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United States v. Wills

United States District Court, District of Columbia

August 8, 2018

UNITED STATES OF AMERICA
v.
DERRICK WILLS, Defendant.

          OPINION AND ORDER

          PAUL L. FRIEDMAN UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on defendant Derrick Wills' motion [Dkt. No. 12] to suppress statements and motion [Dkt. No. 13] to suppress tangible evidence, both filed on June 5, 2018. The government filed an omnibus opposition [Dkt. No. 17] to the motions to suppress on June 18, 2018. On July 11, 2018, the Court held a hearing on the motions. The government presented two witnesses - Officer Krishaon Ewing and Officer Dmitry Gendelman. And both parties submitted evidence, including a No. of video recordings from officers' body-worn cameras, and made further arguments in support of their positions. Upon consideration of the testimony and evidence presented at the hearing, the written and oral arguments of the parties, and the entire record in this case, the Court will grant both motions to suppress.[1]

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On the afternoon of February 3, 2018, Metropolitan Police Department (“MPD”) officers were patrolling the 2300 block of Good Hope Court in Southeast Washington, D.C. During this routine patrol, Officers Krishaon Ewing, Herman Kelly, and David Whitehead were riding as passengers in a marked police car driven by Officer Lavon Woods. According to Officer Ewing's testimony, the officers spotted three men, two of whom the officers suspected were drinking open containers of alcohol because the men were drinking from red “Solo-style” cups. Mr. Wills was the third man, not drinking from a red cup.

         Officer Ewing testified that, upon seeing the police car drive closer to the group, Mr. Wills turned and started to walk away, toward the exit of the apartment complex. Officer Ewing initially testified that “[o]nce we stopped the vehicle, [Mr. Wills] was looking over his shoulder at [the police car]” and only when Officer Ewing exited the vehicle did Mr. Wills begin to flee, running while holding his waistband. But when confronted with the footage from his own body-worn camera, Officer Ewing acknowledged that Mr. Wills “was running when [Officer Ewing] got out of the car.”

         In any event, Mr. Wills ran and Officers Ewing, Kelly, and Whitehead pursued him on foot, while Officer Woods circled around in the police car. Officer Ewing testified that, because of the way Mr. Wills held his waistband with his right hand as he ran, with his left arm swinging, he believed that Mr. Wills had a firearm on his person. He explained that he based this belief on his prior experiences as an officer in similar situations, where a defendant had run while carrying a firearm in his waistband without a holster. Officer Ewing pursued Mr. Wills through the apartment complex, following him through two covered apartment building walkways. Officer Ewing testified that, as Mr. Wills turned corners during the pursuit, Officer Ewing would momentarily lose sight of him. In particular, as Mr. Wills exited the second covered walkway and turned to the left, Officer Ewing lost sight of him until Officer Ewing also exited the covered walkway. According to the footage from his body-worn camera, Officer Ewing drew his gun when he lost sight of Mr. Wills, before Officer Ewing exited the second covered walkway. Officer Ewing testified that, as he emerged from the second covered walkway, he heard a “metallic object hit the wall” of the apartment building. He then saw Mr. Wills continuing his flight, no longer clutching his waistband. In addition, Officer Ewing observed Mr. Wills' hand “coming down from . . . a curved shape, ” as if “coming back from a tossing motion.” Officer Ewing did not see any object in Mr. Wills' hand. Because of Mr. Wills' gait, his arm movements, and the metallic noise, Officer Ewing testified that, based on his experience as a police officer, he believed Mr. Wills had thrown a gun against the building after he exited the second covered walkway. At that point, Officer Ewing alerted the other officers to this belief and used the police radio to broadcast the code word for “firearm.”

         Shortly after exiting the second covered walkway, Officer Ewing caught up to Mr. Wills and forcibly stopped him by pushing him into the patrol car being driven by Officer Woods. Mr. Wills crashed into the car and then fell to the pavement, sustaining abrasions to his head and the palms of his hands. Officer Ewing directed the other officers to search the bushes lining the wall of the apartment building for the firearm. After he assisted Officer Woods to handcuff Mr. Wills, Officer Ewing went over to join the search himself. Less than two minutes later, other MPD officers, including Officer Dmitry Gendelman, arrived on the scene. Officer Gendelman testified that, upon his arrival, he volunteered to assist Officer Woods with standing-up and supervising Mr. Wills, who was now handcuffed with his hands behind his back, while the other officers joined the search for the firearm. After helping Mr. Wills to his feet, Officer Gendelman immediately unzipped Mr. Wills' backpack, still attached to Mr. Wills' back, and searched its contents. During his testimony, Officer Gendelman explained that he was looking for contraband, including a potential firearm. During this time, Officer Woods questioned Mr. Wills, asking whether he lived on the premises, whether he had any identification, and whether he needed medical attention for his abrasions. As a result of the search of Mr. Wills' backpack, Officer Gendelman found a clear plastic bag containing approximately three ounces of a green leafy substance, later determined to be marijuana, as well as a digital scale.

         During and after the search of his backpack, Mr. Wills appeared quite concerned about what Officer Gendelman had discovered in the backpack and made multiple related incriminating statements, such as “You seen what's in my bag. That's why I ran.” In addition, while Officer Woods continued to ask Mr. Wills questions to elicit booking information, Officer Gendelman asked him, “You throw something or no?” Mr. Wills responded to Officer Gendelman's question by stating: “Man, look, I only threw a knife, that's what I'm telling you.” At the time he made these statements, Mr. Wills had not been given Miranda warnings.

         Mr. Wills was subsequently indicted and now faces three criminal charges: (1) unlawful possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1); (2) unlawful possession with intent to distribute marijuana, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D); and (3) use of a firearm during a drug trafficking offense, 18 U.S.C. § 924(c)(1). In the instant motions, Mr. Wills seeks to suppress the contents of his backpack, as well as his statements regarding its contents, as fruit of an illegal search in violation of the Fourth Amendment. He also seeks to suppress his admission to throwing a knife as a violation of Miranda and the Fifth Amendment.

         II. ANALYSIS

         A. Suppression of Backpack Contents

         The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” See U.S. Const. amend. IV. Because warrantless searches are presumed to be unreasonable, law enforcement officers generally must first obtain a judicial warrant before searching a person or a person's property for evidence of criminal wrongdoing. See Riley v. California, 134 S.Ct. 2473, 2482 (2014). In the absence of a judicial warrant, a search will be deemed reasonable only if it falls within a specific exception to the warrant requirement. See id.; see also United States v. Vinton, 594 F.3d 14, 19 (D.C. Cir. 2010) (Generally, searches “conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well delineated exceptions.” (quoting Minnesota v. Dickerson, 508 U.S. 366, 372 (1993))).

         The government argues that multiple exceptions to the warrant requirement are applicable to the facts presented here. First, the government argues that the police officers had reasonable suspicion justifying an investigatory stop of Mr. Wills and a search of his backpack under Terry v. Ohio. See Opp'n at 4-7. Second, the government asserts that the officers had probable cause to believe that a crime had been committed at the time of the search and, as a result, the search of Mr. Wills' backpack was a permissible search incident to lawful arrest. See Id. at 7-9. Finally, the government maintains that even if the search of Mr. Wills' backpack was neither a lawful Terry search nor a search incident to a lawful arrest, the firearm inevitably would have been discovered once the officers found the gun in the bushes and thus had probable cause to arrest Mr. Wills - they then permissibly could have searched him incident to arrest. See Id. at 9-11. For the following reasons, the Court concludes that none of these exceptions applies here. As a result, the contents of Mr. Wills' backpack must be suppressed.

         1. Search of Backpack Not a Valid Terry Search

         As one exception to the Fourth Amendment's warrant requirement, officers may conduct a brief investigative “Terry stop” when they have a “reasonable, articulable suspicion that criminal activity is afoot.” See Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)); see also Navarette v. California, 134 S.Ct. 1683, 1687 (2014). The “reasonable, articulable suspicion” required to justify a Terry stop is only “a ‘minimal level of objective justification' - a standard significantly lower than the probable cause required for a warrant.” See United States v. Goddard, 491 F.3d 457, 460 (D.C. Cir. 2007) (quoting INS v. Delgado, 466 U.S. 210, 217 (1984)). Furthermore, where an officer conducting a Terry stop “has reason to believe, based on ‘specific and articulable facts taken together with rational inferences from those facts,' that ‘[the officer] is dealing with an armed and dangerous individual, '” then the officer may conduct a “protective frisk.” See United States v. Holmes, 385 F.3d 786, 789 (D.C. Cir. 2004) (quoting Terry v. Ohio, 392 U.S. at 21, 27). Such a frisk is initially limited to an exterior “pat-down.” See Terry v. Ohio, 392 U.S. at 29-30; see also United States v. Holmes, 385 F.3d at 789; United States v. Most, 876 F.2d 191, 195 (D.C. Cir. 1989). The protective frisk must be “strictly ‘limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.'” See Minnesota v. Dickerson, 508 U.S. at 373 (quoting Terry v. Ohio, 392 U.S. at 26). Only if an officer, in the course of a permissible frisk, feels an object that is immediately recognizable as contraband may the scope of the search then be expanded to permit seizure of the contraband. See Minnesota v. Dickerson, 508 U.S. at 375.

         Crediting the officers' testimony, the Court has little doubt that the officers acted reasonably in pursuing and stopping Mr. Wills in light of the circumstances confronting them. At the time Officer Gendelman searched the backpack, Mr. Wills was validly detained in a Terry seizure of his person, justified by reasonable suspicion.[2] His flight from the police, together with Officer Ewing's observations during the course of his pursuit, supported an objectively reasonable suspicion of criminal activity - namely, that Mr. Wills had unlawfully possessed a firearm and attempted to evade police and throw the firearm away as he fled. Similarly, these observations gave the officers reasonable suspicion that Mr. Wills might be armed and dangerous, thus justifying a protective Terry frisk for weapons.

         The government contends that Officer Gendelman's search of the backpack was a permissible search for weapons under Terry. It argues that “[a] Terry pat-and-frisk need not be limited to a Defendant's person.” See Opp'n at 5 (citing United States v. Holmes, 385 F.3d at 789). But the cases cited by the government, including United States v. Holmes, indicate precisely the opposite. Absent exigent circumstances, a permissible frisk of a bag or backpack must begin with an exterior pat-down of the bag or backpack; only if an officer plainly feels an item that is immediately recognizable as a weapon or other contraband may any further search or seizure be reasonable. See United States v. Leo,792 F.3d 742, 749 (7th Cir. 2015) (“Leo concedes that, under Terry, the officers lawfully could have patted down the backpack to search for weapons.”); United States v. Hernandez-Mendez,626 F.3d 203, 213 (4th Cir. 2010) (exterior feeling of purse not unreasonable Terry frisk); United States v. Muhammad, 463 F.3d 115, 123-24 (2d Cir. 2006) (exterior pat-down of gym bag not unreasonable Terry frisk); United States v. Adamson, 441 F.3d 513, 521 (7th Cir. 2006) (exterior pat-down of effects in pillowcase bundle not unreasonable Terry frisk); United States v. Holmes, 385 F.3d at 789-91 (removal of scale from defendant's parka pocket lawful only after officer felt a “hard, ” “square object” in the pocket during reasonable Terry pat-down); cf. United States v. McClinnhan, 660 F.2d 500, 503-04 (D.C. Cir. 1981) (exigent circumstances exception justified warrantless search of briefcase because officers “had no suitable or safe alternative”), abrogated on other grounds by United States v. Thompson, 234 F.3d 725 (D.C. Cir. 2000). But that is ...


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