November 14, 2014.
from the Superior Court of the District of Columbia.
(CMD-21632-12). (Hon. Michael Ryan, Trial Judge).
V.A. Castro for appellant.
A. Sprague, Assistant United States Attorney, with whom
Ronald C. Machen Jr., United States Attorney at the time the
brief was filed, and Elizabeth Trosman and Christopher
Bruckman, Assistant United States Attorneys, were on the
brief, for appellee.
BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and
FARRELL, Senior Judge.
Corinne Beckwith, Associate Judge:
Following a stipulated trial, appellant Devon Sharp was found
guilty of possession of marijuana, cocaine, and drug
paraphernalia and attempted possession of a
prohibited weapon. On appeal, Mr. Sharp challenges the
trial court's ruling that the encounter that preceded Mr.
Sharp's admission to the police officer that he was
carrying brass knuckles was a consensual one, rather than a
seizure that triggered Fourth Amendment protections and
required suppression of the evidence stemming from the
seizure. We conclude that Mr. Sharp was seized for Fourth
Amendment purposes when he was stepped out of his car and
that his seizure was not justified by the " specific and
articulable facts" required under Terry v.
Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968). We therefore reverse Mr. Sharp's convictions and
remand for a new trial at which the evidence uncovered as a
result of that seizure is suppressed.
witnesses who testified at the suppression
hearing--Metropolitan Police Department Officer John Pugh and
appellant Devon Sharp himself--gave divergent accounts of the
incident leading to Mr. Sharp's arrest. Officer Pugh
testified that he and Officers Christopher Dorsey and Brett
Cuevas were patrolling the area near 14th and U Streets,
Northwest, shortly after midnight when their police vehicle
broke down. As the officers pushed the vehicle into a parking
space, Officer Pugh heard a " loud scream or
commotion" coming from a parking lot across the street
where the officer said valets often park cars and where
" a lot of cars get broken into." It "
wasn't like a someone[-]in[-]danger scream" but
" just a noise that caught [his] attention."
the people causing the commotion walked away, Officer
Pugh's attention was drawn to some rap music coming from
a parked Jeep whose driver, appellant Devon Sharp, was "
sitting behind the wheel" with " his head
down" and was " looking down at something in his
hands." Officer Pugh " went . . . to check the
person, but really to find out if he was the valet or
not." Wearing black tactical police vests and badges and
identifying themselves as police officers, Officer Pugh
approached the driver's side of the vehicle and Officer
Dorsey approached on the passenger side. Officer Pugh asked
Mr. Sharp what he was doing there, a question that prompted a
series of what Officer Pugh described as nervous behaviors
and nonresponsive answers from Mr. Sharp. " Didn't
know if he had any[thing] illegal on him, anything illegal in
the vehicle," Officer Pugh said, " so I asked him
could I search his vehicle." Officer Pugh testified that
after Mr. Sharp declined a vehicle search, " [d]ue to
him seeming kind of nervous, and making me kind of feel
slightly uncomfortable, I asked could he step out of the
vehicle." Officer Pugh said he did not "
command" Mr. Sharp to step out of the vehicle--" I
asked him can he step out of the vehicle" --and that Mr.
Sharp " complied freely" and " stepped out
calmly and stepped out regularly."  Officer Dorsey came
around to the driver's side of the car and stood next to
Officer Pugh as Mr. Sharp was getting out of the car.
Pugh testified that he asked Mr. Sharp whether he had any
weapons on him, and Mr. Sharp " said yes and began
reaching his hand into his left front jacket pocket,"
telling the officer that he had brass knuckles. Officer Pugh
recovered the brass knuckles and placed Mr. Sharp in
handcuffs, after which Officer Dorsey
searched Mr. Sharp further, incident to the arrest, and
recovered " multiple zips containing a white powdery
substance." Officer Pugh testified that the officers
then searched Mr. Sharp's vehicle, where they recovered,
from a baby seat in the back, a bag containing a green
weed-like substance that field tested positive for marijuana.
part, Mr. Sharp testified that he worked security for and
managed several restaurants and bars in the U Street area and
that he had been parking his car in the lot at 14th and U
Streets " for a long time." Mr. Sharp said that on
the day of the incident he was sitting in his vehicle and may
have been texting on his phone as he " was getting ready
to get out of the car" when Officer Pugh " stopped
[him]," told him " to hold on," and "
hindered [him] from getting out of the vehicle."
According to Mr. Sharp, Officer Pugh asked him whether he had
any weapons while Mr. Sharp was still inside the Jeep, Mr.
Sharp answered no, but Officer Pugh " told [him] he was
going to search [him] for his safety," opened the door,
and " asked [him] to get out of the car." Mr. Sharp
testified that he felt he had no choice but to get out of the
car, that " it was more guided than anything," and
that because he was parked near some pillars, the officer
" kind of had me boxed in so there wasn't really too
much I can do." According to Mr. Sharp, Officer Pugh
held his arm as he got out of the Jeep, patted him down, and
found the brass knuckles. Mr. Sharp ...