Alley-way questioning and pat-down request give rise to Fourth Amendment seizure in light of officers’ targeted approach and persistent questioning, the limits on appellant’s movement, and the fact that the encounter occurred in a high crime area with “high visibility” patrols

Nowhere to run by Douglas M. Paine, licensed under Creative Commons

Dozier v. U.S., 15-CF-1098

• 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, 17. 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.

Read the full opinion here.

A copy of this post has been added to the Fourth Amendment section of the (Early) Year In Review (Part 1).

WCC

There are innocent reasons to flee the police

Miles v. United States (decided March 29, 2018)

The Players: Associate Judges Glickman, Beckwith, and McLeese. Opinion by Judge Beckwith. Dissent by Judge McLeese. William T. Morrison for Mr. Miles.  Trial Judge: Stuart G. Nash.

Facts: An anonymous 911 caller claimed there was a black man in a blue army coat with a gun on a particular block. The police stopped appellant—a black man wearing an arguably blue camouflage jacket—a few blocks away. After seeing appellant, one officer drove his car up onto the sidewalk to prevent appellant from continuing in his direction of travel (which was inconsistent with what the tipster had provided). Appellant immediately tried to run away from the police cruiser, and was swiftly caught by the officer, who felt a hard object at appellant’s waist. Appellant was searched and found to be carrying a gun.

Issue: Did appellant’s flight when confronted by the police, coupled with the anonymous phone tip, give the police reasonable articulable suspicion (RAS) to stop appellant?

Answer: No. Even deferring to the trial court’s conclusion that the description given by the anonymous caller matched appellant, the only corroboration of the illegality alleged in the tip was appellant’s flight. Without more, there was no RAS.

First, the Court noted that the anonymous tip in this case was not enough on its own to justify the stop because, while it identified a specific person, there was nothing to corroborate its bald assertion of illegality. Thus, the police needed an on-the-scene reason to stop appellant, and here, the only indication of illegality was appellant’s flight. The Court held that his flight alone, under the circumstances of this case, was not enough to justify a stop.

The Court distinguished this case from Illinois v. Wardlow, 528 U.S. 119 (2000), in several ways. First, in Wardlow, there were additional factors other than flight that supported RAS (area known for drug trafficking, and Wardlow’s possession of an opaque bag were consistent with suspecting him of dealing drugs). Here, appellant’s flight was the ONLY indication of illegality. Second, in Wardlow, the flight was unprovoked (Wardlow ran as soon as he saw police officers in the area, before any had approached him). Here, appellant’s flight was in response to a sudden and aggressive attempt to stop him; the police pulled up onto the sidewalk to prevent his travel along the sidewalk. Flight in face of such aggressive police behavior is a reasonable response from an innocent person, particularly a black man.

Most significantly, the Court cites many sources documenting the disproportionate use of deadly force against black men, as well as the new prevalence of videos capturing the use of such force. Furthermore, the Court holds, “an investigatory stop and frisk is not a ‘petty indignity’—‘it is a serious intrusion upon the sanctity of the person’—and though we lack adequate empirical grounds for fathoming the extent to which innocent people might flee to avoid being subjected to one, it seems safe to say that the number is not insignificant.” Slip. Op. at 19. Without any additional indicia of illegality, the police did not have RAS to stop appellant. CP

Read the full opinion here.

Convictions set-aside under the Youth Rehabilitation Act may still trigger repeat-offender sentencing enhancement.

(Singer/Songwriter Richard Marx of “Repeat Offender” Fame)

Wade v. United States (decided November 16, 2017)

Players: Associate Judges Fisher, Thompson, McLeese. Opinion by Judge McLeese. Trial Judge: Lynn Leibovitz. April E. Fearnley for Appellant.

Facts: On October 8, 2015, police received an anonymous 911 call. The caller reported seeing a man with a gun in his waist in the 1200 block of 7th Street NW. This man was walking with another man. Police responded and saw two men matching the descriptions about a block away from where the caller had said. The defendant, Mr. Wade, matched the description of the man who was reported to have had a gun. The officers pulled their police car alongside the two men, who both began running. Officer Brown gave chase and briefly lost site of Mr. Wade as he ran around a shed. Shortly after, he regained sight of Mr. Wade and apprehended him. The officer conducted a pat down but did not find a gun.

However, a civilian eyewitness reported seeing a man matching Mr. Wade’s description toss a gun near the same shed behind a dumpster. (At trial, the civilian said he did not actually see the gun tossed, which he had testified to at the suppression hearing, but only that he saw the man run past with someone else and then saw a gun in the air). An officer looked in the area and saw a gun in plain view. Police then conducted a showup and the witness identified Mr. Wade as the person who threw the gun. Police placed Mr. Wade under arrest and a search incident to arrest recovered six .357 caliber bullets. Mr. Wade was convicted of unlawful possession of a firearm, possession of an unregistered firearm, and unlawful possession of ammunition.

Issue 1:  Did police have sufficient reasonable suspicion to support the initial stop?

Holding: Yes. The Court cited the fact Mr. Wade was observed near the location the 911 caller had said and matched the description from the caller (black male, navy blue shirt, tan hat, blue jeans, walking with another black male wearing a light green shirt). Plus, when the officers arrived, Mr. Wade fled and was observed placing his hand near his waist, which was where the 911 caller said he saw the gun. The Court concluded such facts were sufficient for reasonable suspicion.

Issue 2: Was the showup identification procedure unduly suggestive?

Holding: No. The Court noted that all showup identifications involve some suggestivity but that “something more egregious than mere custodial status is required to establish” impermissible suggestivity. Here, Mr. Wade was in handcuffs, with an officer on either side of him and standing between two police cars. The Court concluded that did not rise to the level of impermissible suggestivity. The Court stated that the fact one of the officers on the scene had a “passing familiarity” with the eyewitness did not render the identification procedure unduly suggestive.

Issue 3: Was the evidence sufficient to establish that Mr. Wade possessed the gun?

Holding: Yes. Mr. Wade cited to the eyewitness’s testimony at trial where he said he did not actually see Mr. Wade throw the gun and saw two people run behind the shed to support his argument that the evidence was insufficient to show he ever had the recovered gun. The Court disagreed. The Court cited the 911 call and that Mr. Wade matched the description of the person observed with a gun, that he fled when police arrived and was observed with his hand in his waistband area, the witness said he saw a gun tossed behind a dumpster at the same time Mr. Wade ran behind the dumpster, and Mr. Wade possessed bullets that matched the caliber of the gun recovered.

Issue 4: Did the trial court err in imposing a three-year mandatory minimum sentence on the count of unlawful possession of a firearm?

Holding: No. UPF prohibits possession of a firearm by persons with a prior conviction punishable by more than one year and provides for a mandatory minimum sentence for anyone who violates the statute and has previously been convicted of a crime of violence other than conspiracy. Mr. Wade had a prior conviction for attempted robbery, which is punishable by more than one year and which meets the definition of crime of violence. However, he contended that his conviction could not be used to impose the mandatory minimum because it had been set aside under the Youth Rehabilitation Act (YRA). The Court disagreed. The Court first cited the YRA itself, which explicitly authorizes a set-aside conviction of attempted robbery to be used to support a conviction. Mr. Wade tried to draw a distinction between using a set-aside conviction to provided a needed element for a conviction as opposed to using it to impose a mandatory sentence. Though the Court agreed that the YRA was silent as to that question, it did not agree that the YRA supported such a distinction. The Court believed that the legislative history of the YRA supported its conclusion that no such distinction exists. Accordingly, the trial court correctly determined that Mr. Wade was subject to a three-year mandatory minimum for his UPF conviction.

Of Note: 

• The Court did not address Mr. Wade’s argument that police exceeded the scope of a lawful investigative detention by detaining him for between forty-nine and fifty-three minutes before conducting the showup identification because the Court concluded that police had probable cause to arrest when they recovered the gun in the area where the witness had said it had been thrown.
• The Court noted that this case had a “procedural wrinkle” of whether it can rely on evidence that was developed at trial that contradicted evidence at the suppression hearing to reverse a decision of the trial court when the losing party failed to renew the motion to suppress based on the new evidence at trial. The Court concluded that in this situation the trial evidence would not have changed the outcome of its decision on the suppression hearing, but attorneys should remember to renew any suppression if additional evidence is developed at trial that could alter a trial court’s pre-trial decision. BM

Read the full opinion here.

Lookout for Two Black Males in a White Car Did Not Provide Reasonable Suspicion

Armstrong & Joiner v. United States (decided July 20, 2017)

Players: Chief Judge Blackburne-Rigsby, Senior Judges Washington and Belson. Opinion by Judge Washington.  Lee T. Friedman & Matthew M. Madden for Mr. Armstrong.  PDS for Mr. Joiner. Trial Judge: William M. Jackson

Facts: Two robberies occurred within ten minutes of each other in the same area. Officers broadcasted a lookout for two black males in a white car, possibly a Mercury Sable, with tinted windows. The first and second robberies’ lookouts gave different descriptions of the suspects clothing.

Less than five minutes after the second robbery, appellants were stopped in a white Chevrolet Lumina, eight blocks from the first robbery and fifteen blocks from the second. Three black men were in the vehicle, none wearing clothing that matched either of the lookouts. The officers still searched the car and found items from the second robbery.

Appellants were convicted after a motion to suppress the evidence seized in the Terry stop and warrantless search of the vehicle was denied.

Issue: Did the officers have sufficient specificity to provide the particularized reasonable suspicion necessary to stop the vehicle?

Answer: No. The description of only two black men in a white car with tinted windows lacks the specificity necessary to warrant a stop.

The DCCA has previously held that a lookout description limited to a person’s race and generic clothing color does not provide particularized suspicion, and that this extends to a generic description of a car. The court held that the description of a “white Mercury Sable” does not provide police with sufficient particularized suspicion to stop any white American sedan, and concluding otherwise would give officers “unfettered discretion to pull over an infinite number of white vehicles.”

But the court held a generalized lookout description applicable to many people is not dispositive; the court looks to the totality of the circumstances when considering if a Terry stop was justified. A close spatial and temporal proximity between the reported crime and seizure can justify a Terry stop with an imperfect description. The number of people in the area, the time of day, and direction of flight may also be considered.

Even when looking at the totality of the circumstances, the stop was still not justified. The lookout, which “boiled down to two black men in a white car at high noon on a weekday in downtown D.C.,” did not provide particularized suspicion. The government contended that it was reasonable to think the suspects might have been found within a four-block radius of the robbery three minutes afterward, but the court noted the standard is whether the information provides the officers with particularized suspicion to believe appellants’ car was the car being sought as opposed to other cars in the area. And, although it is reasonable to think the particular white car might still have been in the area, it is just as likely other white cars not involved in the robbery were in the area. The descriptions called for a dragnet search that is not justified by Terry, so the court reversed and remanded.

Dissent: Judge Belson dissented, asserting that the entire area covered between the robberies and the stop was not unreasonably large, only about twelve by six blocks, and that the suspects could not have traveled much farther than that given the short time between the robbery and the stop.

The dissent agreed that the description with nothing else lacks reasonable particularized suspicion. But, the collective knowledge doctrine provides grounds for the stop, as other officers knew it was an older, four-door sedan, which is sufficiently particularized. The majority also incorrectly assumed that other similar white, older, American cars were being driven on that street at the same time, when actually only one other car was pulled over during the search. So, the dissent reasoned that the police response was reasonable and not a “dragnet” search.

AB

Read the 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.

Get Your Hands Out of Your Pants! . . . Or The Police Can Stop and Frisk You

Edward Morgan, Jr. v. United States (decided August 6, 2015)

Players: Judges Thompson, Easterly, and McLeese. Opinion by Judge McLeese. Dissent by Judge Easterly. Stephanie L. Johnson for Mr. Morgan. Trial judge: J. Michael Ryan.

Facts: Police received a phone tip about potential drug activity from a caller who had just seen a man on a red bicycle exchange small objects with another man. The tipster said that during the transaction, the man on the bicycle “reach[ed] into the back of [his] pants and pull[ed] something out [and] put it back in.” Shortly thereafter, the tipster called again, this time reporting that the man on the bicycle was at a particular intersection. Police arrived at the intersection to find Mr. Morgan, who had a red bicycle and fit the physical description provided by the tipster. They initiated a Terry stop, which led to the discovery of cocaine in Mr. Morgan’s waistband and a conviction for possession of same.

Issue: Did the police have reasonable articulable suspicion (RAS) to stop Mr. Morgan?

Holding: Yes. The majority held that “a person’s removal and replacement of an object from inside the waistband of the back of his pants during an exchange will typically create reasonable articulable suspicion to believe the suspect was involved in criminal wrongdoing,” and it was “natural[]” to interpret the tip about Mr. Morgan reaching into “the back of [his] pants” to mean he reached into his waistband. The tipster thus gave police reason to believe the person he described was involved in unlawful activity, and Mr. Morgan sufficiently matched the suspect's physical description to be stopped.

Of Note:

• Despite the broad language of the majority’s ruling that reaching into a waistband gives rise to RAS, the modifying phrase “during an exchange” is an important limitation. The majority distinguished a New Jersey case that found no RAS arose from the suspect placing a paper bag inside his pants on grounds that “there were no other indications of a drug transaction, whereas the present case involves an exchange of small objects out on a street.” (emphasis added)

• Judge Easterly dissented, highlighting the rule that when a police officer does not observe suspicious activity first-hand, RAS can only arise if the tipster gives a specific description of suspicious activity rather than reporting a “hunch.” She concluded that the description of Mr. Morgan reaching into “the back of [his] pants” was vague and could well have referred to all manner of innocent activity, such as reaching into a back pocket for a wallet. The police ought to have asked for more detail, and the prosecution ought to have presented more detail, to develop and show RAS. FT

Read full opinion here.