thereby violating the defendant's fourth amendment rights.
The defendant contends that he was seized by the police "at the earliest, when he was ordered to halt in the stairway, and, at the latest when the police officer began the chase." The government claims that, "at the very least", the defendant's initial encounter with the police was merely an investigative stop justified by the circumstances of the encounter. The government also contends that the circumstances of the initial encounter between the officers and Mr. McKenzie justify characterizing it as a mere contact which did not implicate the fourth amendment.
A "seizure" under the fourth amendment takes place "when (an) officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen". Terry v. Ohio, 392 U.S. 1, 19 n. 16, 20 L. Ed. 2d 889, 88 S Ct. 1868 (1968). In determining whether a particular defendant was seized, the Court must examine the totality of the circumstances. Michigan v. Chesternut, 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975 (1988). "The question becomes whether or not 'a reasonable person would have believed that he was not free to leave.'" United States v. Baskin, 280 U.S. App. D.C. 366, 886 F.2d 383, 386 (D.C. Cir. 1989), quoting United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980).
Under the circumstances presented here, the Court concludes that defendant McKenzie was seized when he fled and officers Adams and Mead pursued him down the seventh floor hallway of the apartment building. The officers, upon arriving in the hallway, found the defendant standing near a man who was tampering with the door of apartment 721. They took steps to apprehend the man tampering with the door, and ordered the defendant to cooperate. When the defendant fled instead of following their commands, two officers pursued him. A reasonable person under these circumstances would not have felt free to leave and calmly go about his business.
The situation here is distinguishable from the facts in Michigan v. Chesternut, 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975 (1988), where the Supreme Court found that a police pursuit of a person did not constitute a seizure under the fourth amendment. In Chesternut, police officers on routine patrol observed a man get out of a car and join defendant Chesternut on a street corner. When the defendant saw the police cruiser he fled around the corner. The police followed in the patrol car "to see where he was going." The officers drove alongside Chesternut a short distance and observed him pull several packets from his pocket and discard them. One officer got out to examine the packets which contained narcotics. Chesternut, who had stopped a few paces away, was arrested.
Stating that the designation of a police "chase" on its own was insufficient to constitute a seizure, the Court found that the circumstances surrounding Chesternut's arrest did not constitute a seizure because a reasonable person in Chesternut's position would not have felt his liberty had been restrained. Id. at 574-575. However, the Court specifically refused to consider whether, under other circumstances, a police pursuit would amount to a seizure. Id. at 575, n. 9.
Several facts distinguish this case from Chesternut. First, the police pursuit immediately followed a verbal command to the defendant indicating that the police wanted to speak with him.
Second, the officers had begun to apprehend the other individual in the hallway when the defendant fled. Third, the officer's pursuit was on foot,
and the officers testified that they intended on stopping the defendant to investigate whether he was involved in an attempted burglary.
Determining that the defendant was seized when he fled and the officers pursued him, does not end the Court's inquiry under fourth amendment analysis, however. The fourth amendment's protections extend only to unreasonable searches and seizures. It remains, whether or not this was an unreasonable seizure of the defendant.
In Terry v. Ohio, the Supreme Court stated that there is "'no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.'" Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1967), quoting Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). The Court continued, "in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." Id.
Here, the government points to several facts in arguing that the police officers' initial pursuit of the defendant was justified. According to the government, "the totality of the information known to the officers, including defendant's location in front of the apartment upon the officers' arrival after receiving the radio run (for a burglary I in progress), and the defendant's subsequent flight during the course of the interview, constituted sufficient articulable suspicion to warrant an investigative stop." Government's Opposition to the Defendant's Motion to Suppress Tangible Evidence, at 3, para. 3.
The Court finds that these facts taken with others justify the officer's pursuit of defendant McKenzie. The officers responded to a radio run for a burglary in progress at apartment 721.
Upon arrival, they observed a man tampering with the door handle of that apartment. One officer testified that the man had a twig he was using in his hand. The defendant stood only a few feet away. The officers attempted to investigate. They told the unidentified man to step away from the door and commanded the defendant to come nearer. Instead, the defendant fled. This combination of circumstances was sufficient to give the police an articulable suspicion that criminal activity was afoot. The officers acted reasonably in pursuing the defendant with the intention of stopping him and investigating his relationship to what appeared to be an attempted burglary of apartment 721.
When the officers learned the defendant was armed, reasonable suspicion matured into probable cause giving the basis for the defendant's arrest. The seizure of the defendant's gun and the search of the defendant's jacket and consequent seizure of the narcotics found in a pocket were justified incident to the arrest.
II. Defendant's Motion for Severance of Counts
The defendant seeks to sever Count Two, which charges the defendant with possession of a firearm by a convicted felon, from the remaining two counts.
The government opposes severance. It argues that this Court can cure any prejudice to the defendant through a cautionary instruction coupled with a stipulation as to the defendant's prior conviction which makes no mention of the nature of the offense. The government contends that this circuit and others have endorsed such a solution. See United States v. Daniels, 248 U.S. App. D.C. 198, 770 F.2d 1111, 1114 (D.C. Cir. 1985).
This Court concludes that no instruction could cure the prejudice to the defendant by allowing Count Two to be presented to the jury along with Counts One and Three. Indeed, the Court can see no basis for including this charge as a separate count except to introduce prejudicial testimony of a serious felony offense where the government would not otherwise be able to present such evidence.
The charge should be treated as a possible enhancement at sentencing in the event that the defendant is convicted of either remaining count. Therefore, the Court will allow the government to treat the charge as an enhancement if the defendant is convicted. Or, Count Two may be tried separately to the Court at the conclusion of a jury trial on Counts One and Three. The defendant has indicated he does not object to this procedure.
The Court, however, will not allow the defendant to be tried on all three counts simultaneously. Contrary to the government's suggestion, the Court believes that this is the procedure advocated by the Court of Appeals in Daniels. See id. at 1118-1119. In any event, it is clear under Daniels that a determination of the severance motion rests in the trial court's discretion. Id. at 1117.
III. Defendant's Motion to Strike Surplusage
The Court grants, in part, the defendant's motion to strike surplusage. The Indictment identifies the defendant as Adams Morgan, also known as Morgan Adams, also known as Claremont McKenzie, also known as Mark Warthon. The defendant admits that his true name is Claremont McKenzie. Officer Adams testified that the defendant gave the name Mark Warthon when he was arrested. Therefore, these names are relevant to the government's case and may be used to identify the defendant. However, there is no evidence to support the allegation that the defendant also goes by the names Adams Morgan and Morgan Adams. Consequently, the names Adams Morgan and Morgan Adams shall be struck from the Indictment, and the government may not refer to the defendant by either name.
IV. Defendant's Motion in Limine
At the reopened motions hearing held on March 14, 1990, defense counsel submitted to the Court a motion in limine to exclude a statement allegedly made by the defendant after he was taken into custody. During the conference between counsel for the government and counsel for the defendant which took place after the March 12, 1990 motions hearing, defense counsel learned for the first time, of a statement made by the defendant after he was arrested concerning ownership of the leather jacket recovered by the police. The government alleged that the defendant admitted that the leather jacket in which the narcotics were found belonged to him. Because the defense was unaware of the statement prior to the hearing of the suppression motion, the Court allowed the motion in limine.
Upon questioning from the Court, counsel for the government admitted that defendant made the statement in response to an officer's question, after he was placed under arrest, but before he was informed of his rights. Therefore, the statement is inadmissible and must be suppressed. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
For the reasons stated above the Court denies the defendant McKenzie's motion to suppress tangible evidence, grants the defendant's motion in limine, grants, in part, the defendant's motion to sever offenses, and grants, in part, the defendant's motion to strike surplusage. An appropriate order is attached.
ORDER - March 19, 1991, Filed
Upon consideration of defendant Claremont McKenzie's Motion to Suppress Tangible Evidence, Motion for Severance of Offenses, Motion to Strike Surplusage and Motion in Limine; the government's opposition to these motions; papers submitted in support of and in opposition to the motions; the oral arguments of counsel; the entire record herein; and for the reasons set forth in the accompanying memorandum, it is by the Court this 19th day of March 1991,
ORDERED that defendant Claremont McKenzie's motion to suppress tangible evidence is denied; it is further
ORDERED that the defendant's motion for severance of offenses is granted in part; it is further
ORDERED that the defendant's motion to strike surplusage is granted in part; and it is further
ORDERED that the defendant's motion in limine is granted.