Appeal from the Superior Court of the District of Columbia (F6520-03) (Hon. Judith Retchin, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Argued March 11, 2008 and January 15, 2009
Before REID, GLICKMAN, and KRAMER, Associate Judges.
Frederick Plummer, the appellant, challenges his convictions on the lesser-included charge of carrying a pistol without a license ("CPWL"), and the offense of possession of an unregistered firearm ("UF"), in violation of D.C. Code § 7-502.01.*fn1 He asserts that the police seized him for Fourth Amendment purposes when they drew their weapons and ordered him to turn around and put his hands up, and hence, since the police did not have reasonable, articulable suspicion to stop him, the trial court erred by denying his Motion to Suppress Evidence and Statements. We conclude that Mr. Plummer was not seized when the police approached him with their guns drawn and ordered him to put up his hands because he did not comply with that show of authority. Furthermore, at the time he was seized after complying with the order to put up his hands, the police had suitable corroboration showing reliability that Mr. Plummer was the person identified in an anonymous 911 call as carrying a gun, and that because of his repeated movements to his waist where guns are commonly concealed, the police had suitable corroboration demonstrating reliability that Mr. Plummer was engaged in the criminal act of carrying a gun. Consequently, the police had reasonable, articulable suspicion to stop Mr. Plummer, and the trial court properly denied Mr. Plummer's motion to suppress.
After the Supreme Court handed down its decision in District of Columbia v. Heller, 128 S.Ct. 2783 (2008) in late June 2008, we ordered supplemental briefing and oral argument on Mr. Plummer's contention that his conviction must be reversed under Heller because the District of Columbia statutes under which he was convicted violate his Second Amendment individual right to bear arms. We conclude that Mr. Plummer had standing to challenge his convictions under the Second Amendment. We further hold that the UF and CPWL statutes are not facially invalid. However, for the reasons stated in this opinion, we are constrained to remand this case to the trial court with instructions to hold a hearing to determine whether Mr. Plummer would have satisfied the statutory requirements in D.C. Code § 7-2502.03 pertaining to qualifications for obtaining a registration certificate.
At the hearing on Mr. Plummer's motion to suppress, the government presented the testimony of Metropolitan Police Department ("MPD") Officer Sayvon Weinfeld. As a result of a 911 call, Officer Weinfeld and his partner, Officer James Rogers, were dispatched to 2813 4th Street, in the Northeast quadrant of the District of Columbia, on the evening of October 20, 2003. The 911 caller had indicated that "a black male in a blue work uniform" had a gun. When the officers arrived at the designated address, they "observed [a man later identified as Mr. Plummer] standing in front of the address that was given by the dispatcher and banging on the door." He was wearing "a blue button-down type shirt and dark blue Dickey style work pants."*fn2
The officers "exited [their] vehicle, approached [Mr. Plummer and] started ordering him to put his hands up." Mr. Plummer "began reaching towards his waist several times in a motion [that] appeared as if he was attempting to pull something out of his pants, out of his waistband." The officers "[c]ontinued to order him to put his hands up." After the officers gave the order "several times, he eventually complied and put his hands up." "Officer Rogers approached [Mr. Plummer] and handcuffed him for [the officers'] safety," but Mr. Plummer was not arrested at that point. Officer Weinfeld explained that there were safety concerns "[b]ecause the initial call was for a man with a gun and the individual that [the officers] had stopped... was reaching towards his waist [and] [i]t's a common place for an individual... [who] possess[es] a handgun to keep it on [his] person." Even after he was handcuffed in front of the premises at 2813, Mr. Plummer "kept moving his hands behind him, attempting to reach to his right side...."
After Mr. Plummer was handcuffed, the door to 2813 4th Street opened and a man emerged. The officers ordered the man to put his hands up because they "weren't sure what was going on." The officers decided to separate Mr. Plummer and the man who opened the door. Officer Rogers went over to the man from the house while Officer Weinfeld "walk[ed] [Mr. Plummer] away from the front of the house" and turned him over to two other officers, Ewald and Groves, who had arrived on the scene. These officers "pull[ed] [Mr. Plummer] further away from the house."
Officer Rogers spoke with the man from the house, later determined to be the 911 caller; the man asserted that Mr. Plummer had banged on his door earlier and had a bottle of wine. When the complainant refused to agree to drink with him, Mr. Plummer "began splashing the wine on the door and then left the location." Later, Mr. Plummer returned with his shirt unbuttoned and outside of his pants; the first time he had appeared at the door, Mr. Plummer's shirt had been "buttoned up and tucked into his pants." The complainant "could see through the open shirt what he believed to be a silver handgun... with a pearl handle."
As the two officers, Officers Ewald and Groves, pulled Mr. Plummer away from 2813, Officer Weinfeld heard Officer Ewald state: "He's got something in his pocket." Later, Officer Ewald informed Officer Weinfeld "that she had patted [Mr. Plummer's] pocket and immediately recognized that he had... a pistol or a gun in his pocket." The officers "secured [Mr. Plummer] on the ground, and "Officer Groves retrieved a.32 caliber semiautomatic pistol from his right pocket."*fn3 Mr. Plummer was arrested on a charge of carrying a pistol without a license.
On cross-examination, Officer Weinfeld stated that it took him "[s]omewhere between a minute and two minutes to get to 2813 4th Street after receiving the dispatch; that upon his arrival in the 2800 block of 4th Street, no one else was on that block; when he and Officer Rogers saw Mr. Plummer knocking on the door of 2813, Mr. Plummer's back was to the officers and the officers were about fifteen to eighteen feet away from him; and Mr. Plummer "made the movements [to his waist] after [the officers] had beg[u]n to give orders for him to put his hands up." Defense counsel asked Officer Weinfeld, "And after you commanded him to put his hands up and turn around, what did he do, sir?" Officer Weinfeld responded, "Began pulling at his waist." After demonstrating how Mr. Plummer was pulling at his waist, defense counsel inquired, "When he made that movement, was he facing you or was his back toward you?" Officer Weinfeld answered, "He was facing us"; the officer did not see a gun. In response to defense counsel's question, "How many times did you have to ask him to put his hands up before he did so?" Officer Weinfeld stated, "I don't know the exact amount of times. We repeated ourselves several times." Officer Weinfeld also indicated that the officers had their guns drawn, and that the officers did not find a gun upon checking Mr. Plummer's waist area.*fn4
The trial court denied the motion to suppress the tangible evidence stating, in part:
Here the officer saw the defendant, who matched the description of a man with a gun. The description was for a black male wearing a blue work uniform at an identified address. The defendant was the only person in the block, the only person at that address, and he was wearing what the witness described as a blue work outfit. He was at that address.
I believe it was reasonable for [the officers] to do what they did in order to determine whether in fact [the defendant] had a gun to assure their safety and the safety of others in the community, and that was to try to make certain he could not harm anyone by directing him to put his hands up. They made several commands for him to do that before there was any compliance. And indeed, before he did comply, he made several movements to his waist area that the police officer described.
In reaching its conclusion, the trial court examined the Supreme Court's decision in Florida v. J.L.,*fn5 and the court continued:
I think the noncompliance with the commands increased their concern for their safety and distinguishes this case from... Florida v. J.L.....
But I think the most significant factor besides the quick response [of the officers to the lookout dispatch] and the corroboration of the innocent details was the defendant's behavior once they encountered him and... his noncompliance to their repeated commands raised their suspicion and allowed them to handcuff him to conduct a Terry frisk, and the fact that they placed him on the ground does not convert this to an arrest. I believe he was seized even though he did not willingly comply, but police are allowed to transport Terry suspects great distances. Here they placed him on the ground and the police officer testified that a colleague felt the outside of his pocket and felt what she believed to be a firearm, and they were justified in going inside his pocket and recovering that firearm.
And it's noteworthy that within minutes, if not seconds, the complainant told the police that Mr. Plummer was the person he had phoned about who had the gun.
The government presented only two witnesses at trial, Officer Weinfeld and Officer Ewald. Officer Weinfeld's trial testimony concerning the evening of the incident was consistent with his testimony during the hearing on Mr. Plummer's motion to suppress. Officer Ewald stated that around 8:22 p.m. on October 20, 2003, she and Officer Groves "received a 911 call for a man with a gun [in] the 2800 block of 4th Street, Northeast." They arrived on the scene within "two minutes or less." Officer Ewald saw Officers Weinfeld and Rogers in front of 2813 4th Street with a man in handcuffs. They "w[ere] securing" the man, and Officer Ewald "ran... to assist [them]" because the man "kept turning and trying to reach his hands -- even though his hands were in handcuffs, he kept turning and trying to reach his hands into his front right pocket."*fn6 Officers Ewald and Groves moved Mr. Plummer away from the top of the steps in front of 2813 4th Street and as they were moving him, he "again tried to reach his hands around and was twisting his torso and trying to reach... into his front right pocket." "Because of his movements[,] [t]hey were very furtive towards his pocket," she "placed [her] hand on the outside of his pocket and felt to see if there was any kind of weapon inside his pocket." She "felt very clearly the outline of a handgun inside his pocket[,] looked down... [inside his pocket where she saw] a shiny silver handle, and it appeared to be the handle of a handgun...." She said to Officer Groves, "he has a gun in his pocket." They "walked [Mr. Plummer] down to the sidewalk[,]... place[d] [him] on the ground... [a]nd Officer Groves went into his front right pocket and pulled the hand gun out and secured it a few feet away." Officer Ewald walked about "20 feet" away from 2813 4th Street to the place where Mr. Plummer lived, "looked around the front door to see if there was any type of weapon or any type of ammunition there, but [she] didn't observe any."
Mr. Plummer was a witness for the defense.*fn7 He testified that he worked for a company that repairs televisions, VCRs and other equipment. On October 20, 2003, he lived at 2811 4th Street, Northeast, which had two units or two apartments, and he occupied the bottom unit. The premises at 2811 and 2813 are "connected together." On the evening of October 20, 2003, Mr. Plummer drove home from work and parked his car in the rear of his unit, off of an alley. As he was "in the process of unloading [his] toolbox and... two [televisions]" that he had picked up for repair, he "found a revolver on the ground on the passenger side [of his car]." He did not own a gun and he had never seen the one on the ground. He picked up the revolver and noticed that it did not have any bullets. He carried one television into his home and "stuck the gun in his pocket after [he] got inside [his] house." He intended to take the gun to the police station; he did not call the police, even though he had a cell phone, because he planned to go out again and "drop [the gun] off at the police station." He decided to go to the mailbox in front of his home, and when he turned away from the mailbox, he "saw two officers walking towards [him] with their gun[s] out." They were not pointing their guns at Mr. Plummer; "[t]hey had [them] down at their side." He was "startled" and "scared" and the officers "told [him] to put [his] hands up." He put his hands up and did not reach towards his waist; an officer handcuffed him, and he did not struggle while he was being led away. One officer searched him and found the gun that he had picked up.
The government presented one rebuttal witness, Officer Weinfeld. After refreshing his recollection with notes he made on the evening of Mr. Plummer's arrest, he testified that after Mr. Plummer had been properly warned about his rights, he was asked whether the gun was his. He replied that "it was his ...