Submitted January 6, 2015.
Appeal from the Superior Court of the District of Columbia. (CF2-19611-13). (Hon. Robert I. Richter, Trial Judge).
Barbara E. Kittay was on the brief for appellant.
Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Kamliah House, Elana Suttenberg, and L. Jackson Thomas II, Assistant United States Attorneys, were on the brief for appellee.
Before GLICKMAN and THOMPSON, Associate Judges, and KING, Senior Judge.
Thompson, Associate Judge :
After the trial court denied his motion to suppress and after a stipulated trial, appellant Edward Towles was convicted of unlawful possession of liquid phencyclidine (" PCP" ), carrying a pistol without a license, unlawful possession of a firearm by a felon, possession of an unregistered firearm, and unlawful possession of ammunition. He argues on appeal that the trial court (1) erred in denying his motion to suppress and (2) unlawfully imposed a three-year minimum sentence after ruling that his prior involuntary manslaughter conviction was a " crime of violence" for purposes of D.C. Code § 22-4503 (b) (1) (2012 Repl. & 2013 Supp.). For the reasons that follow, we affirm.
At the hearing on the motion to suppress, Jordan Katz, six-year veteran of the Metropolitan Police Department (" MPD" ) gun recovery unit, testified that he, two other MPD officers, and an Alcohol, Tobacco and Firearms (" ATF" ) agent, all armed, were driving in an unmarked car with its windows down on the evening of November 6, 2013, near the intersection of Howard Road and Bryan Place, S.E. All the officers were wearing vests with the word " Police" across the front and back, in letters that could be read by someone standing outside the car. The officers and ATF agent were looking for guns but were not acting on any citizen call or informant tip at that time. Officer Katz testified that the gun recovery unit had " recovered a lot of guns over the years" in the area and that he personally had arrested " probably over ten" people with guns in the three or four blocks near Bryan Place, including a " handful" of people " in the last few months."
Officer Katz, who was sitting in the front passenger seat, saw appellant walking with another man. Appellant was wearing a " bulky" green coat or jacket, and his hand was in his right pocket. As the officers' vehicle got closer to the two men, Officer Katz saw appellant look over his right shoulder at the officers' vehicle. Appellant then turned his head away, took his right hand out of the coat pocket, and put his hand " under his coat toward his right waistband" and " just moved it around." Appellant then " cut behind" his companion and moved away from him, turning onto Bryan Place (which runs for only one block) and walking " much quicker" than he had been when Officer Katz first saw him. Officer Leo, who was driving, turned the police vehicle onto Bryan Place in order to follow appellant, and appellant " kept looking back at" the police vehicle as he walked toward a fence. Officer Katz asked Officer Leo to stop the car, and Officer Katz and ATF Agent Srivastava both got out of the vehicle.
Officer Katz began " side stepping" toward appellant and asked him, in a " normal" tone of voice, whether he had a gun on his right side. Officer Katz testified that he asked this question because of appellant's gestures: taking his hand out of the pocket, making a movement at his right waistband (movement that Officer Katz testified caused him to be concerned that appellant had a gun in his waistband), breaking away from his friend, and " [e]specially when he went towards that fence[,]" a movement that caused Officer Katz to think, " he's going to take [a gun] out and put it on the fence."  In response to Officer Katz's question, appellant " took his hand [and] kind of reached it under his coat[,]" and Officer Katz saw a cell phone clipped to appellant's belt. Appellant unclipped the cell phone, held it so that Officer Katz could see it, and said, " [I]t's just a cell phone." As appellant did so, " the right coat pocket of [appellant's] coat hung over his right hand" such that Officer Katz " could see that there was something heavy" in the pocket. Officer Katz thought this heavy object was a gun.
At that point, Officer Katz started to walk slowly toward appellant. Appellant " took his right side and turned it away" as if to keep the officer from seeing it as the officer walked toward him. Appellant also " started to look side to side[,]" as if " looking for a way out of here." Officer Katz, who was standing about 18 to 20 feet from appellant, said to appellant in a " raised" voice, " [H]ey, keep looking at me. Keep looking at me." Officer Katz explained that he said this because " at this point[,] with everything I'd seen, I figured he probably had a gun" and " [w]hen he started to look side to side, I'm also thinking he's about to run [and] I would like him not to run" or to " try to take the gun and just throw it or take it out [or] do something else."  Officer Katz testified that he next said to appellant, in a conversational tone, " [C]an I pat you down, make sure you don't have a gun[?]" Appellant responded, " [Y]eah, okay[,]" and then " just put his head down." Officer Katz walked toward appellant and put his hands out toward appellant's waistband, but, before he could touch appellant, appellant said, " I got a gun." At this point, Officer Katz pushed appellant's arms up, and Officer Olszack, who had just gotten out of the police vehicle, grabbed appellant's left arm while Officer Katz held onto appellant's right arm. At that point, Officer Leo got out of the police vehicle (Officer Katz having given the " code word for a gun" ), came over, and, as appellant was starting to say, " it's in my pocket," touched appellant's right coat pocket, where he felt a handgun (later determined to be a small, .32 caliber semiautomatic weapon). The officers then handcuffed appellant. Shortly afterwards, appellant said, " I got some water[,]" (i.e., PCP) and motioned his head down toward a breast pocket of his coat. Officer Katz touched the pocket and felt a vial. The crime scene officers later recovered a vial of PCP and a gun from appellant's pockets. Officer Katz testified that at no point during this encounter did he draw his weapon.
The defense witnesses at the suppression hearing were Richard Carter (appellant's cousin and the man who had been walking with appellant that evening) and appellant himself. Carter testified that he and appellant were walking in the street down Bryan Place, headed toward the Metro station, when they looked back, saw a car with police in it, and moved out of the way of the car. As he and appellant kept walking, someone in the car yelled, " [L]ift your shirts up[,]" and " Do you all have a gun?" Carter and appellant lifted their shirts. Appellant pulled his cell phone from his side, showed it to the officers, and said he did not have a gun. Carter and appellant continued walking together, but an officer got out of the car and kept asking whether the two men had guns, and the two repeatedly answered that they did not. The officer asked whether he could search the men, and both said again that they did not have guns. That officer and one other walked over to appellant, put his hands up, started searching him, and found a gun on him. Another officer told Carter to put his hands up and empty his pockets, both without his consent. Carter, who said that he was " apart from [appellant] when he was talking to the other officers" but could hear everything the officers were saying, testified that he never heard appellant give
consent to a search or a pat down. Carter also acknowledged that only one officer, whose gun was not drawn, was talking to appellant during the beginning of the encounter, ...