Appeal from the Superior Court of the District of Columbia (DEL1309-08) (Hon. Patricia A. Broderick, Trial Judge) (Hon. William M. Jackson, Disposition Judge)
The opinion of the court was delivered by: Reid, Associate Judge
Before WASHINGTON, Chief Judge, REID,*fn1 Associate Judge, Retired, and WAGNER, Senior Judge.
Following a bench trial, J.F. was convicted of one count of possession of cocaine, in violation of D.C. Code § 48-904.01(d) (2009 Repl.). He challenges the trial court's denial of his motion to suppress evidence. We reverse the judgment of the trial court.
The record shows that the trial court heard testimony from the government's witness, Metropolitan Police Department ("MPD") Officer Derek Starliper, and the defense witness, Steven Hughes, regarding J.F.'s motion to suppress evidence. Officer Starliper testified that on May 20, 2008, he was driving his police vehicle and conducting an ongoing investigation near the 5300 block of Clay Terrace, in the Northeast quadrant of the District of Columbia, with Officer William Rankins; the area was known for "illicit narcotics sales and violent crime." At approximately eight o'clock in the evening, the officers "pulled up next to" J.F., in an unmarked police vehicle; J.F. was sixteen-years-old at that time. Officer Starliper had had "a lot of direct contact with residents" in the area, and he "knew that [he] had not had contact with [J.F.] in the past and wanted to ID him." Officer Starliper "asked [J.F.] if he heard any gunshots in the area."*fn2 J.F., who was walking with his friend Mr. Hughes at the time,*fn3 responded that he had not. At that point, the officers, who were wearing plain clothes, but had on police vests, badges, and carried visible guns at their waistbands, got out of their vehicle. Officer Starliper approached J.F., who stopped walking, and Officer Rankins went over to Mr. Hughes. On cross-examination, defense counsel inquired: "When you [first] saw my client, he had his hands in his pockets, right?" When Officer Starliper responded in the affirmative, defense counsel stated: "So you told [J.F.] to take his hands out of his pockets . . . [and] [y]ou ordered him to do that, right?" Officer Starliper replied: "Yes." J.F. complied with the order to remove his hands from his pockets.
While "standing . . . face to face" with J.F., Officer Starliper asked him "general questions, if he lived in the area[, his name, address, date of birth,] and what his purpose was for being there." He posed these questions "[j]ust to get an idea of whether or not [J.F.] had family that may live in the area or just to gage if he was there for . . . a lawful purpose." The only people in the area at the time were the officers, J.F. and Mr. Hughes. J.F. was "cooperative" and complied with the officer's requests. Neither Officer Starliper nor Officer Rankins tried to block or restrain J.F. or Mr. Hughes.
During the conversation with J.F., Officer Starliper observed that J.F. was "frequently looking down at his pockets and he started to breathe a little bit heavier than when [the officers] had first made contact." Officer Starliper "could see [J.F.'s] chest moving in and out." Given J.F.'s behavior, Officer Starliper "asked [whether] he had any contraband on him that [the officers] should know about." J.F. stated that he did not. Officer Starliper inquired whether J.F. "didn't mind if [the officers] searched him." J.F. told him to "[g]o ahead." Officer Starliper recovered from J.F.'s "right coin pocket . . . a plastic bag that contained a loose rock-like substance." He removed from J.F.'s "left pocket . . . another plastic bag that contained a white rock-like substance." J.F. was placed under arrest. Officer Starliper stated that the entire encounter prior to the search lasted approximately three minutes. At no point did J.F. attempt to leave.
Mr. Hughes's testimony on the suppression motion was as follows. He and J.F. had been friends for about three or four years at the time of their encounter with the police on the evening of May 20, 2008. Mr. Hughes, who is a construction worker, met J.F. that evening so that J.F. could show him where a contractor lived. As they were walking toward the contractor's home, they were "stopped by an unmarked police car" carrying two police officers.
The officer in the driver's seat asked if they had heard any gunshots. Mr. Hughes said "no." The officers exited their vehicle; they had on police vests with a police badge, and their weapons were visible. An officer told J.F. "to remove his hands out of [his] pocket." An officer approached Mr. Hughes, grabbed his jacket, and asked to search him. He told the officer to "go ahead." After the search yielded no contraband, the officer "sat [him] on the curb . . . until [his] information came back saying that [his] name [was] clear of any warrants or anything else."
Mr. Hughes continued to recount what he saw and heard with respect to
J.F.'s encounter with the police when he was seated on the curb. After the
police officer told J.F. to remove his hands from his pocket, he asked
whether he could search J.F. Mr. Hughes "heard no."*fn4
However, the officer "frisked [J.F.'s] jacket and continued
proceeding to search him." Mr. Hughes thought the officer "went into
one of [J.F.'s] pants pockets and pulled out a bag, . . . a plastic
bag." Mr. Hughes was facing J.F., seated "about a foot or two feet
away" when the officer searched J.F. The officer asked J.F.: "Why did
you lie to me, something on that order." After requesting a transport
car, the officers put [J.F.] in the back of the unmarked police car,
and told Mr. Hughes he was "free to go."
In order to read pertinent cases, the trial judge delayed her ruling on the suppression motion. The following day, the trial court denied J.F.'s motion to suppress the evidence. The court did not make detailed factual findings regarding the chronology of the events, but the judge determined that Officer Starliper's testimony was more credible than Mr. Hughes's testimony. The court credited Officer Starliper's testimony that, based on J.F.'s cooperation, there would have been no need for him to swipe J.F.'s waist prior to searching him. In addition, the trial judge relied on United States v. Barnes, 496 A.2d 1040 (D.C. 1985)in concluding that the officer's request that J.F. remove his hands from his pocket "was no more intrusive than a request for identification followed by questions and appellee's volunteer[ed] answers." Further, the court stated that it did not find "the overall factors so intimidating as to have been a stop or a seizure." Rather, the court believed "it was a mere encounter." Following trial testimony on September 17, 2008, the court acquitted J.F. of possession with intent to distribute cocaine but convicted him of simple possession. He was sentenced to one day of probation on November 12, 2008, following treatment in the drug program.
J.F. argues that he was seized in violation of the Fourth Amendment when Officer Starliper ordered him to remove his hands from his pockets because, under the circumstances, a reasonable person would not have felt free to ignore the officer's request. The government took the position at trial that the officers did not have reasonable articulable suspicion to justify stopping J.F. and that what happened constituted "a mere encounter." J.F. further contends, relying on Florida v. Royer, 460 U.S. 491, 508 (1982), that since he was seized in ...