Defense argued several motions to suppress evidence and dismiss a shooting case before DC Superior Court Judge Neal Kravitz in a hearing on June 29.
Mario Kirksey, also known as Jaymario Kirksey, 36, is charged with assault with intent to kill while armed, assault with a dangerous weapon, assault with significant bodily injury while armed, three counts of possession of a firearm during a crime of violence, and unauthorized use of a vehicle. These charges stem from his alleged involvement in the non-fatal shooting of an individual on Feb. 28, 2024, on the 1300 block of Okie Street, NE.
Kirksey’s attorney, Kevin O’Sullivan, argued that cell site data, or records from cell towers used to estimate a phone’s location, offered by the prosecution should be suppressed. The prosecution’s warrant to obtain cell site data about Kirksey’s phone was an overbroad “fishing expedition” and not supported by probable cause, according to O’Sullivan.
Although the prosecution’s warrant requested records on Kirksey’s location data for a month-long period, Judge Kravitz said only cell site information from the few hours before and after the shooting was relevant to the case. According to Judge Kravitz, any well-trained officer aware of the Fourth Amendment’s privacy protections should have known the warrant was overbroad.
The prosecution urged that, even if the entire month of cell-site data is overbroad, Kirksey’s phone location information around the time of the incident should be severed from the rest of the invalid warrant and held admissible. But as the two-to-three hours of relevant cell site data were “less than one percent” of what the warrant authorized to be seized, the valid portion of the warrant is not severable, said Judge Kravitz.
Accordingly, Judge Kravitz granted O’Sullivan’s motion to suppress the entirety of the prosecution’s cell site data.
O’Sullivan also argued the case should be dismissed because of the prosecution’s failure to preserve surveillance footage from a restaurant near the site of the shooting.
A Metropolitan Police Department (MPD) officer downloaded around 30 minutes of surveillance footage from the restaurant, but O’Sullivan said access to additional hours of video would have helped Kirksey’s case by providing more information to identify the perpetrator.
The prosecutor rebutted that extracting footage from the CCTV system was not easy and that the MPD officer acted reasonably in only preserving relevant portions of the video.
Judge Kravitz agreed with O’Sullivan that footage from the hours before and after the crime is pertinent to Kirksey’s defense, as video during daylight hours could provide a clearer image of the shooter or show that the car prosecutors linked to Kirksey had not left the parking lot. However, Judge Kravitz said there was no showing that the MPD officer acted in bad faith by failing to download the entire footage archive. Judge Kravitz ruled against dismissing the case.
Still, Judge Kravitz said O’Sullivan could cross-examine the MPD officer at trial to argue the investigation lacked thoroughness by failing to subpoena more footage.
In addition, O’Sullivan moved to dismiss the case based on the prosecution’s failure to preserve a vehicle they allege was connected to the shooting.
O’Sullivan argued that his motion to dismiss was warranted because the vehicle contained potentially exculpatory evidence, which could prove Kirksey’s innocence. He continued by alleging that the prosecution’s actions amounted to bad faith or, at a minimum, gross negligence.
The prosecutors conceded that the MPD investigators violated Rule 16, which requires prosecutors to preserve and disclose evidence to the defense, by releasing the vehicle to the owner’s insurance company before the defense had an opportunity to inspect it.
However, according to the prosecution, the vehicle remained in an MPD lot for nearly two years before the lead detective mistakenly authorized its release, believing that Kirksey had already pleaded guilty. Another officer also released the vehicle without the required prosecutorial approval.
The prosecutor claimed that Department of Forensic Science (DFS) forensic testing recovered DNA from multiple points inside Kirksey’s car, including the steering wheel, gear shift, radio, and AC controls.
The resulting mixture is consistent with four individuals, at least one male, according to the prosecution. Kirksey was not excluded as a contributor, but the car’s registered owner was excluded. Another individual’s fingerprint was also found on the front passenger side.
DFS documented the vehicle’s interior with 81 photographs before it was released, and the contents were lost.
Prosecutors argued that because the forensic testing had already been completed, the defense had more than enough comparable evidence available despite the vehicle’s destruction.
Judge Kravitz took the motion under consideration but was skeptical of the bad faith argument, noting the car’s exculpatory value wasn’t clearly apparent and the lead detective’s mistaken belief that the case was resolved undercut any ill motive.
He remained open to a finding of negligence but signaled that dismissal would be unlikely.
Parties are slated to reconvene on June 30.
