Appeal from the Superior Court of the District of Columbia (CF2-2143-10) (Hon. Gregory Jackson, Trial Judge)
The opinion of the court was delivered by: Fisher, Associate Judge:
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and KING, Senior Judge.
Opinion for the court by Associate Judge FISHER.
Concurring opinion by Associate Judge BLACKBURNE-RIGSBY at page 23.
Appellant Javon Henson challenges the denial of his motion to suppress a handgun and ammunition found on his person, claiming that they were discovered during an unlawful seizure and frisk. Unpersuaded by his argument that an unsuccessful attempt by a police officer to detain an individual constitutes a seizure, we affirm.
Shortly after midnight on January 31, 2010, two uniformed Metropolitan Police Department officers on routine patrol in a "high crime area" of northeast Washington pulled their marked vehicle alongside three young men who were walking in the neighborhood.Officer Matthew Jones explained to the men that they were "not in any trouble," but that the officers would like to "talk to [them] for a minute" about some recent robberies in the area.The officers then asked the men if they would agree to a pat-down for weapons.Two of the men replied that they had no objections, and Officer Sean Kenney began to frisk them.
The third man, appellant Javon Henson, also consented to a pat-down and placed his hands on the hood of the police car.BeforeOfficer Jones could begin the frisk, however, appellant "put his hands down" and "started walking towards the back of [the] vehicle."Officer Jones asked, "hey, where are you going?"He alsotestified that "I may have placed my hand on the defendant's side as he was walking away. I don't recall.""[T]he next thing I know the defendant is attempting to run down the street."Officer Jones then "grabbed onto [appellant's] jacket," but appellant "was able to wiggle out of [it]."
The officers chased appellant for about twenty or thirty yards until appellant slipped and fell on the snow and the officers caught up with him.After a brief struggle during which appellant may have touched Officer Jones's gun, the officers placed Mr. Henson in handcuffs. Seeing that appellant's two companions were walking toward them and looked like they might pick up the jacket that appellant had dropped during the chase, Officer Kenney yelled at the men to stay back.He then frisked Mr. Henson, finding a pistol in his waistband.A subsequent search uncovered a bottle containing an alcoholic beverage.When Officer Jones asked why he had run, appellant "stated that he had an open bottle of liquor in his pocket."
The trial court denied Mr. Henson's motion to suppress the firearm. Crediting the officers' testimony, the court found that, as appellant was moving away from Officer Jones, and before appellant began his flight, Officer Jones "reached out and grabbed Mr. Henson's arm and said where are you going or words to that effect."*fn1 Appellant then "took off running." During the ensuing chase, appellant "essentially ran out of his coat.""After a short distance, [appellant] slipped on the ice and snow and fell to the ground," at which point the officers caught up with him and placed him in handcuffs.Based on these facts, the court concluded that Mr. Henson had not been seized until the officers caught up with him after he fell, by which point they had reasonable, articulable suspicion to conduct a Terry stop and a frisk.The court cited several factors that gave rise to reasonable suspicion in this case, including the late hour, the fact that the events took place in a high crime area, appellant's "furtive gestures and movements" in "taking his hands off the police vehicle" and "moving away from the officer" after having consented to a pat-down, appellant's sudden flight, and the "fact that Mr. Henson's conduct and response was far different from the friends who were with him."
Following the court's denial of his motion to suppress, appellant agreed to a stipulated trial.The court found Mr. Henson guilty of carrying a pistol without a license,*fn2 being a felon in possession of a firearm,*fn3 possession of an unregistered firearm,*fn4 and unlawful possession of ammunition.*fn5 He now appeals the denial of his suppression motion.