Fourth Amendment Seizure Where Police Blocked a Narrow Path and Ran a Warrant Check While Asking Accusatory Questions

Jones v. United States (decided February 23, 2017)

Players: Associate Judges Glickman and Fisher, Senior Judge Ruiz. Opinion by Judge Glickman. Dissent by Judge Fisher. Joseph A. Mokodean for Mr. Jones. Trial judge: Harold L. Cushenberry, Jr.

Facts: Jones was walking alone in a narrow alley around 6:00 p.m. when two armed, uniformed officers in a marked patrol car drove up the alley. One officer testified that he saw Jones “fiddling with a Newport cigarette box,” which Jones lowered to his side when he saw the police car. The officers drove up alongside Jones, and one officer got out of the car, blocking Jones’s way. The officer questioned Jones in a “cordial” tone for one to two minutes, and relayed the information to his partner so that his partner could run a warrant check. Before the warrant check was complete, the officer asked to see the cigarette box. Jones handed it over and the officer found crack cocaine inside.

Issue: Had Jones been seized for Fourth Amendment purposes when police asked for the cigarette box, such that the cocaine should have been suppressed?

Holding: Yes. A reasonable person would not have felt free to leave where armed officers subjected him to accusatory questioning while he was alone in a secluded area, the questioning officer physically blocked his path, and police ran a warrant check, which was still going on when they asked for the cigarette box.

Of Note:

• The majority called this a “close legal question” and emphasized that the blockage of Jones’s path and the warrant check “materially increased [the] coerciveness” of the encounter.

• Even though Jones “failed to cite” the fact of the ongoing warrant check in his appellate brief, the majority concluded that he had not abandoned reliance on this factor because his trial counsel had relied on it at the suppression hearing and the trial judge explicitly considered it in ruling, and because his appellate counsel submitted a 28(k) letter before oral argument citing a case analyzing the significance of a warrant check in the Fourth Amendment context.

• In dissent, Judge Fisher stated that he would have treated as forfeited the argument relating to the impact of the warrant check. He also distinguished the two cases the majority relied on pertaining to the significance of the warrant check.  MW

Read full opinion here

Typo Time! Court of Appeals Rejects Expansive Reading of Rule 10(e)(3), Finds Itself Unable to Declare a Scrivener’s Error on Appeal from Jury Instruction.

Payne v. United States (decided February 23, 2017)

Players: Associate Judges Beckwith and Easterly, Senior Judge Nebeker. Opinion by Judge Beckwith. Concurring opinion by Judge Nebeker.  Jason M. Wilcox for Appellant.  Trial Judge: George W. Mitchell.

Facts: Following a conditional grant of habeas corpus by the D.C. Circuit, the Court of Appeals allowed Mr. Payne to raise a claim of instructional error – whether the trial court committed plain error by instructing the jury, on one of the several occasions where the Government’s burden was discussed, that “it must find the defendant guilty,” if it found that the Government “had failed to prove any element of the offense beyond a reasonable doubt.”

Holding: Considering the claim on plain error review, the Court found no reasonable likelihood that the trial court’s isolated misstatement had prevented the jury from determining Mr. Payne’s guilt in accordance with the Constitution. Slip Op. at 4-7. Judge Nebeker, concurring (perhaps only in part), proposed to decide the case on the alternate basis that the purported instructional error was really a typographical or “scrivener’s” error – i.e., that the court reporter simply failed to transcribe the “not” between “defendant” and “guilty.” Id. at 8.

D.C. Appellate Rule 10(e) provides:

(1) If any difference arises about whether the record truly discloses what occurred in the Superior Court, the difference must be submitted to and settled by that court and the record conformed accordingly. 

(2) If anything material to any party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:

      (A) on a stipulation of the parties; or

      (B) by the Superior Court before or after the record has been forwarded. 

(3) All other questions as to the form and content of the record must be presented to this court.

Judge Nebeker reasoned that the “true” content of the instruction would “seemingly” fall under Rule 10(e)(2), Slip Op. at 13. However, because “[t]he trial judge and the court reporter are dead and the reporter’s notes are gone,” the Court of Appeals was “in as good a position as a substitute trial court judge to decide” what really happened, which Judge Nebeker viewed as an “other question[] as to the form and content of the record.” Id. at 13-14. Finally, Judge Nebeker reasoned that the trial court’s prior correct statements of the reasonable doubt axiom disproved that it had made a mistake at the time in question on appeal. Id. at 14.

Writing for the Court, Judge Beckwith disagreed that the trial court’s prior correct instructions constituted evidence of a scrivener’s error (“as the government conceded in its brief and at oral argument, even very experienced judges make mistakes”) and further concluded that even if such evidence existed, the trial court would have to decide “whether the record truly discloses what occurred” pursuant to Rule 10(e)(1). Id. at 7 n.4.

Of Note: Attorneys practicing in the Court of Appeals should continue to observe the trial court’s authority to resolve disputes regarding the record, even those which might be classified as “misstatements,” “ommissions,” “errors,” or “accidents.” See Clark v. United States, 147 A.3d 318 331 (D.C. 2016). WC

Read full opinion here

But I Heard it from That Guy! Random Information Passed from One Cop to Another Without Explanation Does not Justify a Terry Stop

Jenkins v. United States (decided February 2, 2017)

Players: Associate Judges Glickman and Blackburne-Rigsby, and Senior Judge Pryor. Opinion by Judge Pryor. PDS for Mr. Jenkins.  Trial Judge: Neal E. Kravitz

Summary: After a man attempted to rob him inside his apartment building between 3:00 and 4:00 pm, the complainant described the assailant to officers from the Metropolitan Police Department (MPD) as 21 to 22 years old, 5’8” to 5’9”, with a dark brown complexion, average build, dreads, a ski mask and dark clothing.

Special Police Officers (SPOs) in the apartment complex where the incident occurred reviewed security camera footage, which apparently did not capture the robbery. Nonetheless, when SPO Walker arrived for his midnight shift, another SPO, who had supposedly looked at the camera footage, told him they were looking for a “black male, with a black ski mask, blue jeans, black jacket, and a bicycle.” Based on this description, SPO Walker stopped Mr. Jenkins (who was on a bicycle) outside of the apartment complex sometime near 1:00 am. He was frisked and weapons and ammunition were found. Mr. Jenkins did not have dreads and was light-skinned.

Issue 1: Did the vague description given by one SPO to another, in the absence of any record evidence about what was on the video, provide reasonable articulable suspicion to justify the stop?

Holding 1: No. The government presented neither the security camera footage, nor the officer who viewed the footage at the suppression hearing. Thus, the government failed to meet its burden to demonstrate that the information relied on by SPO Walker was itself based on reasonable articulable suspicion (and indeed, on this record, that was highly questionable).

Issue 2: Did either the description given by the complaining witness to MPD, or the description given by the non-testifying SPO to SPO Walker, justify the stop?

Holding 2: No. Both descriptions would apply to too many people, and, particularly when combined with the passage of almost ten hours, could not support a reasonable articulable suspicion of Mr. Jenkins. CP

Read full opinion here.