Submitted December 19, 2012
Appeal from the Superior Court of the District of Columbia, CF2-22217-10, Hon. Robert E. Morin, Trial Judge.
Kenneth E. McPherson and Gregory W. Gardner were on the brief for appellant.
Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, John P. Mannarino, Jodi Lazarus and Karen L. Shinskie, Assistant United States Attorneys, were on the brief for appellee.
Before Fisher and Thompson, Associate Judges, and Ruiz, Senior Judge.
THOMPSON, ASSOCIATE JUDGE
Appellant Ernest Ramsey entered conditional guilty pleas to charges of carrying a pistol without a license, unlawful possession of a firearm by a felon, and possession of an unregistered firearm, after the trial court denied his motion to suppress the physical evidence. He argues that the evidence was the fruit of an unlawful seizure and that the trial court therefore erred in denying the suppression motion. We agree, and we therefore reverse.
At the suppression hearing, Metropolitan Police Department Officer Kevin Lally testified that on November 28, 2010, at around 7:45 p.m., he was patrolling in the 3900 block of Benning Road, N.E., when he saw appellant, whom he "didn't know . . . from before then, " walk into an alley that dead-ended behind a convenience store. Officer Lally saw another person "coming from the rear alley, " but otherwise saw no one else in the area other than appellant. Officer Lally testified that he had been to the alley on prior occasions, and that it had been the site of "[n]umerous occasions of urination in public" as well as narcotics trafficking, robberies, and "general vagrancy." He explained that the alley "leads up to a park that's closed after dark" and that there was a closed carryout restaurant next to it but "no businesses or residences back there." Officer Lally followed appellant into the alley and, upon turning the corner, saw appellant standing, "facing the wall with his hands in his crotch area with his zipper down." Officer Lally testified that he asked appellant what he was doing, and appellant replied, "Man, I was about to use the bathroom." Officer Lally did not look to see whether there was a puddle of urine and saw no urine, but testified that there was a "strong smell of urine" in the alley. Asked whether he could tell if appellant was actually urinating at the time he saw him with his pants unzipped, Officer Lally responded, "He was not, no"; he agreed that he "never saw [appellant] urinate in the alley." Officer Lally also testified that appellant's "genitalia was [not] outside his pants[.]" The officer testified, however, that he "had a good idea what [appellant] was about to do." He agreed that he was "just speculating" and that he thought "maybe something was about to be a crime[.]" He said that he "had reason to believe that if [appellant] was about to urinate, he also did not have any lawful presence on that property and that whatever he was doing back there probably would have been a crime."
Officer Lally "asked to speak to" appellant further, and the two men walked out of the rear alley to the side of the store building, where Officer Lally asked appellant for identification. Asked to describe appellant's "demeanor, " Officer Lally said that appellant "was cooperating physically with [the officer's] commands" and "was coming to talk to [him], " but that based on his training and experience, he could tell that appellant "was someone who didn't really want to talk to [him]." After appellant produced his identification, Officer Lally "ran him through [a] dispatcher for warrant status, " i.e., had his dispatcher run a WALES (Washington Area Law Enforcement System) computer check. The dispatcher responded — incorrectly, it turned out — that appellant had an outstanding bench warrant for an intrafamily offense. Officer Lally placed appellant in handcuffs and told him that he was not under arrest but that the officer had "reason to believe he ha[d] a warrant out." Officer Lally testified that he asked appellant for "consent to search his person" "based upon . . . the obvious attempted illegal activity" and "being in the back of that alley, " but subsequently testified that the words "„Can I search you' never entered my mouth." Rather, the officer explained, he asked appellant, "Do you have anything on you?" Appellant responded, "No, I have nothing to hide. You can check me." Officer Lally then proceeded to pat down appellant's outer clothing, felt what he recognized to be a handgun, removed the gun from appellant's jacket pocket, and advised appellant that he was under arrest. Officer Lally testified that he did not point a weapon at appellant or use any weapon during his encounter with appellant. He told the court that only "two minutes, perhaps, maybe more" transpired between when he originally encountered appellant and when he found the gun.
The trial court credited Officer Lally's testimony, specifically including his testimony that appellant gave consent to be searched. The court specifically discredited appellant's testimony that he "just went into the alley and walked away[.]" The court ruled that at the time the officer approached appellant and saw what he was doing, he had "probable cause to believe that a crime, that is, urinating in public[, ] was occurring in front of him." The court found that "it ended up that [appellant] hadn't urinated . . . [and] that [appellant] did not have a warrant outstanding, " but reasoned that "the fact that the officer later discovered that" did not "negate the fact that at [the] time when [he] approached [appellant] and saw what he was doing . . . [he] had probable cause and reasonable articulable suspicion to encounter and secure" appellant.
Appellant filed a Motion to Reconsider the ruling denying suppression of the gun, emphasizing Officer Lally's testimony that appellant was not actually urinating at the time the officer saw him with his pants unzipped, arguing that "there is no crime in the District of Columbia of attempted urinating in public[, ]" and contending that the stop should have ended after the officer engaged appellant in conversation in the alley and confirmed that he had not actually urinated. Ruling on the motion, the trial court stated that because of the "nature of the alley and [the officer's] knowledge of the alley" and because of "defendant's actions" and "where his hands were and where his zipper was[, ]" Officer Lally "did have at least reasonable, articulable suspicion to stop [appellant] and engage in an investigation as to what [he] observed. The court stated, "In retrospect we'd know that [appellant] was not engaging in urination in the public alley after investigation. But the Court's view was that the officer reasonably had reasonable suspicion."
Although appellant disputed in the trial court that he consented to Officer Lally's searching him, on appeal he does not specifically challenge the court's finding that he consented to a search. Nor does he dispute that, if he had already been lawfully stopped, the information the officer received during the stop about an outstanding warrant would have justified the officer in arresting and searching him even without his consent. Appellant also appears not to seriously challenge the trial court's reasoning that because of the officer's "knowledge of the alley" and because of appellant's "actions" and "where his hands were and where his zipper was[, ]" Officer Lally "did have at least reasonable, articulable suspicion to stop [appellant in the alley] and engage in an investigation as to what [he] observed." Rather, appellant asserts that by the time the officer left the alley, he had "gathered evidence that dispelled his initial suspicion" that appellant was urinating in public, such that the officer should have terminated his encounter with appellant "before determining if [he] had warrants or would ...