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United States v. Dolberry

United States District Court, District of Columbia

August 11, 2015



BERYL A. HOWELL, District Judge.

Defendant Dwayne Dolberry is charged with one count of Unlawful Possession of a Firearm and Ammunition by a Person Convicted of Crime Punishable by Imprisonment for a Term Exceeding One Year, in violation of 18 U.S.C. ยง 922(g)(1), arising from the seizure of a loaded Keltec 9mm semi-automatic handgun from his person at the time of his arrest in March 2015. Indictment, Count One, ECF No. 3. The defendant has now moved to suppress all physical evidence seized from, and all statements made by, him in connection with his arrest. Def.'s Mot. to Suppress ("Def.'s Mot."), ECF No. 10. Upon consideration of the memoranda of law submitted by the defendant and the government, and the testimony and exhibits presented at a suppression hearing on August 3, 2015, for the reasons set forth below, the defendant's motion is denied, except with respect to an issue conceded by the government.


On the evening of March 17, 2015, shortly after 5:00 p.m., Officer John Wright of the Metropolitan Police Department's ("MPD") Gun Recovery Unit ("GRU") was on duty in the Trinidad neighborhood of Northeast, Washington, D.C. Rough Transcript of Suppression Hearing ("Hearing Trans.") at 8-10, United States v. Dolberry, No. 15-cr-037 (Aug. 3, 2015) (testimony of Officer John Wright).[1] Officer Wright was driving an unmarked, gray Ford Explorer, with passengers MPD Officer Vaillancourt and Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") Special Agent Srivastava, headed to a gas pump on the 1800 or 1900 block of West Virginia Avenue. Id. at 10-11, 16, 36. The officers, including Officer Wright, were dressed casually, but also wore police vests labeled with the word "police" on the front and the back and belts with police "accoutrements, " including a firearm. Id. at 10, 44-45.[2]

At approximately 5:19 p.m., when the officers were located "right by the gas pump, " they heard a radio dispatch from the Fifth District about a "man with a gun, " described as "a black male, black jacket, blue jeans, around 20 years of age, " located at "1275 Meigs" Place and last seen in "an alley." Id. at 11-12, 15-16. With Officer Wright "flooring it, " the officers immediately responded to the vicinity of 1275 Meigs Place by making a left on Mt. Olivet Road and a right on Montello Avenue. Id. at 16, 19. Officer Wright did not recall ever using the vehicle's siren, but testified that, if he had, "it may have been for a split second crossing West Virginia onto Mt. Olivet." Id. at 24. The officers' vehicle "arrived at the block at a high rate of speed" but went "slower through the block" so that the officers could look up and down the alleys they passed. Id. at 47. Officer Wright testified that they traveled approximately "under half a mile" and it took "maybe a minute" for him to get from the 1900 block of West Virginia Avenue to the 1200 block of Meigs Place. Id. at 54, 60.

The officers encountered defendant Dolberry at the intersection of Meigs Place and Trinidad Avenue. Id. at 18. The defendant was walking southbound on the west side of Trinidad Avenue, in a direction facing towards the officers' vehicle. Id. at 21. Officer Wright noticed the defendant because he matched the radio description-he is a black male, and was wearing blue jeans and what Officer Wright originally thought was a black jacket.[3] Id. at 21, 60-61. Photographs from the scene show that, in addition to blue jeans, the defendant was wearing a black long-sleeved shirt with a black vest, a baseball cap, glasses, and gold chains around his neck. Id. at 43; Gov't Ex. 4. Officer Wright testified that upon seeing the vehicle, the defendant "seemed startled" and his "eyes kind of got wide." Hearing Trans. at 21. Officer Wright stopped the vehicle "at or prior to the crosswalk" and greeted the defendant from inside of the vehicle. Id. at 21, 25. The defendant stopped; he did not flee. Id. at 25, 51. As Officer Wright got out of the vehicle and began walking towards the defendant, he asked the defendant in a "calm and matter of fact" tone of voice "if he had anything on him" and "told him that we had just gotten a call, " sounding "kind of apologetic... to keep whatever situation may be there calm." Id. at 25, 50, 52. The defendant did not respond. Id. at 25. Officer Wright then asked the defendant in a calm, conversational tone "if I could pat him down." Id. at 25-26. The defendant "said yes, and he moved his arms away from his body" calmly. Id. at 26. When Officer Wright patted down the defendant, he "felt, on the left side of his jacket, a hard metal object he believed to be a firearm." Id. at 27.

Upon feeling what he believed to be a firearm, Officer Wright wrapped his arms around the defendant and turned him towards the police vehicle as the other officers exited the vehicle. Id. The defendant, with a "calm but defeated" demeanor, said something to the effect of, "y'all got me; y'all got me. It's all good. I'm not going anywhere, " in what Officer Wright perceived to be an attempt to deescalate the situation. Id. at 27-28. The defendant was placed in handcuffs without resisting. Id. at 28. After the defendant was placed in handcuffs and shackles to prevent him from running away, Officer Wright "asked him why he didn't run." Id. at 31. The defendant responded with "something to the effect that he was ready to go back to jail, that he knew this was coming." Id. Officer Wright approximated that "maybe 30 or 40 seconds" passed between his initial sighting of the defendant on the sidewalk until the time he restrained the defendant in a bear hug. Id. at 54-55.

At approximately 5:20 p.m., Officer Vaillancourt called in and informed the radio dispatcher that "the individual [was] stopped, and the weapon recovered." Notice of Filing of Rough Trans. of Excerpted Audio Recording in Gov't Ex. 1 ("Audio Recording Trans.") at 2, ECF No. 16; see also Hearing Trans. at 61. Officers recovered from the left breast pocket of the defendant's vest a loaded 9mm semi-automatic handgun. See Hearing Trans. at 29.


A. Physical Evidence

The Fourth Amendment prohibits law enforcement from conducting "unreasonable searches and seizures, " and "this protection extends to a brief investigatory stop of persons..., whether or not an arrest follows." United States v. Bailey, 622 F.3d 1, 5 (D.C. Cir. 2010) (citing United States v. Arvizu, 534 U.S. 266, 273 (2002); Terry v. Ohio, 392 U.S. 1, 9 (1968); and United States v. Cortez, 449 U.S. 411, 417 (1981)). When the government conducts an unconstitutional search or seizure, the Court must exclude any evidence obtained as the "fruit" of that search or seizure. Wong Sun v. United States, 371 U.S. 471, 484 (1963); United States v. Matthews, 753 F.3d 1321, 1324 (D.C. Cir. 2014) ("The admissibility of all the incriminating evidence... depends upon the validity of the search."). For suppression of the evidence, the defendant must first establish that he was subjected to a search or seizure without a warrant, and then the burden shifts to the government to justify the warrantless search or seizure. See United States v. Brodie, 742 F.3d 1058, 1063-64 (D.C. Cir. 2014); United States v. Williams, 878 F.Supp.2d 190, 197 (D.D.C. 2012) (citing cases).

B. Statements

The Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Id. at 444. The well-settled procedural safeguards of Miranda require that law enforcement agents give the defendant, prior to such a custodial interrogation, warnings "that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Id. at 479. These procedural requirements of Miranda apply, however, only when there is a custodial interrogation. See United States v. ...

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