The PDS Criminal Law Blog has been on hiatus since the beginning of 2019. During this time, the editors have been re-evaluating how best to serve its readers while summarizing the criminal jurisprudence of the D.C. Court of Appeals. Readers and editors agree that the blog would be more useful if its posts were shorter and relied more on readers to read opinions and understand the facts presented and arguments raised in each case.
During the blog's hiatus, the D.C. Court of Appeals has decided some 26 criminal cases. In the interest of updating practitioners and testing a shorter blog format, the blog will post brief synopses of the Court's 2019 criminal opinions, grouped by subject area, in a "year-in-review" format. Part 1 of this update follows. (Cases will appear in this update multiple times if their holdings span multiple subject areas):
UPDATE: Andrews and Jackson were added to the Fourth Amendment section of this post on October 15, 2019. WCC
DETENTION
In re R.O., 18-FS-760 (decided January 17, 2019) –
- Holding 1: The DYRS order revoking R.O.’s community placement and placing him in a secure facility was not subject to direct review by the DCCA, but would be subject to appellate review on the merits where a Superior Court judge erroneously dismissed R.O.’s Administrative Procedure Act petition for lack of subject matter jurisdiction. Slip Op. at 2-13.
- Holding 2: Revocation of R.O.’s community placement was unconstitutional where DYRS relied in part on an arrest that was not supported by probable cause. Id. at 13-14.
- Holding: To establish a “substantial probability of guilt,” giving rise to a presumption that no conditions of pre-trial release will reasonably assure community safety, “the United States must show at a minimum that it is more likely than not that the defendant would be found guilty beyond a reasonable doubt at trial of an offense permitting detention under [D.C. Code] § 23-1325.” Slip Op. at 9 (emphasis added).
- Of Note: The court took no position on whether a substantial probability requires “strong likelihood” or “reasonable certainty” of success at trial because the government’s proof did not meet the “more likely than not” standard. Id. at 11.
**Dozier v. U.S., 15-CF-1098 - Seizure/Terry Stop
- Holding 1: Appellant was seized for Fourth Amendment purposes by the time he complied with an officer’s request to put his hands on the wall so that police could frisk him for weapons, where armed, uniformed police parked in front of the alley appellant was walking out of, got out, walked up to appellant, and asked if they could speak to him (twice), if he had any weapons, and after appellant exposed his waistband to prove he did not, if they could pat him down. “Even assuming [this] interaction . . . began in a consensual manner, . . . there was a Fourth Amendment seizure by the time appellant submitted to the officers’ request to a pat-down” because “an innocent person in appellant’s situation would not have felt free to decline that request.” Slip Op. at 12. Factors relevant to the court’s determination include: the natural apprehensiveness any person would feel when approached by multiple officers in a secluded alley late at night, id. at 15; the officers’ persistence which signaled that appellant could not terminate the encounter until police finished their investigation, id. at 15-16, 23-24; and the restraint on appellant’s movement caused by the officers parking at the secluded alley’s entrance and walking toward appellant from that direction, id. at 23.
- Of Note: In addition, the Court considered that “the encounter took place in a ‘high crime area’”--one subject to “frequent[] and visibl[e]” patrols--“and involved an African-American man.” Id. at 16. The court deemed these factors relevant because even an innocent man in such a neighborhood might reasonably perceive that he is the target of a criminal investigation when approached by police; id. at 16-17, 19; because “persons of color” were “more likely to be subjected to this type of police surveillance” and therefore “particularly justified” in fearing it; id. at 19; and because “[i]n the isolated setting where the encounter took place, appellant . . . reasonably could have feared that unless he complied with the police requests, he would be vulnerable to police violence, without hope that anyone would come to his aid or witness what happened,” id. at 22.
- Holding 2: Because there was no reasonable articulable suspicion to seize by the time appellant submitted to being patted down, testimony that appellant took flight during the pat-down and subsequently threw an object containing a controlled substance should have been suppressed as the fruits of the illegal seizure. Id. at 27-28.
- Holding 1: Warrantless GPS monitoring of appellant, a probationer, based on CSOSA criteria designating him a high-risk offender, was a constitutional “special needs” search because [1] appellant’s “reasonable expectation of privacy as a convicted offender on probation was diminished and . . . outweighed by the strong governmental interests in effective probation supervision,” and [2] there was no evidence “CSOSA placed him on GPS monitoring as a subterfuge to enable the police to [circumvent] the warrant and probable cause requirements of the Fourth Amendment.” Id. at 3.
- Holding 2: Appellant had no objectively reasonable expectation that CSOSA would withhold his GPS tracking data from the police, given [1] CSOSA’s “publicly-declared practice of sharing its GPS tracking data with the MPD,” id. at 40, [2] the right of law enforcement agencies to share lawfully acquired information under the Fourth Amendment, id. at 45-46, and [3] MPD’s limited use of the data, which focused solely on whether any monitored supervisee had been present during a particular robbery, id. at 47-48.
- Of Note: Recognizing the sensitive nature of location information and the potential for abuse from unfettered police access to that data, the court has expressly limited its holding to situations where police engage in a narrowly tailored search to see whether any monitored probationer was present at the scene of a crime. Id. at 51-52.
*Andrews v. D.C., 17-CT-523 (decided August 15, 2019) – Warrant Affidavit
- Holding 1: A warrant affidavit failed to establish probable cause to search appellant’s home because it targeted a different person, Andre Becton, and failed to establish any valid connection between Becton and appellant’s address: 3518 6th Street SE #6. The affidavit asserted, repeatedly, that Becton lived somewhere else (3815 6th Street SE #6) and, while this mismatch might be the result of a typographical error, a court “cannot properly uphold the Fourth Amendment if [it] simply assume[s] that [a warrant] affidavit contain[s] a harmless transposition of numbers.” Slip Op. at 7. Moreover, the affidavit was too conclusory to establish probable cause because it referred to “muliple databases” and “corroborating information from several sworn MPD members” without explaining “what the ‘multiple databases’ were, what the ‘corroborating information’ was, who provided it, how or when it originated, or how it was obtained.” Id. at 7-8.
- Holding 2: The trial court erred in denying appellant’s motion to suppress evidence obtained pursuant to the invalid search warrant for his home because the affidavit “was so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” Id. at 9 (quotation marks and citation omitted).
- Holding: The “community-caretaking doctrine” applies to “temporary seizures of persons who are out in public” and justified seizing appellant pending the arrival of an ambulance, where appellant’s “frightening” behavior caused his mother “to run to a neighbor’s house [to] call the police”; “there was reason to believe [appellant] was under the influence of PCP, a drug known to cause sudden bursts of aggressive and violent behavior”; appellant “physically resisted” officers upon their arrival; and appellant “showed signs of [anger,] incoherence[,] and disorientation.” Slip Op. at 12, 17.
- Of Note: The DCCA “express[es] no view as to the applicability of the community-caretaking doctrine to searches of a home.” Id. at 12.
Hooks v. U.S., 17-CF-1382 (decided May 30, 2019) – Seizure/Reasonable Articulable Suspicion
- Holding 1: Appellant, who was sitting in a lawn chair on a walkway in front of an apartment building, was “seized” for Fourth Amendment purposes when, after driving past the building, four uniformed officers stopped their car, reversed, got out of the car, walked directly up to appellant, and told him to “get up.” Slip Op. at 9.
- Holding 2: Police lacked reasonable articulable suspicion to believe appellant had committed the crime of “crowding, obstructing, or incommoding” a sidewalk or entryway because his conduct could not have conceivably met the second requirement of the statute—that he resume blocking the walkway after being told to disperse. Id. at 13-16.
Posey v. U.S., 16-CF-1126 (decided February 21, 2019) – Headlong Flight/Reasonable Articulable Suspicion
- Holding: Appellant’s unprovoked flight from uniformed officers in a high crime area did not provide reasonable articulable suspicion to stop him for committing a robbery reported in that area, where (a) the officers had only a vague suspect descriptions, (b) the record did not show precisely when the robbery occurred, and (c) nothing about appellant or his group’s conduct before or during the flight suggested involvement in the robbery—“[A] nondescript individual distinguishing himself from an equally nondescript crowd by running away from officers unprovoked does not, without more, provide a reasonable basis for suspecting that individual of being involved in criminal activity and subjecting him or her to an intrusive stop and police search.” Slip Op. at 14.
*Added October 15, 2019
**Added December 9, 2019
**Added December 9, 2019
FIFTH AMENDMENT/STATEMENTS AND INTERROGATION
Walker v. U.S., 14-CF-839 (decided February 21, 2019) –
- Holding 1: Appellants’ claim that an inculpatory witness statement was coerced, involuntary, and unreliable, raised for the first time in appellants’ motions for new trial, was forfeited and subject to plain error review on appeal because appellants failed to raise it in a pretrial motion to suppress. Slip Op. at 11-14.
- Holding 2: The trial court did not plainly err by admitting a witness statement later ruled by the DCCA to have been coerced by police because neither the Supreme Court nor the DCCA had recognized the defendant’s right to exclude a statement coerced from a witness, as opposed the defendant him- or herself. Id. at 14-16. Even assuming there was a right to exclude coerced witness statements, the court would not find that it had been violated on the record presented. Id. at 16.
- Holding 3: Neither the DCCA opinion finding coercion nor the evidence that the statement was coerced qualified as “newly discovered evidence” under Rule 33. Id. at 16 n.5.
- Holding: Appellant was not in “custody” for Miranda purposes where detectives questioned her at her home for about half an hour; the tone of the interview was conversational, not menacing; detectives never threatened arrest; appellant was neither handcuffed nor physically restrained; detectives’ weapons were concealed; and neither detective was standing guard at the door. Slip Op. at 6-7.
Green v. U.S., 16-CM-187 (June 13, 2019) – In a simple assault case, where appellant cross-examined his complainant using parts of her 911 call, none of which was admitted into evidence, and the government responded on re-direct by moving the entire 911 call into evidence –
- Holding 1: The trial court erred and violated the Confrontation Clause by denying appellant the opportunity to recross-examine the complainant on new, material information contained in the call. Slip Op. at 5-10
- Holding 2: The trial court’s error was not harmless beyond a reasonable doubt where it asked, specifically to hear 911 call and it helped bolster the complainant’s credibility in a case that came down to her credibility. Id. at 10-12.
- Of Note: The 911 call was not admissible under the rule of completeness because no part of it had been admitted into evidence up to that point. Id. at 10 n.12.
- WCC
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