United States District Court, District of Columbia
OPINION AND ORDER
L. FRIEDMAN UNITED STATES DISTRICT JUDGE.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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
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.
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.
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
Suppression of Backpack Contents
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))).
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.
Search of Backpack Not a Valid Terry Search
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.
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. 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.
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 ...