Hands Up, Hands Down, Hands Up, Hands Down

Donald Brown v. United States, No. 12-CF-803 (decided August 8, 2014)

The Players: Washington, Glickman, Ruiz.  Opinion by Judge Ruiz.  Cynthia Nardone for Appellant.   Trial judge: Florence Pan.

The Facts:  The police received a 911 call reporting a man with a gun wearing a “black hood, black hoodie, blue jeans” with a “brown complexion” gambling “in a hallway” with others.  When police arrived at the apartment complex, they did not see anyone gambling, but they observed three people standing outside. One wore a black hoodie and blue jeans, a second was Appellant Brown. Upon seeing the police, the man with the hoodie walked away.  Police approached the other two and asked if they would talk to the officers.  They then asked if either man a weapon.  The two said that they did not.

The officers then stated that they might need to frisk the individuals.  One agreed and walked to the fence, positioning himself to be frisked.  Brown followed, but after initially putting his hands up, he put them down again, put them up again, and then put them down for a second time.  Sensing his indecisiveness, one officer suggested that Brown put down the fast food bag he was carrying.  Brown then fled the scene.  As he ran, one officer grabbed his jacket.  Brown “wriggled” out of it and kept running.  The officer subsequently searched it and found a .22 caliber gun.  Brown was apprehended by other officers a few blocks away.

Issue: Did the officers have reasonable, articulable suspicion to seize Brown, and was the warrantless search of his jacket constitutional?

Holding: Yes.  The Court found there was reasonable, articulable suspicion to seize Brown because:  (1) it was a high crime area; (2) police were there in search of a man with a gun, and Brown was with someone who matched the lookout for a man with a gun, and (3) Brown was indecisive, evasive, and tried to flee.   

Police also found that Brown had abandoned his jacket when he wriggled out of it, and so the trial court’s finding that Brown lacked a reasonable expectation of privacy in that jacket was not clearly erroneous.

Of note: The Court’s emphasis on Brown’s association with someone who matched the lookout is somewhat surprising given the Court’s statements in other cases discouraging guilt by association. JB.

Read the full opinion here.