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Green v. United States

June 25, 2009

THOMAS GREEN, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CF2-4608-06), (Hon. Lynn Leibovitz, Trial Judge).

The opinion of the court was delivered by: Reid, Associate Judge

Argued June 19, 2008

Before REID, GLICKMAN and FISHER, Associate Judges.

Appellant, Thomas Green, entered a conditional guilty plea to drug and weapons violations; he reserved the right to appeal the trial court's denial of his motion to suppress evidence. He claims that the trial court violated his Fourth and Fifth Amendment rights by failing to grant his suppression motion. We conclude that on this record, the police had reasonable articulable suspicion to stop Mr. Green and the trial court did not err in declining to grant Mr. Green's suppression motion on Fourth Amendment grounds. We also hold that the public safety exception to the Miranda*fn1 rules applies to this case; that Mr. Green's statement as to the location of the gun was not coerced; and that the trial court did not violate Mr. Green's Fifth Amendment rights in denying his motion to suppress. Consequently, we affirm the trial court's judgment of conviction, but at the parties' request, we remand this case for re-sentencing.

FACTUAL SUMMARY

The record reveals that on March 8, 2006, around 4:45 p.m., Metropolitan Police Department ("MPD") Officer Savyon Weinfeld and his partner, Officer Gaumond,*fn2 were on patrol in a known high drug area in the Northeast quadrant of the District of Columbia, when they received a radio run directing them to proceed to specified premises in the 1400 block of G Street where "a tall, dark[-]skinned black male wearing a white and black t-shirt with a snowman printed on the front and blue jeans, was standing next to a blue van. . . ." The man reportedly had a gun. Officer Weinfeld, a six-year veteran of MPD with over one hundred narcotics-related arrests and twenty to thirty gun arrests, testified that upon arrival at the designated address, he saw "a blue conversion van that had the doors opened. . . ." A man, later identified as Mr. Green, got out of the vehicle while the officers were still in their car. He was about five feet, eleven inches tall, black and dark-skinned. He had on "a black long-sleeved t-shirt" and, over it, a white t-shirt bearing a picture of what Officer Weinfeld thought was a snowman, but which turned out to be "a large cartoon print of the Pillsbury Doughboy on it." When Mr. Green saw the police vehicle, "he got wide-eyed" and "he made an overt motion to his waist[,] . . . plac[ing] his hand directly to his waist."*fn3 The officer noticed that Mr. Green "began to re-enter the side doors of the conversion van[,]" and "[a]t that time, [he] and Officer Gaumond had exited [their] vehicle and began to approach [Mr. Green]."*fn4 The officers had their guns drawn, but they were pointing "down at an angle."*fn5 Because of the radio dispatch and his training, Officer Weinfeld "had no doubt that [Mr. Green] was armed." Hence, "[a]fter seeing the defendant's motion, he "immediately drew [his] weapon" after leaving his vehicle.

Mr. Green had re-entered his van; a female passenger was in the front passenger seat. Officer Weinfeld "observed . . . another individual . . . walking down the steps of [a residence in the 1400 block of] G Street toward [the officers], as [they] went to stop Mr. Green." Officer Gaumond instructed Mr. Green to leave the van, and then he "placed him on the ground." At the same time, Officer Weinfeld "stopped [the man who was leaving the premises on G Street] for safety purposes and had him placed on the ground as well." The female passenger in the van was ordered to exit the vehicle and to get on the ground. The officers posed no questions, but as Officer Gaumond was securing Mr. Green for safety reasons, Mr. Green said, "I've got a gun in my waist, chief."*fn6 When Officer Gaumond "patted down" Mr. Green, he found a ".9 millimeter Smith and Wesson handgun . . . in his waistband." Mr. Green was arrested; and when Officer Gaumond searched Mr. Green's person, he "yelled" to Officer Weinfeld that he had found "crack." Officer Gaumond had recovered fifty-five Ziploc rocks of cocaine and one Ziploc of marijuana from Mr. Green's pocket. The female passenger also was placed under arrest because she had an open container of alcohol. In addition to the testimony of Officer Weinfeld, the government presented the testimony of MPD Detective Michael Anthony Wiggins who interviewed Mr. Green on the day of his arrest. He videotaped a statement by Mr. Green and the videotape was introduced into evidence.

Kevin Price, Mr. Green's friend, who was with him during the incident that led to Mr. Green's arrest, testified for the defense, as did Mr. Green. Mr. Price, the husband of the woman in the front passenger seat of the van, stated that he was standing outside with Mr. Green while his wife was backing the van up. As Mr. Price, his wife and Mr. Green stood talking, he "saw a police car speeding down the street" and thought it "was about to hit the van." A police officer exited the police car with his hand on his gun and repeatedly said: "Get the f**k down on the ground . . . . Where['s] the gun?" The officer "slammed [Mr. Price and him] on the ground and had his foot . . . in [Mr. Green's] back and had the gun pointed at [him]." When defense counsel asked when the officer drew his weapon, Mr. Price answered: "When we [were] getting out of the car, he was drawing his weapon." And, when defense counsel inquired, "where was the gun pointed[,]" Mr. Price replied: "At me and Thomas." Other police officers arrived and Mr. Price and Mr. Green were handcuffed. While he was on the ground, and after hearing the question repeatedly, "where['s] the gun[,]" Mr. Green declared: "the gun['s] right here. The gun['s] right here. Here you go. That's what you wanted. Right here."

On cross-examination, Mr. Price asserted that only one officer arrived in the police car, and when the police pointed the gun in his direction, he was not watching the officer and Mr. Green, and that his "eyes [were] on both of them, for real." He maintained that when the officer pointed the gun at Mr. Green, "[h]is hands [were] . . . up in the air." He never saw Mr. Green put his hand to his waist.

Mr. Green testified that before the incident leading to his arrest, he was talking with Mr. Price outside the van, and Mr. Price's wife was in the van. He had on "a light t-shirt, blue jeans, . . . [and] a long John shirt under the white shirt." When Mr. Price called his attention to the police, he "turned around and [he saw] the police with their guns drawn[,]" and pointed at both men. The police "force[d]" both men to the ground, "put . . . handcuffs on [them], then they kept asking where's the gun." Officer Gaumond posed the question, with his knee on Mr. Green's back, "[a]bout three or four times." Mr. Green responded, "I got the gun." Officer Gaumond removed it from Mr. Green's waist, stood him upright, searched him, and found cocaine in his pocket. He never tried to flee and never tried to check his waist to see if the gun could be seen. On cross-examination Mr. Green acknowledged that he planned to sell the gun, but insisted that he had not planned to sell drugs that day, and he admitted that Officer Gaumond found fifty-five Ziplocs of crack cocaine and one Ziploc of marijuana in his pocket.

The trial judge asked Mr. Green questions about what had happened before the police removed the gun from his waist. Mr. Green said he did not respond when Officer Gaumond asked, who's got the gun. When Mr. Price's wife began to ask the police, "what was going on," she was told to "get down, too[,]" but she inquired, "why do I have to get down [,]" and another officer "told her to get on the ground before he knocked her out." At that point, after Mr. Price's wife was on the ground, Mr. Green "just told the officer I got the gun."

At the conclusion of the evidentiary phase of the suppression motion hearing, the trial court conducted a colloquoy with counsel and heard argument concerning the factual and legal issues pertaining to the motion. On June 9, 2006, the trial court denied Mr. Green's motion to suppress. Based on the testimony presented and the testimony the trial judge credited, the judge found that "[t]here is no indication of the source of the information contained in the [police computer or radio] dispatch" for a person "standing next to a blue van in front of [specified premises on] G Street, Northeast . . . [with] a gun in his waistband." Nevertheless, when the officers "pulled up" at the designated address, "they saw [Mr. Green] just coming out of the van which was parked at the curb with all passenger side doors open." He matched the description given, including the picture on the t-shirt which Officer Weinfeld "immediately believed [] was a picture of a snowman[,]" but in fact was "a white puffy cartoon figure." Mr. Green noticed the police car "and bec[a]me wide-eyed." Mr. Green made a gesture to his waist. Officer Weinfeld recognized the gesture as one made "by suspects on the street" for the purpose "of checking one's gun in a waistband to make sure that it remains as it was previously positioned there." The court further determined that "[a]t that point, [Mr. Green] began to retreat into the van[,]" and "[a]t that time, Officer Weinfeld had . . . 'no doubt that [Mr. Green] was armed.'"

The officers exited their marked vehicle, "drew their guns immediately as they got out of the car for their safety," but held the guns "pointed at an angle down towards the sidewalk or down towards their feet . . .[,] all for safety reasons." As the officers approached the van, "[o]ne or both of them yelled three or four times at this point, where is the gun, where is the gun."*fn7 And, "[a]s [Mr. Green] was entering the van at the approach of the police," Mr. Price arrived on the scene from the premises and his wife was inside the van. Officer Gaumond physically removed Mr. Green from the van after he had reentered it, and Officer Weinfeld ordered both Mr. Green and Mr. Price "to get down on the ground face down." Both officers had "reholstered their guns at this point." Officer Gaumond "did not cuff [Mr. Green] immediately. He asked the defendant where is the gun. The defendant did not respond." About a minute elapsed before any more conversation occurred between Mr. Green and Officer Gaumond. During that time, Officer Gaumond's "attention was drawn to Officer Weinfeld's interaction with [Mr. Price's wife.]" Then, Mr. Green "stated here's the gun or here is the gun, chief."*fn8 He "gestured to his waist to indicate a .9 millimeter Smith and Wesson firearm that was tucked into his waistband." Officer Gaumond "removed the weapon, [and] announced he has got a gun to his partner." Around that time other officers arrived on the scene. Officer Gaumond handcuffed Mr. Green, "stood [him] up, searched him and found in a pocket on [him] 55 bags of suspected crack and one bag of marijuana in his pocket." He then informed Officer Weinfeld that Mr. Green "had crack in his pocket."

The trial court generally credited the testimony of Officers Weinfeld and Detective Wiggins.*fn9 The court determined that the testimony of Mr. Green and Mr. Price "corroborated in material detail" that of Officer Weinfeld, with one exception -- "whether [Mr. Green] made a gesture to his waistband and retreated into the van after the arrival of the officers and the timing of the handcuffs." With respect to that exception, the trial court "specifically f[ou]nd that the gesture to the waistband was made and that [Mr. Green] retreated into the van."

The trial court did not "reach the question whether the circumstances [the police officers] observed before they got out of the car were enough for probable cause." Rather the court found that these circumstances "were sufficient to establish reasonable suspicion." That is, the anonymous tip, which "was corroborated in all innocent detail," together with "furtive gesture or a gesture of concealment" to his waistband, and Mr. ...


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