,
and without probable case or arguable probable cause that the Plaintiff had
committed the alleged murder. For example, (a) the Defendant falsely swore to an
arrest affidavit that one (1) of the nine (9) bullet casings found at the scene
matched bullets found in the Plaintiff’s apartment; (d) the Defendant falsely
recounted to the magistrate judge that the assailant was observed jogging in the
direction of the Plaintiff’s apartment when in fact the eyewitness described the
assailant jogging in the opposite direction; (c) the Plaintiff’s attire did not fit the
description of the assailant given by an eye witness to the shooting; and (d) no
physical evidence, such as the Plaintiff’s fingerprints were found on the vehicle the
THE PARTIES
2.
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3.
acting under color of state law and within the scope of his discretionary function as
acting within his discretionary authority when deciding to seek an arrest warrant
for Plaintiff’s arrest. He is being sued in his individual capacity only. Defendant
Pogorzelski may be served at his place of employment, at the College Park Police
Department located at the Public Safety Complex, 3717 College Street, College
4.
things hereinafter alleged, Defendant Pogorzelski was acting with malice under his
5.
This case presents a federal question under 42 U.S.C. §§1983 and 1988, as
well as the Fourth and Fourteenth Amendments to the United States Constitution.
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6.
§1391(2) because a substantial part of the events or omissions giving rise to the
claim occurred, or a substantial part of the property that is the subject of the action
7.
The claims raised herein became ripe within two (2) years of the date of the
filing of this cause of action, and this Court has proper jurisdiction.
FACTUAL BACKGROUND
8.
During the late evening hours of July 30, 2017 and the early morning hours
of July 31, 2017, the Plaintiff was surfing an internet dating site when he began
an association with a person that he thought was a woman, when in fact and
9.
store to go to a local bar and lounge located on Old National Hwy, a short
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10.
biologically a man.
11.
After arriving at the local bar and lounge and determining that it was closed,
12.
Dangerfield did so, and after a short period of time lingering in Plaintiff’s
13.
male assailant while seated on the driver’s side of a grey 2017 Dodge Challenger,
at 3100 Godby Road, Building 14, College Park, Georgia 30349. [Exhibits “A”
and “B”].
14.
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15.
Memorial Hospital and was advised by “Nurse Lily Agalov… that Mr. Dangerfield
arrived at the hospital at 4:49 a.m. and was pronounced deceased at 4:53 a.m. She
advised that he had approximately 19 bullet holes to his abdomen and groin area
16.
Dangerfield’s vehicle for fingerprints with trace lifts from the exterior windshield,
exterior roof, front driver seat, rear driver seat/middle, rear passenger seat and front
passenger seat. [Exhibits “B” and “C”]. Plaintiff’s fingerprints were not found on
17.
Eight (8) RP .45 caliber casings were located at the crime scene. [Exhibits
“A,” “B,” and “D”]. One CRC .45 caliber casing was located at the crime scene.
18.
2017 that he worked at Nissan of Union City where he detailed cars. Plaintiff
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stated that he finds bullets in the trunks and under the seats of cars at work and
collects them.
19.
20.
Exhibit “E”.
21.
The inventory indicates that the search found, among other things, “1 Box
22.
inventoried from the search lists “1 Magtech .45 cal bullet box” …” “found during
search warrant in kitchen”, but does not mention a CBC .45 Bullet. [Exhibit “F”].
23.
acquaintance of the Plaintiff since high school, stated during an interview with
Defendant Pogorzelski, prior to Plaintiff’s arrest, that she had never seen Plaintiff
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with a gun but disclosed that he collects bullets from the cars he details at work.
[Exhibit “G”].
24.
.45 caliber bullet, along with eleven (11) 9mm bullets and twenty-five (25) .22
25.
The manufacturer’s brand on the one (1) .45 caliber bullet, found in the
Plaintiff’s apartment did not match the manufacturer’s brand of eight (8) of the
nine (9) .45 caliber bullets found at the scene of the murder.
26.
stated that he saw a guy standing at Troy Dangerfield’s vehicle firing a handgun
from the passenger side into the vehicle. He then saw the male slowly jog away
“along the sidewalk toward the front of the complex between buildings 14 and 12.”
Mr. White stated that the male had on a white t-shirt, blue jean shorts, and white
tennis shoes. He stated that the unknown male appeared to be 5’6” with an average
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27.
was wearing a white shirt, grey full-length pants, and white shoes on the evening
of the murder. This description of his attire was verified by surveillance footage
captured at Godby’s Place, a convenience store on Godby Road at the time he was
picked up from there by Troy Lee Dangerfield only minutes before Dangerfield
28.
Plaintiff was wearing the white shirt, grey full-length pants and white shoes
at the time he was picked up by Troy Lee Dangerfield, from Godby’s Place at
approximately 3:24 a.m. on July 31. 2017 according to the timestamp. [Exhibit
“J”].2
29.
The Plaintiff’s attire was the same when Troy Lee Dangerfield dropped him
off back at his apartment at approximately 3:35 a.m. on July 31, 2017.
30.
the witness, Jevaun White, did not match the attire that Plaintiff was wearing
1
Exhibit “I” is a surveillance video that will be manually filed.
2
Exhibit “J” is a surveillance video that will be manually filed.
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during the early morning hours of July 31, 2017, as verified on surveillance
31.
fingerprint evidence tying Plaintiff to the crime and inconsistent evidence such as
32.
In fact, the Affidavit contains false statements, including that the unknown
male walked away from the vehicle “in the direction of building 6.” [Exhibit “K”].
Witness White clearly stated that the unknown male jogged along the sidewalk
toward the front of the complex between buildings 14 and 12. [Exhibit “H”]. The
33.
The Affidavit contains another false statement that Plaintiff was “wearing a
white shirt, blue jeans and white sneakers.” [Exhibit “K”]. Plaintiff was actually
wearing a white shirt, grey full-length pants and white sneakers. This misstatement
makes Plaintiff’s attire more similar to the unknown male’s attire as described by
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34.
bullets from the vehicles he detailed at Nissan of Union City. [Exhibits “G” and
“K”]. The selective use of parts of Ameka Holland’s interview statements and the
35.
Without the proper context and knowing the proper context, the Affidavit
indicates that as a result of a search warrant “we located 25 .23 caliber bullets, 11
9mm bullets, 1 .25 caliber gun magazine and 1 .45 caliber bullet. The .45 caliber
bullet matched the brand of one of the shell casings found on scene.” [Exhibit
“K”]. The Affidavit further states “[t]he said accused advised during an interview
that he does not own a firearm and has not shot a handgun since he was 18 or 19
regarding Plaintiff’s bullet collection from the Affidavit likely effected the
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36.
Arrest Warrant was executed by the executing judge on August 25, 2017 at 2:50
37.
38.
Plaintiff was booked into College Park Police Department on August 22,
39.
Plaintiff was indicted on November 17, 2017, under Case No. 17SC155747
on the following charges: (1) Murder, pursuant to O.C.G.A. § 16-5-1; (2) Felony
40.
After serving 4 years, 3 months and 2 days in custody in College Park Police
Department and Fulton County Jail without bond, Plaintiff was found Not Guilty
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CAUSES OF ACTION
Count I
41.
herein.
42.
unreasonable searches and seizures, which includes the right to be free from
unlawful arrest.
43.
42 U.S.C. §1983 provides in part that: “[e]very person who, under color of
United States of other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall
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44.
the Fourth Amendment and a viable constitutional tort cognizable under 42 U.S.C.
§ 1983. Carter v. Gore, 557 Fed. Appx. 904 (11th Cir. 2014).
45.
plaintiff must prove (1) the elements of the common law tort of malicious
prosecution, and (2) a violation of his Fourth Amendment right to be free from
unreasonable seizures. Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir.
2004).
46.
The elements of the common law tort of malicious prosecution include (1) a
malice and without probable cause; (3) that terminated in the plaintiff accused’s
favor; and (4) caused damage to the plaintiff accused. Wood v. Kesler, 323 F. 3d
47.
dismissal of charges. Laskar v. Hurd, 972 F.3d 1278, 1284-85 (11th Cir. 2020). A
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challenge to a warrant-based arrest alleges that the legal process failed. Williams v.
48.
officer in the State of Georgia acting under color of law, had a duty to observe,
recognize, and uphold Plaintiff’s civil and constitutional rights which were
49.
containing several false statements. Defendant Pogorzelski was responsible for the
decision to prosecute, and he was responsible for requesting and obtaining the
50.
rights by providing false statements in the Affidavit that affected the executing
51.
omissions under the color of state law and by virtue of his authority as a law
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Department.
52.
the Fourth Amendment to the United States Constitution including, but not
limited to his right to be free from unreasonable and unjustified search and
seizure.
53.
disregard of Plaintiff’s rights under the Fourth Amendment to the United States
Constitution and specifically the right to be free from unjustified and unreasonable
seizure.
54.
The law was clearly established in August of 2017 that officers who obtain
arrest warrants by submitting affidavits that contain false statements are not
entitled to qualified immunity. The law was also clearly established that the arrest
55.
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Carter v. Gore, 557 Fed. Appx. 904, 907 (11th Cir. 2014).
56.
Here, malice can be inferred from the Defendant’s lack of probable cause.
The Eleventh Circuit has held that “a jury can infer malice from an officer’s lack of
57.
Pogorzelski, Plaintiff was unlawfully arrested, indicted and prosecuted for the
following charges: (1) Murder, pursuant to O.C.G.A. § 16-5-1; (2) Felony Murder,
commit. Most appallingly, Plaintiff was booked into the Fulton County Jail, without
58.
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the general and special damages Plaintiff has suffered due to the described
entitled by federal law, contained at 42 USC §1983 and as may be proven at trial.
Count II
59.
stated herein.
60.
his employment as a police officer for Defendant City of College Park Police
61.
responsible for requesting and obtaining the warrant for Plaintiff’s arrest.
62.
days in custody without bond. Plaintiff was found not guilty by a jury. Plaintiff has
63.
actions, Plaintiff has incurred economic damages including lost wages, loss of
64.
actions, Plaintiff has experienced pain, suffering, emotional distress, and anxiety,
65.
the jury.
66.
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the general and special damages Plaintiff has suffered due to the described
law.
Count III
67.
stated herein.
68.
It was necessary for Plaintiff to retain the undersigned attorneys to file this
action. Upon judgment, wherein the Plaintiff becomes the prevailing party,
Plaintiff will be entitled to an award of attorneys' fees and the costs and expenses
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time of trial;
at time of trial;
g. For all other and further relief that the Court may deem just and
appropriate.
Respectfully submitted,
WAYNE B. KENDALL, P.C.
s/ Wayne B. Kendall
WAYNE B. KENDALL
Georgia Bar No. 414076
[email protected]
KIMBERLY ELLISON
Georgia Bar No. 141716
[email protected]
155 Bradford Square, Suite B
Fayetteville, GA 30215
Telephone: (678) 884-6084
Facsimile: (770) 716-2439
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Respectfully submitted,
WAYNE B. KENDALL, P.C.
s/ Wayne B. Kendall
WAYNE B. KENDALL
Georgia Bar No. 414076
[email protected]
KIMBERLY ELLISON
Georgia Bar No. 141716
[email protected]
155 Bradford Square, Suite B
Fayetteville, GA 30215
Telephone: (678) 884-6084
Facsimile: (770) 716-2439
22
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CERTIFICATE OF COMPLIANCE
Pursuant to L.R. 7.1(D), the undersigned hereby certifies that the foregoing
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL has been
prepared in Times New Roman 14, a font and type selection approved by the Court
in L.R. 5.1(B).
Respectfully submitted,
WAYNE B. KENDALL, P.C.
s/ Wayne B. Kendall
WAYNE B. KENDALL
Georgia Bar No. 414076
[email protected]
KIMBERLY ELLISON
Georgia Bar No. 141716
[email protected]
155 Bradford Square, Suite B
Fayetteville, GA 30215
Telephone: (678) 884-6084
Facsimile: (770) 716-2439
23
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PROPERTY/EVIDENCE INVENTORY
DATE: 8/2/2017
t11c1me of person From whom property was obtained:
TIME: 2:29:23 PM
Search Warrant
Location Where Property was Obtained : Gray Dodge Ch.:Jllenger, VIN 2C3CDZAG1HH626105, GBI HQ, Decatur,
DeKalb Co, GA
___i_
1 1~1111111111 Iii lllll lllll lllll 1111111111111 B860116 !Swabs containing suspected blood from exterior roof
1
of vehlcle
u
2 11111111 1111111111111111111111 1111111111111 8860117 I
Fingerprint cards contaning lifts from the following:
1. Exterior wlndshleld
2. Exterior roof
- - - - --- - - - -- - - - - - -- - - - - ·- -- - - -
4 1~1111111m~111111111m~lff ~IIIIIIHIII 8860119 ITrace Lifts from :
L Fr9nt Drfv~( Seat
2. Rear Driver Seat/Middle
3. Rear Passenger Seat
4. Front Passenger Seal
6 Illlllll lllll llll lllll llm lllll lllll llll llll BB6D121 1Seventv one (71) one dollar bills in U.S. currency, Block
Bog S882459
ATE: 8/2/2017
TIME: 2:29:23 PM
93
Pnge 1 of 2
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7 111111111111111111]11111111 ~Ill I~~ lfll lUI 8 B60122 IOne (1) sea. CPX-2,9~m plstol_with assoicated -
maga!lne which contained 8 rounds including two (2)
Perfecta brand rounds, one (1) RP round, four (4) WIN
brand rounds and one·(l) PPU round, Serial# 440201
- - -- --
s 11111111 mllllllllllHllll 111~ 91111111111 0060123 I One (l) US. $2 bill, Block Bag 5882457-
-- --
9 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIUIIIIIII~II_Bs60124 ' One (1) projectile fragment
__ _ _ __,_______
... LAST ENTRY ...
- - - -- - - - -- -- - - - - -- -- -
1 11111111111111111 IIHI 1111111111 ml 1111 "II 0s6011s j Gray Dodge Challenger, VIN 2C3c;DZAG1.HH62610S
with Keys
0
• LAST ENTRY -~-
95
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Page 1 of 1
07/31/2017 17-08786
DATE CASE NUMBER
310QGodb~RdBld .14
OWNER ADDRESS '
ITEMIZATION OF PROPERTY:
DE$CRIPTION . SERIAL NUMBER MODEL NUMBER
Fingerprint e;ards (8860117)
BRIEF REASON FOR CONFISCATION: Ufted_frn'm I.he front driver door of the victim's vehicle ~urln9 search
warrant.
DISPOSITION:
96
Case 1:23-cv-05368-TWT Document 1-3 Filed 11/21/23 Page 5 of 8
PROPERTY/EVIDENCE INVENTORY
DATE: 8/l/20-17
i,..,n,e of person From whom property was obtained:
TIM E: 2il3:44 PM
Search Warrant
Location Wt,ere Propertv was Obt,3ined: Gray Dodge Challenger, VIN 2C3CDZAG1HH626105, GBI HQ, Decatur,
Del(alb CQ, C:iA
- - - - -- - -- -· - - - - --
1 11111ru1111111111111111m1111111u111111111 8869115 j t;,ray ~odse Chalfcrnger; VIN 2C3CDZAG11-/H626105
with Ke.ys
71
Case 1:23-cv-05368-TWT Document 1-3 Filed 11/21/23 Page 6 of 8
PROPERTY/EVIDENCE INVENTORY
DATE: 8/2/'J.017
ame of person From whom property was obtained:
TIME: ~:29:23 PM
Search Warrant
Location Where Property was Obtained: Gray Dodge Challenger, VIN 2C3CDZAGlHH626105, GBf HQ, Decatur,
DeKalb Co, GA
- - - -- - - _ _ __ _L __ _ _ _ _ - - - - - -
1. Exterior windshield
2. Exterior roo.f
Location Where Propertv was Obtained: Gray Dodga Challenger, VIN 2C3COZAGl HH626105, G81 HQ, Decatur,.
DeKalb Co, GA
7 IIIJllll 11111 Im 11111 111111111111111IIII IIII a0G01 22 One (1) SCCY CPX-2 9rrim pistol with assolcated
' '
magazine which contained 8 rounds Including two (2)
Perfecta brand rounds-, one (1) RP round, four (4) WIN
brand rounds and one (1) PPU round. Serial# 440201
s Illlllll 111111111I1111 lllll llfll 1111111111111 8860123 I One (1)_U.$; $2 bill, Block Ba~ S882457
- -- - -- - - - - -- -- - - --
9 1111111111111~11 IJIII lllll llllf 1111111111111
- - - - -- - - -- --
B860124
- --
1
One (1) projectile fragni en.t
- - -
"..- LAST ENTRY • 1/,,,
73
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Page _ 1_ of 1
3100 Godby Rd 14
OWNER ADDRESS
ITEMIZATION OF PROPERTY:
DESCRIPTION SERIAL NUMBER MOOEL NUMBER
FRAGMENT
DISPOSITION:
105
Case 1:23-cv-05368-TWT Document 1-6 Filed 11/21/23 Page 2 of 18
Case -Agencies
O Calle_g e Park Police Department 1708786
lhcldont Dato lhcldent co·1.mly Offenses:
07/31/2017 f ulton • Homlclde
•Officers
PogorzelskJ, Kevin kpogotwlskl @c.olfegep;:irkga.com; : (404) 761-3131 x:225
• Atlanta Judicial Circuit
• Fulton Co. District Attorn¢y
Individuals
Name Type Sex Race DOB FBI Deceased
DANGERFIELD, TROY Vlctlm M B·Black 09/11/1984 -~
Evidence
Typo: Blolo9lcal specimens Source Individual:
Agencv Item#: Location Collected: Exterior roof of vehicle
Description: Blood lifted· From the exterior roof of the victim's vehlde.
Requested Analysis: Serology / DNA
Type: Latent orfnt.s Source Individual:
A~1mcv ltcm#; Location Collected: Front driver door of vehide
Des.c rlption: Latent prints lifted tr:o.m the_fron_t driver door of .the yfctlm's vehld~.
Requested Analysis: Latent Prints Analysis
Tyf>i!: Ev1dence for Trace Analy.sls Source Individual:
Agencv Item#: Location Collec;:ted: E.'tlerlor windshield
Description: Trace Ufb; from the exterior wlndst)leld of the Victim's vehlde.
Requested Analysis: Fibers and Textiles; General Materials
VMSXMXl\·1 Complotcd By: P~ or.:.ol :;lt •. Kc·;or, (.:Q.!) 7o 1-:113 1 x:22 5 2017-DB-?3 11:12
l06
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Page 1 of -'----
ITEMIZATION OF PROPERTY:
DESC.RfPTION SERIAL N.U MBER M,ODEL N.UMBER'
1 secy 9mm. Handgun (B860122) 440201 CPX·2
1 9mm. magazine
8 9mm. bullets
DISPOSITION:
103
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Page 1 of _ _
3100 Godby Rd 14
OWNER ADDRESS
DISPOSITION:
10'1
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Page 1 of 1
BRIEF REASON FOR CONFfSCATION: Located In victim's vehicle du.ring se~rc:h warrant
DISPOSITION:
10 1
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Page _1_ of 1
ITEMIZATION OF PROPERTY:
DESCRIPTIO'N SERIAL NUMBER MOD.EL NUM~ER
$71 ,00 cash (8B60121)
BRIEF REASON FOR CONFISCATION: Localed In victim's vehicle -during search warrant.
DISPOSITION:
102
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Page 1 of - '----
07/31/2017 17-()8786
DATE CASE NUMBER
DISPOSITION:
99
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Page 1 of - '--
07/31/2017 17-08786
DATE CASE NUMBER
ITEMIZATION OF PROPERTY:
DESCRIPTION SERIAL NUMBER • MODEL ":'UMBER
Swabs (B860~ 20)
BRIEF REASON FOR CONFISCATION: Lifted from the driver <;foor pull of the victim'~ v.ehlcle durfng search
wammt.
DISPOSITION:
lOO
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Page 1 of 1
07/3112'017 17--08786
DATE CASE NUMBER
ITEMIZATIO.N OF PROPERTY:
□E-SCRIPTIO~ SERIAL NUMBER MODEL NUMBER
Blood Swab (B.B60116)
BRIEF ~EASON FOR CONFISCATION: l.;.lft~d from Ilia e)(terlor roqf"of tt,e ~lctlm's vehicle during search
wri'rr~ nt.
DISPOSrTION :
97
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Page 1 of 1
ITEMIZATION OF PROPERTY:
DBS.CRIPTION SERIAL NUMBER MODEL NUMBER
Trace lifts (6B60118)
BRIEF REASON FOR CONFISCATION: Llflep from the ~Xlijrlbr windshield of the victim's vehicle du.rlng
search warrant. •
DISPOSITION:
98
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Page 1 of 1
3~00 Godby Rd 14
OWNER ADDRESS
DISPOSITION·
89
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Page _1_ of 1
07/31/2017 17-08786
DATE CASE NUMBER
ITEMIZATION OF PROPERTY:
DESCRIPTION SERIAL NUMBER MODEL NUMBER
2 black rubber glo.ves
BRIEF REASON_FOR CONF_ISCATION: Found durlri'g search warrant lri tlie living room.
DISPOSITION:
90
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Page 1 or 1
07/31/2017 17-08786
DATE CASE NUMBER
ITEMIZATION OF PROPERTY:
DESCRIPTION SERIAL NUMBER MODEL NUMBER
1 Blk I-Craig Tablet 2MH78723BSl/13
t White Aeple I-phone (cracked)
1 Blk Samsunq cellphone A3LSPHM830
BRIEF REASON FOR CONFISCATION: Found during search warran t of apartment 6-R at 3100 Godby Rd.
DISPOSITION :
87
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Page 1 of 1
07/31/2017 17-08786
DATE CASE NUMBER
BRIEF REASON FOR CONFISCATION: Found dL1ring search warrant In tho living room._ _ _ _ _ __
DISPOSITION:
88
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Page 1 of
--
College Park Police Department
Property Record
07/31/2017 17-08.786
DATE CASE NUMBE.R
J,100 Godby Rd 14
OWNER ADDRESS
BRIEF REASON FOR CONFISCATION: Localed on lhe ground of.the crime scene.
PRP.PERTY 9FF_
I CER DATE TIME
DISPOSITION:
83
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Page _ 1_ or 1
08/29/2017 17-08786
PATE CASE NUMBER
ITEMIZATION OF PROPERTY:
bl:S'CRIPTION SERIAL NUMBER MODEL NUMBER
1 RP •.45 caliber.shell casing #2
1 RP-.45,callber shell caslng,.-:,#!J
~ - - - -- - -- - - - - - -~ - - - - -- - - -
1 RP-.45 caliber shell casino #4
1 RP .45 caliber shell casing #5
DISPOSITION:
79
Case 1:23-cv-05368-TWT Document 1-6 Filed 11/21/23 Page 18 of 18
Page 1 of -'-------
07/31/2017 17-08'786
DATE CASE NUMBER
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d _ _ _ _ _ __ 3100 Godb Rd 14
O.WNER ADDRESS
ITEMIZATI.ON OF PROPERTY:
DESCRI.PTION SERIAL NUMBER MODEL. NUMBER
1 Apple cellpl)one F2LtDE4HFYC
DISPOSITION :
80
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TWT 440 42:1983cv
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