United States District Court, District of Columbia
MEMORANDUM OPINION RE DOCUMENT NO. 11
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
Defendant's Motion to Suppress Physical Evidence
early morning hours of May 6, 2018, Officers Dennis Sfoglia
and Nizam Ahmed of the Washington, D.C. Metropolitan Police
Department (“MPD”) arrived at the scene of a
suspected drive-by shooting to find Defendant Harshia Johnson
lying in the street. By the time the officers had gotten out
of their squad car, Johnson was on his feet and walking away,
but the officers noticed that he was leaning slightly to his
left and that his left arm was tucked against his side.
Fearing that Johnson may have been shot, the officers'
initial response was perfectly sensible. They approached
Johnson and instructed him to come toward them, which he did.
They asked Johnson if he had been shot; he responded that he
had not. They looked at Johnson's hands and arms; they
saw no signs of a gunshot wound. Nonetheless, within seconds,
instead of asking Johnson additional questions to ensure he
was uninjured, one of the officers proceeded to grab and pull
on Johnson's left arm-the arm that was pressed against
his side. Eventually, the officer succeeded in moving
Johnson's arm outward and away from his body, which
exposed Johnson's inner jacket pocket, as well as the gun
held inside of it.
purposes of the Fourth Amendment, this was a search-and one
that, as the Court will explain below, lacked objective
justification. Indeed, the government has failed to
demonstrate that the search was a reasonable exercise of the
officers' community caretaking functions, or that it was
based on a reasonable suspicion that Johnson was armed and
dangerous. The Court therefore concludes that the search was
unconstitutional and grants Johnson's motion to suppress
all physical evidence subsequently obtained.
around 1:10 am on May 6, Officer Sfoglia and Officer Ahmed
were in their squad car when Officer Ahmed received a
notification on his phone from an installed Shot Spotter
application, designed to alert MPD officers when the sounds
of gunshots have been detected in their assigned areas of
patrol. See Rough Transcript of Nov. 18, 2018
Hearing (“Hearing Tr.”) at 6, 8, 11. This
particular alert indicated that three distinct shots had been
heard on the 3700 block of Horner Place SE-just a few blocks
away from Officer Sfoglia and Officer Ahmed's location at
the time. Id. at 14-15. Then as the officers began
to drive to Horner Place, they received a radio call from
their district dispatcher reiterating that three gunshots had
been detected on Horner's 3700 block. Id. at
14-17; Audio of Radio Call, Gov't's Ex. 5. The
dispatcher added that, based on the Shot Spotter
application's sensors, the source of the gunshots
appeared to be moving at twenty-eight miles per hour,
indicating that this had been a drive-by. Hearing Tr. at 17;
Audio of Radio Call, Gov't's Ex. 5.
Sfoglia and Officer Ahmed arrived at the scene within a few
minutes, and as they pulled up, they claim to have seen a
man-later identified as Harshia Johnson-lying in the street
and “in the process of getting up.” Hearing Tr.
at 18; see also Id. at 50. For purposes of
Johnson's motion to suppress, this is the only factual
issue in dispute: Johnson denies ever being on the ground.
See Id. at 52-54, 63. Both Officer Sfoglia's and
Officer Ahmed's body camera footage from this time is
available, but it is of no use on this issue because, as both
officers were still seated in the squad car at the time, the
footage shows only the car's interior.
body camera footage does, however, make clear that, by the
time the officers exited the car, Johnson was on his feet and
walking away from them across the street. See Ahmed
Body-Worn Camera Footage (“Ahmed BWC”) at
2:00-2:04, Gov't's Ex. 2. Johnson was, according to
Officer Ahmed's later testimony, leaning slightly to his
left and holding his left forearm at roughly a ninety
degree-angle, with his left elbow tucked closely to his side.
See Hearing Tr. at 20. As Officer Ahmed put it,
“it appeared as if [Johnson] was shot in the
arm.” Id. At this time, the body camera
footage shows that Officer Sfoglia began to follow Johnson
across the street and said, “Yo, come here for a
second.” Ahmed BWC at 2:00-2:04. Officer Ahmed, who was
walking behind Officer Sfoglia, then briefly shined his
flashlight on Johnson, and as he did so, Officer Sfoglia
said, “Hey”-raising the volume of his voice a
touch. Id. at 2:04. As Johnson began to turn around,
Officer Sfoglia repeated, “Come here.”
Id. at 2:05. Johnson responded by taking a few steps
toward the officers, during which time Officer Sfoglia said,
“Let me see your hands, ” following up a second
later with, “Did you get shot?” Id. at
responded, “No, I didn't, ” and he and
Officer Sfoglia continued to walk toward one another.
Id. at 2:08-2:10. By the time Officer Sfoglia
replied, “You didn't?, ” he and Johnson were
just a few feet apart. Sfoglia Body-Worn Camera Footage
(“Sfoglia BWC”) at 00:15, Gov't's Ex. 1.
Officer Ahmed joined them within a couple of seconds and
stood to Officer Sfoglia's left. See Ahmed BWC
at 2:14. In compliance with Officer Sfoglia's earlier
instruction, Johnson had stretched out his right hand so that
the officers could examine it. Sfoglia BWC at 00:16. He was
wearing an unzipped, black leather jacket over a black
t-shirt. Officer Sfoglia briefly put his left hand on the
outside of Johnson's jacket at the right bicep, looked at
the right hand, then pointed to Johnson's left arm, and
repeated, “Let me see your hand.” Id. at
00:16-00:20. Johnson responded by turning his body so that
Officer Sfoglia could see his left side. Id. at
00:20-22. His left arm remained in the same position the
officers had noticed when they got out of their car-elbow
tucked into his side and forearm at roughly a ninety-degree
angle. Ahmed BWC at 2:15-2:16. With his hand unclenched and
resting several inches in front of his abdomen, it was as if
Johnson was wearing an invisible sling. Id.
as Johnson showed his left arm, Officer Sfoglia began pulling
on Johnson's jacket sleeve at the wrist while Officer
Ahmed shined his flashlight on Johnson's left side.
Id. at 2:16. Johnson resisted this pulling and kept
his arm in the same position, after which Officer Sfoglia
asked, “You can't put the hand down?”
Id. at 2:17. Officer Sfoglia continued to tug at
Johnson's sleeve, and eventually, Johnson's arm moved
outward. Id. at 2:17-2:19. When Johnson's arm
shifted, the area on his left side between his jacket and
shirt became visible to Officer Ahmed. His flashlight still
on, Officer Ahmed's eyes “locked onto the handle of
[a] gun” held in Johnson's inner jacket pocket.
Hearing Tr. at 24; Ahmed BWC at 2:18-2:19. As this happened,
the pulling on Johnson's sleeve also caused his torso to
rotate to his left, exposing the inside of Johnson's left
side to Officer Sfoglia. Ahmed BWC at 2:18-2:20. Noticing
Officer Ahmed's reaction, Officer Sfoglia looked down,
saw the gun himself, and yelled “gun” four times.
Id. The two officers then together took Johnson to
the ground and arrested him. Id. at 2:25-2:26.
the officers handcuffed Johnson, they recovered the gun that
they had spotted-a loaded Glock 19, 9mm semi-automatic
pistol. See Indictment at 1, ECF No. 1. Johnson also
later underwent a search incident to his arrest, during which
a pill bottle containing multiple clear bags of cocaine was
found on his person, in addition to around 370 dollars in
cash. Ultimately, Johnson was indicted on three counts: (1)
unlawful possession of a firearm and ammunition by a person
convicted of a felony, in violation of 18 U.S.C. §
922(g)(1); (2) possession with intent to distribute cocaine
base, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C); and (3) using, carrying, and possessing a firearm
during a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1). See Indictment at 1-2.
before the Court is Johnson's motion to suppress all
physical evidence seized during his encounter with the police
on May 6. As Johnson sees it, Officer Sfoglia and Officer
Ahmed violated his Fourth Amendment rights when they stopped
and searched him on the street without a warrant. Johnson
therefore contends that the gun that was recovered must be
excluded, because it constitutes evidence obtained as a
direct result of the officer's illegal actions. And
because the gun is what provided the officers probable cause
to arrest him, Johnson argues that the arrest was illegal
too, meaning the evidence recovered during his arrest-the
pill bottle, drug evidence, and cash-must be excluded as
“fruit of the poisonous tree.” E.g.,
Utah v. Strieff, 136 S.Ct. 2056, 2061 (2016)
(quoting Segura v. United States, 468 U.S. 796, 804
Fourth Amendment guarantees the “right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S.
Const. amend. IV. Violations of this guarantee are generally
subject to the exclusionary rule, which requires courts to
suppress evidence obtained through unconstitutional means.
E.g., United States v. Weaver, 808 F.3d 26,
33 (D.C. Cir. 2015) (citing Mapp v. Ohio, 367 U.S.
643, 655 (1961) and Weeks v. United States, 232 U.S.
383, 398 (1914)). When it applies, “the exclusionary
rule encompasses both the ‘primary evidence obtained as
a direct result of an illegal search or seizure' and . .
. ‘evidence later discovered and found to be derivative
of an illegality,' the so-called ‘fruit of the
poisonous tree.'” Strieff, 136 S.Ct. at
2061 (quoting Segura, 468 U.S. at 804).
‘[t]he proponent of a motion to suppress has the burden
of establishing that his own Fourth Amendment rights were
violated by the challenged search or seizure.'”
United States v. Jones, 142 F.Supp.3d 49, 56 (D.D.C.
2015) (alteration in original) (quoting Rakas v.
Illinois, 439 U.S. 128, 130 n.1 (1978)). But when a
defendant has been seized or searched without a warrant,
“the burden shifts to the government to justify the
warrantless” action. Id. (quoting United
States v. Jones, 374 F.Supp.2d 143, 147 (D.D.C. 2005)).
This is because “searches and seizures conducted
outside the judicial process, without prior approval by judge
or magistrate, ” are usually deemed “per
se unreasonable” for purposes of the Fourth
Amendment- “subject only to a few specifically
established and well delineated exceptions.” United
States v. Vinton, 594 F.3d 14, 19 (D.C. Cir. 2010)
(quoting Minnesota v. Dickerson, 508 U.S. 366, 372
(1993)). And the burden is on the government to establish
that its claimed exception, or exceptions, apply. See
Jones, 142 F.Supp.3d at 56 (citing United States v.
Jeffers, 342 U.S. 48, 51 (1951)).
already noted, Johnson's motion here focuses entirely on
the events preceding his arrest. He contends that Officer
Sfoglia and Officer Ahmed violated his Fourth Amendment
rights when they seized him on the street and searched him
without a warrant. But he argues that the exclusionary rule
requires that the Court suppress all of the physical evidence
that the police obtained from him. The gun, Johnson asserts,
is primary evidence obtained directly from the illegal
conduct, while the remaining evidence-the pill bottle, the
drug evidence, and the cash- constitute fruit of the
response, the government argues that two different exceptions
justify the officers' conduct during their initial
interaction with Johnson. The first is the infrequently
invoked “community caretaking exception, ” which
has been described, in general terms, as “a
catchall” that can be used to justify police action
taken pursuant to the “wide range of responsibilities
that . . . officers must discharge aside from their criminal
enforcement activities.” Matalon v. Hynnes,
806 F.3d 627, 634 (1st Cir. 2015) (quoting United States
v. Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir.
1991)). The second is the far more familiar Terry
exception, which permits a police officer to (1) briefly stop
and detain a person for investigative purposes if the officer
has a reasonable suspicion that “criminal activity may
be afoot, ” and (2) conduct a limited pat-down search