Tuckson v. United States, No. 11-CF-522
(decided Oct. 3, 2013)
Players: Fisher, Thompson, Ruiz. Opinion by Senior Judge Ruiz. Dissent by Associate Judge Thompson. PDS for Mr. Tuckson. Trial judge: Gerald Fisher.
Facts: MPD officers saw Antione Tuckson driving a Chevy Impala that appeared “outfitted” to look like an unmarked police car, complete with dark windows, long antennas, and a “police-style dash light.” He was also dressed in what the officers thought looked like an undercover police style – slacks, a button down shirt, and “thin gloves.” After running his plates and determining that the car was not in fact a police vehicle, the officers stopped him and asked if he was a police officer; Tuckson answered that he was not. The officer told him that he was parked illegally (in front of a fire hydrant) and that his window tint appeared to be illegal. Tuckson refused to give consent for a search but handed over his keys so that the officers could conduct a window tint check. An officer opened the driver’s side door and found a collapsible baton in the door pocket. Officers then placed him under arrest for possessing a “prohibited weapon” and for “impersonating a police officer.” In a search incident to arrest, police found a loaded handgun, “police handcuffs,” and an extra magazine under a jacket on the front passenger seat. Tuckson was charged with three firearms possession offenses for the handgun and ammunition. He moved to suppress the gun and ammunition on the ground that the police lacked probable cause to arrest him (and thus the gun and ammunition were the fruits of an unlawful arrest).
Issue 1: Did police have probable cause to arrest Tuckson either for possessing a prohibited weapon (PPW) under D.C. Code § 22-4514(b) or carrying a dangerous weapon (CDW) under D.C. Code § 22-4504(a)?
Issue 2: Did police have probable cause to arrest Tuckson for impersonating a police officer, in violation of D.C. Code § 22-1406?
Holding 1: No. The dispositive question is whether the collapsible baton qualifies as a “dangerous weapon.” A collapsible baton is not listed as a per se prohibited weapon in either the PPW or CDW statutes, nor is it an “inherently dangerous” weapon, as its ordinary use and design is to help police control suspects without inflicting serious bodily injury. Thus, to conclude that the baton was a “dangerous weapon” within the meaning of the PPW and CDW statutes, the court would have to find that Tuckson intended to use it as a dangerous weapon. There was no probable cause to believe that he did – the baton was holstered and tucked away, and Tuckson never even touched it in their presence. Thus, there was no reason to think it was anything more than “a prop to complete a hobbyist’s police officer costume.”
Holding 2: No. The crime of impersonating a police officer requires both that the individual falsely represent himself as a police officer and that he do so with fraudulent design. Assuming without deciding that police had probable cause to believe that Tuckson was falsely representing himself as a police officer, there was no evidence that he had a “fraudulent design.”
Of note:
· On the dangerous weapon issue, the Court emphasizes that it is not enough that Tuckson may have intended to use the baton to impersonate a police officer. The phrase “unlawfully against another” in the PPW statute means that the person intends to use the object “as a weapon,” i.e., “to harm” someone.
· On the impersonation issue, the Court rejects the government’s arguments that Tuckson could have had a “fraudulent design” to avoid punishment for either his illegal parking or his illegal tinting. Tuckson made no attempt to get away with these acts or use his police officer guise to get an advantage, and the mere fact of his illegal parking and tinted windows was not enough to establish a fraudulent intent.
· The Court also rejects the notion that probable cause can rest on a belief that the person is about to commit a crime. Thus, even if there was reason to think that Tuckson later might have tried to use his police officer impersonation fraudulently, there was no probable cause that he was doing so at the moment the police officers saw him.
· Notably, the Court “decline[d] to affirm” on the alternative ground that the “automobile exception” permitted the police to search Tuckson’s car because they had probable cause to believe it contained either contraband or evidence of a crime. The trial court had not ruled on that ground, and the government never argued it; rather, it was raised for the first time by Judge Thompson at oral argument. Moreover, it was “debatable” whether that exception applied – to find that it did, the Court would have to “endorse the generalization” that any person whose car is equipped to look like a police car “is likely to also carry guns or evidence of fraudulent intent.” Slip op. at 22. Judge Thompson dissented in part on this ground.
How to use:
· Tuckson is useful for PPW/CDW cases involving objects that have non-weapon uses (e.g., steak knives, flowerpots), as it makes clear that, in such cases, the defendant’s intent is imperative – the government must prove that the person carrying the object intended to use it as a dangerous weapon. It is not enough that the object could be used to inflict serious bodily injury; that must have actually been the person’s purpose in carrying it.
· FOR APPELLATE PRACTITIONERS: Tuckson is a helpful case to cite if a judge proposes affirming your client’s conviction on a basis that the government never raised. The Court explains that “considerations of good order, judicial efficiency, and respect for the proper role of institutional litigants . . . argue against our consideration of an argument that the government has not seen fit to present,” and that the Court should consider such an alternative ground only in the very rare circumstance in which its application is “beyond serious debate.” Slip op. at 21. CM
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