Appeal from the Superior Court of the District of Columbia (FEL5137-08) (Hon. Robert E. Morin, Trial Judge).
The opinion of the court was delivered by: Ferren, Senior Judge
Before WASHINGTON, Chief Judge, and FERREN and STEADMAN, Senior Judges.
In the movie "Up in the Air," George Clooney "plays Ryan Bingham, a corporate downsizer[,] . . . a smooth talker who can make you hear 'Yes' even when he's clearly saying 'No.'" Ann Hornaday, First-Class Ticket,THE WASHINGTON POST, Dec. 4, 2009, at C1.
Appellant Antonione Smith challenges his convictions for carrying a pistol without a license,*fn1 possession of a firearm by a previously convicted felon,*fn2 and possession of marijuana,*fn3 contending that the trial court erred in denying his motion to suppress the evidence against him. He claims that the police seized the unlawful firearm and illegal drugs from his pockets and shoe without probable cause for the arrest and search. We agree, reverse, and remand.
Metropolitan Police Officer James Kearney was patrolling the 900 block of Quincy Street, N.W., with his partner, Officer Jennifer Jamieson, when Kearney became suspicious of a man (later identified as appellant Smith) after appellant looked at the unmarked police car, made eye contact with Kearney, and, according to Kearney's testimony at the suppression hearing, "[i]mmediately shoved his hands in his pocket," then "rubbed his hand . . . over his head two times, . . . spat on the ground several times, and patted his right side." That reactive behavior, according to Kearney's training at the police academy, was known as a "felony rub."
Kearney therefore asked Smith if he could talk with him, and, according to Kearney's testimony, Smith "obliged." Kearney had noticed "a brown cigar hanging out of" Smith's pocket, "a common way to smoke marijuana," so he asked Smith whether "there was any marijuana in the . . . cigar." Smith replied "no, looked down[,] and pushed it back into his pocket." Not believing him, Kearney asked again (this time in the words of his grand jury testimony): "You're telling me that's not marijuana"? To which Smith replied, "yeah."
At the suppression hearing, Officer Kearney at first acknowledged that he had asked the question the second time exactly as he had formulated it before the grand jury. But he then backed off to say that the "grand jury testimony does not reflect the verbatim statement that I made on the scene that day either," and that he actually had asked the second time, "[W]as that marijuana in his pocket"[?] Then, revising his testimony once more, he testified that however he had asked the second question, he knew what he "was thinking" and took Smith's answer, "yeah," to mean "an admission that yes," he did have marijuana on him. Why so? asked the court. Replied Kearney: "I would say it was the body language and the way he said it, and the pause was kind of a -- like a weight lifted off your chest when you admit something." Given Kearney's understanding of Smith's reply, the officer placed Smith under arrest. The government accordingly argues that Smith's "admission" supplied probable cause to arrest, and that the seizures of the unlawful drugs and gun were thus lawfully incident to that arrest.
The government stipulated at oral argument that Officer Kearney's grand jury testimony -- his question in the negative and Smith's positive reply -- should be accepted as true for purposes of this appeal. Nonetheless, argues the government, because Officer Kearney reasonably believed, on the basis of Smith's demeanor, that "yeah" really meant yes to marijuana, this demeanor trumps the literal meaning of Smith's response. In short, the language of "no" under the circumstances meant "yes."
The trial court apparently accepted the defense position that Officer Kearney's grand jury testimony accurately stated his second question, and thus that Smith literally had replied that he did not have marijuana. Nonetheless, ruling for the government, the court found that Smith's "demeanor, [his] body demeanor" betrayed a different, legally damning response:
I'm going to find that the officer's interpretation of the defendant's response was reasonable under the circumstances. In particular, I credit the officer's testimony based on the demeanor, and the use of the words, and the totality of the circumstances, the demeanor of the defendant, in responding in his statement, yeah, in response to the second question, which really is a statement of resignation rather than one of denial, resignation that he did, in fact, have marijuana, and that's based on my crediting the officer's testimony about the defendant's demeanor, body demeanor, as he described by example while giving his testimony, what the defendant was doing when he said yeah, and I agree with [government counsel] that in some circumstances, the literal answer given could be interpreted as a denial, but not the way it was given in this case. (Emphasis added.)
As noted, in order to turn Smith's negative reply into "yes" -- into "a statement of resignation rather than one of denial" -- the trial court ...