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U.S. v. ASKEW

April 13, 2004.

UNITED STATES OF AMERICA, Plaintiff,
v.
PAUL A. ASKEW, Defendant



The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge

OPINION

This matter is before the Court on the defendant's motion to suppress the principal tangible evidence supporting his indictment for Unlawful Possession of a Firearm and Ammunition by a Person Convicted of a Crime Punishable by Imprisonment for One Year or More. See 18 U.S.C. § 922(g)(1). The hearing on this motion took place on March 10 and, after the parties made further submissions, on March 26, 2004. Upon consideration of the memoranda submitted by counsel for both sides, the relevant case law, the testimony of the witnesses and the arguments of counsel, the Court has determined to deny the motion to suppress. The Court issued an Order denying the motion on April 2, 2004, and advised counsel that this Opinion would be forthcoming. The following constitutes the Court's findings of fact and conclusions of law. I. FACTUAL BACKGROUND

On the night of December 19, 2003, around 11:00 p.m., a radio run alerted Officer Anthony Bowman of the Metropolitan Police Department to a report of an armed robbery in the 700 block of 9th Street, S.E., in Washington, D.C. Transcript of Hearing, March 10, 2004 ("March 10 Tr.") at 4-5. Officer Bowman canvassed the area in his patrol car, looking for individuals matching the description of the perpetrator: a black male, approximately six-feet tall, wearing a blue sweatshirt and blue jeans. See March 10 Tr. at 5-6, 11, 19. The radio report reflected that the perpetrator had been last seen moving on 9th Street, S.E., in an unknown direction. See id.

  Within two minutes of the radio report, and within approximately ten minutes of the robbery, Officer Bowman spotted defendant Paul Askew walking in the 200 block of 9th Street, S.E., five blocks from the scene of the robbery. See March 10 Tr. at 6-7. Upon seeing Officer Bowman, the defendant turned and walked in a different direction, but Officer Bowman continued to follow the defendant in the patrol car. See id. at 10-11. Defendant is a black male, six-feet, three-inches tall, and at the time was wearing clothing quite similar — but not identical — to the description broadcast over the police radio. While the description of the perpetrator mentioned a blue sweatshirt and blue jeans, Officer Bowman testified that the defendant was wearing blue sweatpants, "a navy blue jacket[, and] a darker blue fleece type jacket underneath. He had on two jackets." March 10 Tr. at 11. Officer Bowman reported to the dispatcher that Askew "vaguely match[ed] th[e] description." Transcript of Radio Run, Gov't Ex. 2 at 3. After noticing that the defendant had a moustache, Officer Bowman checked with the dispatcher to determine whether the robber also had a moustache. See March 10 Tr. at 8, 10-11. When the dispatcher responded affirmatively, Officer Bowman stopped the defendant. See id. at 11.

  Officer Bowman asked the defendant to come to the patrol car, and he complied. The defendant also complied with Officer Bowman's further requests that he produce some identification, take his hands out of his pockets, and place his hands on the top of his head. See March 10 Tr. at 12. Officer Bowman then told the defendant that he was being stopped because of his physical similarity to the description of a robber. See id. at 12-13. When back-up units arrived, Officer Bowman returned to the interior of his car to check whether the police department computer returned any information on the defendant. Officer Bowman's back was turned for the next couple of minutes and he did not see the pat-down of the defendant that followed. See id. at 13-14, 21-22, 36.*fn1

  Officer James Koenig conducted a pat-down of the defendant and found nothing. See Transcript of Hearing, March 26, 2004 ("March 26 Tr.") at 6-7, 16.*fn2 Shortly afterwards, another officer, Officer Benton, drove the robbery victim to the place where the defendant was being detained, for the purpose of conducting a show-up. See March 10 Tr. at 53-56. The victim remained in the car while Officer Koenig and Officer Anthony Willis brought the defendant to a place where he could be seen by the victim. See March 26 Tr. at 8. The defendant was not in handcuffs at that time. See March 10 Tr. at 45-49; March 26 Tr. at 8. Preparatory to the show-up, Officer Willis attempted to unzip the defendant's outer jacket to reveal the sweatshirt underneath so the victim could better determine if the defendant was the robber. See March 26 Tr. at 8. Officer Willis testified that he remembered the "blue hooded sweatshirt" described in the radio run and "wanted the complainant to see what [the defendant] had on to make sure that he wasn't zipping nothing up to cover up. So I went to unzip it down so that . . . they could see what he had on." Id.*fn3 Officer Willis had difficulty, however, in unzipping the jacket when the zipper hit what he described as a "hard" or "solid" object and "didn't go past [the object]. It stopped there. And at that time, that's when [the defendant] knocked my hand down," away from the zipper. Id. at 12; see also id. at 8-9, 17-18.

  After the show-up, Officer Willis and Officer Edward Snead walked the defendant backwards toward the car, placed him on the hood of the car, and unzipped his jacket. See March 10 Tr. at 53-56; March 26 Tr. at 9-10, 17-18.*fn4 Visible once the jacket was unzipped was an open black waist pouch, or "fanny pack," with a silver object sticking out. See March 26 Tr. at 10, 17-19. On further inspection, the silver object was identified as a gun, and the defendant was handcuffed and arrested. See id. at 10-11. The defendant was indicted for firearm and ammunition possession — not robbery — and filed this motion seeking suppression of the evidence discovered after he was stopped by Officer Bowman. He claims that the stop and the police action following the stop violated the Fourth Amendment and asks that any evidence discovered as a result of the unconstitutional actions be suppressed.

  II. ANALYSIS

  A. The Terry Stop

  Beginning with Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court has recognized that police are entitled to stop a suspect on less than probable cause and frisk or pat-down that individual to determine whether the suspect is armed. These stops and frisks are constitutional if supported by "a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity," Brown v. Texas, 443 U.S. 47, 51 (1979), or that criminal activity "may be afoot." United States v. Sokolow, 490 U.S. 1, 7 (1989); see also United States v. Arvizu, 534 U.S. 266, 273 (2002); United States v. Brignoni-Ponce, 422 U.S. 873, 882-83 (1975); Terry v. Ohio, 392 U.S. at 30. The Court assesses whether there is reasonable suspicion by looking at "the whole picture" from the perspective of "those versed in the field of law enforcement." United States v. Cortez, 449 U.S. 411, 417-18 (1981); see also United States v. Edmonds, 240 F.3d 55, 59 (D.C. Cir. 2001) (court "does not separately scrutinize each factor relied upon by the officer. . . . [T]he question of whether reasonable suspicion existed can only be answered by considering the totality of the circumstances as the officer on the scene experienced them."). In the present case, Officer Bowman found the defendant five blocks away from the scene of an armed robbery minutes after the robbery occurred, on the street where the robber was last seen. The defendant closely matched the description of the robber, and changed course upon seeing the officer. Under these circumstances, Officer Bowman was well within his authority to detain the defendant to determine whether he committed the robbery, and Officer Koenig was likewise justified in frisking the defendant to determine whether he was armed.

  The defense points to minor discrepancies between the description broadcast of the robber and the appearance of the defendant that night. Specifically, the defendant notes that he was wearing sweatpants, not jeans, and that he is somewhat taller than the person described in the radio run. These minuscule differences do not come close to negating the reasonable suspicion Officer Bowman had that the defendant was involved in criminal activity. A victim of an armed robbery might be slightly mistaken in remembering what kind of pants the robber wore, and precise evaluations of height are difficult to make in far less tense situations. The Court concludes that the stop and Officer Koenig's pat-down were constitutional.

  B. The Discovery of the Weapon

  The more difficult question is whether the police conduct that led to their feeling a hard object in the course of the show-up and the subsequent discovery of the weapon were constitutional. The initial pat-down by Officer Koenig did not reveal the presence of any weapon, and it was only as Officer Willis attempted to unzip the defendant's jacket that a hard object, later found to be a gun, was discovered. The victim had reported being robbed by someone wearing a blue sweatshirt. Officer Willis could see that the defendant was wearing a blue sweatshirt, but it was mostly covered by a blue jacket. Officer Willis attempted to unzip the outer jacket to allow the victim to see the defendant in the sweatshirt. At that point the zipper contacted a hard or solid object at the defendant's waist and would not go past it. After the show-up was completed, the officers unzipped the jacket to determine whether the hard object was a weapon; they found the gun, a portion of which was plainly visible once the outer jacket was unzipped.*fn5

  If it was constitutional for Officer Willis to unzip the jacket in the course of the show-up, the later investigation to determine whether the hard object was a weapon certainly was constitutional. There can be no doubt that an officer's discovery of a hard object on a suspect's person warrants further investigation to assess the safety threat posed by the suspect. See, e.g., Minnesota v. Dickerson, 508 U.S. 366, 376 (1993) ("The very premise of Terry, after all, is that officers will be able to detect the presence of weapons through the sense of touch . . ."); Terry v. Ohio, 392 U.S. at 30 ("Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons.") (emphasis added); United States v. Smart, 98 F.3d 1379, 1384-85 (D.C. Cir. 1996) (holding that a Terry stop is reasonable if police have reasonable suspicion that the suspect is involved in some sort of criminal activity, and that a Terry frisk is reasonable if there are grounds to believe the suspect is armed and dangerous).*fn6 Indeed, even where police officers cannot see or feel a weapon, they are permitted to retrieve a weapon hidden on a suspect's person if they have reasonable suspicion to believe that the suspect is carrying one. See Adams v. Williams, 407 U.S. 143, 145-47 (1972) (informant tipped police that the suspect was carrying a gun); United States v. Reyes, 349 F.3d 219, 222, 225 (5th Cir. 2003) (drug-sniffing dog reacting to the suspect, barking, and following him); ...


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