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United States v. Johnson

United States District Court, District of Columbia

February 4, 2019

UNITED STATES OF AMERICA
v.
HARSHIA JOHNSON, Defendant.

          MEMORANDUM OPINION RE DOCUMENT NO. 11

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

         Granting Defendant's Motion to Suppress Physical Evidence

         I. INTRODUCTION

         In the 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.

         For 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.

         II. FACTUAL BACKGROUND

         At 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.

         Officer 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.

         The 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 2:08.

         Johnson 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 soon 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.

         After 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.

         Presently 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.”[1] E.g., Utah v. Strieff, 136 S.Ct. 2056, 2061 (2016) (quoting Segura v. United States, 468 U.S. 796, 804 (1984)).

         III. ANALYSIS

         The 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).

         “Typically, ‘[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)).

         As 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 poisonous tree.

         In 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 ...


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