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Miles v. United States

Court of Appeals of The District of Columbia

March 29, 2018

Everett Miles, Appellant,
v.
United States, Appellee.

          Argued May 12, 2016

          Appeal from the Superior Court of the District of Columbia (CF3-4696-13) (Hon. Stuart G. Nash, Trial Judge)

          William T. Morrison for appellant.

          Monica P. Dolin, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman and Uma M. Amuluru, Assistant United States Attorneys, were on the brief, for appellee.

          Before Glickman, Beckwith, and McLeese, Associate Judges.

          OPINION

          Beckwith, Associate Judge.

         Appellant Everett Miles challenges the trial court's denial of his motion to suppress tangible evidence, arguing that the police lacked reasonable articulable suspicion to conduct the Terry stop[1] that led to his being charged with and later convicted of several gun-related offenses.[2] He argues that the anonymous tip that formed the basis for his stop-a 911 call from a "concerned citizen" describing a man with characteristics similar to Mr. Miles's, "shooting a gun in the air"-was insufficiently corroborated and thus was not shown to be reliable. He contends, in particular, that his flight when police officers approached him near the location of the alleged shooting was not sufficient to corroborate the tip. We agree and therefore reverse.

         I.

         At the suppression hearing, the government presented the testimony of Metropolitan Police Department (MPD) Officers Juan Sanchez and Shalonda Davis. Officer Sanchez testified that he was on patrol in Southeast D.C. at around 8 a.m. on March 24, 2013, when he heard a series of radio transmissions about a man with a gun. These transmissions were played at the suppression hearing.[3] The initial transmission stated that a "concerned citizen" who did not give a "callback number" had reported "a black male with a blue army jacket . . . shooting a gun in the air." The radio transmission described the subject's location as the "4500 [block of] Texas Avenue, Southeast" and stated that he was "headed toward Ridge Road." An updated transmission from an officer in the area indicated that the subject was "in the 4800 block of . . . Alabama Avenue."[4] Officer Sanchez, who was alone in his car, testified that he drove to the intersection of Alabama and F Streets, where he observed a man, Everett Miles, who "matched the description" from the transmission-that is, according to the officer, Mr. Miles appeared to be wearing an Army-type "camouflage jacket."[5] Officer Sanchez also saw another MPD officer, Demond James, "walking behind" Mr. Miles and "point[ing] at him like that's him." According to Officer Sanchez, Officer James was between twenty and twenty-five feet behind Mr. Miles, who was the "only person on the street at all" that morning.

         As Mr. Miles was walking south in the 4900 block of Alabama Avenue, Officer Sanchez parked his car "[r]ight on F [Street] and the corner, " "blocking the sidewalk [Mr. Miles] was walking on to conduct a stop."[6] Officer Sanchez testified that when he "slightly got out of the car" and asked Mr. Miles to stop, Mr. Miles "ran to his left to the back of [the] cruiser towards F Street." After briefly pursuing Mr. Miles on foot, Officer Sanchez detained him in the middle of the intersection, "grabb[ing] his waistband from his back." Officer Sanchez testified that he "felt a hard object on the right front side of his waistband, " an object that "felt like a gun." Officer Sanchez "called out gun" to the other officers on the scene-Officer James and Officer Davis-while attempting to hold Mr. Miles's hands up to prevent him from reaching for the weapon. Officer Davis then retrieved the gun from the right front side of Mr. Miles's waistband.

         Officer Davis herself testified that she was on patrol when she heard a radio transmission for a man who was wearing an Army jacket and carrying a gun near Texas Avenue. While driving toward that location, Officer Davis "saw a subject fitting the description" from the radio transmission-a "black male with an Army print jacket" that was "dark colored." Shown a photo of Mr. Miles wearing the jacket on cross-examination, [7] Officer Davis testified that it "look[ed] a little green, a little tan, " but that the picture seemed "distorted." According to Officer Davis, Mr. Miles was walking along the 4800 block of Alabama Avenue when she first saw him, and there were no other people on the street.

         According to Officer Davis, she initially drove past Mr. Miles to inform Officer James, who was parked at the end of the block, that she thought she had spotted the subject described in the radio transmission. The two officers drove in Mr. Miles's direction, and Officer James exited his vehicle after Mr. Miles "refused to stop and started running." Officer Davis testified that Officer Sanchez then pulled in front of her car and eventually stopped the fleeing Mr. Miles on foot. In Officer Davis's recollection, Officer Sanchez, in tussling with Mr. Miles, said "[g]un, gun, gun" while trying to hold Mr. Miles's hands over his head. Officer Davis testified that she saw the handle of the gun in Mr. Miles's front waistband and grabbed the weapon.

         At the conclusion of the suppression hearing the court made the following findings. At about 8:08 a.m. on March 24, 2013, the MPD dispatcher "received a call from an unidentified citizen who indicated that there was a man with a gun" on the 4500 block of Texas Avenue, Southeast. According to the radio transmission, the subject was a "black male" "wearing a blue Army-type jacket." A few minutes later, the subject was found "within a couple of blocks" of the original location "wearing a jacket that matched in the officer's mind the description provided by the dispatcher." Examining the photo introduced into evidence, the court found that the jacket seemed "mostly gray but [with] a bluish tint of the gray." After noting Officer Davis's testimony that the color in the photo was distorted, however, the court found that on the morning of the stop, "the jacket that Mr. Miles was wearing" appeared to be "a blue Army-type jacket." The court also found that Mr. Miles "took off running" when "Officer Sanchez asked Mr. Miles to stop so that Sanchez could investigate further."[8] The court found that Mr. Miles's flight reflected "consciousness of guilt on his part."

         In denying Mr. Miles's suppression motion, the trial court concluded that the "running by itself would not be sufficient but running coupled with the fact that he . . . match[ed] the description of the individual who was seen with the gun" is "more than sufficient to establish reasonable articulable suspicion and allow the officers to detain Mr. Miles in the way that they did."

         II.

         Mr. Miles argues that the police lacked reasonable articulable suspicion to stop him and that the trial court therefore erred in denying his motion to suppress. In reviewing the trial court's denial of a motion to suppress, "we defer to the trial court's findings of evidentiary fact unless clearly erroneous, and we view those facts, and the reasonable inferences that stem from them, in the light most favorable to the government." Sharp v. United States, 132 A.3d 161, 166 (D.C. 2016). We review de novo the trial court's ultimate legal conclusion that the police had reasonable suspicion to stop Mr. Miles.[9] See id.

         "The Fourth Amendment prohibits 'unreasonable searches and seizures' by the Government, and its protections extend to brief investigatory stops of persons"-so-called Terry stops-"that fall short of traditional arrest." United States v. Arvizu, 534 U.S. 266, 273 (2002). Accordingly, such a stop is lawful only if "the detaining officers . . . have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18 (1981). While the level of suspicion that is required is "considerably less than proof of wrongdoing by a preponderance of the evidence, " United States v. Sokolow, 490 U.S. 1, 7 (1989), the Fourth Amendment "requires 'some minimal level of objective justification' for making the stop" and an officer ―must be able to articulate something more than an 'inchoate and unparticularized suspicion or "hunch."'- Id. (first quoting INS v. Delgado, 466 U.S. 210, 217 (1984), and then Terry, 392 U.S. at 27). The court considers various factors in deciding whether a Terry stop is justified. See, e.g., Bennett v. United States, 26 A.3d 745, 753 (D.C. 2011) (listing factors such as time of day, flight, and an informant's tip). "Although each factor is useful in determining whether there were articulable facts justifying the stop, these factors 'are not elements of a conjunctive test, ' and no one factor is 'outcome determinative.'" Umanzor v. United States, 803 A.2d 983, 993 (D.C. 2002) (quoting In re D.A.D., 763 A.2d 1152, 1155 (D.C. 2000)). In other words, "we must consider 'the totality of the circumstances-the whole picture.'" Sokolow, 490 U.S. at 8 (quoting Cortez, 449 U.S. at 417).

         "[C]ourts are properly wary of sustaining seizures on the basis of anonymous tips, and require a substantial measure of corroboration of information anonymously provided." Brown v. United States, 590 A.2d 1008, 1015 (D.C. 1991). To furnish reasonable suspicion, it is not enough that an anonymous tip alleges criminal activity and provides "[a]n accurate description of [the] subject's readily observable location and appearance." Florida v. J.L., 529 U.S. 266, 270 (2000). A tip that does nothing more than identify a suspect "does not show that the tipster has knowledge of concealed criminal activity." Id. at 272. Rather, for a tip to justify a Terry stop, there must be corroborating circumstances that show that the "tip [is] reliable in its assertion of illegality." Id.[10] This means that when, as in the present case, the police receive an anonymous tip alleging a subject's possession or use of a firearm, the police must typically "see[] something that confirm[s] the presence of a gun"-which is to say, something that corroborates the tip that there was a gun-before stopping the subject. Plummer v. United States, 983 A.2d 323, 333 (D.C. 2009); cf. J.L., 529 U.S. at 268, 271 (holding that an anonymous tip "that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun" was not sufficiently corroborated by the police's mere observation of three black males, one of whom was wearing a plaid shirt, at the bus stop).

         Turning first to the tip's ability to identify a specific person, the two officers' testimony that Mr. Miles was the only person on the street where the officers spotted him mere minutes after the 911 call undoubtedly adds to its reliability in this regard.[11] The caller's description of the suspect in this case as a black male wearing a blue Army jacket had some shortcomings, however, and matched only weakly Mr. Miles's actual appearance. A photograph of Mr. Miles at the scene-which Officer Sanchez agreed was a fair and accurate representation of Mr. Miles at the time he was apprehended that morning-showed that Mr. Miles shared the race and gender of the alleged gunman, but the trial judge observed that Mr. Miles's jacket "could be criticized as a blue jacket" as it looked "mostly gray" in the photograph, albeit with a "bluish tint of the gray." Officer Sanchez likewise testified that "[f]rom far away" the jacket in the photograph looked "dark blue" but "right now it's gray, dark gray, " while Officer Davis said it looked "a little green, a little tan." Nothwithstanding these discrepancies, the court found, after crediting Officer Davis's testimony that the photograph did not accurately depict the color of the jacket Mr. Miles was wearing that morning, that Mr. Miles's jacket appeared to the officers to be a "blue Army-type jacket" and that Mr. Miles thus matched the description provided in the call. In the end, any uncertainty on our part that the 911 call from the anonymous "concerned citizen" was "reliable . . . in its tendency to identify a determinate person, " J.L., 529 U.S. at 271, is averted by the trial court's finding-by no means clearly erroneous-that the image in the photograph was distorted. See United States v. Turner, 699 A.2d 1125, 1129 (D.C. 1997) ("[W]e have routinely held that an imperfect description, coupled with close spatial and temporal proximity between the reported crime and seizure, justifies a Terry stop").

         The more difficult question, then, is whether there was sufficient corroborating evidence to allow the police to conclude that the tip was "reliable in its assertion of illegality" and thus to reasonably suspect that Mr. Miles was carrying a gun. J.L., 529 U.S. at 272. This is not the rare type of case in which the substance of the anonymous tip obviates such independent corroboration, see supra note 10, and indeed the government states explicitly in its brief that it is not arguing "that the anonymous 911 call was a sufficient basis, by itself, for the stop." Appellee's Br. 24. Unlike in Jackson v. United States, 109 A.3d 1105, 1106, 1109 (D.C. 2015), where the caller said she had personally seen the suspect take a gun out of his pocket and it "scared the hell out of [her], " the tip here did not indicate that the caller necessarily had observed a crime, and the government accordingly has not portrayed it that way.[12]

         The only material corroborating circumstance was thus Mr. Miles's flight from the police. The touchstone case on the relevance of a suspect's flight in the reasonable suspicion analysis is Illinois v. Wardlow, 528 U.S. 119 (2000). In that case, the Supreme Court held that the defendant's "presence in an area of heavy narcotics trafficking, " combined with the defendant's "unprovoked flight upon noticing the police, " provided a sufficient basis for the police to conduct a Terry stop. Id. at 124. In support of this holding, the Court cited precedent recognizing that "the fact that the stop occurred in a 'high crime area' [is] among the relevant contextual considerations in a Terry analysis, " id. (citing Adams v. Williams, 407 U.S. 143, 144, 147-48 (1972)), and the Court further reasoned that "[h]eadlong flight, " which it called "the consummate act of evasion, " is "not necessarily indicative of wrongdoing" but is "certainly suggestive of such, " id. And although the Supreme Court's reasoning focused only upon these two factors, Henson v. United States, 55 A.3d 859, 868 (D.C. 2012); Wilson v. United States, 802 A.2d 367, 371 (D.C. 2002), the totality of the circumstances in Wardlow also included the fact, mentioned in the Supreme Court's opinion, that when police first saw Mr. Wardlow, he was "holding an opaque bag"-the same bag in which police soon thereafter found an illegal handgun. 528 U.S. at 122.

         Wardlow is factually quite distinguishable from the present case-the most obvious differences being that the defendant in Wardlow was present in a high-narcotics-trafficking area and that there was no anonymous tip in that case. And in keeping with the Supreme Court's reminder that the "words of [its] opinions are to be read in the light of the facts of the order under discussion, " Armour & Co. v. Wantock, 323 U.S. 126, 132-33 (1944), some courts, including this one, have also relied upon the opaque bag as a basis for distinguishing Wardlow from comparable situations.[13] See Gordon v. United States, 120 A.3d 73, 84 (D.C. 2015) (noting that "the accosting officers [in Wardlow] observed more than flight; they saw the suspect 'holding an opaque bag' in 'an area known for heavy narcotics trafficking'") (quoting Wardlow, 528 U.S. at 121-22); United States v. Navedo, 694 F.3d 463, 471 (3d Cir. 2012) (noting that Wardlow was "holding an opaque bag" when police saw him and stating that because police "had every reason to believe that the people assembled on the sidewalk included drug dealers and their customers, Wardlow's flight 'in this context, ' would certainly give rise to a reasonable suspicion that he was fleeing because of what was in the bag" (quoting Wardlow, 528 U.S. at 124)).

         While Wardlow is not directly controlling here, the case makes clear that a defendant's flight can be a relevant factor in the reasonable suspicion analysis. At the same time, as Justice Stevens pointed out in his partial concurrence and dissent, the Court in Wardlow stopped short of endorsing "the proposition that 'flight is necessarily indicative of ongoing criminal activity, '" and "adher[ed] to the view that '[t]he concept of reasonable suspicion is not readily, or even usefully, reduced to a neat set of legal rules, ' but must be determined by looking to 'the totality of the circumstances'" Id. at 126 (Stevens, J, concurring in part and dissenting in part) (quoting Sokolow, 490 U.S. at 7-8) (ellipses and second set of brackets in original; internal cross-reference omitted). The Supreme Court has since emphasized on multiple occasions the ...


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