Alex A. ROBINSON, Appellant,
UNITED STATES, Appellee.
Submitted May 30, 2013.
[Copyrighted Material Omitted]
Susan E. Borecki, for appellant.
Kathryn L. Rakoczy, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, and Adrienne Moran, Assistant United States Attorneys, were on the brief, for appellee.
Before BECKWITH and EASTERLY, Associate Judges, and PRYOR, Senior Judge.
EASTERLY, Associate Judge.
Alex A. Robinson appeals his convictions for unlawful possession of a firearm and possession of an unregistered firearm. He argues that his Fourth Amendment rights were violated when he was seized and searched by police in the absence of the reasonable, articulable suspicion required under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to authorize a temporary detention and protective patdown. The Metropolitan Police Department (" MPD" ) officers who seized and searched Mr. Robinson were part of the Gun Recovery Unit in the Narcotics and Special Investigations Division. To accomplish their mission of recovering guns, they employed a simple technique: they asked any individual they encountered if he or she had a gun and then watched to see if that individual engaged in what the officers perceived to be suspicious behavior. In this case, Mr. Robinson, who had just discarded a half-drunk bottle of vodka and appeared to be intoxicated, did not respond to the " do you have a gun?" inquiry. Instead, the police observed him make " back and forth," " side to side" hand motions on his chest (he was wearing a winter coat, but he did not try to reach in any pockets or inside the coat). Based on these movements, the police grabbed, handcuffed, and searched Mr. Robinson; pursuant to this search, they found a small handgun in Mr. Robinson's coat pocket.
The hearing court acknowledged that it could not " imagine a more spare set of circumstances" to justify a Terry stop and protective patdown but concluded " if only just barely, that the actions of the officer here are consistent with the Fourth Amendment." We conclude otherwise. Although the reasonable, articulable suspicion threshold is low, it nonetheless requires an objective foundation both for the belief that an individual is engaged in criminal activity and, before a protective patdown is conducted, for the belief that the individual is armed and dangerous. We discern no such objective foundation here. Nothing about Mr. Robinson's silent hand motions or any other facts known to the police objectively signaled that Mr. Robinson was possibly engaged in the criminal activity of possessing a gun or posed a threat to the police because he might be armed. Because the police did not have reasonable, articulable suspicion to seize and search Mr. Robinson, the handgun they recovered must be suppressed. We further determine that Mr. Robinson's subsequent statements to the police must be suppressed as the illegal fruits of his unjustified seizure and search and thus we do not reach Mr. Robinson's additional argument that these statements must be suppressed on Fifth Amendment grounds.
I. The Terry Stop and Protective Patdown
A. Facts and Procedural History
After Mr. Robinson was charged with a number of gun-related offenses, he moved
on Fourth Amendment grounds to suppress the handgun recovered from him in the course of a seizure and search by the police. The government took the position that the police had conducted a legitimate Terry stop and protective patdown. In support of that contention, the government presented testimony at the suppression hearing from the officer who confronted Mr. Robinson, MPD Officer Jordan Katz.
Officer Katz testified that, on the evening of November 30, 2011, he and three colleagues in the Gun Recovery Unit were driving in the area of 22nd Street in the Southeastern quadrant of the District. The four officers were in an unmarked car. Officer Katz was sitting in the back seat; he was in plain clothes but was wearing his tactical vest with the word, " Police," on the front and back. Officer Katz testified that their mission was " [e]ssentially what the title [of the unit] says, to recover guns." He described his job as being " about observations," specifically " how people react to [the Gun Recovery Unit]." In particular, " [w]hen [Officer Katz] ask[s] people if they have a gun, [he is] looking for a reaction— based on [their] movements after that question."
At approximately 8:30 p.m., the officers turned into " a parking lot slash alley" in the 3400 block of 22nd Street SE. Officer Katz said that they went to this location because it " is always one of our areas of focus" and that 22nd Street was " one of our top-yielding gun areas."  Once they were in the parking lot or alley, Officer Katz saw a parked car. The police pulled up alongside it. Officer Katz then shined his flashlight into the car and announced, " [i]t's the police."
The passenger side door of the car was already open, and Officer Katz first saw Mr. Robinson outside the vehicle on the passenger side. Mr. Robinson was holding up a bottle of vodka. The bottle " wasn't full." At the time, none of the officers had " any information from any source that Mr. Robinson had a gun on him."
Officer Katz observed Mr. Robinson take " a step back to the sidewalk" and then " start[ ] to shuffle" or " stumble" to his left. Officer Katz described the stumbling or shuffling motion as " goofy." Officer Katz testified that this " initial stumble made me think [Mr. Robinson] was drunk."
Officer Katz was the first officer out of the police vehicle. As he started to walk towards Mr. Robinson, he asked Mr. Robinson, " are you going to run [?]" and then reassured Mr. Robinson " I don't care about alcohol." At this point, Officer Katz testified Mr. Robinson was " still doing ... a slow shuffle to the left ... like a drunk person stumbling to his left." Mr. Robinson did not verbally respond to Officer Katz; but he did not run. Instead, he took the vodka bottle which he was holding in his right hand and " flung it ... across his body to his left."
Officer Katz then asked Mr. Robinson " do you have a gun?" Officer Katz acknowledged that he had not seen " anything that would make me think that [Mr. Robinson] had a gun." When asked why he put this question to ...