June 7, 2016
from the Superior Court of the District of Columbia
CMD-17569-14 Hon. Harold L. Cushenberry, Jr., Trial Judge.
A. Mokodean for appellant. [*]
Kim, Assistant United States Attorney, for appellee.
Vincent H. Cohen, Jr., Acting United States Attorney at the
time the brief was filed, and Elizabeth Trosman, Elizabeth H.
Danello, and Jay Apperson, Assistant United States Attorneys,
were on the brief for appellee.
BEFORE: Glickman and Fisher, Associate Judges; and Ruiz,
case came to be heard on the transcript of record and the
briefs filed, and was argued by counsel. On consideration
whereof, and as set forth in the opinion filed this date, it
is now hereby
and ADJUDGED that the appellant's conviction is reversed.
Glickman, Associate Judge.
Jones appeals his conviction for unlawful possession of
cocaine. He claims the trial judge erred in denying his
motion to suppress the cocaine as the fruit of an
unconstitutional seizure when a police officer detained him,
without reasonable articulable suspicion, for questioning and
a warrant check. The government argues that appellant was not
seized within the meaning of the Fourth Amendment's
prohibition on unreasonable searches and seizures. Whether
appellant was seized is the sole disputed issue before us; if
he was, the government does not deny that the seizure was
unlawful for lack of reasonable articulable suspicion or that
the cocaine was the excludable fruit of the constitutional
conclude that a reasonable person in appellant's position
would not have felt free to terminate the encounter of his
own accord and go about his business by the time the police
officer asked to inspect the contents of a cigarette box in
his possession. We therefore agree with appellant that he was
seized in violation of his Fourth Amendment rights and that
the cocaine found in the cigarette box should have been
suppressed. Accordingly, we reverse appellant's
hearing on appellant's suppression motion, the government
relied on one witness, Metropolitan Police Officer Zachary
Blier. Officer Blier testified that he was on patrol, driving
a marked police cruiser, when he came upon appellant on the
evening of October 3, 2014. Sitting in the front passenger
seat of the cruiser with Blier was his partner, Metropolitan
Police Officer Gregory Collins. Blier was in uniform and
wearing an outer tactical vest that said "Police"
on the front and back. He also was wearing a gun.
encounter occurred at around 6:00 p.m. when the officers
drove into an alley in the 2500 block of North Capitol
Street, Northeast. It was still daylight. The alley was
narrow, only about fifteen to twenty feet wide, with a row of
houses on one side and a graveyard on the other. Blier
testified that he knew the area to be one "that's
historically had a high volume of drug sales." Upon
entering the alley, Blier saw appellant walking toward him.
Appellant was alone. Blier noticed that appellant was
"fiddling with a Newport cigarette box, " and that
when appellant looked up and saw the police car, he
"immediately" lowered the hand holding the
cigarette box to his side. This captured Blier's
attention because he "kn[e]w individuals commonly hide
drugs and drug paraphernalia in Newport boxes."
continued on his way. As he proceeded alongside the police
car on the driver's side, Blier rolled down the window
and said, "hey, man, how you doing?" In response,
appellant stopped and turned to face Blier. Blier asked
appellant where he was coming from and stepped out of the car
to "engage" appellant in "conversation."
When he exited the car, Blier saw appellant put the cigarette
box behind his back as if to hide it from view. This
increased Blier's suspicions. He asked appellant for his
name, date of birth, and "probably" his address,
all of which appellant provided. Blier wrote down the
information and gave it to Officer Collins to "run in
the system." He then asked appellant, "hey, can I
see that cigarette box?" Appellant handed it to him.
Blier opened the box, looked inside, and saw what he
recognized to be crack cocaine. Appellant then was searched
and placed under formal arrest.
testified that his questioning of appellant prior to
discovering the cocaine was "cordial" and lasted
only a minute or two. During that time, Blier said, he gave
no orders to appellant, made no threats, and did not have
physical contact with appellant. He did not display or reach
for his weapon. When asked how close he stood to appellant
while questioning him, Blier stated that "as I opened my
door . . . he was in front of my door so he was, kind of
stepped back a little bit and I closed my door. I mean, we
were just face to face, maybe separated by three or four
was the only other witness at the hearing on his motion. His
description of the encounter matched Blier's in most
respects. Appellant testified that Blier asked him about half
a dozen questions in all, including where appellant was
coming from, why he had no shopping bags (since appellant
told Blier he had been shopping), his name and date of birth,
whether he had personal identification on him (he did not),
and where he lived. Appellant answered Blier's questions
while standing in the space between the door of the cruiser
and the wall of the graveyard. According to appellant, Blier
remained seated inside the car during this questioning
because the officer could not open the car door completely
while appellant was standing only "a few inches"
away from it in the "too narrow" space beside the
vehicle. While appellant "could have continued walking
through if [Officer Blier] wouldn't have stopped, "
he did not feel he could walk away "[b]ecause [Officer
Blier] didn't give me an indication that I could
leave" ("[i]t was more of an authority indication
that I was being detained"), and "the questioning
was like I was being detained." Blier then asked
appellant what was in the cigarette box he was holding, and