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Posey v. United States

Court of Appeals of The District of Columbia

February 21, 2019

Deandre J. Posey, Appellant,
v.
United States, Appellee.

          Argued May 15, 2018

          Appeal from the Superior Court of the District of Columbia CF2-4464-15, Hon. Juliet J. McKenna, Trial Judge

          Jennifer Williams, with whom Samia Fam and Shilpa S. Satoskar, Public Defender Service, were on the brief, for appellant.

          Patricia A. Heffernan, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, and Seth M. Gilmore, Assistant United States Attorneys, were on the brief, for appellee.

          Before Blackburne-Rigsby, Chief Judge, Easterly, Associate Judge, and Washington, Senior Judge.

          Washington, Senior Judge

         Following a hearing on his motion to suppress tangible evidence and a stipulated bench trial, appellant Deandre J. Posey was convicted of unlawful possession of a firearm and related offenses. On appeal, Mr. Posey seeks reversal of his convictions on the ground that the trial court erroneously denied his motion to suppress a handgun that was found on his person. He contends that the police lacked reasonable articulable suspicion to conduct a Terry[1] stop, and therefore, his Fourth Amendment rights were violated. For the reasons stated below, we agree with Mr. Posey and reverse his convictions.

         I.

         At the suppression hearing, the government presented the testimony of Metropolitan Police Department Officer Michael Kasco. Officer Kasco testified that he and his partner, Officer Ron Orgel, received a radio run ("lookout") for a robbery at gunpoint in the unit block of M Street N.W. According to Officer Kasco, this first lookout contained a description of the suspect, "a black male dressed in all black." While responding to the scene, officers received a second lookout reporting that "it was a group of black males, and the group was last seen heading towards North Capitol" Street.

         As Officers Kasco and Orgel arrived on the unit block of M Street, they saw "Sergeant Ritchie[] was already on the scene with the complainant." The officers also observed a group of five or more black males mostly dressed in black jackets, on the same block as the complainant and their sergeant, walking towards North Capitol Street. Officer Kasco testified that "[i]t was a group that possibly may have been involved with the robbery" but admitted that the officers did not "know."

         Aware that the patrol was in a predominately African-American neighborhood where groups "typically . . . just scatter" from police, Officer Kasco drove to within fifteen feet of the group that included Mr. Posey. The group briefly stopped, turned, and looked at the marked police cruiser. At the time they approached the group, nothing Mr. Posey did drew any particular attention to him. Officer Kasco testified that he did not observe Mr. Posey exchange anything with other members of the group, make any motions toward or to conceal his waistband, or do anything illegal. Officer Kasco's attention turned from the group to Mr. Posey only after Mr. Posey "took off running" and "Officer Orgel immediately jumped out of the" patrol car in pursuit.[2]

         Shortly thereafter Mr. Posey was apprehended and handcuffed by Officer Orgel because the "lookout was for an armed robbery with a gun." Officer Kasco then came up, conducted a Terry pat down for safety, and found a handgun in Mr. Posey's front waistband. Mr. Posey did not resist and was not identified as the armed robber during a subsequent show-up identification with the victim. According to Officer Kasco, the entire encounter - from the time officers drove up to the scene to the time the show-up identification was conducted - took place within "[f]ive to ten minutes" of the second lookout.

         In denying Mr. Posey's suppression motion, the trial court admitted that it was a close question. First, the trial court recognized that the description of the suspect was "quite vague" and there was a valid concern "about the ability of the police to act on such a generalized description." It determined, however, that the particular circumstances of this case were sufficient to overcome such vagueness because Mr. Posey was located "a block away, within five to ten minutes after the crime had been reported." The trial court then found that Mr. Posey was the only member of his group to flee when officers arrived "in their marked squad car in full uniform," without any "demonstration that it was their intent to approach that group of individuals." Based on these facts, the trial court made the "difficult" determination that there was reasonable articulable suspicion for the police to stop Mr. Posey on suspicion of robbery.

         Following the suppression hearing, Mr. Posey entered into a stipulation agreement admitting to the facts related to the handgun found on his person during the stop. As a result of the stipulation, Mr. Posey was found guilty of four ...


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